Phoenix City Council Strikes Down Ordinance Prohibiting the Handing Out of Free Bottled Water Without a Vendor Permit

City council members in Phoenix have struck down an ordinance which prohibited people from handing out free drinking water in public, following a public backlash against the policy. The issue arose in the wake of The Rutherford Institute’s defense of a Phoenix resident who was told she could not hand out free bottles of cold water to passersby on a public sidewalk during a “First Friday” festival as a means of exercising her Christian beliefs. In July 2012, a Neighborhood Preservation Inspector with the City of Phoenix informed Dana Crow-Smith that she was violating the Phoenix City Code by passing out free bottles of water without a vendor’s permit. Rutherford Institute attorneys deemed the City’s actions to be problematic on numerous fronts, pointing out that not only was the ban on passing out free water completely unjustified under the City Code, but it also constituted a violation of Crow-Smith’s First Amendment right to freely exercise her religion, her Fourteenth Amendment due process rights, as well as Arizona’s Free Exercise of Religion Act. After a public backlash, the City Council voted unanimously to create an exception to the city’s policy of requiring a Mobile Vendor Permit for persons selling or handing out goods on public streets.

“This victory in Phoenix shows that one person can stand up and change government for the better,” said John W. Whitehead, president of The Rutherford Institute. “This is proof that the democratic process not only can work but is working, provided that Americans care enough to take a stand and make their discontent heard. The best way to ensure that your government officials hear you is by never giving up, never backing down, and never remaining silent. As Samuel Adams pointed out, ‘It does not require a majority to prevail, but rather an irate, tireless minority keen to set brushfires in people’s minds.’”

Dana Crow-Smith, a Christian, was assembled with other Christians at a Phoenix “First Friday” festival in July to publicly express her Christian faith and engage willing passersby in conversations about their religious beliefs. Having read a Bible passage referencing the importance of small acts of kindness such as offering water to the thirsty (Matthew 10:42), Crow-Smith was further moved to offer cold bottles of water to people at the Festival who were braving the desert’s scorching 112-degree heat. However, during the festival, Crow-Smith was approached by a Neighborhood Preservation Inspector who informed the group that they were violating the Phoenix City Code by giving away water without a vendor’s permit. Although Crow-Smith protested that a vendor’s permit should not be required of citizens who merely sought to offer water as a free gift, the inspector insisted that the City Code prohibits “sidewalk vending” without a license agreement. “Sidewalk vending” is defined in the Code as “peddling, vending, selling, displaying, or offering for sale any item of tangible personal property or other thing of value upon a sidewalk of the City of Phoenix.” In challenging the City’s assertions, attorneys for The Rutherford Institute pointed out that as these provisions are expressly limited to the sale of goods, they clearly do not apply to Crow-Smith’s act of charitably giving away water. Initially, City Manager David Cavazos doubled down on the policy, claiming that prohibiting Crow-Smith from giving out water was an issue of “fairness” for other persons selling or giving out wares and goods at the First Friday festival. However, following a public backlash, Phoenix Mayor Greg Stanton asked policy makers to review the ordinance. In doing so, City Council members struck down the prohibition against handing out free drinking water in public.

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