County gives nod to new handbill ordinace

Adrienne Packer

Wednesday, May 5, 1999 | 10:46 a.m.

Admitting a revised ordinance banning the distribution of commercial handbills on the Strip could be ruled unconstitutional, the Clark County Commission still unanimously approved the law Tuesday.

But it wasn't only the commissioners' decision that baffled civil rights experts who guaranteed the new ordinance would be struck down in District Court.

In their motion, commissioners asked county attorneys to draft another law that follows an appeals court's recommendation to restrict the time, place and manner in which handbills can be passed out to tourists.

"This way in case we do lose, we'll have something in place at the time the judge makes his ruling," Commissioner Yvonne Atkinson Gates said.

American Civil Liberties Union attorney Allen Lichtenstein said it was clear during the hourlong discussion Tuesday that commissioners were aware the proposed ordinance was ambiguous and therefore unconstitutional.

"Frankly, most if not all of them know it will not withstand constitutional scrutiny," Lichtenstein said. "That's your tax dollars and my tax dollars at work."

The county has struggled for years to develop an ordinance that would keep handbill distributors -- more specifically smut peddlers -- away from visitors on Las Vegas Boulevard.

The county cannot control the content of the pamphlets without violating free-speech laws.

Commissioners have insisted their intent is not to censor the pamphlets, but to stop aggressive distributors from harassing tourists, obstructing crowded sidewalks and littering.

"We owe it to the public to keep addressing this problem until we find a solution to it," Commissioner Mary Kincaid said.

Representatives from the district attorney's office told commissioners the first ordinance, which passed in 1997, was lawful. They said the opinion of the 9th U.S. Circuit Court of Appeals judge who ruled the ordinance was unconstitutional differed from other judges.

The judge said the ordinance was too vague and suggested the county set time and place restrictions. He rejected the county's appeals for a rehearing.

County attorneys said Tuesday that if the ordinance was brought before a different judge, the county might be more successful.

"It is impossible for us to tell you whether this particular ordinance will pass the constitutional muster," Michael Davidson, assistant district attorney, said. "We ran into a particularly difficult judge ... this will satisfy about any other judge that will look at it."

ACLU representatives said lawyers juggled language around in the ordinance, but its deficiencies are the same. The county is controlling content by distinguishing between commercial and noncommercial leaflets, they said.

"If you approve the ordinance it will be struck down and it will not keep a single person off the street, period," said Gary Peck, executive director of the ACLU of Nevada. "I was right the last time and I'm right this time."

Davidson said, however, there is a distinction between free speech and commercial speech. And, he said, the county addressed issues of vagueness by narrowing the definition of Resort Corridor -- the targeted stretch of the Strip.

The ordinance approved Tuesday doesn't keep the county out of court; the ordinance simply replaces the first in the legal proceedings. The county eventually will make its case for the law.

"We'll be in court on the new one; we'll be in court regardless," Deputy District Attorney Robert Gower said.

The county chambers seemed at times like a courtroom Tuesday, with presentations to commissioners offered by independent lawyers, ACLU attorneys and counsel for Strip resorts and the county. Gower slipped twice, calling commissioners "your honor."

Todd Bice, who represents Strip casinos, even provided four volumes of affidavits that recount encounters with pamphlet distributors in front of resorts.

Solutions pitched to the commission ranged from providing more trash bins for the pamphlets to Libertarian Party Chairman Chris Azzaro's suggestion that brothels should be legalized in Clark County.

"That is the only way we can rid ourselves of these so-called smut peddlers," Azzaro said.

Reno, he said, doesn't have the same leaflet problems as Las Vegas.

Commissioner Erin Kenny said she initially leaned toward voting against the ordinance, but decided to support it because of public safety issues.

"This is real. Everyone has experienced the unpleasantness on the Strip," she said. "We should give this one last try."