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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