Correction to This Article
A Jan. 18 Metro article incorrectly said that a legal challenge filed by a Reston man contesting Herndon¿s anti- solicitation ordinance is a lawsuit. It is a motion to dismiss the man¿s summons for violating the ordinance.

Herndon Anti-Solicitation Law Challenged

By Bill Turque
Washington Post Staff Writer
Thursday, January 18, 2007

A Reston man ticketed by police for hiring a day laborer in the parking lot of a Herndon 7-Eleven is taking the town to court, contending that its anti-solicitation ordinance is unconstitutional.

The legal challenge, filed in Fairfax County District Court, is the newest turn in Herndon's campaign to discourage illegal immigrants from living and finding work in the town of 23,000 near Dulles International Airport. It is also the latest in a series of court actions around the country questioning the legitimacy of similar laws.

According to court documents, Stephen A. Thomas, 44, drove into the parking lot on Elden Street on Sept. 16, got out and approached two men about doing yard work. After reaching agreement with one of them, Thomas was driving home with the worker when he was stopped by Herndon police and cited for violating the ordinance.

He faces up to six months in jail and a fine of up to $1,000. Lt. Jerry Keys, a police spokesman, said yesterday that the laborer in the car with Thomas was not cited, although it was not clear why, other than that the officer involved was exercising his discretion.

Thomas could not be reached for comment.

The ordinance, enacted in September 2005, bars anyone in a vehicle from trying to hire someone standing on the sidewalk or street. Conversely, it prohibits anyone on the street from asking someone in a vehicle -- or who has just gotten out of one -- for work.

Although town officials cited traffic safety as their chief concern, the law was passed in the midst of a debate over the impact of immigrant day laborers, who congregated in the parking lot on Elden Street in the mornings to seek work.

Thomas's attorneys, Rodney G. Leffler and Alexa K. Moseley of Fairfax, asked that the case be dismissed on First Amendment grounds, saying that solicitation has long been protected by the courts as free speech. Specifically, they said Herndon's law is flawed because it focuses only on solicitation for employment, while leaving other forms of solicitation -- such as charitable contributions or the sale of goods -- unrestricted.

Fairfax District Judge Lorraine Nordlund has scheduled a hearing for Feb. 14 but indicated that she could rule earlier based on written arguments. The lawsuit was filed last week.

Herndon Town Attorney Richard B. Kaufman declined to comment. "The Town of Herndon does not comment on ongoing criminal prosecutions," he said.

Vice Mayor Dennis D. Husch said the Town Council can rewrite the ordinance, if necessary.

"We're going to work this through one step at a time, and if we have to modify the language, we'll do what we have to do," he said.

Police figures show a recent spike in anti-solicitation citations, with 51 issued in the past three months, after just 19 in the previous 10 months. It's not clear what is behind the recent increase.

The law was passed several weeks before the opening of the Herndon Official Workers Center, a site created by the town as a gathering place for laborers and those seeking to employ them. The town has said that the existence of the site allows them to bar solicitation for employment on the streets.

Similar laws have been successfully challenged in other court cases. A federal judge in California ruled last May that day laborers in Redondo Beach had the right to look for jobs on public sidewalks. In 2004, city police arrested 60 workers in a sting operation under an ordinance the city passed in 1987 as a traffic control measure.

Last November, a federal judge ruled that officials in the New York City suburb of Mamaroneck had harassed day laborers in a racially motivated attempt to discourage them from seeking work in the streets.

In both cases, the locality involved did not have an alternate site, such as Herndon's worker center, where workers could gather. But the Town Council's recently approved plan to hire a firm that would restrict access to the center to lawful immigrants potentially complicates the town's legal position.

This is the second time in recent days that Herndon's actions have been challenged on constitutional grounds. Last week, state officials informed the town that a law it sought from the General Assembly, authorizing local governments to criminalize the hiring of illegal immigrants, is most likely unconstitutional. State officials said such a measure is preempted by existing federal law.

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