HomeMy WebLinkAbout13 PICKETING ORD. 01-19-98 LAW OFFICES OF
WOODRUFF~ SPRADLIN & SMART
A PROFESSIONAL CORPORATION
MEMORANDUM
TO'
Honorable Mayor and Members of the City Council
City of Tustin
FROM: City Attorney
DATE:
January 14, 1998
RE:
Amendment to City's Residential Picketing Ordinance
NO. 13
1-19-98
RECOMMENDATION'
Have first reading by title only and introduce an ordinance entitled'
An Ordinance of the City of Tustin, California Amending its Residential
Picketing Ordinance.
DISCUSSION'
In 1993, the City Council enacted an urgency ordinance prohibiting the targeted picketing
of private residences. This ordinance was based on the United States Supreme Court
decision, Frisby vs. Schulz (1998) 487 U.S. 474. The City's ordinance prohibited picketing
"before or about" the targeted residence. The U.S. Supreme Court decision did not give
any guidance to cities on how to actually enforce the "before or about" language.
Subsequently, the City of San Jose enacted an ordinance based on Frisby vs. Schulz that
prohibited picketers from picketing within 300 feet of a targeted residence. This ordinance
was upheld by a California Court of Appeal as a reasonable exercise of the city's legislative
discretion in regulating the targeted picketing of a home. (City of San Jose vs. Superior
Court of Santa Clara County, (1995) 32 Cai 4th 330). In that case, the Court found the 300
foot zone to be an improvement over the Supreme Court's language. The Court of Appeal
stated as follows:
"Given the necessary vagueness of the concept 'before or about' we believe
that the more precise 300 foot zone is less onerous. It leaves no doubt how
to obey the law. Application of a bright line standard in this area is far
preferable to a more general restriction. Picketers who respect the statutory
boundary are protected, and there is less chance of discriminatory or even
uneven enforcement by the police."
Honorable Mayor and Members of the City Council
City of Tustin
January 14, 1998
Page 2
In San Jose, the 300 foot buffer was chosen because it was consistent with standard
notice requirement set forth in local and state laws for land use decisions. The Court
commented:
"These ordinances and laws reflect a governmental choice of a 300 foot
zone as that within which direct impact on the residence occurs. It is wholly
reasonable to apply that same concept in the context of protection of
residential privacy, by removing from that area of impact the targeted
picketing which invades such privacy."
In San Jose, the minimum standard lot frontage is 55 feet, although many lots have larger
frontages. The Court observed that the 300 foot buffer zone kept picketers from coming
within approximately 5~ homes on either side of the targeted residence. In Tustin,
according to the Community Development Department, a 50 foot frontage is an average
size lot. Accordingly, depending upon the lot size, this ordinance would keep picketers
from coming within 5~ to 8 homes on either side of the targeted residence.
Picketing may still take place in a residential neighborhood, as long as it is not targeted at
a specific residence or specific residences. In other words, if picketers wish to parade
through a residential area and not stop and focus on individual homes, they could still do
so and not be in violation of this ordinance.
In our opinion, the San Jose model is an improvement over our ordinance and assists both
police in enforcement and those who wish to exercise their First Amendment rights.
Enclosure
cc: William A. Huston, City Manager
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ORDINANCE NO. 1194
AN ORDINANCE OF THE
CITY OF TUSTIN, CALIFORNIA
AMENDING ITS RESIDENTIAL
PICKETING ORDINANCE
THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, DOES ORDAIN AS
FOLLOWS:
SECTION 1. Chapter 5 of Article 6 of the Tustin City Code is amended to read
as follows:
Chapter 5
PICKETING OF RESIDENTIAL PROPERTIES
6510 Purpose.
In enacting this Chapter, the City Council finds as follows:
(a)
Protecting the well-being, tranquility, and privacy of the homes of residents of
the City is a significant governmental interest.
(b)
A special benefit of the privacy all residents enjoy within their residential
properties is the ability to avoid unwanted intrusions and unwanted speech.
(c)
The targeting picketing of a residential property creates a "captive audience"
situation because the occupants cannot readily move to another residence in
order to avoid the unwelcome picketing activity being directed at them.
(d)
Picketing which targets specific residential properties of residents of the City
is thus, an inherently and offensive intrusion on residential privacy.
(e)
The protection of the right to privacy in the home requires the enactment of a
reasonable time, place, and manner restriction upon picketing activity.
(0
This ordinance is a necessary time, place and manner restriction intended to
reconcile and protect the First Amendment rights of picketers to peacefully
communicate and express their opinions to the public and the right of privacy
at home.
(g)
A buffer zone is a reasonable way to reconcile privacy interests and First
Amendment rights when picketing targets a specific residential property.
(h)
An ordinance prohibiting the targeted picketing of homes has been upheld by
the United States Supreme Court in Frisby vs. Schulz (1988) 487 U.S. 474,
and a 300 foot buffer zone has been upheld by a California court of appeal as
a reasonable exercise of the City's legislative discretion in regulating such
targeted'picketing (City of San Jose v. Superior Court of Santa Clara County.,
(1995) 32 Cal. App. 4th 330).
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(i)
This ordinance is not intended to preclude the right to picket in a residential
area generally and in a manner that does not target or focus upon a particular
residential property.
6520 PICKETING WITHIN 300 FEET OF TARGETED RESIDENTIAL PROPERTIES
PROHIBITED.
(a)
No person shall engage in picketing activity that is a targeted at and is within
three hundred (300) feet of a residential property.
(b)
For purposes of this Chapter, the term "residential property" means any
property being used by its occupants solely for nontransient residential uses.
(c)
For purposes of this Chapter, the term "targeted" picketing means picketing
activity that is targeted at a particular residential property and is intended to
proceed or does proceed on a definite course or route in front of or around a
particular residential property.
(d)
For purposes of this Chapter, 300 feet shall be measured from the nearest
property line of the targeted residential property to the picketing activity.
(e)
This Chapter does not and shall not be interpreted to preclude picketing in a
residential area that is not targeted at a particular residential property.
6530 VIOLATIONS
Violations of this Chapter shall constitute a misdemeanor punishable by fine or imprisonment,
or both. No fine imposed pursuant to this section for any single violation thereof shall exceed
one thousand dollars ($1,000.00). Imprisonment shall not exceed six (6) months for each
violation of this chapter.
SECTION 2. All of the provisions of this ordinance shall be construed together in
order to accomplish the purpose of these regulations. If any provison of this part is held by
a court to be invalid or unconstitutional, such invalidity or unconstitutionality shall apply only
· to the particualr facts, or if a provison is declared to be invalid or unconstitutional as applied
to all facts, all of the remaining provisions of this ordinance shall continue to be fullly
effective.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin held
on the~ day of ~., 1998.
JEFFERY THOMAS
Mayor
PAMELA STOKER
City Clerk
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