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Decision Due on Anti-Solicitation

Town Awaits judge's written ruling.

The fate of Herndon’s ordinance barring informal work solicitations in public areas is hanging in the balance as town officials await a court ruling on its constitutionality.

The decision, which is expected in as little as a week, will come from Fairfax County Circuit Court Judge Leslie Alden, who heard attorneys argue its constitutional validity on June 28 during an appeal of the trial of Reston resident Stephen Thomas, accused of violating the ordinance in September 2006.

If Alden rules in favor of Thomas, the ordinance would be ruled unconstitutional and could no longer be enforced in Herndon. Written by Herndon town attorney Richard Kaufman, the ordinance was introduced to Herndon in December 2005 with the establishment of the Herndon Official Workers Center.

Attorneys for Thomas have argued that the charge should be dismissed because the ordinance impedes his right to free speech protected by the U.S. constitution. The argument failed to convince Fairfax County General District Court Judge Lorraine Nordlund during Thomas’s first court date in March, as she ruled in favor of the town.

In her decision, Nordlund cited the existence of an organized day labor site in Herndon as "perhaps the strongest" reason for her decision.

The attorney representing Thomas then filed that appeal.

While Fairfax County General District Court rulings do not set precedents for future rulings, the decisions made by Fairfax County Circuit Court are applicable to other cases.

THE ARGUMENT HEARD during the appeal focused on the Town of Herndon’s right to impose restrictions to certain kinds of speech.

Alexa Mosley, the attorney representing Thomas from the Fairfax-based law firm Leffler & Hyland, argued that the ordinance was vague in that it did not cite specific areas where work solicitations should be considered illegal. Mosley also attempted to demonstrate that by unfairly denying certain people their right to free speech based on secondary negative effects may lead to further restrictions on political or commercial speech in town if it is deemed that they also generate similar effects.

Atticus Reaser, the attorney who represented the Town of Herndon from Arlington-based law firm Capsalis, Bruce & Reaser, PLC, argued that the ordinance is a justifiable limit to some speech, as it is in place to enhance public safety.

"We’re trying to address the undesirable effects of employment solicitation," said Reaser in his defense of the ordinance. "This is why we have limited that type of speech in certain areas … this is singling out one type of conduct that results in these secondary negative effects."

Those secondary effects are traffic safety concerns, citizen inconvenience and visual blight, he added. As evidence of this justification, Reaser called attention to a New York court decision that allowed for city officials to ban strip clubs to certain neighborhoods due to the unsavory secondary effects that they may bring to the community.

Reaser also pointed to the existence of the Herndon day labor site as a location where workers are allowed to exercise their right to solicit work.

"If we had banned work solicitation wholesale, there would be a huge problem," he said. "But with the presence of an organized site, workers have a place to go to openly solicit employment."

HERNDON MAYOR Steve DeBenedittis, Herndon Official Workers Center director Bill Threlkeld, Herndon town manager Art Anselene and Kaufman were among those in attendance during the appeal.

"I think [Reaser] did a fantastic job of arguing the case … he had a lot of great points from other cases and made a solid statement of support for the ordinance," DeBenedittis said. "I feel really good about it and I think we’ll get the same decision as we saw last time."

While Kaufman declined comment on an ongoing case, he said that he expects a decision from Alden in "10 to 14 days" from the close of the trial.

Thomas was arrested by the Herndon Police Department for violation of the ordinance on the 1100 block of Elden Street on Sept. 16 after he asked a man at a 7-Eleven for help doing yard work, according to court records. In his March trial, he was found guilty of the Class II misdemeanor and fined $100.

A similar ordinance passed in Redondo Beach, Calif., a Los Angeles suburb, was repealed last year after a federal judge ruled it unconstitutional for illegal limitations to free speech.