HomeMy WebLinkAbout07 AMICUS BRIEF 03-01-99 LAW OFFICES Of
WOODRUFF, SPRADLIN ~ SJ,sART
A PROFESSIONAL CORPORATION
AGENDA
MEMORANDUM
NO. 7
3-1-99
TO:
FROM:
DATE:
RE:
Honorable Mayor and Members of the City Council
City of Tustin
City Attorney
February 24, 1999
Joinder in Amicus Brief in Support of the City of Los Angeles in L.A. Alliance
for Survival, et al. v. City of Los Anqeles, et al., SO73451
RECOMMENDATION:
We recommend that the City Council by motion authorize joinder in the amicus
brief in support of the City of Los Angeles. An adverse decision in this case could affect
the City's ability to regulate solicitation of motorists along its streets and in private
shopping centers. Joinder in the amicus brief will be at no cost to the City.
DISCUSSION:
The California Supreme Court is considering an ordinance of the City of Los
Angeles that was recently struck down in a legal challenge. The case arrived at the
California Supreme Court through an unusual route. The case was originally heard in
Federal District Court. The City of Los Angeles then appealed to the United States
Court of Appeals for the Ninth Circuit. Using a new California Rule of Court, the City of
Los Angeles asked the Ninth Circuit to first send the matter over to the California
Supreme Court to decide the issue under the first amendment speech rights of the
California Constitution.
The Los Angeles ordinance at issue is attached. It contains several sections.
One section prohibits aggressive panhandling. Another section prohibits soliciting
money from persons at or near banks or ATM machines. A third section prohibits
soliciting people who are in their cars. These regulations were justified by the following:
"Motorists also find themselves confronted by persons who
without permission wash their automobile windows at traffic
intersectiOns, despite explicit indications by drivers not to do
so. Such activity often carries with it an implicit threat to
both person and property. People driving or parking on City
streets frequently find themselves faced with panhandlers
seeking money by 'offering to perform "services" such as
opening car doors or locating parking spaces."
100763\1
Honorable Mayor and Members of the City Council
City of Tustin
February 24, 1999
Page 2
A fifth section of the ordinance prohibits solicitation in areas where people are "captive"
audiences. Such places include buses, subways and trains, parking lots and structures,
indoor and outdoor dining areas.
While the City of Tustin does not have the problems with solicitors that the City of
Los Angeles has, the City has enacted an ordinance that prohibits soliciting people who
are in vehicles traveling on City streets and in private parking areas. Such an ordinance
has been previously upheld by a California Court of Appeal. We want to make sure that
the California Supreme Court does not overturn that prior appellate court decision in
ruling on this case. In addition, it would be very helpful if the City could regulate
solicitation in the other forms prescribed by the City of Los Angeles ordinance. If such
regulation is not found to offend the California Constitution, there is a good chance that
it will also withstand a challenge under federal law.
The amicus brief writers in this case, the law firm of Munger, Toiles & Olson, are
preparing the brief on a pro bono basis. It will not cost the City anything to join in the
amicus brief in support of the City of Los Angeles.
LOIS E. JEFFRE'¢/ //k' 0
cc: William A. Huston, City Manager
100763\1
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OKDINANCE NO.
171664
An ordinance adding section 41.59 to Article I of Chapter IV of the Los
Angeles Municipal Code to prohibit aggressive soliciting.
WHEREAS, it is the intent of the Council in enacting this Ordinance to
improve the quality of life and economic vitality of the City, and to protect the safety of
the general public against certain abusive conduct of persons engaged in solicitation, by
imposing reasonable manner and place restrictions, on solicitation while respecting the
constitutional rights of free speech for all citizens, and
WHEREAS, the Council finds that an increase in aggressive solicitation
throughout the city has become extremely disturbing and disruptive to residents and
businesses, and has contributed not only to the loss of access to and enjoyment of public
places, but also to an enhanced sense of fear, intimidation and disorder, and
Wt-IE~S, aggressive panhandling usually includes approaching or following
pedestrians, the use of abusive language, unwanted physical contact, or the intentional
blocking of pedestrian and vehicular traffic. The Council further finds that the presence of
individuals who solicit money fi'om persons at or near banks or automated teller machines
is especially threatening and dangerous. Motorists also find themselves confronted by
persons who without permission wash their automobile windows at u'affic intemections,
despite explicit indications by drivers not to do so. Such activity often carries with it an
implicit threat to both person and property. People driving or parking on city streets
frequently find themselves faced with panhandlers seeking money by offering to perform
"services" such as opening car doors or locating parking spaces, and
WHEREAS, the Council further finds as abusive the solicitation of people in
places where they are a "captive audience" in which it is impossible or difficult for them to
exercise their own fight to decline to listen to or to avoid solicitation from others. Such
places include buses, subways, and trains; parking lots and structures; and indoor and outdoor
dining areas. Restricting solicitation in such places will provide a balance between the rights
of solicitors and the fights of persons who wish to decline or avoid such solicitations, and
will help avoid or diminish the threat of violence in such unwarranted and unavoidable
confrontations, and
WHERF~S, this law is ti/nely and appropriate because current laws and city
regulations are insufficient to address the aforementioned problems. The restrictions
contained herein are neither overbroad nor vague and are narrowly tailored to serve a
substantial governmental interest. Furthermore, in enacting this legislation, the Council
recognizes the availability of co~_munity service and other sentencing alternatives, which
may be appropriate remedies for violations of this law. The goal of this law is to protect
citizens fi-om the fear and intimidation accompanying certain kinds of solicitation that have
become an unwelcome and overwhelming presence in the city.
NOW THEREFORE,
THE PEOPLE OF THE CITY OF LOS ANGELES
DO ORDAIN AS FOLLOWS:
Section I. Chapter IV of the Los Angeles Municipal Code is hereby
amended by adding a new Section 41.59 thereto, to read as follows:
SEC. 41.59. PROHIBITION AGAINST CERTAIN FORMS OF
AGGRESSIVE SOLICITATION.
(a) Definitions. For purposes of this section:
(1) "Solicit, ask or beg" shall include using the spoken, written, or
printed word, or bodily gestures, signs or other means with the purpose of
obtaining an immediate donation of money or other thing of value or soliciting the
sale of goods or services.
(2) "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, 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.
(b) Aggressive Solicitation prohibited.
(1) No person shall solicit, ask or beg in an aggressive manner in any
public place·
(2) "Aggressive manner" shall mean any of the following:
·
(A) 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
o
·
oneself or to another, damage to or loss of property, or (ii) otherwise be
intimidated into giving money or other thing of value;
(B) Intentionally touching or causing physical contact with
another person or an occupied vehicle without that person's consent in the
course of soliciting, asking or begging;
(C) Intentionally blocking or i~terfering with the safe or free
passage of a pedestrian or vehicle by any means, including umeasonably
causing a pedesu-ian or vehicle operator to take evasive action to avoid
physical contact;
· CD) Using violent or threatening gestures toward a person
solicited either before, during, or after soliciting, asking or begging;
(E) Persisting in closely following or approaching a person, after
the person solicited 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
(F) Using profane, offensive or abusive language which is
inherently likely to provoke an immediate violent reaction, either before,
during, or after solicitation.
(c) All solicitation prohibited at specified locations.
(1) Banks and ATMs. No person shall solicit, ask or beg within 15 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 15 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 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.
(A) Definitions. For purposes of this section:
(i) "Bank" means any member bank of the Federal
Reserve System, and any bank, banking association, trust company,
savings bank, or other banking in~tufion organized or operated
under the laws of the United States, and any bank the deposits of
which are insured by the Federal Deposit Insurance Corporation.
(ii) "Savings and loan association" means any federal
savings and loan association and any "insured institution" as defined
in Section 401 of the National Housing Act, as amended, and any
federal credit union as defined in Section 2 of the Federal Credit
Union Act.
(iii) "Credit union" means any federal credit union and any
state-chartered credit union the accounts of which are insured by the
Administrator of the N~ational Credit Union Administration.
(iv) "Check cashing business" means any person duly
licensed as a check seller, bill payer, or prorater pursuant to Division
3 of the California Financial Code, commencing with section 12000.
(v) "Automated teller machine" shall mean any electronic
information processing device which accepts or dispenses cash in
connection with a credit, deposit, or convenience account.
(vi) "Automated teller machine facility" shall mean the
area comprised of one or more automated teller machines, and any
adjacent space which is made available to banking customers at~er
regular banking hours.
(B) Exemptions. The provisions of subdivision (c)(1) shall not
apply to any unenclosed automated teller machine located within any
building, structure or space whose primary purpose or function is unrelated
to banking activities, including but not limited to supermarkets, airports and
school buildings, provided that such automated teller machine shall be
available for use only during the regular hours of operation of the building,
structure or space in which such machine is located.
(2) Motor vehicles and parking lots.
(A) Motor vehicles. No person shall approach an operator or
occupant of a motor vehicle for the purpose of soliciting, asking or begging
while such vehicle is located in any public place.
(B) Parking lots. No person sh. al! solicit, ask or beg in any public
parking lot or structure any time after dark. "After dark" means any time
from one-half'hour after sunset to one-half hour before sunrise.
(c)
following:
Exemptions. Subdivision (c)(2) shall not apply to any of the
(i) to solicitations related to business which is being
conducted on the subject premises by the owner or lawful tenants;
(ii) to solicitations related to the lawful towing of a
vehicle; or
(iii) to solicitations related to emergency repairs requested
by the operator or other occupant of a vehicle.
(3) Public transportation vehicles and stops.
(A) "Public transportation vehicle" shall mean any vehicle,
including a trailer bus, designed, used or maintained for carrying 10 or more
persons, including the driver; or a passenger vehicle designed for carrying
fewer than 10 persons, including the driver, and used to carry passengers for
hire.
03) Any person who solicits, asks or begs in any public
transportation vehicle, or within ten feet of any designated or posted public
transportation vehicle stop, is guilty of a violation of this section if:
(i) He or she remains there after being asked to leave by
the owner, driver, or operator of a public transportation vehicle; the
agent of the owner, driver or operator of a public transportation
vehicle; the owner or manager of a public transportation facility; the
agent of the owner or manager of a public transportation facility; a
member of a security force employed by the public transportation
facility; or by a peace officer, as defined in Chapter 4.5 of Title 3 of
the Californi.a Penal Code (commencing with Pen. Code, § 830); or
(ii) Within the immediately preceding 30 days, he or she
engaged in a solicitation at that location and had been asked to leave
by a person specified in subdivision (c)(3)(B)(i), above.
(iii) Subdivision (c)(3)(B)(ii) is not violated ifa person
who has been requested to leave enters the property within the
designated period and solicits, asks, or begs with the express
authorization of a person specifie~l in subdivision (c)(3)(B)(i).
(4) Restaurants. Any person who solicits, asks, or begs in any outdoor
or indoor dining area of a restaurant or other establishment serving food for
immediate consumption is guilty of a violation ofthis section if:
(A) He or she remains there after being asked to leave by the
owner, manager or supervisor of the restaurant or other food establishment;
the agent of the owner, manager or supervisor of the restaurant; a member
of a security force employed by the restaurant; or by a peace officer, as
defined in Chapter 4.5 of Title 3 of the California Penal Code (commencing
with Pen. Code, § 830), acting at the request of any of the persons specified
in this subdivision; or
(B) Within the immediately preceding 30 days, he or she engaged
in a solicitation at that location and had been asked t° leave by a person
specified in subdivision (c)(4)(A), above.
(C) Subdivision (c)(4)(B) is not violated ifa person who has been
requested to leave enters the property within the designated period and
solicits, asks, or begs with the express authorization of a person specified in
subdivision (c)(4)(A).
(d) Penalty. A violation of this Section is punishable as a misdemeanor or
infraction, chargeable at the City Attorney's discretion.
(e) Severability. The provisions of this ordinance are declared to be separate'
and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or
portion of this ordinance, or the invalidity of the application thereof to any person or
circumstance shall not affect the validity of the remainder of this ordinance, or the
validity of its application to other persons or circumstances.
(f) Non-exclusivity. Nothing in this chapter shall limit or preclude the
. .enforcement of other applicable la. Ws.
Sec. 2. The City Clerk shall certify to the passage of this ordinance and
cause the same to be published in some daily newspaper printed and published in the City
of'Los Angeles.
I h~-reb¥ ¢=---~if¥ ~ha~ ~he fore~oin~ ordinance was £n~r~duced
a= =he mee=ing of =he Council of =he C. icy of Los Angeles ~ ~
a.~d was .passed a= i=s mee=in~ of J~[ O~ ~7
J'. M/C~ CAREY, City Clerk
Deputy
File No. 96-0146, S 1