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HomeMy WebLinkAboutNB 1 TILLER DAYS 08-21-89 Inter- Com 1989 DATE: July 31, ii TO: William A. Huston, City Manager FROM: Administrative Services Department SUBJECT: POLITICALLY RELATED ACTIVITIES: 1989 TILLER DAYS RECOMMENDATION% Pleasure of the City Council. BACKGROUND: 1. The City Council adopted Policy No. 7-01, March 2, 1981, which states: "No City facilities are to be used for any partisan or non-partisan political purpose which promotes selected candidates or issues, nor to raise funds for such candidates or issues. Not prohibited are community services programs of a politically related purpose, such as candidate nights sponsored by neutral civic organizations wherein all candidates are given equal opportunity to be present and heard." 2. Prior to the election year of 1988, this policy served the City well, in that "blatant" partisan political purposes were banned but non-partisan or "equal opportunity" candidate nights were allowed on City facilities. 3. However, in 1988 a city Council candidate stated that he would file a lawsuit if the City did not allow him to have a partisan booth at Tiller Days. Staff response at that time was that past practice was non-partisan booths were acceptable; partisan booths were not. As you will recall, the candidate referred to the fact that Orange County Supervisors Stanton and Vasquez had booths at the 1987 Tiller Days. Staff attempted to differentiate between those Supervisor's booths as being community-oriented and informational, but the candidate did not accept that. Complicating the matter further, the candidate also claimed that there were two "partisan" booths at the 1987 Tiller Days, one for the Republican party and one for the Democratic party, to register voters--and, they each distributed campaign literature. Page 2 of 3 · · By consensus, the City Council allowed all candidates to have booths at the 1988 Tiller Days as an exception to Council Policy 7-01. six candidates took advantage of the City's offer, of which three were candidates for the Tustin Unified School Board and three were City Council candidates. The two political parties also had booths to register voters. The City attorney has advised staff that the City Council should make a decision regarding the restriction, the exception that was made in 1988, and just what direction the Council wanted to go. Since it was an election year for three Council members, the Council was reticent to act at that time for fear of appearing biased. DISCUSSION~ I · Preparations have begun for the 1989 Tiller Days; the Republican party has applied for a voter registration booth. The Tiller Days committee has been in contact with the Republican party informing them that their application has been taken under submission, pending advice from the City Attorney and potential action by the City Council. · It is appropriate at this time for the City Council to decide what direction they wish to take. ALTERNATIVES:,, · · Do nothinq~ This will lead to problems similar to last year regarding interpretation of the restriction. For example, what is the difference between an ,,informational booth" and a "partisan booth?" The City Attorney has concluded that the City would not be on sound legal ground to have prohibited the 1988 Council candidate from maintaining a booth, in the face of our current restrictions and past practice· The distinction is vague· Adhere strictly to the "no political activities" prohibition of the Council policy. The City Attorney has advised that if the City wants to avoid being the potential subject of criticism, possibly adverse publicity and even a lawsuit, the safest route is not to permit even such a ,,political activity" as registering voters or holding a candidates forum. Page 3 of 3 · · Revise the policy and permit all political activities. The Attorney has advised that this could be a safe course of action, although the Council may have other objections to such a policy, some of the potential risks involved in this type of revision would be applications received from groups incompatible with the values of this community. When other cities across the nation have had a policy to allow all political groups, it was found that they could not deny use by groups whose viewpoints and values disagreed with the viewpoints and values of the community and/or the City Council. ~ Revise the current languaqe. The Council Policy 7-01 approved by the Council March 2, 1981, was a reaction to a previous prohibition. The Council at that time felt that as long as both sides could be heard, the policy would be fair. This might lead to another alternative, which is to refine the current language to clarify that a candidates forum where both viewpoints could be heard would be the only political use acceptable on City facilities. (A narrow interpretation of current language would have the same result.) In effect, political activities of any kind would be banned from activities such as Tiller Days; however, candidate's forums could still be held at City facilities. .'~ , Royl~n ~. White, Director Comm~_i~ and Administrative Services RAW:kd cc: Susan Jones RAW:TILLRDAY.wp TO: Mayor and city Council n~ FROM: A~ministrative services Departme SUSJEGT: ADDENDA TO AGENDA ITEM REGARDING POLITICAL ACTIVITIES The attached is submitted with subject item, since Mr. Eric Matthews distributed it to the City Council on August 7, 1989. It is submitted as an information item only. The City attorney has not reviewed it, since it pertains to ~private property not public facilities. RAW:kd Attachmemt December 3, 1987. TO: COALITION FOR A' HEALTHY CALIFORNIA ~M: COREY BROWN, GENERAL COUNSEL, PLANNING AND CONSERVATION LEAGUE RE: CONSTI .TUTIONAL ACCESS RIGHTS AND REASONABLE TIME, PLACE AND MANNER REGULATIONS ~ ROBINS v. PRUNEYARD, IN RE LANE, AND H-CHH ASSOCIATES (dba PLAZA PASADENA v_~..C.ITIZENS .FOR A REPRE'SE~NTATIVE GOVERNMENT CASES · This memorandum provides you with an explanation of the law wh/ch governs access to shopping centers and malls. If.you should have any problems or questions, please call me right away (916/444-8726). I can provide you with legal advice and assistance. . For your information, I have also attached copies, of thr~ee relevant court cases: ~~Prun~~~~ es~a~5~i~es your- rfg~ ~o ... :petition ~n pr£vately'Owne~'"Shopp~ng malls.' ..~~----? ......... First Amendment: R~hts ~n- frOnt-"of-'gro~er~-:~tores H-CHH Associates (dba Plaza Pasadena) v. Citizens for a Representative Government which ---discusses th~ co--ns---t--i--tu--%ion-----~t~--~ va---r--i~u-~ time, place and manner restrictions. Lf 'you are having problems with any of the shopping centers, either call me or politely show them the relevant parts of the court case governing the issue. It is very important that you do not argue w~th shopping center personnel. If they ask ~ou to leave the premises, please comply and call me immed/ately. We has 'a f~rm p01~cy of trying to work w~th the shopping center management to work out mutually agreeable accomodations on access issues. Our legal staff has had success" in amicably working out most of the issues that have arisen to date. You will find that collecting signatures will be more enjoyable and successful i.f we are able to maintain good relations with the shopping center representatives. CITIZENS ItIGHTS OF ACCESS TO COLLECT PETITION SIGNATURES AT PRIVATELY OWNED SHOPPING CENTERS The ltobins v_~. ?runeyard ShopDin~ Center case (2.3 Cal.3d 899 - 1979) established that Californian~"'h'ave a right under the State Constitution. ~h~X~fo~'H"'S~r~me:':Court:~held~ that= .... :- ~ ~CaI'~'~o~a: :const~~0n :' Pr0~-ectr.:~'speech' ~ and . pe~%~on~ng, '~e asonab 1~ ~ exerc SS'e-d'?:-~n~"~Sh~pp~ng. Centered-er --~. ~ The Californ/a Supreme Court recogn/zed that priVatel]~ owned ~hopping centers may establish reasonable ~Lme, place and manner ' restric=Lons. (see below). The In re Lane (71 Ca1 2d. 872 - 1969) case established the r~ght of--~h~--public, to exercise First Amendment Free Speech' lt%ghts on the privately owned sidewalks lmmed/ately ~n front of tho entrance .and exit doors to super markets. In th~s case, tho .1 e a~J~.._g_~, he~Fr, em/se s ,: :. _Thus, .:: in .:-our :ill=ea::'~:'-'Wh:LCh :' 'members. of ..~e - ~ubl~= :~en~ent, r~g~ii, V('at~Page 878 ) MAY SHOPPING CENTERS ESTABLISH Pruneyard made it very clear that shopping centers may establish reasonable time, place and manner restrictions which petitioners must follow. Unfortunately, Pruneyard provided little guidance as to which regulations are 'reasonable' and therefore lawful, and those that are 'unreasonable" and therefore unconstitutional. However, on July 28, 1987, the Cal~forn/a Court of Appeal ]2nd District) decided the H-CHH Associates (dba .Plaza Pasadena) v. Citizens for a Representative Governm_ent case (87 Dail]~ J-~urnal D.A.R. '~69--1). This case determined the validity of 2 fourteen commonly used time, place and manner restrictions. While it is not clear .that these rulings will apply to all shopping malls (Plaza Pasadena was a very large mall built on publicly owned lands by a private developer), I believe the reasoning in this case can be applied to most of the centers with which we will be concerned. For application to any specific shopping center, it is advised that you call me. The foXXowing pages review the 'court's hoXding on the' specific time, place and manner restrictions. · SHOPPING CENTERS CAN REQUIRE YOU TO RECEIVE PRIOR ~PROVAL AND FILL OUT AN .APPLICATION FORM They may also require you to describe 'the general nature of ~our activity (eg. collecting signatures on a petition to place an initiative on the ballot)~ the dates, times and locations that you request for circulating the petitton~ and the name, address, identification number, and.phone number for your contact person( s ). (page 4694 ) · DO NOT SIGN ANY AG~EEMENT THAT REQUIRES YOU, YOUR ORGANI~TION OR THE COALITION TO INDEMNIFY' OR ASSUNE LIABILITY,. FOR EVENTS THAT' OCCUR ItELATED .TO ~ PETITIONING ~]~¥ requires you or a responsible organization or"person' to tindemnify":-'Or~i.--::~-&s's~me ~'liab~lit¥,. for' damage.,~:- injuries and ~ou s~gn a prov~sio~ like this, ~ou may be held personally responsible for co~pe~ating the shopping c~ter for any e~enses from lawsuits, including attorney fees, even if ~ou have not done anything wrong. ~j~he court,:t~n..,.Pleza Pasadena ruled ..that :w~opp~g centers..~:.~a.~... :i,:~, ~~~_~~_ cla~s.~.l~~ The court ruled that the most the c~Hters can require is your name, address, phone number and identification number. (page 4694, columne 2, paragraph 4 ) THE COALITION CANNOT BE REQUIRED TO HAVE LIABILITY INSURANCE The court ruled that generally requiring liability insurance is a #fata11~ defective" requirement. (page 4697, bottom of column i and to9 of column 2). The Court, however, did establish criteria for very limited ~nstances in which insurance is permissible (page 4697, column 2, paragraph 1). However, because the Coal~tion has a clean record with no history of property damage or personal injury, it would not be permissable to require us to have liabilit~ insurance. · CENTERS MAY REQUIRE THE COALITION TO POST A SMALL REFUNDABLE CLEANING/SECURITY DEPOSIT In Plaza Pasadena, the 'court upheld a $50 refundable securit~-d%~it~-'I-~~d not pass ~udgement on larger deposits, but said the amount of the deposit must-bear a reasonable relationship to the costs the center is likely to incur because of your activity. Unless the deposit required is excessive, we recommend posting it. Make sure you cleanup after you complete your petitton/ng to ensure th~ .deposit is returned. Some centers only require the deposit when leafleting is done. (p. 4695) THE SHOPPING'CENTERs DO NOT HAVE COMPLETE DISCRETION REGAR]~qG THE LOCATIONS FOR PETITIONING · First, it is clear they may preclude petitioning in front of doorways or loading areas. Second, However, they can close areas of ~he' mall for petitioning if they establish objective criteria -- eg. it would obstruct passage of customers, interfer with the conduct of bus~ness, block access to facilities and businesses, threatens public safety,' block .the flow of traffic or create a hazardous degree of congestion. (p. 4695, c. 1, pp. 3). In the event the center designates ~- area for petitioning, ~f ~ou can collect an adequate number of s£gnatures, please agree to use that area. It is important to work with the shopping center management as cooperatively as we can.-""If the locations do not work well and they are not willing to consent to a better location, please call me. 4 'e .~s~gnated~ area ~S alread~.~//filled~.b~"~th~ri~~izations o~I ~ust Con~der.:whet.her:.there 'are other area~ ~n the "~al~: where':::: l)et-~-'~:~)n~n~ca~ccuz~,~..thou'c .... creat:l.~g-.:, the-.probl ein's:-outlin.ed-.~ (page 4695, c.2, pp. 4). The appropriateness of a location ma~ va~ with how crowded the shopping center ~s at different times. It is clear that the centers can prevent petitioners from impeding, obstructing, harrassing, or unreasonabl~ interfering with customers. It is also clear they ma~ close certain areas from an~ petition~ng activities (see d~scuss~on regarding locations). However, the Plaza Pasadena case ruled that total bans on approaching customers to sign the petition.are 'constitutionally impermissible.' (p. 46~8, c.1, pp. 4) However, I strongly stress the importance of working with the shopping center management to find a mutua11~ acceptable way to collect signatures. Clearly, you cannot be required to sit passtvel~ behind a table. However, ~ou. ma~ wish to settle for standing in front of (or with/n a small radius) of your table and polttiely asking customers walking by if the~ would like to sign the initiative if this helps promote good relations with the shopping center management. Again, call me if you have any questions or problems. THE ~NTERS MAY NOT ARBITRARILY LIMIT THE NL~BER OF PETITIONERS Again, the~ must establish objective criteria as to why they are limiting the number of persons collecting signatures. (p. 4696, c.1, pp. 1)'. THE CENTERS MAY LIMIT THE TYPE OF FURNITURE YOU USE WITHIN LIMITS If they have good reasons, they can specify the furniture you may use or require you to use their furniture. You are entitled to advance written notice of these requirements. If this becomes an issue, read the relevant parts of the case or call me (p. 4696, bottom of column i and top of column 2). · ~-~ATER~ALS AND POSTERSi:'7 '- ~- e.;~,¢e ~.ers 'clear l~--~'nnot .... cen~s_u~_e_-.your--posters--and.;:.: ',~ra t-&-~ ~ '-'b"~'~"'-'~'~''' c~ nt en t. · Ho w ever,- ~ab~ltty to restrict ..... the size and. quant~t~ of your posters, ~revent ~0u ~f~'O-~'::~:~tachin~ '~hem~j~i,.t0..center- Proper~cy, and ensure''~ .%he posters do.-no~~terf e.r-,~th~with, buS~neS~_:s_/.gns:and lOg~:j:.i '~n~d-~_~->_~_ow-.~.~~~ They may also regulate the s~yle (is it professional in appearance), but not the content, of the posters. They can also ban any posters using obscene language or .depictions, fighting words, or gruesome or inflammatory slogans. (p. 4696, c. 2). The posters the Coalition provides you with should meet most, if not all of the requirements for permissable posters. · THE CENTERS MAY BAN THE USE OF LIGHTS, ELECTRONIC EQUIPMENT AND LO.UDSPEAF~RS Add/t£onally, they electrical power. are not required to furnish you with any While .they cannot ban the use of all musical instruments, it is best to comply with whatever rules they establish in this area. (p. 4697, ¢.1, pp.2) THE CENTERS MAY ENTIRELY PROHIBIT SOLICITING FUNDS OR SELLING ANY MERCHANDISE If the rules or center personnel ask you not to solicit funds, please fully comply with their request. THE PUBLIC RIGHT TO PETITION MAY NOT EXTEND,TO PRIVATELY OWNED LOCATIONS FOR WHICH AN ADMISSION CHARG~ IS KEOUIRED Again, call me if you are having a problem with a location which falls under this situation. IT IS UNCLEAR WHETHER SHOPPING CENTERS MAY COMPLETELY PROHIBIT PETITIONING FROM THANKSGIVIGING TO NEW YEARS The Plaza Pasadena case did approve the mall's ban on petitioni, ng during the holiday season. The Court ruled that there was evidence Justifying the ban because of a high degree of congestion in the mall's plaza area during th/s time. However, we believe this does not necessarily allow centers to simply prohibit all petitioning during the holiday season. This issue will likely need to be resolved in a lawsuit. If you have problems with any shopp/ng centers prohibiting petitioning during the holiday season, please call me. Prepared by Corey Brown, General Counsel Planning and Conservation League 909 12th Street # 203 Sacramento, CA 95814 (916) 444-8726)