SR-8-A (42)
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City CounCIl Meeting 9-08-86
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S-A
SEP I 191\
Santa MonIca, CalIfornia
.2 p -g~ tOO '-I
STAFF REPORT
TO: Mayor and City CounCIl
FROM: CIty Attorney
SUBJECT: OrdInance Adding Chapter 2B to Article VI
of the Santa MonIca MunICIpal Code RelatIng
to SolICItations and Peddling
INTRODUCTION
Santa MonIca MunICipal Code SectIons 6243 through 6243J
dealing With charItable soliCItations have not been enfo~ced
on the advice of the CIty Attorney for faIlure to comply With
the reqUIrements of the First Amendment of the UnIted States
ConstItution.
ThiS Staff Report analyzes in some detail the
constitutional issues presented by the CIty'S solicitation
ordinance and recommends a minimal system of regulation.
OVERVIEW OF CURRENT REGULATIONS
MuniCIpal
Code Section 6243 establIshes a complex
regulatory system applicable to various types of charitable
solicitations. SectIon 6243 prohIbits solIcitation within the
City unless the solicitor has first received a permit from the
City.
SectIons 6243A and 6243B make the permit reqUIrement
applicable to all types of charitable solICitations, Including
rummage sales and benefIts. In effect, these two sections
establish a very broad definitIon for the term "SolICitation."
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Section 6243C sets forth the permlt appllcatlon process. It
requlres disclosure of lnformation concern1ng the appllcant.
Section 6243D requires the City Manager to prov1de the
Informatlon to the Ch1ef of Police and requ1res the Chief of
Police to "lnvest1gate the 1nformat1on" and prepare a report
on It to the City Manager w1thin forty-five (45) days of the
application date.
Pursuant to Section 6243E, the City Manager must grant a
perm1t for the Sollcitatlon unless he finds that there 1S
substantial eVidence either that the appllcat10n contains
untrue information or that a fraud would be perpetrated upon
the public by the appl1cant. The section also limits the
permit per10d to SlX months and requires the applicant to post
bond in the amount of $1,000.00 with the C1ty. The bond
secures payment to the beneflc1ary.
Finally, Section 6243E
requires that all Juvenile solicitors be accompanied and
superv1sed by adults.
Section 6243F establlshes a limited exception from the
permit requirement for organ1zatlons Wh1Ch have been 1n
eXistence In and have malntained headquarters or a place of
worsh1p 1n the C1ty for flve years, provided that such
organ1zations must have obtained a permit at some tIme during
the five year period. Organ1zat1ons exempted by this section
must, nevertheless, notify the City Manager or any Intended
solic1tatlons.
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SectIon 6243G authorIZes the City Manager to revoke a
permit If the permIttee falls to operate In accordance with
InformatIon on its applicatIon.
Section 6243H exempts mall solicitations from the permit
requirement.
SectIon 62431
imposes a $5.00 license fee for rummage
sales held by organIzations with headquarters outside the CIty
or a majority of members liVIng outside the City. The fee
covers a two day perIod.
Section 6243J prohibits telephone sales within the CIty.
However} the sectIon exempts solicitatIons by permittees so
long as the solicitor receIves no compensatIon for the
solicitation.
ANALYSIS OF LEGAL ISSUES
The fundamental question presented by a solicitatIon
ordInance IS whether or not it Interferes With the free speech
rIghts incorporated In the First Amendment and made applicable
to the states by the Fourteenth Amendment.
The California
Constitution also contaIns a SImIlar guaranty In Article I}
SectIon 2.
The United States Supreme Court has speCIfically stated
that charitable appeals for funds are WIthin the First
Amendment speech protectIon:
[Clharitable appeals for funds} on the
street or door to door} Involve a variety
of speech Interests -- communication of
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Information,
--
the
dissemination
and
propagation of views and Ideas, and the
advocacy of causes -- that are within the
protection
of
the
First
Amendment.
VIllaae of Schaumburg v. Citizens for a
Better EnVironment.} 444 u.s.
620} 632
(1980).
First Amendment rights have traditionally enjoyed a
preferred place in the hierarchy of constitutional rights
because of their "fragile nature."
One aspect of thiS
deference is that the United States Supreme Court requires
more specifiCity 1n enactments applicable to First Amendment
rights than In other contexts. See Smith v. Goguen, 415 U.S.
566,573 (1974).
There 1S no question that it 1S appropriate for the C1ty
to have a solicitation ord1nance.
The Un1ted States Supreme
Court has specif1cally recognized that governmental entities
may regulate solic1tatlon under the police power:
There is} of course, no absolute right
under the Federal Constitution to enter on
the private prem1ses of another and knock
on a door for any purpose, and the police
power permits reasonable regulation for
public safety. We cannot say, and indeed
appellants do not argue, that door-to-door
canvassing and soliCitation are Immune
from regulation under the State's police
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power,
whether
the
purpose
of the
regulatIon 1S to protect from danger or to
protect the peaceful enjoyment of the
home. Hvnes v. Mayor of Oradell, 425 U.S.
610, 620 (1976).
In the area of soliCitation registration, free speech
rights are subject to balancIng With the state's legitimate
interests
in
protecting
the community from fraudulent
sollcitatlons, annoyance, and disruption of prlvacy. Thus,
the United States Supreme Court has stated:
Ordlnances of the sort now before us
may be aimed at the protection of the
householder
from
annoyance,
including
intrUSion upon the hours of rest, and at
the
prevention
of
crime.
Constant
callers,
whether
selling
pots
or
distributing
leaflets, may lessen the
peaceful enjoyment of a home as much as a
neighborhood glue factory or railroad yard
which zoning ordinances may
prohibit In addition, burglars
frequently pose as canvassers, either in
order that they may have a pretense to
discover whether a house is empty and
hence
ripe for burglary, or for the
purpose of spying out the premises in
order that they may return later. Crlme
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prevention may thus be the purpose of
regulatory
ordinances.
MartIn
v.
Struthers, 319 U.S. 141, 144 (1943).
It IS approprIate to regulate tIme, place, and manner of
expreSSIon so long as the regulation IS reasonable. Although
"reasonable"
IS an elUSIve term, decisIonal law provIdes
appropriate guidelines.
The United States Supreme Court recently stated:
ExpreSSIon, whether oral or wrItten
or symbolIzed by conduct,
is subJect to
reasonable
tIme,
place,
and
manner
restrIctIons.
We have often noted that
restrIctions
of
this kInd are valid
prOVIded that they are Justified without
reference to the content of the regulated
speech, that they are narrowly tailored to
serve a SIgnIficant governmental Interest,
and that they leave open ample alternative
channels
for
communIcation
of
the
InformatIon.
Clark
v. Com~unIty for
Creative Non-V1Ql~nceJ 82 L.
Ed. 2d 221,
227 (1984).
Moreover,
such
regulatIon
can
Include a permit
reqUIrement.
However, In ISSUIng a permit restrictIng FIrst
Amendment expression the licensing official or agency should
eIther have no dIscretIon or should be guided by narrow and
speCIfIC standards. Either way there should be no arbitrary
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dIscretIon In the offIcial to Issue or deny permIts. See
Carreras v. CIty of AnaheIm, 768 F.2d 1039 (9th CIr. 1985);
UnIted States v. Chri~topher, 700 F.2d 1253 (9th Cir 1983).
In Perlman v.
MunlCIpa~ Court, 99 Cal. App. 3d 568,
576, 160 Cal. Rptr. 567, 571 (1980), the Court of Appeal held
that soliCItatIon ordinances "must vest no dIscretIon In the
licensing offICIal or agency
. unless such discretion is
bounded
by
clear,
definite and objectIve guidelines.~
LikeWIse, the CalIfornIa Supreme Court has stated:
. [A]ny procedure which allows
lIcenSIng
offiCIals WIde or unbounded
discretIon In granting or denYIng permits
IS constItutIonally Infirm because It
permits them to base theIr determInation
on the content of the ideas sought to be
expressed.
Dillon v. MunIcipal Court, 4
Cal.
3d 860, 869-870, 484 P.2d 945, 951,
94 Cal. Rptr. 777, 783 (1971).
Accord Carreras v. CItv of AnaheIm, 768 F.2d 1039, 1049-50
(CIty'S solicitatIon ordInance was unconstItutIonal because It
allowed CIty offiCIals to deny or revoke permits on the baSIS
of ungUIded dIscretion).
It IS In the area of exceSSIve discretion of the CIty
Manager that the suspended ordinance presents espeCIally
severe constItutional problems.
It IS vague and prOVIdes
almost no standards; the CIty Manager has dIscretIon to deny a
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permtt if an applIcatIon contaIns "substantial eVIdence that a
fraud would be perpetrated upon the publIC."
ASide from the Issue of the amount of dIscretIon
allowed,
If there is any provIsIon for reVIew prior to
Issuance of a permit, the deCISIon must be made without delay
With prompt review of an adverse deCIsion available.
Thus,
the California Court of Appeal has held that an ordinance
"must include sufficient due process safeguards to Insure a
SWIft and adequate remedy by appeal." perlman v. MuniCIpal
Court,
99 Cal. App.
3d 568, 577, 160 Cal. Rptr. 567, 572
(1980).
Similarly}
In
finding
a
Fresno
ordinance
constitutIonally defective in part because of the possibilIty
of exceSSIve delay In responding to a permit request, the
California Court of Appeal stated:
At a minimum, due process requires a
prompt
admInistratIve
decision on an
application for a license and reasonably
prompt access to the courts.
HIllman v.
Britton,
111 Cal. App. 3d 810} 821, 168
Cal. Rptr. 852, 859-860 (1980).
Accord Carreras v. Cltv of AnaheIm} 768 F.2d 1039, 1048-49
(City'S
SoliCItation
ordinance
provided
InsuffiCient
procedural safeguards since it dId not require the city to act
on the application and to provide access to the courts
promptly) .
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The suspended ordInance is seriously flawed in thIS
regard;
It allows for as long as 45 days for processIng an
applIcation.
Finally,
any overVIew of the constitutIonal issues
presented by a solicitatIon ordInance must also address the
questIon
of
least restrictIve means.
Are less speech
restrIctIve alternatIves avaIlable for achieving the same
purpose? Courts consistently hold that, although the less
restrictIve alternative reduces effectiveness, the increased
FIrst
Amendment
protection
outweighs
any
loss
of
effectiveness.
For example, the UnIted States Supreme Court held in
MartIn v. Struthers, 319 U.S.
141
(1943), that a CIty
ordinance bannIng all door to door solIcitatIon was overbroad
Rather, a less restrIctIve alternatIve was available to thIS
prohibitIon. For example, the Court suggested, the city could
require
IdentIfIcatIon
devices
and
could prOVIde for
punIshment of those who persIst In callIng at a home in
defInance of the occupant's wIshes.
rd. at 148-49.
The UnIted States Supreme Court recently addressed the
questIon of less restrIctive alternatives:
The
Village's
legItimate interest in
preventIng fraud can be better served by
measures less IntrUSIve than a direct
prohibitIon on solICItatIon.
Fraudulent
misrepresentatIons can be prohibited and
the penal laws used to punIsh such conduct
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directly.
VIllaae
of
e
Schaumbura v.
CItIzens for a Better EQvironment, 444
U.S. 620, 638 (1980).
The suspended ordinance also presents other problems.
Its bond requIrement is unduly burdensome of First Amendment
rights.
Furthermore, its exemption for certain organizatIons
based on their havIng been In Santa Monica for five years IS
dIscrIminatory.
PROPOSED ORDINANCE
The CIty'S ordInance has not been enforced due to Its
constItutional defects SInce 1981.
However, during thIS
perIod,
the CIty has not had any sIgnificant problems
resultIng from thIS lack of enforcement. GIven this history,
we belIeve It is unnecessary to establIsh a new regulatory
system includIng a permIt reqUIrement to replace the suspended
ordinance.
Instead,
it IS recommended that an ordInance be
adopted that provIdes mInImal City regulation of thIS area.
The proposed ordInance would reqUIre solicitors to fIle
an InformatIonal statement WIth the City Clerk and dIstribute
thIS InformatIonal statement upon the request of any person
being soliCIted.
In additIon, the ordInance would permit
residents to post theIr homes to prohIbIt all SolICitatIon and
peddling or lImIt the hours of solICItatIon and peddling.
This minimal system of regulation keeps the City out of
the complex constitutional problems raised by more detailed
regulatory systems.
In addItion, It avoids the addition of
CIty
staff
positions
that
would
be
required
to
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constitutionally operate a more complex regulatory system. At
the same tIme, It provides adequate safeguards by prOVIdIng
InformatIon In the event criminal laws are Violated and
prOVides protection to reSidents deSirous of privacy.
The proposed ordInance adds Section 6280 to the Santa
Monica Municipal Code to reqUIre a solicitor, upon request, to
prOVide a written statement containing the identity of the
soliCitor and the purpose to which the soliCited funds Will be
pUt.
A copy of the written statement must be filed With the
City Clerk.
The proposed ordinance adds SectIon 62Bl to the Santa
Monica Municipal Code relating to solICItation and peddling
activity
when
a
reSidential dweller has posted signs
prohIbItIng such activity.
ImpOSIng an absolute prohibition
on soliCitation or peddling when a reSident posts a sign at
hIS reSIdence prohibitIng trespassing or solicitation has been
determined to be constitutional. See Martin v. Struthers, 319
u.s.
141, 147-48 (1942); Ad World. Inc. v. Townshio of
Doylestown, 672 F.2d 1136, 1141 (3rd Cir.
1982); Van Nuys
Publishina Co. v. City of Thousand Oaks, 5 Cal. 3d B17, 827,
489 P.2d B09, 815, 97 Cal. Rptr. 777, 783 (1971).
RECOMMENDATION.
It IS respectfully recommended that the accompanYing
ordinance be Introduced for first reading.
PREPARED BY: Robert M. Myers, City Attorney
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CA:RMH:brsollc1/word
CIty Council Meeting 9-08-86
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Santa Monica, California
ORDINANCE NUMBER
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ADDING CHAPTER 2B TO
ARTICLE VI OF THE SANTA MONICA MUNICIPAL CODE
RELATING TO SOLICITATIONS AND PEDDLING
AND REPEALING SECTIONS 6243 THROUGH 6243J OF
THE SANTA MONICA MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN
AS FOLLOWS:
SECTION 1. SectIons 6243, 6243A, 6243B, 6253C, 6243D,
6243E, 6243F, 6243G, 6243H, 62431, and 6243J of the Santa
Monica Municipal Code are repealed.
SECTION 2.
Chapter 2B IS added to Article VI of the
Santa Monica MuniCipal Code to read as follows:
CHAPTER 2B. SoliCitations
and PeddlJng.
Section
6280.
Sollc~tions and
Peddlina.
( a ) Any
person engaging in any
soliCitation in the City of Santa Monica
shall make available on the request of any
person being soliCited a written statement
indicating:
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(11 The name of the person
or organizatIon maklng the solIcItatIon.
( 2 ) The
address
of
the
natIonal, state, or local headquarters of
the person or organization for which the
solIcitation wIll be undertaken.
(3) The manner in WhlCh the
solicited funds wIll be utIlIzed.
(4) Whether
or
not
the
organization for WhICh money IS beIng
soliCited has a charitable tax exemptIon
under both federal and state law.
(b) A copy of the wrItten statement
shall be flIed with the Clty Clerk one day
prIor to any sollcItatlon in the CIty.
(c) For purposes of thIS Chapter,
solICItatIon
means a request made in
person for a contributIon for polItical,
religIous, or charitable purposes made In
publIC or on prIvate property not owned or
controlled by the solICItor or person or
organization for whom the solICItor is
employed or workIng.
SectIon
6281
RestrictIons Upon
Time, Place, and Manner of SolIcitations
and PeddlIng. No solicitation or peddlIng
shall
be
conducted at any place of
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resIdence In the City where any SIgn
prohIbItIng trespassIng or solICItatIon
has been posted or displayed.
If the SIgn
posted or dIsplayed limIts the hours of
trespassIng
or
solicitatIon,
no
SolICItatIon
or
peddling
shall
be
conducted at any place of resIdence In the
City during the tIme period posted or
dIsplayed.
SECTION 3. 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,
is hereby repealed or modIfied to that extent
necessary to affect the prOVIsions of thIS ordInance.
SECTION
4.
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
competent jurisdiction, such deCISIon shall not affect the
valIdIty of the remaInIng portIons of the 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.
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SECTION 5.
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The Mayor shall sign and the CIty Clerk
. .
shall attest to the passage of thIS ordlnance. The CIty Clerk
shall cause the same to be published once in the official
newspaper withIn 15 days after Its adoptIon. The ordinance
shall be effectIve 30 days from lts adoptIon.
APPROVED AS TO FORM:
(-;'1; --t~7\- ~
ROBERT M. MYERS
City Attorney
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