Herndon’s street solicitation ordinance was once again the focus of the Town Council’s Tuesday public hearing as the council members discussed considering an amended ordinance.

During the comments from the council portion of the meeting Councilman Jasbinder Singh made a motion to put an amended version of the street solicitation ordinance on the council’s Feb. 1 and 8 meetings, as well as release the amended version to the public.

At the end of the council’s Jan. 4 work session the council went into closed session with Town Attorney Richard Kaufman to discuss the ordinance and the council’s options. Mayor Steve DeBenedittis said the options presented to them included letting the ordinance stand as is.

The current street solicitation ordinance prohibits people from soliciting goods and services in public right-of-ways such as roads, medians and sidewalks. The newly released amended version of the ordinance defines the public right-of-ways as “motor vehicular travel way(s).”

“It shall not be construed to include a sidewalk, footpath, or utility strip adjacent to the motor vehicle travel way,” the amended ordinance reads. “The word ‘street’ also includes or is supplemented by the definition of ‘highway’ found in Code of Virginia 46.2-100 with this term being understood to exclude sidewalks and utility strips. In any event, ‘street’ excludes the sidewalk and utility strip adjacent to the motor vehicular travel way and includes ‘medians.’”

Singh said the discussion that took place during the closed session on Jan. 4 pertained to traffic safety issues and the council found that people advertising car washes on sidewalks had not caused any accidents during the last 10-15 years.

However, people stepping into the roadway to sell merchandise have the potential to cause serious accidents, Singh said. He said the amended ordinance addresses the real and potential safety issues and it is consistent with state law.

Singh said it will also be likely to stop the lawsuit the town is being threatened with and save thousands in litigation costs. “Mr. Mayor we cannot be cavalier about the potentially high litigation costs,” he said.

Council member Sheila Olem said after speaking with Herndon’s chief of police and talking about the town’s traffic problems with pedestrians, it doesn’t seem there have been any accidents due to people on sidewalks. She said the amended ordinance addresses the public safety issue while still allowing sports boosters to hold car washes. 

Councilman Bill Tirrell said the entire situation and frustration with the ordinance has been dreamt up by an outside organization and he believes they should leave the ordinance alone until 2012. He said he does not respond well to threats, including litigation.

Vice Mayor Lisa Merkel said, “I don’t believe that we should act out of fear of a lawsuit at all." Merkel said the council went into closed session to get legal advice from the town attorney, not to take any action or make any decisions.

Merkel said though he didn’t have to, Kaufman did make a recommendation to the council to consider the amended ordinance. She said she believes it’s in the town’s best interest to discuss it again to hear how people feel, vote and finally put the matter behind the town.

“No one on the dais is certain of how it will come out,” Merkel said. “Once there is a vote I think it will be clear that this council can move forward, no matter what that vote may be.”

Council member Grace Wolf said though she agrees with Tirrell that the ordinance should be left alone until 2012 to see what happens, she is willing to entertain a discussion on it.

Council member Connie Hutchison said the previous council worked had to get the language through general assembly and there were many communities that supported the bill. She said she thinks the ordinance “has been fairly and constitutionally implemented” and revisiting it now is unnecessary.

Singh said he’s looked at other similar ordinances and they are consistent with state law. He said none go into the sort of items that Herndon’s does, creating constitutional issues. He said he isn’t afraid of a lawsuit, but believes it’s important to weigh the cost and benefits of each option.

DeBenedittis said the town’s ordinance follows state law. “Responding to threats is a bad way to make public policy,” he said. He said the reason the council is looking at alternatives is because of a perceived desire from some members of council for alternatives.

DeBenedittis said there isn’t a need to change it and it seems that the council has discussed it at every public hearing over the last six months. He said he thinks reconsidering it is the wrong path to take. “I just want to make it clear that I serve the people of this town and not any other interest groups,” he said.

Merkel said for months the council has heard comments from the public, and many want the town to move on from the issue. She said if it is on the agenda, the council members can formally discuss it themselves, make a decision and move on.

Mayor DeBenedittis made a substitute motion during the meeting to place the amended ordinance on the June 5, 2012 and June 12, 2012 meetings. Tirrell said this would allow the council to see how the ordinance plays out over the next couple years.

The substitute motion to move the item to the June 2012 meetings failed by a vote of 3-4. The original motion to discuss the amended ordinance on Feb. 1 and 8, 2011 passed by a vote of 4-3.