ITEM 8-A
City Council Meeting 7-26-94 Santa Monica, California
TO: Mayor and City Council
FROM: City Attorney
SUBJECT: Ordinance of the City Council of the City of Santa
Monica Adding Section 4.08.750 to the Municipal Code
Prohibiting Solicitation in Certain Types of Locations
INTRODUCTION
At its meeting of June 21, 1994, the City Council directed the
City Attorney to prepare an ordinance prohibiting solicitation of
any person who is: on a public transportation vehicle, near an
automated teller machine (ATM), or in the outdoor dining area of
a restaurant. A proposed ordinance which conforms to that
direction is attached.
Additionally, the City Council directed the City Attorney to
research existing law and determine whether solicitation could
lawfully be prohibited in certain other, specified locations.
The results of that research are summarized below.
DISCUSSION
As has been discussed in previous reports to the Council,
California courts have concluded that First Amendment protections
apply to the solicitation of charitable donations. See Hillman
v. Britton, 111 Cal.App.3d 817, 857 (1980) and Blair v. Shanahan,
775 Fl.Supp. 1415 (N.D. Cal. 1991); Staff Report of 4/26/94;
Information Item of 3/29/94. Consistent with these protections,
restrictions on the time, place and manner of speech may be
imposed under certain conditions which depend, in large part,
upon the location of the solicitation. See Renton v. Playtime
Theatres, Inc., 89 L.Ed.2d 29 (1986). If the location is a
public forum, a regulation must be content-neutral and narrowly
tailored to serve a significant government interest; and it must
leave open ample alternative opportunities for communication.
Perry Education Assoc. v. Perry Local Educators' Assoc., 460 U.S.
37, 45 (1983). When the location is not a public forum, the
regulation must be reasonable and content-neutral. Id. at 46.
Public transportation vehicles are certainly not and the outdoor
dining areas licensed to private business operators are probably
not public forums. Therefore, restrictions on solicitation in
those locations should be upheld in court so long as they are
reasonable and content-neutral. We believe that the proposed
restrictions fulfill those requirements. They apply to all forms
of solicitation alike and are therefore neutral. Moreover, they
are reasonable. Solicitation on transportation vehicles disrupts
public transportation and may pose difficulties for the person
solicited who does not have the option of simply walking away.
Solicitation in the outdoor dining areas disrupts the peace of
those who are at the restaurant to dine and who cannot leave the
table without interrupting their meals.
The proposed restriction upon solicitation in the vicinity of
ATM's is different in nature. This restriction would apply to
solicitation in streets. Streets are traditional public forums.
See Hague v. CIO, 307 U.S. 496, 515 (1939). Thus, a court would
apply a much more rigorous standard in evaluating the
constitutionality of the restriction; and the City would bear the
heavy burden of establishing its validity. See Organization For
a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The City
could establish that the restriction is content-neutral. The
City could also probably establish and that the restriction
leaves open alternative opportunities for communication (because
solicitation would only be prohibited in the vicinity of ATM's).
The issue would be whether the restriction was narrowly drawn to
effectuate a compelling governmental interest. A court's
decision on this issue would likely depend upon both the interest
which the City identified and the size of the zone in which
solicitation is prohibited. In past discussions, the Council has
identified its concerns as protecting individual members of the
public against crime and minimizing the perceived threat of
crime. It is unknown whether a court would find these interests
compelling. Obviously, the threat of crime near ATM's is real.
However, the criminal law already affords protection against
robbery.
In previous discussions, the Council has indicated its interest
in adopting prohibitions against solicitation similar to those
adopted this year by the City of Santa Cruz. The Santa Cruz
ordinance prohibits solicitation within fifty (50) feet of an
ATM. The proposed ordinance incorporates that prohibition.
However, in a court challenge, any such ordinance might more
likely be upheld if the restricted area were smaller.
In previous discussions, individual members of the Council have
also expressed the viewpoint that solicitation of persons in
vehicles travelling on streets should be prohibited. It was
pointed out that such a prohibition would promote public safety
and the smooth flow of traffic.
In a recent decision, the Second District Court of Appeal upheld
such a prohibition adopted by the City of Agoura Hills. See
Xiloj-Itzep v. City of Agoura Hills, 29 Cal.Rptr.2d 879 (1994).
The facts of that case were somewhat different -- the ordinance
was adopted in response to traffic safety problems created by day
laborers soliciting employment. However, the principles of law
and the legal analysis are similar; and the Agoura Hills decision
relies upon a Ninth Circuit Court of Appeal decision which upheld
a municipal prohibition against soliciting financial
contributions from vehicles travelling on streets. See ACORN v.
City of Phoenix, 798 F.2d 1260 (9th Cir. 1986). Thus, the
practical result of these cases is to give the City Council the
legal option of adopting a prohibition against solicitation
addressed to persons in vehicles travelling on City streets. Any
other prohibitions which the Council may wish to consider should
be consistent with the general principles of constitutional law
summarized above.
RECOMMENDATION
It is respectfully recommended that the accompanying ordinance be
adopted either as presented or as the Council may choose to
modify it consistent with the foregoing.
PREPARED BY: Marsha Jones Moutrie, City Attorney
ORDINANCE NUMBER ____ (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA ADDING SECTION 4.08.750 TO THE
MUNICIPAL CODE PROHIBITING SOLICITATION IN CERTAIN
TYPES OF LOCATIONS
WHEREAS, solicitation of persons on public transportation
vehicles disrupts the free flow of transportation;
WHEREAS, solicitation of persons using outdoor dining areas
intrudes upon such persons' legitimate expectations that they
will be allowed to dine in such location without interruption;
WHEREAS, solicitation of persons who are within fifty (50)
feet of automated teller machines poses particular potential for
intimidation and disruption of the public peace because of the
risks of theft at or near such machines;
WHEREAS, prohibiting solicitation in a limited number of
specified types of locations will not restrict expressive
activity because ample alternative locations where solicitation
may be undertaken remain available.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES ORDAIN AS FOLLOWS:
SECTION 1. Section 4.08.750 is added to the Santa Monica
Municipal Code to read as follows:
Section 4.08/750. Solicitation Of
Persons In Certain Locations - Prohibited.
(a) It shall be unlawful for any person
to solicit another who is in any of the
following locations:
(1) In a public transportation
vehicle;
(2) In the outdoor dining area of
a restaurant or similar establishment which
serves food for immediate consumption;
(3) Within fifty (50) feet of an
automated teller machine.
(b) For purposes of this section,
"solicit" means to ask another by word or
gesture for money or for some other thing of
value.
(c) Any person violating the provisions
of this section shall be guilty of a
misdemeanor and upon conviction shall be
fined an amount not to exceed Five Hundred
Dollars ($500.00) or be imprisoned for a
period not to exceed six (6) months or both.
SECTION 2. Any provision of the Santa Monica
Municipal Code or Appendices thereto inconsistent with the
provisions of this Ordinance, to the extent of such
inconsistencies and no further, are hereby repealed or modified
to that extent necessary to affect the provisions of this
Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or
phrase of this Ordinance is for any reason held to be invalid or
unconstitutional by a decision of any court of any competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby
declares that it would have passed this Ordinance, and each and
every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether
any portion of the Ordinance would be subsequently declared
invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall
attest to the passage of this Ordinance. The City Clerk shall
cause the same to be published once in the official newspaper
within 15 days after its adoption. This Ordinance shall become
effective after 30 days from its adoption.
APPROVED AS TO FORM:
____________________________
MARSHA JONES MOUTRIE
City Attorney