SR-8-C (82)
CA:MJM:muni\strpts\mjm\panhand
City council Meeting 4-26-94
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Santa Monica, California
STAFF REPORT
TO: Mayor and City Council
FROM: city Attorney
SUBJECT: Ordinance Adding section 4.08.730 to the
Municipal Code Prohibiting Aggressive Solicitation
At its meeting of March 29, 1994, the City Council directed
the City Attorney to prepare an ordinance prohibiting aggressive
panhandling and, in conjunction with the preparation of that
ordinance, to research and evaluate the possibility of prohibiting
all panhandling or panhandling by approaching a prospective donor
within the Promenade or at night. A proposed ordinance accompanies
this report.
As discussed in the city Attorney's Information Item of March
24, 1994, the courts have established that the First Amendment
protects the solicitation of charitable donations, including
panhandling. See Blair v. Shanahan, 775 F. Supp. 1415 (N.D. Cal.
1991); Hillman v. Britton, 111 Cal.App.3d 817, 857 (1980). This
means that any ordinance purporting to limit panhandling or
solicitation must meet a number of criteria imposed by the courts.
It must be content neutral; that is, it may not be directed at the
subject matter or content of the speech. See R.A.V. v. city of
st. Paul, 112 S.ct. 2538, 2542 (1992). It must not be over broad so
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as to include protected expression within its prohibition. See
Riley v. National Fed'n. of the Blind, 487 U.S. 781, 801 (1988).
It must not be so vague that a person of ordinary intelligence
cannot understand what acts are prohibited. See Papachristou v.
City of Jacksonville, 405 U.S. 156, 157 (1971).
We believe that the proposed ordinance submitted with this
report meets these criteria. The ordinance is intended to prohibit
solicitation undertaken in a coercive, threatening or intimidating
manner. It is not intended to, and would not, prohibit
solicitation, including panhandling, which is not undertaken in
such a manner.
The ordinance is content neutral in that it applies to all
solicitations -- not just panhandling. It is narrowly tailored so
as to permit the expression of ideas or viewpoints in conjunction
with any solicitation. It outlaws conduct which is set forth with
specificity so that members of the public and law enforcement
officers, alike, will know what conduct is prohibited. In
particular, the proposed ordinance prohibits doing any of the
following acts while soliciting: blocking or impeding the passage
of the solicitee, touching the solicitee or following the solicitee
with the intent to intimidate or coerce, threatening the solicitee
with physical harm, or abusing the solicitee with t1fighting words. If
This ordinance does not include any restriction upon the time
or location of solicitation. Based upon extensive research, it was
concluded that a prohibition against panhandling during certain
hours, or against approaching another to panhandle during certain
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hours, would not withstand constitutional challenge. The
California Court of Appeal struck down an ordinance prohibiting
solicitation at night in Alternatives For California Women v.
County Of Contra costa, 145 Cal.App.3d (1983). The court reasoned
that the county's interests in crime prevention and privacy could
be advanced by less restrictive means. Id. at 449. A court would
probably reach the same result in a case challenging an ordinance
prohibiting panhandling at night. Moreover, insofar as such an
ordinance prohibited panhandling, and not other forms of
solicitation at night, the ordinance would likely be invalidated as
"content-based". Additionally, a California Court has already
concluded that, for purposes of First Amendment analysis, the
distinction between asking for money and asking for money by merely
approaching another will not support a restriction upon speech.
See Blair v. Shanahan, supra, at 1324.
Likewise, it has been concluded that a prohibition upon
panhandling in the Promenade or a significant portion of the
Promenade would likely be stricken. Because streets and sidewalks
like the Promenade are traditional public forums,
restrictions on speech in those locations are particularly likely
to be invalidated. See United States v. Grace, 461 U.S. 171, 179-
180 (1983). Moreover, although the time, place and manner of
speech may be restricted, the government must still show that such
a restriction is narrowly tailored and content neutral. See united
States v. Albertini, 472 U.S. 675,689 (1985). It is unlikely that
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an ordinance which prohibited panhandling in the Promenade could
meet this standard.
RECOMMENDATION
It is respectfully recommended that the City Council introduce
the accompanying ordinance for first reading.
PREPARED BY:
Marsha Jones Moutrie, City Attorney
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CA:MJM:muni\laws\mjm\panhand
City Council Meeting 4-26-94
Santa Monica, California
ORDINANCE NUMBER
{CCS}
{City Council Series}
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ADDING SECTION 4.08.730
TO THE MUNICIPAL CODE PROHIBITING AGGRESSIVE SOLICITATION
WHEREAS, all persons in the City of Santa Monica share the
common right to make lawful use of the City's streets, sidewalks,
and other public places; and
WHEREAS, solicitation which intimidates and menaces others
hinders the free exercise of that right and thereby impairs the
public welfare,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES ORDAIN AS FOLLOWS:
SECTION 1.
Section 4.08.730 is added to the Santa Monica
Municipal Code to read as follows:
SECTION
4.08.730.
Aggressive
solicitation - Prohibited.
(a) It shall be unlawful for any person
to solicit by harassing or menacing another
person on a public street or sidewalk or in
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another place open to the public, whether
publicly or privately owned.
(b) For purposes of this Article:
(1) "Solicit" means to ask another
by word or gesture for money or for some other
thing of value.
(2) "Solicit by harassing or
menacing" means to do any of the following
while soliciting:
a. Block or impede the
passage of the solicitee intentionally;
b. Touch the solicitee with
the intent to intimidate or coerce;
c. Follow the solicitee,
going behind, ahead or along side of him or
her, with the intent to intimidate or coerce;
d. Threaten the solicitee, by
word or gesture, with physical harm; or
e. Abuse the solicitee with
words which are offensive and inherently
likely to provoke an immediate violent
reaction.
(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
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($500.00) or be imprisoned for a period not to
exceed six 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 C1. ty 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
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days after its adoption.
This Ordinance shall become effective
after 30 days from its adoption.
APPROVED AS TO FORM:
?-{~ ~ L~-;'AA A__~)k~~ n/(
MARSHA JONE;;~~~RIE
city Attorney
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