Limit on Soliciting Work Upheld

By Bill Turque
Washington Post Staff Writer
Thursday, March 22, 2007

A Fairfax County District Court judge upheld Herndon's anti-solicitation ordinance yesterday, finding that the town's prohibition against day laborers and motorists striking deals for employment on the streets does not violate First Amendment rights to free speech.

In a detailed, 45-minute ruling, Fairfax District Judge Lorraine Nordlund said the ordinance cleared constitutional barriers because it was narrowly drawn to address specific and pressing community problems. In this case, town attorneys argued, the issues were traffic hazards, blight and inconvenience caused by motorists stopping to bargain with workers.

"The regulation is justified solely on the basis of these governmental interests," Nordlund said.

The ruling is the latest in a series of court actions across the country addressing similar laws. Some have been overturned. But yesterday's decision was a victory for Herndon officials who have sought to make the town less hospitable to illegal immigrants -- assumed by some town leaders to account for the majority of those seeking work.

Nordlund did note an ironic twist in her ruling. Without the day labor center, established over bitter community opposition by the Town Council in 2005 as an alternative to the streets for workers and employers, her decision would have been different.

"If it were not for the labor center, I would have to strike the ordinance," she said.

Nordlund's ruling comes as the future of the Herndon Official Workers Center is in doubt. Mayor Michael L. O'Reilly and two Town Council members who supported establishment of the center with a grant from Fairfax County were unseated by voters in May 2006. The council, now led by Mayor Stephen J. DiBenedittis, is seeking a new manager for the center because the current operator, the nonprofit group Reston Interfaith, does not require workers to document legal residency. The town's request for proposals from private employment firms yielded no interest.

Yesterday's ruling came in response to a legal challenge by Stephen A. Thomas, 44, a Reston man ticketed by police in September for hiring a laborer in the parking lot of a 7-Eleven on Elden Street, a site heavily used primarily by Latino men seeking work. Thomas was driving home with the worker when he was stopped by Herndon police and cited for violating the ordinance. The worker was not cited.

Thomas's attorney, Alexa K. Moseley of Fairfax, said the ordinance was unacceptable on First Amendment grounds because it carved out a specific kind of speech and banned it on the basis of its content. She argued that it opened the door for the town to haphazardly cite traffic and other problems as justification for banning other kinds of speech.

Deputy Town Attorney Atticus J. Reaser said the ordinance did not target speech. "It's based on public safety, convenience and blight," he said.

Nordlund agreed and found Thomas guilty. He faced as much as six months in jail and a fine of up to $1,000, but Nordlund assessed only a $100 penalty, citing his lack of awareness of the ordinance.

Thomas had no comment after the hearing. Moseley said plans for an appeal were uncertain. DiBenedittis expressed satisfaction with the ruling, calling Nordlund's opinion "well reasoned."

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