SR-8-B (79)CA:f:atty\muni\strpts~mjm\lwnci~r
Czty Council Meeting 10-25-94
Ta: City Council
FROM: City Attorney
OCT ~ 5 ~
Santa Manica, California
SUBJECT: Ordinance of the City af Santa Monica Clasing
Specified, City-awned Partions of the Civic
Center During Late Night Hours
INTRODUCTI~N
The City Council has di~ected the City Attorney to prepare an
ordinance which would close lawns and walkways at the Civic Center
during late night hours. A proposed ordinance closing the City-
owned lawns and walkways adjacent to or near C~ty Hall and the
Civic Auditorium between 2:00 a.m. and 6:00 a.m. is attached.
DISCUSSION
The proposed ordinance differs in at ].east two respects ~ram what
the Cauncil initially requested. The Council requested that the
closure include the lawns and walkways in front of the County
Caurthouse. That property is exc~uded from the proposed ordinance
based upon informatian supplied by the Director of Planning and
Community D~velopment. She advises that the land in front af the
eourthause is owned by the County, rather than by the City.
Additionally, the Council requested a clasure similar to the City's
park clasure. A~ present, the parks are clased from 11:Od p.m. to
1
O~~ ~ V ~ i
r,
iz
, r~
6:00 a.m. However, those hours are not feasible for a closure of
property in the Civic Center because meetings and events frequently
extend past midnight.
When the Council requested preparation of this ~rdinance, legal
staff was directed to research the issue af whe~her the propased
clasure would impinge upon constitutiona~ rights. As the Council
is aware, the Constitutian protects the right of individuals and
groups to assemble, express ideas, and petition their government.
This includes the right to gather at or near public buildings to
communicate viewpaints. See, e.q., Cox v. Louisiana, 379 U.S. 536
(1965)[holding that a conviction for breach a~ the peace
impermissibly infringed upan the right of free speech where
demonstrators had gathered, peaceably, near a courthouse to protest
racial discrimination]. A line of cases fro~ Washington, D.C.,
estab7.ishes that z£ persans gather on public property and the
purpose of their presenca is to convey a message to their
government, then First Amendment protections apply. See, e.g.,
Community for Creative Non-Vialence v. Watt, 703 F.2d 586 (D.C.
Cir. 1983}{holding regulation against sleeping in parks
unconstitutional as applied to demonstrators when sleeping was part
of their e~ressive conduct].
We have endeavox-ed ta find a case in this ~urisdictian applying
these general principies to a fact situation like ours. The
closest case we have found is United States v. Christopher, 700
2
F.2d 1253 (1983). cert. den'd. 103 S.Ct. 2436. In that case,
defendants were convicted af being present at night on the
government-owned property adjacent to the Federa~ Building an
Wilshire Blvd. in Westwood. The defendants had set up a table to
collect signatures and advocate for the passage of an initiativE
which would have legalized the sale of mari~~ana in California.
The group announced their intention to stay on the property for
seventeen days and nights. The first night, a federal officer
asked them to leave because the property was closed at night
pursuant to federal regulation. The defendants refused and were
cited, pr~secuted, and conviet~d of a misdemeanor.
On appea~, the federal appellate court said that the defendants
activity was protected by the First Amendmen~; the court analyzed
the regulatian as a restriction on the time, place and manner of
speech. The court concluded that the gov~rnment had sufficient
interests to restrict "speech" by closing the pr~perty at night.
Thase interests were: (1) maintaining security; (2) ensuring that
residential neighbors would nat be disturbed; and (3) protecting
against problems which would result fram the fact that there were
no rest rooms available on the property at nigh~.
Obviously, there are severa~ differences between the facts in
Christapher and our situation. Unl~ke the defendants in
Christopher, the persons who rest or sleep on the lawns and
walkways at night may not be engaging in any constitutional~y
3
protected activity. Unlike the Federal Building, City Hall is the
seat of local government. Nevertheless, based upon Christopher
and the analysis which it exemplifies, a court might well uphold a
limited~ night time closure of our lawns and walkways if the City
has a sign~ficant interest which is advanced by that closure.
Whether or not the City does appears to be a poin~ upon whlch
reasonable minds could differ. Arguably, the rest room facilities
available late at night at C~ty Hall are inadequate. Additionally,
portions of the property may be insufficiently lighted to ensure
safety. On the other hand, security and neighborhood quiet (which
were justificatians far the regulatian in Christapher} may not be
issues in our case. Therefore, it is difficult ta predict the
outcame of any constitutional challenge which might be brought
against the ordinance if it were adopted.
Additionaliy, it ~s difficult t~ pred~ct how a court might react to
the ordinance when viewed in the context oF ather ~egis~ation which
the Council has recently adopted. On the one hand, the City
provides extenszve services to hameless persons, and the Cauncil
has made a legislative decision (which is entitled ~o judicial
deference) to shift the focus of services away from meeting
emergency needs to providing more integrated services intended to
help persons redirect thei.r lives away from l~ving in the streets.
On the other hand, as we have previously discussed, the courts have
found ~n some recent decisians that cities may not wholly preclude
homeless persons from being present on pub~ic property. Therefore,
4
the passibility exists that the ordinance could be invalidated on
the same graunds that were app~ied by the Court of Appeal to Santa
Ana's ordinance in the Tobe case.
Based upon these consideratians, we suggest that the Council focus
its consideration of this proposed ordinance on the governmental
interests which it will advance.
RECOMMENDATTON
It is respecttully recammended that the City Council adopt the
prapased ardinance if the CounCil determines that the ordinance
wi~l adnance significant governmental interests.
Prepared by: Marsha Jones Moutrie, City Attorney
5
CA:f:~atty\muni\laws\mjm\lwnclsr
City Council Meeting 10-25-94 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council~Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ADDING SECTION 4.08.094
TO THE MUNICIPAL CODE CLOSING SPECIFIED,
CITY-OWNED PORTIONS OF THE CIVIC CENTER GROUNDS
DURING LATE NIGHT HOURS
WHEREAS, the Civic Center of the City of Santa Monica includas
property owned by the City of Santa Monica which consists af lawns
and walkways lacated in front of Ci~y Hall, in front of and on the
Main Street side of the C~vic Auditorium, between the Civic Center
parking lot and Main Street, and at the northwestern end of the
Civic Center between the r~served parking area~ the Santa Monica
Freeway and Main Street;
WHEREAS, these lawns and pathways are presently being used by
mem~ers of the public during all hours of the night for resting and
sleeping;
WHEREAS, the municipa~ buzldings adjacent to these lawns and
parkways, City Hall and the Civic Auditorium are closed during late
night hours and are not accessible to the public during such hours,
except for the Santa Monica Palice Department which is ~ocated at
the rear ~f City Hall and which is accessible through its own,
separate entrance at all times;
1
WHEREAS, the lawns and walkways at City Hall and the Civic
Center are neith~r intended nor suitab~e for all-night usage by the
public beca~zse, among other things, adequate rest roam facilities
are not availab~e when City Hall and the Civ~c Center are c~osed
and the facilities are not uniformly well lighted;
WHEREAS, the public health, safety and welfare will be served
by closing these lawns and pathways for a limited t~m~ period
during late nighttime haurs when ad~acent public buildings are
closed;
WHEREAS, a c].osure of lawns and parkways during late night
hours will nat significantly impair the ability of individuals ar
groups to petition or express their views to their government
because governmental offices are clased during those hours and
because nearby sidewalks adjacent to Main Street will remain open
to the public at all times;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES ~RDAIN AS FOLLOWS:
SECTION 1. Section 4.08.D94 is added to the Santa Monica
Municipal Code to read as follaws:
Section 4.08.094 C~osure of Gertain Civic
Center Grounds.
(a) Between the hours af 2:00 a.m. and 6
2
a.m., no person shall enter, remain or be
present in or upon the City property
consisting of the lawns and walkways which are
located adjacent ta the front and sides af
City Hall, adjacent to th~ front and sides of
the Civic Auditorium, between the Civic Center
Parking lot and Main Street, and between the
City Hall reserved park~ng area, the Santa
Monica Freeway and Main Street.
(b} This section shall not apply to
persons whose presence upon the subject lawns
or walkways is authorized by thE City of Santa
Monica or is in conjunction with an activity
that is authorized or permitted by the City of
Santa Monica.
(c) This section does not prohibit
anyone from being present at any time on a
sidewalk adjacent to any public street,
including the sidewalk adjacent to Main
Street.
(d) Any person violating the provisians
af this section shall be guilty of a
misdemeanor and upon can~cric~ion shall be fined
in an amaunt nat ta e~ceed Five Hundred
Dollars ($500) or ~.mprisoned for a perzod not
be exceed six months, or both.
3
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
effectuate the provisions of this Ordinance.
SECTION 3. If any sectian, subsectian, sentence, clause, or
phrase of this OrdinancE is for any reason held to be invalid or
unconstitutional by a decision of any caurt of any competent
jurisdiction, such decision shall n~t affect th~ 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 portian
of the Ordinance would be subsequent~y declared invalid or
unconstitut~onal.
SECTION 4. The Mayor shall sign and the City Clerk sha11
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 ardinance shall become
effectiv~ after 30 days fram its adap~i4n.
APPROVED AS TO FORM:
~~ ~~~ ~~
MARSHA JON(~! MOUTRIE
City Attorney
4