Rancho Palos Verdes City Council
   

NOVEMBER 21, 2006 RANCHO RANCHO PALOS VERDES CITY COUNCIL AGENDA-CONSIDERATION OF AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES REGULATING SOLICITATION WITHIN THE CITY NOVEMBER 21, 2006 RANCHO RANCHO PALOS VERDES CITY COUNCIL AGENDA-CONSIDERATION OF AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES REGULATING SOLICITATION WITHIN THE CITY NOVEMBER 21, 2006 RANCHO RANCHO PALOS VERDES CITY COUNCIL AGENDA-CONSIDERATION OF AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES REGULATING SOLICITATION WITHIN THE CITY

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: Carol Lynch, City Attorney

DATE: November 21, 2006

SUBJECT: CONSIDERATION OF AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES REGULATING SOLICITATION WITHIN THE CITY


RECOMMENDATION

Read Ordinance No. ____ “AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES REGARDING SOLICITATION WITHIN THE CITY OF RANCHO PALOS VERDES AND AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE” by title only, waive further reading, and introduce the ordinance.

EXECUTIVE SUMMARY

Earlier this year, the City Council amended the Municipal Code to adopt comprehensive regulations regarding peddling. Those regulations, which were codified in new Chapter 5.28, govern the commercial sale of goods, food or wares within the City and require any person who wishes to sell such items first to obtain a business permit in addition to paying the business license tax in connection with the issuance of a business license. The City Council specifically excluded from the purview of Chapter 5.28 sales by any nonprofit entity that is within the scope of Section 501(C)(3) of the Internal Revenue Code because the City Council did not wish to subject organizations such as the Girl Scouts to having to obtain a business permit pursuant to the requirements of that Chapter.

Staff is presenting amendments to Chapter 15.20, which governs solicitation within the City, to harmonize the provisions of Chapter 15.20 with the recently adopted peddling regulations and with a decision by the United States Supreme Court that substantially changed the law concerning the regulation of those seeking to disseminate information within the community where no solicitation of funds or sale of merchandise is involved.

BACKGROUND

In 2002, the United States Supreme Court decided a case, Watchtower Bible & Tract Society Of New York v. Village of Stratton, 536 U.S. 150 (2002), which invalidated an ordinance regulating door-to-door canvassing, peddling and solicitation.

The Watchtower case concerned an ordinance enacted by the Village of Stratton in Ohio. The ordinance targeted “canvassers, solicitors, peddlers, hawkers, itinerant merchants [and] transient vendors of merchandise or services.” Under the ordinance, unless a solicitation permit had first been obtained from the mayor’s office, such persons could not enter private property for any of the following purposes: “advertising, promoting, selling and/or explaining any product, service, organization or cause, or ... soliciting orders for the sale of goods, wares, merchandise or services.” Moreover, even with a solicitation permit, such persons were prohibited from entering private property when the resident had filed a “no solicitation registration form” with the village and had posted a “no solicitation” sign.

Stratton did not charge a fee for solicitation permits. In accordance with the ordinance, the village routinely issued solicitation permits upon submission of a complete application.

The Watchtower case arose because Stratton construed its ordinance as applying to persons seeking to distribute religious literature door-to-door. In particular, the village interpreted the term “canvassers” as including Jehovah’s Witnesses and the term “cause” as including their ministry. Two organizations (Watchtower Bible and Tract Society of New York, Inc. and Wellsville, Ohio, Congregation of Jehovah’s Witnesses, Inc.) challenged the ordinance as violating their constitutional rights. They alleged that they do not solicit contributions for the sale of merchandise or services, but they do accept donations.

Following numerous prior decisions by appellate courts, including the United States Supreme Court, the lower courts generally ruled in Stratton’s favor. At the trial level, the district court limited the information required of permit applicants and struck the post 5 p.m. canvassing ban, but otherwise sustained the ordinance. The Sixth Circuit Court of Appeals subsequently affirmed.

By an 8-1 vote, the Supreme Court reversed the judgment for Stratton and remanded the litigation for further proceedings. The majority opinion, which was joined by six Justices, reasoned that the ordinance violated the First Amendment due to the “breadth of speech affected” and the “nature of the regulation.” [Watchtower, supra at 6693.] The majority was troubled that the ordinance precluded anonymous and spontaneous distribution of political handbills, and that it burdened some speech by citizens holding religious or patriotic views. Additionally, the majority was not persuaded that the ordinance was tailored to Stratton’s interests in protecting residential privacy and preventing fraud and crime.

The Court clearly was most concerned with how the Stratton ordinance affected purely political and religious speech. This focus is evident from the examples (political handbill distribution and speech by persons with religious or patriotic views) used to illustrate the “pernicious effect” of Stratton’s permit requirement. [Watchtower, supra at 6693.] This focus also is demonstrated by the question that the court agreed to decide when it accepted review of the case:

“Does a municipal ordinance that requires one to obtain a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one’s name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse?” [Id. at 6692.]

The court qualified its holding with language that strongly suggests a different result would have been reached if the Stratton ordinance was narrower in scope:

“Had this provision been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village’s interest in protecting the privacy of its residents and preventing fraud.” [Watchtower, supra at 6693.]

“Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to [plaintiffs], to political campaigns, or to enlisting support for unpopular causes.” [Id. at 6694]

Finally, the Court again implied that municipalities can prohibit entry upon private property when the resident has posted a “no solicitation” sign or joined a government-maintained “no solicitation” registry. The Stratton ordinance contained such a prohibition, but the court did not directly address its validity because the plaintiffs had not challenged it. In dicta, however, the court stated that this provision, coupled with residents’ ability to refuse to converse with unwelcome visitors, “provides ample protection for the unwilling listener.” [Watchtower, supra at 6694.] In support of this proposition, the court cited the following statement from an earlier case invalidating a charitable solicitation ordinance: “[T]he provision permitting homeowners to bar solicitors from their property by posting [no solicitation] signs ... suggest[s] the availability of less intrusive and more effective measures to protect privacy.” [Schaumburg v. Citizens For Better Environment., 63 L.Ed.2d 73, 89 (1980).]

Chapter 5.20 of the Municipal Code regulates door-to-door handbill distribution, peddling and solicitation. This Chapter was adopted in accordance with the judicial decisions that governed solicitation before the decision in the Watchtower case and imposes a requirement on persons engaging in any type of solicitations (charitable or commercial) to obtain a letter of authorization from the City Manager. This approach was believed to be valid because it avoided the common pitfall of distinguishing between types of speech, which caused other ordinances to be struck down by the courts. (See, City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 46-47 (1986) (“[r]egulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment.”) (See also, City of Fresno v. Fresno Press Communications, Inc., 31 Cal.App.4th 32 (1994).)

The City Attorney’s Office does not believe that the Watchtower decision impacts the enforceability of Rancho Palos Verdes’ restrictions on placing leaflets on cars. The handbill distribution regulations (Section 15.20.100) apply to all types of handbills without regard to their content and are aimed solely at preventing the litter caused by the placement of handbills on automobiles and upon private property when not properly secured so that they can blow away.

Because the Watchtower decision invalidates the requirement that a permit must be obtained before a charitable solicitation can occur, which is similar to the City’s process of obtaining a letter of authorization, which is required by Chapter 5.20, this office gave direction to Staff and to the Sheriff’s Department not to require a letter of authorization from any group or person who simply is disseminating information door-to-door within the City and not to prevent such groups from soliciting in the City even if they have not obtained the letter of authorization. This evening, Staff is presenting amendments to Chapter 5.20 that will make that Chapter consistent with the Court’s ruling in Watchtower .

DISCUSSION

Chapter 5.20 regulates any type of solicitation that is conducted in the City, regardless of whether it is for commercial or charitable purposes. Before any solicitation can be conducted, the individual must obtain a letter of authorization from the “Authorization Officer,” who is designated by the City Manager to perform this duty. The Authorization Officer does not have the discretion to refuse to issue a letter of authorization based on the type of solicitation that will be conducted. Instead, the Authorization Officer must issue the letter upon the submittal of a complete application, unless there is a material misrepresentation in the application. The City may revoke a letter of authorization only when the provisions of Chapter 5.20 are violated. Decisions to revoke, suspend or deny a letter of authorization may be appealed to the City Manager. The process that is set forth in Chapter 5.20 is very similar to the process that was invalidated by the Court’s decision in the Watchtower case.

Earlier this year, in response to concerns from residents about peddling from catering trucks within the City, the City Council adopted Chapter 5.28 of the Municipal Code. That Chapter established comprehensive regulations governing any commercial sale that is conducted within the City, which is not conducted from a fixed location. Accordingly, those regulations govern commercial sales of items that are conducted on foot, door-to-door, or from a vehicle. The provisions of Chapter 5.28 do not include the non-commercial dissemination of information because that Chapter only governs solicitations when an item is presented for purchase at the time that the solicitation is made.

When the City Council enacted Chapter 5.28, the City Council stated that the requirements of Chapter 5.28 should not be applied to charitable organizations that raise money by selling items to the public. Accordingly, the City Council directed that Chapter 5.28 be amended to expressly exclude from its requirements any entity that is within the purview of Section 501(C)(3) of the Internal Revenue Code and is registered as a non-profit corporation with the California Secretary of State. (See, Section 5.28.040(c).)

Based on the Court’s decision in Watchtower, and the City Council’s prior direction to exempt non-profit entities from the requirements of Chapter 5.28, Staff recommends the following changes to Chapter 5.20 governing solicitation:

1. The entire process for issuing letters of authorization to those wishing to conduct a solicitation within the City should be eliminated. This complies with the decision in Watchtower because those who simply wish to disseminate information will not have to obtain a letter of authorization from the City. It also is compatible with the City Council’s prior direction to exclude non-profit organizations from the purview of the peddling regulations. This means that any entity that falls within the exemption for nonprofit organizations set forth in Section 5.28.040 will not be required to obtain a business permit or a letter of authorization from the City prior to conducting those activities. However, all commercial solicitors, as defined in Chapter 5.28, still will have to obtain a business permit prior to selling their wares in the City. By adopting those requirements, the City is advancing its goal of protecting the public from fraudulent transactions arising from commercial sales that occur in connection with a solicitation.

Although one can argue that someone who is attempting to collect a donation to raise money for a non-profit corporation also should be regulated, Staff recommends against this approach. Staff’s recommendation is based upon the concern that this type of regulation would impermissibly distinguish between different types of non-commercial speech, which is a content-based restriction that is presumptively invalid under the case authority. (See, City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 46-47 (1986), supra; see also, City of Fresno v. Fresno Press Communications, Inc., 31 Cal.App.4th 32 (1994).)

2. The existing provisions precluding the placement of handbills on parked vehicles and upon private residential property set forth in Section 5.20.100 are being retained as valid restrictions that prevent littering. (See Jobe v. City of Catlettsburg, 409 F.3d 261 (6th Cir. 2005.)

3. The preclusion against entering upon any residential property where a “do not disturb” or similar sign is posted, which is set forth in Section 5.20.090 A, is being preserved. This provision maintains the privacy of any individual who does not want to have any solicitor come upon his or her property. Again, although not part of the express holding in the Watchtower case, the Court’s opinion indicated that such a provision is valid, and such provisions have been upheld in other cases.

4. The other content-neutral provisions of Section 5.20.090, which govern the manner of solicitation, are being maintained. In addition to the preclusion against soliciting at a residence where a “do not disturb” sign is posted, those provisions also prevent solicitors from: trying to enter a residence; touching the person from whom the solicitation is being made; restricting someone’s movement; repeatedly approaching the same person after the person has expressed his or her wish not to be approached; soliciting from persons who are in line (which is referred to as a “captive audience”); accepting food stamps as a contribution; and misrepresenting his or her physical or mental condition.

5. Because several cases have invalidated restrictions on the time when door-to-door solicitations can occur, the proposed ordinance deletes Section 5.20.110, which prevents solicitations between the hours of 8:00 p.m. and 8:00 a.m. (See Alternatives for California Women, Inc. v. County of Contra Costa, 145 Cal.App.3d 436 (1983).)

CONCLUSION

If the City Council concurs with Staff’s recommendation, the City Council should read the attached Ordinance by title only, waive further reading, and introduce the ordinance.

ALTERNATIVES

The City Council could give Staff additional direction about these issues, which could be incorporated into a revised ordinance.

Respectfully submitted,

Carol Lynch, City Attorney

Reviewed by,

Les Evans, City Manager

Attachments:

Draft Ordinance

ORDINANCE NO. ___

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES REGARDING SOLICITATION WITHIN THE CITY OF RANCHO PALOS VERDES AND AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE

THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY ORDAIN AS FOLLOWS:

Section 1. Title 5 of the Rancho Palos Verdes Municipal Code is hereby amended by amending Chapter 5.20 thereof to read as follows:

Chapter 5.20

SOLICITATION

Sections:

5.20.010 Definitions.

5.20.020 Exemptions.

5.20.030 Manner of solicitation.

5.20.040 Distribution of handbills.

5.20.050 Effect on other ordinances.

5.20.060 Penalty for violations.

5.20.10 Definitions. As used in this chapter:

"Charitable" means and includes the words patriotic, philanthropic, social services, welfare, benevolent, educational, religious, civic or fraternal, either actual or purported.

"Charitable association" means and includes any organization, whether or not incorporated, that is organized and operated exclusively for charitable, religious, fraternal, educational, cultural, civic or other tax exempt purposes or functions as specified in Article I of Chapter 4 of the California Revenue and Taxation Code (commencing with Section 23701), or any successor thereto, and which has been determined by the Franchise Tax Board to be exempt from taxation, or which has established its exemption under Section 501(c)(3) of the Internal Revenue Code or any successor thereto.

"Captive audience" means one or more purposefully stationary persons, such as persons in lines or seated in public areas.

"City" means the city of Rancho Palos Verdes.

"Contributions" means and includes the words alms, food, clothing, money, or property, subscription or pledge, and also donations under the guise of loans of money or property.

"Person" means any individual, firm, business, partnership, corporation, cooperative, company, association, joint stock association, church, religious sect, religious denomination, society, organization, or league and shall include any trustee, receiver, assignee, agent, solicitor, or other similar representative thereof.

"Solicit" and "solicitation" mean the request, directly or indirectly, of money, credit, property, financial assistance, patronage or other things of value; hawking, peddling, vending, offering for sale or taking orders for any goods, services, or merchandise for charitable (as defined in this section) or commercial purposes or otherwise, or the dissemination of information conducted door to door in residential neighborhoods, in any place of public accommodation, in any place of business open to the public generally, on the city's streets and sidewalks, in public parks, on public beaches, or in any other public place. "Solicit" and "solicitation" also shall mean and include the following methods of disseminating information, securing money, patronage, credit, property, financial assistance, or other thing of value, when conducted in the following manner:

By oral or written report;

By the distribution, circulation, posting, or publishing of any handbill, written advertisement or other publication, unless such handbill or written advertisement has been placed on the premises of a business open to the public generally with the consent of the owner or proprietor of such business;

The sale or taking orders for any goods, services, merchandise, wares or other tangible items.

A solicitation shall be deemed made at its inception, whether or not the person making the same receives any contribution or makes any sale referred to in this subsection.

"Street or highway" means all of those areas dedicated as public thoroughfares, including, but not limited to, roadways, parkways, medians, alleys, sidewalks and public ways.

5.20.20 Exemptions.

The provisions of this chapter shall not apply to solicitations made upon premises owned or occupied by the organization or person on whose behalf such solicitation is made;

Payments required by law to be collected or paid;

Payments to or for governmental agencies;

Solicitations made by an association or its authorized agents and employees to its own members and employees;

Solicitations made by telephone;

Persons customarily calling only on businesses or institutions for the purposes of selling products for resale or business or institutional use;

The distribution of items or printed materials for which consideration has been paid by the person receiving such items or materials.

5.20.030 Manner of solicitation.

No person shall solicit at any dwelling, including, but not limited to, a house, apartment, mobile home or condominium where there is displayed a sign indicating "No Solicitations," "Do Not Disturb" or any other indication that the occupants do not wish to be solicited or in any other way have their privacy disturbed.

No person shall, in the course of a solicitation, request or demand admission to the interior of a private residence or dwelling.

No person shall touch, come into physical contact with or affix any object to the person of any member of the public without first receiving express permission therefor from such member of the public.

No person shall persistently and importunately solicit any member of the public after such member of the public expresses his or her desire not to be solicited.

No person shall intentionally or deliberately obstruct the free movement of any person on any street, sidewalk or other place or in any place open to the public generally.

No person shall solicit from a captive audience.

No person shall threaten any injury or damage to any member of the public who declines to be solicited.

No person shall accept food stamps as a contribution.

No person shall misrepresent his or her physical or mental health while soliciting.

No person shall, while an occupant of a temporarily standing or moving vehicle on a street or highway, attempt to hire or hire for employment another person or persons.

No person shall, from any public street, sidewalk, alley, way or other public property, solicit or attempt to solicit employment, business or contributions, vend, peddle, sell and/or offer for sale any merchandise, goods, wares or services to the occupants of vehicles standing or moving in or upon any public street or highway, except that nothing in this paragraph shall be construed to prohibit solicitation of the occupants of any vehicle that is lawfully parked.

5.20.40 Distribution of handbills

Distribution upon Residential Property. No person shall drop, throw, scatter, or cast upon any residential property in the city without the consent of the owner or occupant thereof any newspaper, handbill, pamphlet, circular, leaflet, or any other advertising sheet or other printed matter. This paragraph shall not be construed to prevent the delivery of newspapers, handbills, or other materials which are individually delivered and secured to the property in such a way as to eliminate the hazards of randomly scattered litter.

Distribution upon Public Property and Vehicles. No person shall drop, throw, scatter, or cast upon any public street or sidewalk, or place upon any unoccupied vehicle, any newspaper, handbill, pamphlet, circular, leaflet, or any other advertising sheet or other printed matter.

5.20.50 Effect on other ordinances.

Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of the Rancho Palos Verdes Municipal Code, including, without limitation, the provisions of Chapter 5.28, and such person shall remain subject to those provisions.

5.20.060 Penalty for violations.

Any person who violates any provision of this chapter shall be guilty of an infraction for the first violation, and of a misdemeanor for each subsequent violation.

Section 2. The City Clerk shall cause this Ordinance to be posted in three (3) public places in the City within fifteen (15) days after its passage, in accordance with the provisions of Section 36933 of the Government Code. The City Clerk shall further certify to the adoption and posting of this Ordinance, and shall cause this Ordinance and its certification, together with proof of posting, to be entered in the Book of Ordinances of the Council of this City.

Section 3. This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage.

PASSED, APPROVED and ADOPTED this _______ day of _______________, 2006.

_____________________________

Mayor

ATTEST:

___________________________

City Clerk

State of California )

County of Los Angeles )ss

City of Rancho Palos Verdes)

I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing Ordinance No. was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on ________, 2006, and that the same was passed and adopted by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

________________________

City Clerk