SR-0 (108)
CA:f:atty\muni\strpts\mjm\solicit
City Council Meeting 7-26-94
8A
Santa Monica, California
JUL 2 6 .
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.
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ASSESSMENT
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 Haque 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 Orqanization 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 communicatlon (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.
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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 Aqoura 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
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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
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CA:f:\atty\muni\laws\mjm\solicit
city council Meeting 7-26-94
Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA ADDING SECTION 4.08.750 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 ln 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:
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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,
"sol1.cit" 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
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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:
Ivt.tU~~ k~
MARSHA JONUS MOUTRIE
city Attorney
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