Judge says Handbill Ban Illegal Waikiki Ordinance Struck Down

By Ken Kobayashi

HONOLULU – Federal Judge Samuel P. King ruled yesterday that the city ordinance banning handbills in Waikiki is unconstitutional. King said such a total ban violates the First Amendment rights of free speech guaranteed the small businesses that challenged the law. He acknowledged the city has a “substantial interest” in maintaining the attractiveness of the Waikiki resort area and that the handbilling ban serves such an interest.

But King ruled that the prohibition goes too far in banning handbillers from all public places in the Waikiki business district.
Although the ordinance permits companies to disburse their handbills from racks, King said “in-person handbilling” is protected under the Constitution. “There is no acceptable alternative,” he wrote.

Mayor Frank Fasi said the ruling means that the city “goes back to the drawing board.”
“We’ll let the lawyers study the decision and see how we can skin a cat, legally and constitutionally. We don’t give up – we’ll find a way.”

City Corporation Counsel Richard Wurdeman said a decision on whether to appeal King’s ruling to the 9th Circuit Court of Appeals or Draft another ordinance will be made later.

Yesterday was the second time the courts here declared that the city’sefforts to ban the Waikiki handbillers were unconstitutional. In 1981, the Hawaii Supreme Court stuck down a city ordinance banning “commercial handbills.” In an effort to meet those constitutional concerns, the City Council in 1982 drafted the current ordinance, which outlaws “promotional” handbilling and provides for dispensing racks.

The ordinance carries a maximum sentence of 30 days in jail and a $300 fine, but has never been enforced because of a federal lawsuit filed by the Waikiki Small Business Association, which has members engaged in handbilling.

Donald Bremner, executive vice president of the Waikiki Improvement Association, called King’s ruling a “terribly devastating development.”

Councilwoman Marilyn Bornhorst, another strong supporter of the prohibition, conceded that the city may not be able to ban the handbillers.

“We may just have to accept that this is what we have to put up with and find other ways to make Waikiki attractive so tourists don’t think they are in Tijuana,” she said.

But Mark Davis, attorney for the Waikiki Small Business Association, said the problems are “significantly less” than during the early 1970s and he heyday of time-sharing sales representatives passing out handbills.

Davis suggested that reasonable regulations could include a ban at busy intersections or a limit to the number of handbillers a company could have on the sidewalks at any one time.

Supporters of the ordinance were encouraged in 1983 when federal Magistrate Joseph Gedan announced that he would uphold the ban. Davis said it was the first time in the nations that a federal court had supported such a prohibition. King yesterday set aside Gedan’s ruling.

contact Mark Davis

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