HomeMy WebLinkAbout10 SOLICITATION ORDINANCEAGENDA REPORT
Agenda Item 10
Reviewed:
City Manage
Finance Director
MEETING DATE: MAY 1, 2012
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: SCOTT M. JORDAN, CHIEF OF POLICE
SUBJECT: PROPOSED ORDINANCE REGULATING VARIOUS FORMS OF
SOLICITATION ON CERTAIN PUBLIC RIGHTS OF WAY AND PRIVATE
PROPERTY AND ACTS OF TRESPASS ON PRIVATE COMMERCIAL
PROPERTY
The Police Department has received a growing number of complaints from private
property owners concerning adverse impacts arising from a variety of solicitation
activities at and upon commercial properties. Complaints concerning overnight trespass
on commercial properties and unwanted acts of skateboarding on private property have
become numerous. Police Department staff has worked with the City Attorney's Office
to develop a proposed ordinance to address these issues.
This ordinance amends the Tustin City Code by establishing regulations which: prohibit
solicitation activity at those public rights of way where street parking is prohibited;
requires a solicitor's permit for solicitors conducting commercial or charitable solicitation
in residential areas of the city; prohibits solicitation activity on commercial property
wherein the property owner has posted a "no solicitor's sign". In addition, the ordinance
prohibits trespass on commercial properties during non-business hours and prohibits
skateboarding on commercial properties.
RECOMMENDATION
Have the first reading, by title only, of the attached Ordinance No. 1412 adding to and
amending various sections of the City of Tustin City Code relating to the regulation of
solicitation activity, acts of trespass on private commercial property, and acts of
skateboarding on private commercial property within the City of Tustin.
;j &1101-11 a I �, I
Costs associated with the signage of the public rights of way will be the responsibility of
the City of Tustin. The cost of 20 signs will be $840.00.
Proposed Ordinance Regulating Various Forms of Solicitation
May 1, 2012
Page 2 of 7
BACKGROUND/DISCUSSION
The City of Tustin has experienced various negative impacts created by solicitation in
public rights of way, solicitation on commercial property, residential door-to-door
solicitation, trespassing on the exterior premises of private business property during
non-business hours and skateboarding on private commercial property. Over time, the
Police Department has received numerous complaints from private property owners
regarding these impacts as further explained in this report.
These issues have negatively impacted the quality of life for residents in the community,
local business owners, and property owners. These negative impacts also adversely
affect the safety of vehicular and pedestrian traffic. Members of the Police Department
staff have worked with the City Attorney's Office to develop specific ordinance
regulations addressing these areas of concern. The City Attorney provided an opinion
discussing the legal aspects of the proposed ordinance, which is attached to this report.
This report presents proposed amendments and additions to City of Tustin
ordinances related to both solicitation activity and trespass. The first three topics are in
regards to solicitation and encompass:
• Solicitation in the public right of way;
• Solicitation on privately owned commercial properties; and
• Residential door-to-door solicitation.
The latter two topics are in regards to trespassing and include:
• Trespassing on commercial properties during non-business hours; and
• Regulation of skateboarding on private property.
ARTICLE 5, CHAPTER 8 — SOLICITATION ACTIVITIES
Overview of Proposed Ordinance Amendments Regulating Solicitation
1. Reaulation of Solicitation Activitv on Certain Areas of Public Riahts of Wa
Staff is recommending that Tustin City Code be amended to prohibit all forms of
solicitation at those particular street locations with prohibited "on street parking". This
specific prohibition is set forth in Section 5802(b). As amended, Section 5802(b) will
provide that it is unlawful for any person, while standing in any portion of a public
sidewalk or driveway, to conduct solicitations of any person in an automobile traveling
on any street with designated prohibited parking. Legislative findings supporting the
regulations are found in Section 5800.
Individuals who solicit motorists from public rights of way often do so specifically from
center medians and sidewalks adjacent to streets where there is no on-street parking.
Proposed Ordinance Regulating Various Forms of Solicitation
May 1, 2012
Page 3 of 7
Such conduct creates significant traffic hazards. These traffic hazards include vehicles
unnecessarily stopping in traffic lanes, vehicles forced to make sudden stops,
congestion in and around driveway aprons, individuals entering traffic lanes in an
attempt to contact vehicle occupants, and individuals standing in front of vehicles to
prevent the vehicles from proceeding forward. In addition, individuals attempting to
attract the attention of occupants in a vehicle often use aggressive tactics such as loud
whistling, shouting, waving arms, jumping around, and converging upon vehicles. This
distracts a motorist's attention away from his primary duty of safely operating a motor
vehicle.
Examples of highly traveled streets with prohibited parking involving traffic related
hazards arising from solicitation activity include:
■ Irvine Boulevard where it intersects with the 55 fwy (35 to 40 mph)
■ Red Hill Avenue between the 1-5 fwy and San Juan (35 to 40 mph)
■ El Camino Real between Orange Street and Red Hill Avenue (35 to 40 mph
■ Jamboree Boulevard between the 5 fwy and Irvine Boulevard (40 to 45 mph from
fwy to El Camino Real — and 45 to 50 mph from Bryan Avenue to Irvine
Boulevard)
The above intersections and streets service a high level of vehicular traffic and often
have increased congestion during peak traffic flow hours. Peak traffic hours are
between 7:00 am and 7:00 pm during the day. In 2010 the Red Hill, El Camino, and
Jamboree locations were reviewed and a speed limit increase of 5 mph was
implemented, as noted above. In addition, Red Hill Avenue and El Camino Real in
particular, service a very high level of pedestrian traffic. The close proximity of the high
school also creates an increased volume of pedestrian traffic at the start and finish of
the school day. The public streets with prohibited parking within the scope of this
ordinance regulation comprise a small percentage of surface streets within the City.
The Police Department often responds to these locations for service calls related to
individuals engaged in various acts of solicitation, including those peak traffic hours.
In 2011, the Tustin Police Department responded to over 45 citizen generated complaint
calls specifically related to solicitation activity in the public right of way. All of the calls
involved the locations noted above. In addition, a portion of those calls specified a
concern that such activity was creating a traffic hazard.
During the past several years, the Police Department has responded to many calls for
service where property managers, business owners, employees, and customers have
had numerous complaints related to vehicular and pedestrian traffic hazards. These
hazards have included individuals trespassing into center medians and approaching
vehicles for purposes of solicitation.
Proposed Ordinance Regulating Various Forms of Solicitation
May 1, 2012
Page 4 of 7
Business owners and managers expressed frustration because they continue to receive
significant customer complaints relating to vehicle and pedestrian violations.
The City of Orange conducted its own study of similar pedestrian and vehicular safety
issues arising from solicitation activity on its major thoroughfares, which prohibit on
street parking. That study concluded that various forms of solicitation engaging vehicle
drivers should be prohibited from those particular streets, in order to better promote
vehicular and pedestrian safety. A copy of this study is on file and available for
inspection at the office of the City Clerk.
The primary goal of regulating solicitation activity in these public rights of way is to
reduce driver distraction, thereby minimizing the potential of traffic collisions. Such a
prohibition will assist in reducing the number of potential hazards which arise from the
above noted solicitation activity. It is additionally noted there are no Vehicle Code
provisions which directly relate to the public safety hazards arising from solicitation
activity on sidewalks on the types of specific streets discussed in this report, or referred
to in the draft ordinance.
The ordinance is limited in scope, restricting solicitation on a small percentage of
street/sidewalk area, thereby allowing ample opportunity for solicitors on numerous
other streets. More specifically, the City's traffic engineer has calculated that the
percentage of streets/sidewalks subject to the solicitation restrictions of the proposed
ordinance amount to approximately only 1.3% of the total mileage of streets/sidewalks
within the entire City.
2. Regulation of Solicitation on Commercial Private Property
Staff is recommending that the Tustin City Code be amended to address complaints
from commercial property owners concerning various forms of unwanted forms of
solicitation activity occurring on their property.
At present, the Tustin City Code does not address the issue of unauthorized persons
conducting various forms solicitation on private commercial property. There is a
provision of the Penal Code which very generally addresses trespass by persons on
private property. However, the Penal Code provision is generally not suitable to address
private owner complaints over transitory solicitation acts at strip malls or larger sized
shopping centers. In addition, technical First Amendment issues exist with respect to
the application of the Penal Code prohibition of trespass on private property for certain
larger sized commercial properties which have qualified for First Amendment activity
(e.g., petition gathering) under case law decisions.
The City Attorney's Office has advised that a more efficacious approach to the issue is
to adopt a provision which essentially prohibits various forms of unwanted solicitation on
private commercial property wherein the owner has posted a "No Solicitors Sign". Such
Proposed Ordinance Regulating Various Forms of Solicitation
May 1, 2012
Page 5 of 7
municipal ordinances have been used in other cities and have been supported by legal
case decisions as noted in the attached City Attorney opinion.
Under this approach, a commercial property owner would post a "No Solicitors Sign"
consistent with the signing requirements provided in the ordinance. (Section 5818(b).)
Once the sign is posted, an owner would advise an unwanted solicitor to leave the
property.
Special signing requirements are provided for larger shopping center properties to
comply with technical First Amendment requirements. (Section 5818(c)(1).)
Any commercial property owner complying with the signing requirements of the
ordinance could request the City to assist in the enforcement of a posted "No Solicitors"
sign if a violator refused to leave the property upon request by the owner. If a violation
occurred, or continued to occur, the property owner could call the Police Department for
assistance. At that point, a solicitor could be cited for a violation.
The recommended ordinance provision is based upon the following factual background:
In 2011, Tustin Police Department responded to approximately 250 documented
community generated calls for service where the complaints were related to financial
solicitation, employment solicitation, product sales, distribution of literature, and
soliciting for signatures. It has been reported that solicitors have been aggressive
towards customers; they have been known to follow customers to their vehicles and
have been abusive towards patrons. In addition, the location of where they conduct
solicitation, their set-up, and/or conduct often interferes with business operations.
In addition, Chapter 8 of Article 5 of the municipal code has been drafted to incorporate
and consolidate all of the city's regulations governing various forms of solicitation which
are now found at Part I (Regulation of solicitation in public rights of way), Part 11
(Regulation of commercial and charitable solicitation), and Part III (Regulation of
aggressive solicitation) of this draft ordinance.
3. Regulation of Residential Solicitation
Staff is recommending that Tustin City Codes 5810 - 5818 be added to Chapter 8 of
Article 5 of the Municipal Code for the purpose of promoting the public health, safety,
and welfare of residents and property owners from fraud, misrepresentation, robbery,
theft, and other criminal acts which can arise from unregulated solicitation.
The Tustin Police Department has found that persons and organizations have been
visiting and continue to visit private residential properties for the purposes of soliciting
goods, wares, merchandise, services, funds or contributions. In 2011, the Tustin Police
Department responded to over 60 calls for service relating to subjects soliciting door to
door in residential communities.
Proposed Ordinance Regulating Various Forms of Solicitation
May 1, 2012
Page 6 of 7
In recent years there have been many documented cases in California and throughout
the nation where residents were victims of heinous crimes including rape, robbery, and
murder in which the perpetrators were persons claiming to be solicitors and committed
the crimes in the victim's place of residence. As such, unregulated residential
solicitation provides opportunity and a guise for the criminal element in society.
This regulation requires solicitors to obtain a permit prior to soliciting within residential
communities in the City. The permit process requires each person over the age of 18,
who desires to solicit in residential locations, to submit an application along with a
receipt of submission of livescan fingerprints. The fingerprint process queries a national
database and will provide details on any criminal activity related to the subject, which
have occurred in any of the 50 states.
The Finance Department will continue to process the applications but the applications
must be approved by the Police Department prior to the issuance of the permit.
Concurrently with the second reading and adoption of Ordinance No. 1412, staff will
recommend the adoption of a Resolution establishing the application fee, which is
based on the actual time used by personnel to process the application.
CHAPTER 3, ARTICLE 6, PART V — TRESPASS ON PRIVATE COMMERCIAL
PROPERTY
4. Regulation of Trespassing on Commercial Properties During Non-Business Hours
Staff is recommending that Tustin City Code section 6350 be added to Chapter 3 of
Article 6 of the Tustin City Code for the purpose of prohibiting any person from
trespassing upon private commercial property during non-business hours. This section
provides for a signing approach wherein a private commercial property owner may sign
the property to prohibit a person's presence on the property during non-business hours.
The signage would meet size and content requirements under Section (c).
This ordinance addition is based upon the following: the Tustin Police Department has
received complaints on an annual basis related to subjects sleeping, camping, or being
on private commercial property during non-business hours. On several occasions,
employees have arrived at work and encountered a subject sleeping in a conspicuous
location on the property or blocking the entrance to the building. There have also been
many complaints where specific locations on the property emit a strong odor of human
waste and an abundance of trash being left behind on the property.
Oftentimes, the same subjects are contacted under the same circumstances at different
locations in the City. The City of Tustin does not currently have a City Code provision
governing trespass activity on commercial property and the Penal Code does not
provide suitable options, allowing for necessary enforcement by Police Department
personnel.
Proposed Ordinance Regulating Various Forms of Solicitation
May 1, 2012
Page 7 of 7
In 2011, Tustin Police officers responded to over 15 documented calls for service
related to the matters indicated in the above paragraph.
The goal of this ordinance is to increase safety in the community and minimize the
decay of property caused by human waste and litter. This will reduce the negative
effects on the local business complexes, reduce repeat calls for service, and hold those,
who are in violation, accountable for their actions.
CHAPTER 3, OF ARTICLE 5, PART IV — SKATEBOARD REGULATIONS
5. Regulation of Skateboardinq on Private Property
Staff is recommending that the City Code be amended to prohibit skateboarding on any
commercial property which has been signed to prohibit such activity. Section 5343(a) of
the Code would be amended to prohibit any person from skateboarding on any
commercial property where the property owner has posted appropriate signage as
specified in the ordinance. (See Section 3 of the ordinance.)
The basis for this recommendation is as follows: Over the years, the Tustin Police
Department has received hundreds of complaints regarding subjects skateboarding on
private property. In 2011, the Tustin Police Department responded to over 50 citizen-
generated complaints related to skateboarders. Many businesses and property owners
complain because of the damage it causes to the property.
Currently, the City does not have a City Code provision that regulates skateboarding on
private commercial property. An officer's response is only a short-term resolution since
the violators often return at another time or move to another property within the City.
Creating an ordinance that regulates this behavior will provide enforcement as an option
when responding to such complaints. It is our goal to assist property/business owners to
protect their property and hold violators accountable for their actions.
J1
SCOTT M. JORDAN
Chief of Police V
Attachment 1: Consolidated Solicitation and Trespass Ordinance (Ordinance No.
1412)
Attachment 2: City Attorney Legal Opinion
Attachment 3: City of Orange Ordinance — Title 9, Chapter 9.37 Solicitation from
Public and Private Property
ATTACHMENT 1
• Mj
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN AMENDING VARIOUS SECTIONS OF THE
TUSTIN CITY CODE RELATING TO THE REGULATION
OF SOLICITATION ACTIVITY AND ACTS OF TRESPASS
OCCURING ON COMMERCIAL PROPERTIES
City Attorney Summary
This ordinance amends the Tustin City Code by establishing
regulations which: prohibit solicitation activity at those public
rights of way where street parking is prohibited; requires a
solicitor's permit for solicitors conducting commercial or
charitable solicitation in residential areas of the city; prohibits
solicitation activity on commercial property wherein the
property owner has posted a "no solicitor's sign". In addition,
the ordinance prohibits trespass on commercial properties
during non-business hours and prohibits skateboarding on
commercial properties.
The City Council of the City of Tustin hereby ordains as follows:
SECTION I. Code Amendment Relating to Solicitation Activities
Chapter 8 of Article 5, "Public Safety" is hereby amended in its entirety to read as
follows:
CHAPTER 8. REGULATION OF SOLICITATION ACTIVITY
PART 1. Regulation of Solicitation Activity in Public Rights of Way
5800 Findings and intent
The City Council finds that it is necessary to regulate the solicitation activity of
pedestrians and motor vehicle occupants who utilize certain public rights of way
based upon the following findings:
(1) The City of Tustin has experienced negative secondary impacts
arising out of solicitation activities of pedestrians and passing motorists
who utilize certain public rights of way as documented in a Police
Department report provided to the City Council. These impacts consist of
traffic hazards caused by: the distraction of automobile drivers observing
solicitation activity or otherwise stopping or slowing in traffic lanes;
Ordinance No. 1412
Page 1 of 14
solicitors' physical obstruction of vehicular traffic flow by walking randomly
into streets to solicit passing motorists. Additional problems emanating
from this solicitation activity include littering, public urination, interference
with pedestrian access to public sidewalks, and interference with on-site
commercial business operations. These secondary impacts are found to
be a nuisance condition requiring reasonable restrictions to mitigate
potential impacts from such nuisance conditions.
(2) The City Council takes notice of the fact that other local
municipalities, such as the cities of Orange and Newport Beach, and
nationwide have experienced similar impacts from solicitation in public
rights of way aimed at passing motorists. The City of Orange conducted
an extensive analysis of such impacts in a study and report to the City
Council resulting in the enactment of an ordinance which establishes City
of Orange regulations restricting solicitation activity at certain public rights
of way. The Orange ordinance makes specific findings that solicitation on
public rights of way, upon which vehicle parking is prohibited or restricted,
causes significant traffic hazards. That analysis and ordinance provides a
further factual basis to support the enactment of regulations restricting
solicitation activity in certain public rights of way as further set forth in this
chapter.
5801 Definitions
As used in this Chapter, the following words and phrases shall have the following
meanings:
"Charitable solicitation activity" means commercial sales or requests for
charitable contributions on behalf of a nonprofit organization, including
e.g., patriotic, philanthropic, social services, welfare, benevolent,
educational, religious, civil, or fraternal, either actual or purported.
"Commercial property" means any real property held, owned, or controlled
by private interests and which is zoned by the city for any form of business
enterprise, including but not limited to, retail, office, commercial, or
industrial, or recreational purpose.
"Contribution" means the giving of anything of value, including money,
property, or any type of financial assistance, or the pledging of anything of
value, including money, property, or other type of financial assistance, or
the purchasing or offering to purchase anything of value, including, but not
limited to goods, services, books, real property, pamphlets, tickets, or
subscriptions to publications.
Ordinance No. 1412
Page 2 of 14
"Employment" shall mean services, industry or labor performed by a
person for wages or other compensation or under contract of hire, whether
written, oral, expressed or implied.
"Occupants of motor vehicles" shall mean the driver and passengers of
the vehicle.
"Person" means any individual, firm, partnership, joint venture,
association, social club, league, fraternal organization, joint stock
company, estate, trust, corporation, or any other group acting as a unit.
"Solicit", "solicitation", or "'solicitation activity" shall mean and include, but
not limited to any request, offer, enticement, or other action which
announces the availability of employment, the sale of goods, services, or
requests for funds, petition gathering; or any request, offer, enticement or
action which seeks to purchase or sell goods, or to cause a contribution of
money or other property to be made. As defined herein, a solicitation shall
be deemed complete when made whether or not an actual transaction of
any type is completed, or exchange of money, including charitable
contributions, takes place.
5802 Prohibited Solicitation Activity
(a) Solicitation Prohibited When Conducted From Sidewalks and Driveways
Where Vehicle Parking Is Not Legally Permitted. It shall be unlawful for any
person, while standing in any portion of a public sidewalk or driveway, to engage
in solicitation activity with any person traveling in a vehicle along any public
street or highway which has been designated by the City as a as a prohibited
parking area or no parking zone.
(b) Solicitation Prohibited When Conducted Within Public Streets and
Medians. It shall be unlawful for any person while standing within any public
street or highway or public median to engage in solicitation activity with any
person in a vehicle in the public right of way, including but not limited to, a public
street, highway, sidewalk, or driveway.
(c) Prohibition Of Solicitation By Occupants Of Vehicles. It shall be unlawful
for any occupant of a vehicle to engage in solicitation activity with a person who
is within a public street or highway which has been designated by the City as a
prohibited parking area or no parking zone.
5803 Posting of Signs
The City shall post signs in the public right of way to notify the public of the
prohibitions of Section 5802.
Ordinance No. 1412
Page 3 of 14
PART 11. Regulation And Licensing of Residential Solicitation Activity
5810 Purpose and Findings
The City Council finds that it is necessary to protect and promote the public
health, safety and welfare by protecting property owners from fraud,
misrepresentation, robbery, theft and other criminal acts which can arise from
unregulated solicitation activity through the enactment of licensing regulations
provided herein.
5811 Solicitor's Permit Requirements
(a) Solicitor's Permit Requirement. No person shall conduct commercial or
charitable solicitation activity in any residential or multi-family zone district within
the City without first having obtained a solicitor's permit issued by the Finance
Department.
(b) Persons Required To Obtain Permit. If a person is conducting charitable
It
or commercial solicitation on behalf of, or is employed by another person, both
the person soliciting and the employer or other person upon whose behalf
solicitation is being made must obtain a solicitor's permit.
(c) Permit Fees. A solicitor's permit application or renewal fee shall be paid
by the applicant in an amount set by City Council resolution. This fee is
established to recoup the actual administrative cost City incurs in the processing
of the permit application.
(d) Exceptions.
(i) Solicitors engaged in expressive speech relating to the espousal or
discussion of religious, social, or political causes, not entailing commercial
transactions or requests for charitable contributions, are exempt from a
solicitors permit requirement;
00 Juveniles are not required to ' obtain a solicitor's permit to engage in
solicitation. Juveniles must be accompanied at all times by an adult (18
years or older) who is licensed to solicit. The adult must stay within 100
feet of the juvenile.
5812 Application Procedure
Applicants for a solicitor's permit must file a completed application with the
Finance Department on an application form furnished by the City which shall
provide all, but not limited to, the following information:
Ordinance No. 1412
Page 4 of 14
1. Name and identifying information about the applicant,
2. Home and business address.
3. Description of the nature of the business and identified as commercial or
charitable purpose, as the case may be.
4. Description of any motor vehicles to be used, including the name of the
registered owner and license plate number.
5. Name and address of employer, or organization responsible for the
solicitation activity.
6. A valid government issued photo identification card
7. Fingerprint check: Livescan finger print confirmation receipt
8. Disclosure of any and all criminal convictions of any felony or
misdemeanor, infraction or misdemeanor citations received, including any
municipal code violations, any pending criminal or civil cases, or are
currently under investigation for any crimes involving moral turpitude,
physical harm to any person, theft or unlawfully obtaining of funds and
property from another party.
9. Any other relevant information or evidence of identity and past conduct or
business activity of the applicant as may be required by the Chief of
Police.
5813 Permit Investigation and Issuance
Upon receipt of a completed application, the Finance Department shall forward
the application to the Chief of Police, or his designee, for an investigation of the
application as to compliance with applicable application requirements.
The Chief of Police, or his designee, shall make a recommendation of approval
to the Finance Department if it is determined that the applicant has not been
convicted of a felony or misdemeanor involving: moral turpitude, fraud, physical
harm to any person, theft, or unlawfully obtaining funds or property from another
party.
Upon receipt of the Chief of Police's recommendation for approval on the
application, the Finance Department shall promptly approve the solicitor's permit
application.
Ordinance No. 1412
Page 5 of 14
5814 Form of Solicitor's Permit/ Duration
(a) The solicitor's permit shall contain the signature of the Finance Director, or
the Director's designee, the solicitor's name, physical description, and the nature
of the solicitation activity, the issuance and expiration date of the permit, and the
words "Solicitor Permit."
The permit shall be worn conspicuously and continuously by the permittee on the
front of the person's outer garment during all solicitation activities.
(b) The solicitor's permit shall be valid for a period of ninety (90) days from
issuance. It may be renewed for periods of ninety (90) days thereafter upon
request of the applicant up to a total of twelve (12) months. Thereafter, a new
application and application fee must be submitted for a solicitor's permit. The
livescan fingerprints submitted for this permit shall be valid for up to one calendar
year. New livescan fingerprints are required each calendar year.
5815 Revocation of Permit
(a) Grounds For Revocation. A solicitor's permit may be revoked by the
Finance Department for any of the following causes:
1. Fraud, misrepresentation, or false statement contained in the
application for permit.
2. Fraud, misrepresentation, or false statement made in the course of
a solicitation.
3. Any violation of solicitor City Code provision.
4. Conviction of any felony or misdemeanor involving moral turpitude.
(b) Revocation Procedure. The Chief of Police shall first make a written
recommendation to the Finance Department as to whether a solicitor's permit
should be revoked. Prior to making a revocation determination, the Finance
Director, shall conduct a hearing with the permittee on the matter. Notice of a
permit revocation hearing shall be given in writing setting forth the grounds for
revocation, and the time and place of hearing. The notice shall be mailed to the
permittee at least ten calendar (10) days prior to the date set for the hearing.
Following the hearing, the Finance Director shall determine whether or not to
revoke the permit, and if revoked, shall issue a notice setting forth basis for the
revocation. The notice of revocation determination shall be mailed to the
permittee within five business (5) days from date of the hearing.
Ordinance No. 1412
Page 6 of 14
5816 Appeals/City Council Hearing
Any person aggrieved by any determination to deny an application for, or revoke,
a solicitor's permit shall have the right to appeal to the City Council. Such appeal
shall be in writing and shall contain the reasons for the appeal. It shall be filed
with the City Clerk within 10 calendar days from final action taken by the Finance
Director. The City Clerk shall set a time for the hearing at the next available City
Council meeting that is more than ten (10) but less than thirty (30) calendar days
after receipt of the completed request for appeal, and written notice of such
hearing shall be sent to the appellant by first class mail, deposited at least ten
(10) days prior to the City Council hearing date.
The City Council shall hear the matter and make written findings in support of its
final action on the matter. If appropriate, the Council may continue the hearing or
the determination to a future meeting.
5817 Regulation of Solicitation in Residential Areas
(a) Specific Requirements. No person shall solicit in any of the residential
zoned areas of the City:
1 Between the hours of 6:00 p.m. and 8:00 a.m., unless done by
appointment;
2. At any house, apartment, or other dwelling to which is affixed a sign
indicating "No Solicitors" or similar indication that no solicitation is
desired by the occupants thereof;
3. At any house, apartment, or other dwelling within a homeowner's
association that maintains private streets where the homeowner's
association has posted on each vehicular entry way to the property
a notice in substantially the following form:
"No Solicitors", or similar indication that no solicitation is
permitted by occupants thereof.
4. By using profane or abusive language or making verbal threats,
during the solicitation;
5. By stepping onto or over the threshold of a doorway, unless invited
to do so by the occupant;
6. By placing hands, legs, or any portion of the solicitor's body in the
doorway so that it reasonably appears that the door may not be
closed, unless allowed to do so by the occupant;
7. By refusing to immediately leave the solicited premises when asked
to do so by any occupant; or
8. By knowingly making false statements or misrepresentations about
the purpose of the solicitation.
Ordinance No. 1412
Page 7 of 14
9. Without a valid Solicitor's Permit issued by the City.
(b) Receipts. Any person receiving money or anything of value in excess of
five dollars ($5.00) from any contributor by means of a solicitation shall, upon
request, give such contributor a written receipt showing the name and address of
the solicitor, the date, and the amount received.
(c) Compliance With State Charitable Laws. Prior to and while engaging in
solicitation in any residential area of the City, every person shall fully comply with
all applicable state laws, including the provisions of the California Charitable
Disclosure Law as set forth in the California Business and Professions Code
sections 17510 et seq.
5818 Regulation of Solicitation Conducted on Commercial Property
(a) Findings and Intent. The City has received a growing number of
complaints from certain merchants and business patrons that solicitors have
engaged in a variety of commercial and non-commercial solicitation activity on
private commercial property without the owner's consent. This solicitation activity
can have the effect of impeding the free movement of citizen patrons, and
otherwise cause noise and physical obstruction which detracts from a conducive
commercial environment.
(b) Prohibition. It is unlawful for any person to solicit in or upon any
commercial property within the City when such property is affixed with signage
stating "NO SOLICITORS", or similar statement to the effect that solicitation is
not permitted on the property, or is otherwise permitted only in restricted areas of
the property.
(c) Signage Requirements
(1) Excepting commercial property containing communal areas, the
property owner shall post a "No Solicitors" sign of a size not less than 22
inches by 17 inches, with lettering of at least one inch in height, at each
vehicular entry point to the property.
(2) For commercial property containing communal areas, the property
owner shall post signs stating that:
"Solicitation of any type is permitted only in designated areas of this
Commercial Property. Violators are subject to prosecution pursuant to
Tustin City Code section 5811(b). Contact the property manager for a
permissible solicitation location,"
Ordinance No. 1412
Page 8 of 14
The signing shall be located at prominent entry point(s) of the property, and at
such other locations which have been designated by the property owner as
permissible solicitation locations. The size of the signs shall be not less than 22
inches by 17 inches with lettering of at least one inch in height.
For purposes of this section, "communal areas" shall mean such areas set aside
by the owner in which the public may engage in such matters as discourse,
recreation, or entertainment separate and apart from commercial patronage
occurring at business establishments. Examples of communal areas are seating
areas, plazas, or large walking areas. Restaurant seating restricted to particular
patronage does not constitute communal areas of the center.
PART 111. Prohibition of Aggressive Solicitation and Solicitation at Certain
Locations
5830 Purpose and Intent
The City Council finds that it is necessary to protect citizens from the fear and
intimidation accompanying aggressive solicitation and all solicitation in certain
confined areas. Aggressive solicitation may include approaching or following
pedestrians, repetitive contact, or the intentional blocking of pedestrian and
vehicular traffic.
5831 Aggressive Solicitation Prohibited
No person shall solicit, ask or beg in an aggressive manner in any public place.
5832 All Solicitation Prohibited At Specified Locations
(a) City Parking Structures. Any act of solicitation is prohibited in any City
public parking lot or parking structure.
(b) Restrooms. No person shall solicit, ask, or beg in any public restroom or
within twenty five (25) feet of the entrance to a public restroom.
(c) Banks and ATMs. No person shall solicit ask or beg within twenty five
(25) feet of any entrance or exit of any bank, savings and loan association, credit
union, or check cashing business during its business hours or within twenty five
(25) feet of any automated teller machine during the time it is available for
customers use. Provided, however, that when an automated teller machine is
located within an automated teller machine facility, such distance shall be
measured from the entrance or exit of the automated teller machine facility.
Provided further that no person shall solicit, ask or beg within an automated teller
machine facility where a reasonable person would or should know that he or she
Ordinance No. 1412
Page 9 of 14
does not have the permission to do so from the owner or other person lawfully in
possession of such facility. Nothing in this paragraph shall be construed to
prohibit the lawful vending of goods and services within such areas.
(d) A marked bus stop;
(e) Public transportation vehicles or facilities.
5833 Definitions
In construing the provisions of this Part, the following definitions shall apply:
"Aggressive manner" shall mean any of the following:
Approaching or speaking to a person, or following a person before,
during or after soliciting, asking or begging, if that conduct is
intended or is likely to cause a reasonable person to:
(i) fear bodily harm to oneself or to another, damage to loss of
property, or
(ii) otherwise be intimidated into giving money or other thing of
value;
2. Intentionally blocking or interfering with the safe or free passage of
a pedestrian or vehicle, by any means, or the blocking or interfering
with pedestrian or vehicular access to any building, including
unreasonably causing a pedestrian or vehicle operator to take
evasive action to avoid physical contact or to gain entrance to a
building;
3. Intentionally touching or causing physical contact with another
person or an occupied vehicle without that person's consent in the
course of such soliciting, asking, or begging;
4. Using violent or threatening gestures toward a person solicited
either before, during, or after soliciting, asking, or begging;
5. Persisting in closely following or approaching a person, after the
person has been solicited and informed the solicitor by words or
conduct that such person does not want to be solicited or does not
want to give money or any other thing of value to the solicitor; or
Ordinance No. 1412
Page 10 of 14
6. Using profane, offensive or abusive language which is inherently
likely to provoke an immediate violent reaction, either before,
during, or after solicitation.
"Public place" shall mean a place to which the public or a substantial
group of persons has access, and includes, but is not limited to, any
street, highway, sidewalk, public parking lot, plaza, transportation facility,
school, place of amusement, park, playground, and any doorway,
entrance, hallway, lobby, and other portion of any business establishment,
an apartment house, or hotel not constituting a room or apartment
designed for actual residence.
"Solicitation" shall have the same meaning set forth in Tustin City Code
Section 5801.
PART IV. Violations
5840 Misdemeanor/Infraction
Any violation of the provisions of this chapter may be prosecuted as an infraction
or misdemeanor pursuant to section 1121, of Part 11, of Chapter 1 of the Tustin
City Code. Violations may also be punished by other penalty, citation, and
administrative citation process provided for in Chapter 1 of Article 1.
SECTION 11. Code Amendment Relating To Regulation of Trespassing Activities on
Private Commercial Properties
PART 5, entitled "Trespass on Private Commercial Property" is hereby added to
Chapter 3, "Disorderly Conduct" of Article 6, "Public Welfare" to read as follows:
PART 5 Trespass on Exterior Premises of Commercial Property
6350 Remaining on Exterior Premises When a Business is Closed
(a) Findings and Intent. The City has received complaints from business
owners that individuals enter upon and remain overnight on the exterior portion of
their private commercial property without owner consent. This transient
occupation leads to health and safety impacts on properties including urination
and the leaving of waste and debris. This section is intended to prohibit such
transient overnight occupation when owners post appropriate signage on their
properties in accordance with this section.
Ordinance No. 1412
Page 11 of 14
(b) Prohibition. It shall be unlawful for any person to remain upon the exterior
premises of any private commercial property, including any parking area, when
the business is closed, and the property is posted with at least one sign at a
pedestrian entry point prohibiting the presence of any person on the property
during non-business hours. "Private commercial property" means any real
property held, owned, or controlled by private interests and which is zoned by the
City for any form of business enterprise, including but not limited to, retail, office,
commercial, industrial, or recreational purpose.
(c) Signage. The sign shall be a minimum size of 17 inches by 22 inches and
shall state:
Entrance to this property is limited to patrons
only. It is a trespass and violation of law to
remain on this property during non-business
hours. (Tustin City Code section 6350(b))
Business Hours are:
insert hours
(d) Scope and Application. This section shall not apply to any person who
has a bona fide intent to exercise an established constitutional right.
SECTION 3. Code Amendment Relating to Skateboard Regulations
Tustin City Code section 5343, "Skateboard Regulations", of Part 4, of Chapter 3, of
Article 5 of the Tustin City Code is amended in its entirety to read as follows:
5343 Regulation of Skateboarding on Private Property, Designated Public Property,
and City Streets.
(a) Private Property. It shall be unlawful for any person to engage in
skateboarding on any commercial property in the City in which the owner, lessee,
or operator of such property has posted at least one sign stating:
"SKATEBOADING IS PROHIBITED • THIS PROPERTY PURSUANT TO
TUSTIN CITY CODE SECTION 5343."
The size of the sign shall be not less than 22 by
than one inch in height. The sign shall be posted
prominent location on the property.
17 inches with lettering not less
in plain view in at least one (1)
Ordinance No. 1412
Page 12 of 14
"Skateboarding" is defined to mean a board of any material which has wheels
attached to it and which is propelled or moved by human movement, or
mechanical power. "Private commercial property" shall have the same meaning
as stated in Tustin City Code section 6350.
(b) Public Property. It shall be unlawful for any person to engage in
skateboarding in or on any city public parking structure, or on or within the City
Civic Center/Library complex property,
(c) Streets and Public Highways. It shall be unlawful for any person to
skateboard on any City street or public highway within the City. This prohibition
shall not extend to include city sidewalks. Skateboards shall yield the right of
way to pedestrians at all times.
SECTION 4. Severability. If any section, subsection, sentence, clause, or phrase of
this ordinance is for any reason, held to be invalid or unenforceable, such decision shall
not affect the validity or enforceability of the remaining portions of this ordinance. The
City Council declares that it would have passed this ordinance, and each section,
subsection, clause or phrase hereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses, and phrases be declared invalid or
unenforceable.
SECTION 5. Repealer
(a) Chapter 10 "Charitable and Commercial Solicitations", of Article 5 "Public
Safety" of the Tustin City Code is hereby repealed in its entirety.
(b) Chapter 11 "Prohibition Against Certain Forms of Aggressive Solicitation"
of Article 5 "Public Safety" of the Tustin City Code is hereby repealed in its
entirety.
(c) Chapter 7, "Solicitation in Private Commercial Parking Areas", of Article 6,
"Public Welfare" of the Tustin City Code is hereby repealed in its entirety.
Ordinance No. 1412
Page 13 of 14
PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin
on this 1 st day of May, 2012.
JOHN NIELSEN, MAYOR
PAMELA STOKER, City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ss.
CITY OF TUSTIN
�01:j I O L 4 jig [4!YA'l I
• E01 a§
_I R W USIM
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City
of Tustin, California, does hereby certify that the whole number of the members of the
City Council of the City of Tustin is five; that the above and foregoing Ordinance No.
1412 was duly and regularly introduced and read at the regular meeting of the City
Council held on the _ day of _, 2012, and was given its second reading, passed
and adopted at a regular meeting of the City Council held on the _ day of
2012, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
PAMELA STOKER, City Clerk
=6110me
Ordinance No. 1412
Page 14 of 14
ky j WIVA
WOODRUFF, SPRADUN &SMART
555 ANTON BOULEVARD, SUITE 1200
COSTA MESA, CA 92626-7670
(714) 558-7000
ATTACHMENT 2
DIRECT DIAL: (714) 415-1083
DIRECT FAX: (714) 415-1183
E-MAIL: dkcndig@Nvss-1aw,com
HAND DELIVERED
MEMORANDUM
TO: Jeffrey C. Parker, City Manager
FROM: David E. Kendig
DATE: April 17, 2012
RE: Legal Opinion Concerning Proposed Solicitation Ordinance
In working with your office in updating various ordinance provisions relating to various
forms of commercial and charitable solicitation activity, this opinion is provided to address the
constitutional validity of the proposed solicitation ordinance amendments. The proposed
ordinance addresses commercial solicitors in certain public rights of way, establishes a formal
solicitor's permit requirement for commercial and charitable solicitors, regulates solicitors on
private commercial properties, regulates itinerant trespassing and skateboarding on private
property. The draft ordinance also consolidates all solicitor regulations into one chapter of the
municipal Code. More specifically, the ordinance:
(1) prohibits solicitation activity at those public rights of way wherein street parking
is prohibited. [§§ 5800-5803];
(2) establishes a solicitor's permit requirement for solicitors conducting commercial
or charitable solicitation activity in residential areas of the city; [§ 5811 ]
(3) prohibits solicitation activity on commercial property wherein the property owner
as posted appropriate "No Solicitors" signage. [§ 5818];
(4) prohibits trespass on commercial properties during non-business hours wherein
the property owner has posted appropriate "No Trespass" signage. [§ 6350 of
Section 2 of the Ordinance]
(5) prohibits skateboarding on commercial properties wherein the property owner has
posted appropriate "No Skateboarding" signage. [§ 5343 of Section 3 of the
ordinance]
(6) consolidates all solicitation regulations affecting solicitation activity into chapter
8 of the Municipal Code,
852037.1
Jeffrey C. Parker, City Manager
April 17, 2012
Page 2
I. General Overview of the City's Police Power Supporting Municipal
Regulation of Commercial and Charitable Solicitors.
(a) Regulation of Solicitation Activity in Public Places. Municipal regulation of
solicitation has long been recognized to be within each city's police power, Los Angeles Alliance
for Survival v. City of Los Angeles (2000) 22 Cal. 4 th 352, 378. The municipal police power is
set forth in Article X1, section 7 of the California Constitution which confers the power to "make
and enforce all local police, sanitary, and other ordinances not in conflict with general laws,"
The police power is an elastic power. It allows cities to tailor regulations to suit the interests
and needs of a "modem, enlightened and progressive community" even as those interests and
needs change. Rancho La Costa v. County of San Diego (1980) 111 Cal. App. 3d 54, 60.
Further, cities may adopt regulatory schemes affecting First Amendment rights to remove the
potential for secondary adverse effects before they arise. Sundance Saloon, Inc. v. City of San
Diego (1 989) 213 Cal. App. 3d 807, 821.
However, solicitation activity involving elements of free speech activity is subject to First
Amendment protection under the United States Constitution. Los Angeles Alliance for Survival
et al. v. City of Los Angeles, supra; Acorn v. City of Phoenix (1 986) 798 F.2d 1260; Doucette v.
City of Santa Monica, 955 (1997) F.Supp. 1192; Gaudi ya Vaishnavy Soc. v. San Francisco
(1990) 952 F.2d 1059. Governmental regulations affecting speech activity located within
traditional public places such as streets and sidewalks, including expressive activity intertwined
with commercial conduct, are treated by case law decisions as "time, place, and manner"
restrictions, and are subject to the following constitutional legal test:
(i) Whether the regulation is content neutral;
(ii) Whether it is narrowly tailored to serve a significant governmental interest;
(iii) Whether it leaves open ample alternative channels of communication.
If a government regulation affecting First Amendment speech activity is "content
neutral", judicial decisions further provide that an "intermediate scrutiny" standard shall be
applied to test the constitutional validity of the regulation. The intermediate scrutiny standard
focuses in part upon whether the regulation is narrowly tailored to serve a significant
governmental interest. A content neutral regulation need not necessarily utilize the least
restrictive available means of regulation. Doucette v. City of Santa Monica supra. A regulation
is content neutral if it is justified without reference to the content of regulated speech, or
otherwise is not enacted for the purpose of disagreement with the content of the expression.
Cincinnati v. Discovery Network (1 993) 507 U.S. 41 0; Los Angeles Alliance for Survival et al. v.
City of Los Angeles, supra.
The following forms of solicitation have been held to receive First Amendment
protection: speech activity involving social, economic, and political causes, various forms of
commercial activity tied directly or indirectly to expressive activity, panhandling, and
852037.1
Jeffrey C. Parker, City Manager
April 17, 2012
Page 3
solicitation for work. Gaudiya Vaishnava v. San Franciso, supra; Los Angeles For Survival et
al. v. City of Los Angeles, supra.
Several federal and state appellate decisions have upheld some forms of city regulation of
solicitation conduct on public sidewalks where the public entity in question presented some form
cogent evidence suggesting that the regulation served a beneficial public policy purpose and was
narrowly tailored to achieving that public interest. (See Acorn v. City of Phoenix (1 986) 798 F.
2d 1260 [upholding a ban on aggressive solicitation within streets]; One World Family Now v.
City of Honolulu (1996) 76 F. 3d 1009 [upholding a city wide ban against the sale of vendor
merchandise on public sidewalks]; Juan Xi1qj-ft-7ep et al. City of Agoura Hills (1 994) 24 Cal.
App. 4th 620 [upholding a city prohibition against solicitation for work within public rights of
way].
However, the Ninth Circuit Court of Appeals recently held in Comite De Jornales De
Redondo Beach v. City of Redondo Beach (9 Cir. 2011) 657 F.3d 936 that a "day laborer"
solicitation ordinance, prohibiting "solicitation of employment, business, or contributions" from
passing motorists by sidewalk solicitors, to be a violation of the First Amendment. The Redondo
Beach ordinance was a city -wide ban against all day laborer solicitation occurring on any city
sidewalk. The Ninth Circuit reasoned that the ordinance did not meet the "narrowly drawn" legal
standard because the ban was city wide, and the city offered no factual justification to justify
such a broad legal prohibition.
(b) Regulation of Solicitation Activity on Private Commercial Properties. Federal
law decisions have supported narrowly drawn municipal ordinances which prohibit solicitation
on private property when the private property owner has posted a "No Solicitors" sign. Project
80's, Inc. v. City of Pocatello (1 991) 942 F.2d 63 5; Watchtower Bible &Tract Society of NY v.
Village of Stratton (536 U.S. 150 (2002); Van Nuys Publishing Co. v. City of Thousand Oaks
(1971) 5 C.3d 817. No First Amendment rights are implicated in this factual context; that is,
there is no First Amendment right under federal constitutional law to engage in "expressive
activity" at, for example, a privately owned shopping centers. Hudgens v. NLRB (1976) 424
U.S. 507; Van, et al. v. Home Depot, USA (2007) 155 Cal. App. 4 1375.
However, in California, the California Supreme Court has held in Pruneyard Shopping
Center v. Robins (1979) 23 Cal.3d 899 that where larger sized commercial mall areas include
significant "communal areas", First Amendment free speech protection is applicable to
expressive activity, like petition gathering, even though it occurs on private property. In the
Pruneyard case, the California Supreme Court found that a 23 acre shopping mall containing
significant communal areas such as walkways, sitting areas, and plazas amounted to a functional
equivalent of a traditional downtown center business district. Because the mall had become a
quasi public forum, the Court held that the California Constitution required that the private
property owner allow at least some limited opportunity for persons to, for example, collect
petition signatures for social causes. Under the Pruneyard case holding, and subsequent case
holdings, the property owner is free to adopt reasonable regulations restricting such expressive
conduct to limited location(s) within the shopping center property. See Trader's Joe Co. v.
Progressive Campaigns, Inc. (1 999) 73 Cal. App. 4 425; Albertson's Inc v, Young (2003) 107
Cal. App. 4 106; Van v. Home Depot (2003) 155 Cal. App. 4' 1375,
852037.1
Jeffrey C. Parker, City Manager
April 17, 2012
Page 4
The Proposed Tustin Ordinance.
(a) Sidewalk Solicitation. Section 5802(b) of the proposed ordinance prohibits all forms
of solicitation at just those street and sidewalk locations on -_ which on-street parking is no
allowed. The police department has presented evidence of traffic hazards which would arise at
such locations. It is our opinion that the ordinance provision satisfies First Amendment
constitutional requirements because:
( the regulation is content-neutral on its face. It applies to all forms of solicitation.
Further, it focuses simply on physical conduct which has the effect of
endangering the safety of pedestrian and vehicular traffic;
(2) the prohibition is narrowly tailored to advancing the governmental interest of
citizenry safety in that it only applies to a small number of streets in the City,
namely, those streets with prohibited on-street parking requirements. In those
particular areas, danger to vehicular traffic and pedestrians arises from the
slowing, or stopping, of vehicular movement due to solicitation activity as noted
by the Police Department report; and
(3) ample alternative opportunities for solicitation are available, such as the vast
majority of sidewalk locations where on-street parking is not prohibited, door to
door solicitation, newspaper and internet advertizing.
It is further noted that the proposed ordinance is far less restrictive than the solicitation
ordinance invalidated in the Comite De Jornaleros De Redondo Beach v. Redondo Beach case
because that ordinance affected all commercial and residential streets throughout that city.
(b) Licensing of Solicitors. Part 11 of the ordinance, specifically sections 5810-5816,
establish a permit requirement which prohibits commercial and charitable solicitation in
residential areas unless a solicitor's permit is first obtained from the City. The public safety
purpose of this licensing requirement is to allow for an initial criminal background check on
solicitors seeking to solicit commercial transactions, or requests for charitable donations, to
reduce the threat of fraud and theft. Such licensing requirements are been consistently upheld by
state and federal judicial decisions. Perlman v. Mun.Ct., (1979) 99 Cal. App. 3d 568, 577;
Village of Schaumburg. v. Citizensfor a Better Environment (1 980) 44 U.S. 620.
(c) Solicitation On Private Property. Section 5818(b) of the ordinance permits the City
of Tustin to enforce a trespass prohibition against unwanted solicitations of any type on private
commercial properties. Section 5818(b) prohibits solicitation of any kind on private commercial
property if the owner has posted a prescribed "No Solicitors" sign on the property. As noted
above, case law has approved of this statutory approach. (Project 80's, Inc. v. City of Pocatello,
supra.)
Section 5818(c) also addresses the Pruneyard issue by providing that owners of larger
sized commercial properties, which include the "communal" areas and activities described in the
852037.1
Jeffrey C. Parker, City Manager
April 17, 2012
Page 5
Pruneyard case, may also post a "No Solicitors" sign, providing that the property owner has set
aside an area of the property for First Amendment protected expressive activity. The signage
requirements of section 5818(c)(2) reflect this approach by providing that solicitation activity is
permitted only in designated areas of the property. The signage must state "contact the property
manager for a permissible solicitation location".
(d) Other 'provisions. The trespass prohibition on commercial properties during non-
business hours, and restrictions against skateboarding on private property and certain public
owned properties, fall well within the City's police power under the cases cited in the discussion
Section L(a) above.
Conclusion. The components of the proposed ordinance described above fall within the
City's police powers under Article XI, Section 7 of the California Constitution. Further, they are
consistent with First Amendment case law requirements discussed herein.
I hope this proves helpful. If you have any questions, please do not hesitate to call me.
Woodruff, Spradlin & Smart, APC
Q,
By:
David E. Kendig
City Attorney
852037.1
ATTACHMENT 3
Title S- PUBLIC PEACE, MORALS AND WELFARE
Chapter 9.37 - SOLICITATION FROM PUBLIC AND PRIVATE PROPERTY
93 - Definitions.
9.37.010 - Purpose of this Chapter.
Large congregations of day laborers at infVnD8| day labor sites have for many ye3na, if not decades,
blocked and obstructed the public's use of public rights-of-way, interfered with the use and enjoyment
of private property by private property owners, created traffic hazards and have caused other negative
impacts and therefore constitute a public nuisance. In addid0O, solicitations for the exchange of money,
property Or employment services directed from or toward motorists traveling on City streets impede the
free Uovv of traffic and create [refDC hazards on ihOSH streets where thee* is no on-street parking. It is
the intent ofthis chapter to remove obstructions for the safe passage of motorists and pedestrians On
the streets and Sidevva|kG, to minimize the interference with the use and enjoyment Of private property
caused by So|ici{@bOn to encourage the use of the Resource Center and other hiring centers, and to
encourage more formal and orderly alternative no8Gnn for solicitation to minimize the negative
secondary impacts. The City Council finds that rSgu/odOnS are Deeded to prohibit day laborer
solicitation in public areas near the Resource Center and private property hiring centers to increase
their utilization and to minimize negative secondary effects b) nearby properties caused by day labor
activity in and around formal hiring centers. The following regulations are Content neutral and impose
reasonable time, place and manner regulations on solicitation from public rights-of-way and commercial
parking |0[e.
(Ord. 19-07)
9'37'020 -Defmitionm'
For purposes Vf this chapter the following definitions shall apply:
A. CITY PROPERTY means and includes any City street, highway, sidewalk, easement or other
City property that is not specifically designated for off-site soliciting activities.
B. CITY STREET means all portions of roadway used by motor vehicles for travel or parking,
including any medians lying within such rOUdvv8yG.
C. COMMERCIAL PARKING LOT means privately owned property that is designed or primarily
used bv customers Vf the property owner for parking, ingress and egress.
O. DAY LABORER SOLICITATION means and includes any action bya person tV announce his
Orange, California, Code of Ordinances
Page 1of3
Title PUBLIC PEACE, MORALS AND WELFARE
Chapter 9.37 - SOLICITATION FROM PUBLIC AND PRIVATE PROPERTY
availability for employment to persons operating motor vehicles or by o person operating 8 motor
vehicle to offer employment to a pedestrian.
E. SOLICITATION or SOLICIT rnaunn and includes any request, offer endcernent. or similar
action by an individual t0 advertise or announce his availability for employment, to offer
emp|oyment, to oe|| or purchase gOOdS. property orservices or to seek Or make contributions of
money or property, that is intended to consummate a physical exchange of money and/or proper
between 8 motorist and pedestrian or entry bye pedestrian into @ vehicle. Aao|ioitodon shall
constitute G xio|@dOn of this chapter when made whether or not an aCfu8| employment, mg|8.
purchase or contribution transaction iScompleted.
F. PUBLIC RIGHT-OF-WAY rne8nS and includes any street, highway, drivevvay, parkway or
sidewalk within the City limits.
G. PROPERTY OWNER means the fee owner of the propeUy, the property owner's authorized
agent, any tenant in lawful possession of the property and/or the tenant's authorized agent.
H. RESOURCE CENTER means the City's day labor hiring center located on W1CPh8[GOO Road
in the City of Orange.
(Ord. 19-07)
9.37'030 -Prmhibitiomm.
A. No person ShGU solicit from any public sidewalk that is immediately ad to any City street or
highway upon which a motorist cannot legally park.
B. NO person eho|} while Operating o motor vehicle on or along a City Gtr8et, solicit from the motor
vehicle unless the motor vehicle is legally parked.
{|� No person shall, from a location on any private property engage in solicitation absent the express
written permission of the property owner.
1. For this subse{ti0n, to become operative the property owner shall either notify the City's
Police Department in writing that solicitation is not permitted Vn their property and the |oC8UoO Of
such property, orally inform G police officer that such permission has not been granted and request
removal of solicitors and/or post sign at each entrance to the property not less than eighteen
(18) by twenty-four (24) inches in size with lettering not less than one inch in height and not to
exceed six square feet which substantially provides esfollows:
It is a misdemeanor to engage iD the solicitation for and of employment other than toperform
the employment onor for the owner or occupants Of the premises.
The written no SO||Ci[adon notice shall be effective uDU| withdrawn in writing. The oral request for
removal of solicitors shall be effective only for the day upon which it is given.
D. NV person shall solicit while Stopped or standing in any through traffic |one, upon any street
median Vr upon any driveway apron located within the public rightof-mmy.
E. No person shall engage in day laborer solicitation on any public right-of-way that is immediately
adjacent to any private property that has been issued a permit for a hiring center in accordance with
Section 17.3O.070Ofthis code.
OmngeCalifomia.Codeof Ordinances
Page 2of3
Title 9- PUBLIC PEACE, MORALS AND WELFARE
Chapter 9.37 - SOLICITATION FROM PUBLIC AND PRIVATE PROPERTY
F No person shall solicit from any public sidewalk in a manner that impedes pedestrian 8oceSS to
such public sidewalk.
G. NV person shall remain on any private property for the purpose of engaging in solicitation after
they have been requested [o leave bv the private property owner.
H. This chapter Sho|| not be interpreted to relieve any person from obtaining a certificate of
identification to engage in those solicitation activities governed by Chapter 5.66 of this code.
(Ord. 18-07)
3.37.040 -Excectimns.
A. A person may solicit from a COrnrnerCi8| parking lot if such person has the express permission Of
the property owner. However, if property owner permits five or more penGODe to C0Ogneg@t8 for the
purpose of engaging in solicitation upon their private property, a permit issued by the City in
accordance with Section 17.30.070 of this C0dg must be obtained by the property owner. A person with
the property owner's express written permission to engage in off-site solicitation shall not be liable for a
violation of this chapter solely on the basis that the property owner has failed to obtain a permit.
B. This chapter shall not apply to solicitations from private property to perform services that are
provided upon the property from which the solicitation occurs or to sell or purchase goods from or to the
subject property owner.
C. This Chapter shall not apply to conduct which oO|e|y involves the distribution of literature or to
private property which is required by law to be open to the public for communicative purposes such as
plaza areas and walkways oflarge shopping centers where the general public iS invited tOcongregate.
((]nd. 19-07)
g.37'05D- Resource Center Regulations.
A. Persons engaged in the solicitation for employment may utilize the Resource Center for such
solicitation provided that such persons abide by the rules and regulations established by the Resource
Center. Persons who d0 not abide by such rules and regulations may be prohibited from using the
Resource Center for Q minimum period nf three months and 8 maximum period Vf one year.
B. Other than the Resource Center pnopedx, no person Sh8U engage in any day laborer solicitation
on any City property, which is located on McPherson Road between its intersection with Chapman
Avenue to the south and its intersection with Spring Street to the north. No person shall engage in day
laborer solicitation upon any property located within Gr'a|va Park or upon any public right-of-way
immediately adjacent t0 Gr'a|va Park. This subsection shall only apply t0 those hours in which the
Resource Center iaopen.
(Ord. 19-07)
9']7.06Q-Penalty.
Any person violating the provisions of this chapter shall be guilty of a misdemeanor and upon conviction
thereof shall be subject to fine of two hundred fifty dollars ($250.08) for the first of#anse, five hundred
dollars ($5OO.UO) for the second offense and one thousand dollars ($1.OUO.00) and imprisonment inthe
Orange County Jail for 8 term not exceeding three months for the third offense.
Orange, California, Code ofOrdinances
Page 3of3
Title PUBLIC PEACE, MORALS AND WELFARE
Chapter 9.37 - SOLICITATION FROM PUBLIC AND PRIVATE PROPERTY
(Ord. 19-07)
Orange, California, Code nfOrdinances
Page 4 of 3