Herndon Council members are pursuing creative ways to curb the congregation of day laborers near a major intersection, after the town attorney told the town council an anti-loitering bill would be unconstitutional.

In a closed session Wednesday night, the Herndon Town Council discussed a bill passed by the Virginia General Assembly that allows towns and cities to forbid loitering in public rights of way if it presents a public safety hazard.

The council had asked for the bill to be examined as a possible solution to the informal assembly of day laborers in the town, but Town Attorney Richard B. Kaufman said the bill as structured is unconstitutional. He recommended that the town seek a measure in the 2009 General Assembly that would change last year’s bill to make it constitutional.

“Many courts have invalidated loitering ordinances,” because they violate due process of freedom of assembly laws, Kaufman wrote in a confidential memo, which was released to the public after Mayor Steve DeBenedittis and the Herndon Council waived their attorney-client privilege.

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Council members said they plan to recommend the legislature change the bill’s wording next year.

Councilman Dennis Husch said the bill is part of the council’s pursuit of a “cold shoulder initiative” toward illegal immigrants, as many of the day laborers are suspected to be illegals.

“That’s not the way one finds employment in this county — it’s not appropriate to hang out in the street all day long,” he said. “We’ve had a history of climbing out on the pointy end of the stick to deal with the illegal alien issue.”

In the meantime, council members are pursuing other ways to reduce the number of day laborers near the intersection of Elden Street and Alabama Drive, which has a 7-Eleven and two grocery stores nearby.

Husch sent two memos to DeBenedittis and other council members last month proposing to limit the sale of alcoholic beverages in the area, haul away bicycles left in rights of way, and rid a section along Elden Street and other locations of public pay phones.

He said he wanted a six-month trial period revoking area stores’ ability to sell alcohol, as he claimed that more than half of arrests for public drunkenness come from a three-block area.

“Our police have got better things to do than haul drunks into the [jail],” he said.

Councilman Dave Kirby said the idea to remove bicycles locked in public areas stemmed from similar ordinances passed by homeowners associations, which he said often take it upon themselves not to allow people to lock bikes to public fences or poles.

“If we’re seeing it happen now on public property, we’re looking at an ordinance,” he said.

Councilman Bill Tirrell said he would like to see the town place a police officer and a zoning inspector at the intersection from 5 a.m. to noon every day, which he said would curb the congregation of day laborers looking for work in the morning.

dsherfinski@dcexaminer.com