City ordinance trumps U.S. Constitution, Hendersonville police say

City ordinance trumps U.S. Constitution, Hendersonville police say
Evangelist Randy Bane
Zirconia Missionary Baptist Church

The following incident took place between 11:00 am and 12:30 pm, Friday, November 24, 2006 in Hendersonville, North Carolina. We were located on the public right of way, proclaiming the Gospel at a local Wal-Mart Store.

Three men were cited: James Esser, David Bane and Brandon White. They were making a simple statement about Wal-Mart's policies concerning their support of the homosexual agenda, the sale of the “morning after” abortion pill and the un-Christian policies of Wal-Mart. The men were standing on a public sidewalk, out of the way of traffic. They were approached by Hendersonville police officers T. Gabe and N. Smith in a very unfriendly manner and told to put their signs down. They were informed that this was an unlawful assembly and that they would be cited and arrested if they did not do as he said.

Nate Ellis and I were distributing leaflets when the officers came on the scene. Then I came to the aid of these young preachers. They were not preaching, shouting or disturbing the peace, simply holding up signs so people could see. They were told that city ordinance Sec. 46-83 forbade this action. Officer Smith was asked if this ordinance superseded our First Amendment rights. He said, "Yes, this city ordinance goes beyond the Constitution. We are given the right to make our own laws and regulations for the city." I could not believe my ears. So I asked him, “What did you say?” He said, "Yes, our city ordinances are above your constitutional rights." When later he was asked to put this statement on video he refused, but there were five men who heard him make the statement. I asked the officer where this ordinance bans a person from holding up a sign. He then read Sec. 46-83. When I asked for a copy he said, "Go online and get it for yourself. I don't know where you are getting your legal counsel from, but they are wrong."

We moved from our location and went across the street to the private parking lot of Chik Fil-A. As we were standing there discussing what we should do next, a lady drove up and called one of the preachers to her car. She said, "I think you forgot this" and handed him his Bible he had left on the other side of the street. He thanked her. Then a friend whom we had not seen in years pulled into the parking space next to us. He was a law enforcement officer from another county, so we spoke to him about the matter. The manager of the Chik Fil-A then came out to the parking lot where we were standing to ask what was going on. We explained. He said, “I appreciate what you're doing, I am a Christian myself.” We then asked if this was private property and he told us it was. I asked if we could hold the sign off to the side of the road on his property. He said, “There is a grassy spot on the upper side you may go to.”

About that time, officers Gabe and Smith came driving into the parking lot and said, “You boys are going to have to move on. We saw you stopping cars and intimidating customers.” I told them the man we were talking to was our friend of many years.

The Chik Fil-A manager said, "It's cool, it's alright." Then Officer Smith called the manager over to his car. He proceeded to intimidate him into asking us to leave. The manager came to us and said, “I think it would be best for you to call it a day, because I want to keep peace with these officers.” We then left the premises.

The chief of police was not available until Monday, the 27th, and this took place on Friday, November 24.

Does the City of Hendersonville, North Carolina have the right to forbid a sermon on public grounds? Does it have the right to prohibit religious freedom? Does the City of Hendersonville have the right to forbid its citizens to assemble peacefully on public property? Does it have the right to restrict freedom of assembly? Does it have the right to hinder me from expressing my opinion thus stopping freedom of speech?

Are we really required to pay $25 to get permission from the chief of police for rights that have already been secured by the blood of our Founding Fathers? This city has severely restricted street preaching for years. One of our young preachers was arrested years ago for preaching on the street. It was taken to court and thrown out.

We have lost the freedom of speech, freedom to publicly assemble in the city of Hendersonville! I remember as a boy going up town and seeing the street preachers proclaiming the word of God. It made an impression on me then. Now it is not allowed.

Here is the ordinance against street preaching in the city of Hendersonville, North Carolina :

Sec. 46-83. Use of streets and sidewalks for sermons, lectures, demonstrations, exhibitions or Entertainment:

No person shall deliver a sermon, lecture, address or discourse, nor give any public demonstration, exhibition or entertainment, nor shall any person by hawking, outcry or loud calling through megaphones or other like devices, advertise any entertainment, show or public sale of any kind whatsoever on the streets, alleys, sidewalks, public squares or any public grounds of the city without having first obtained the written permission of the chief of police. Such permission may, at any time, be revoked by the chief of police if, in his opinion, the good morals, safety and public order of the city so demand.

(Code 1971, § 28-38)