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Court Rules Against Anti-Solicitation Ordinance

Lack of permanent site, limitations to access cited in judge's ruling.

A Fairfax County Circuit Court judge ruled on Wednesday that Herndon's ordinance limiting informal work solicitations violates freedom of speech and due process constitutional rights, striking down the two-year-old measure designed to keep day laborers off of local streets.

Judge Leslie Alden granted a motion to dismiss the case of Stephen A. Thomas, a Reston resident charged with violating the ordinance, as the town had not provided "ample alternative channels ... for all persons" to solicit work freely in town, according to her 11-page opinion.

While Alden believed that the ordinance passed two parts of a "three-prong test" that allows for the "time, place or manner restrictions on protected speech in a public forum," it could not guarantee that all persons had equal right to solicit work freely.

"The Supreme Court established that 'the Fourteenth Amendment to the Constitution is not confined to the protection of citizens,'" Alden wrote, citing a 1982 ruling, "and that the provisions are 'universal in their application, to all persons ... without regard to any differences of race, of color, or of nationality."

RECENT NEWS REPORTS of the Herndon Town Council's efforts to replace the site with a new operator, put the site at risk and affected the ruling, according to the opinion.

"The court must take judicial notice of recent newspaper articles regarding the day labor site, which highlight the tenuous nature of this channel of communication," it read. The site's name as a "temporary day worker site" also played heavily into this decision, according to the opinion.

Herndon town attorney Richard Kaufman, who wrote the ordinance at the request of Herndon's previous Town Council, refused to say whether the town would appeal the decision.

If the decision is appealed, it would move to the state-level Court of Appeals, based in Richmond.

In a press release, Herndon Mayor Steve DeBenedittis said that the town is "reviewing its legal options" and will continue to work to halt the return of congregations of laborers on Herndon's streets.

"The Herndon Town Council continues in its commitment to do whatever is necessary to avoid a return to informal day labor sites on our streets and throughout our town," he said. "Enforcement of the Town's zoning ordinance, cooperative efforts with business community leaders and application of relevant law enforcement procedures are some of the strategies we are currently employing, and will to continue to employ, to ensure that uncontrolled sites do not appear."

The Herndon Police Department is awaiting instructions from Herndon's Town Council to see if it will ask the court for a stay of the ruling to see if it may continue to enforce the ordinance during an appeals process, according to Herndon Police Department spokesperson Lt. Jerry Keys. Kaufman declined to say if the town would appeal the decision.

HERNDON HAD announced on Monday that it would be reviewing a proposal for municipal staff to take over operations of a controversial day labor site in town, seen as integral in upholding the ordinance's legality. The town would act as an interim operator of the site, checking for work authorization status of any participants and using it until an alternative operator is found that would agree to do the same.

The current operator of the site, non-profit organization Project Hope & Harmony, is set to shut down its operations on Sept. 14, after Fairfax County officials terminated its funding as a result of recent council actions to change site operators.

Project Hope & Harmony director Bill Threlkeld said that the group and its volunteers will continue to work with the laborers that are expected to return to the streets in the coming weeks to "mediate interactions" and make sure that local laws like trespassing are understood. The organization will be operating on its own funding, he added.

"Our objective is still going to be what it always has been and that is to mitigate the negative effects of day laborers looking for work," he said. "We'll be there to monitor the workers and to see what is going on and to be helpful with mediating interactions, whether that be with local police, employers, anti-immigrant groups or whoever may be out there."

The most ironic aspect of the ordinance's failure to pass constitutional muster lies in the fact that it was successfully challenged by an employer and a U.S. resident, Threlkeld said.

"Here you have it, in the end, it wasn't workers but an employer who took the town to court," he said. "We've always tried to work with the workers to help them understand the ordinance and get them into the site."

HERNDON'S ORDINANCE forbidding informal work solicitations on town streets, sidewalks and parking lots was passed in 2005 by the previous council in conjunction with the formation of the day labor site. The objective at the time was to address public safety, nuisance and traffic concerns by forbidding workers to solicit work on the street and offering them an alternative gathering spot.

Anti-illegal immigration organizations such as the Minutemen Civil Defense Corps and the local grass roots organization Help Save Herndon opposed the site, saying that it used public funds to benefit illegal immigrants.

Herndon's mayor and most members of its Town Council were elected last May largely based on their opposition to the site's current operations. The Town Council began the process earlier this year of searching for a new day labor site operator that would check for worker authorization status so that the ordinance would remain intact, and undocumented workers would still no longer be able to solicit work on the streets.

To Threlkeld, the tipping point for the legal system was when Herndon's Town Council changed the objectives of the ordinance.

"It appears that once it was converted from a measure meant to improve public safety to a tool that would punish certain people, that's when it crossed the line," he said. "And we are not in support of an ordinance that will be used as a tool to uproot people from their community."