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HomeMy WebLinkAboutORD 1412 (2012)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 I. Regulation of Solicitation Activity in Public Rights of Way nxmm�•� 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 11 solicitors' physical obstruction of vehicular traffic flow by walking randomly M-11,112 into streets to solicit passing motorists. Additional problems emanating M from this solicitation activity include littering, public urination, interference LIM 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. MINE- Ordinance No. 1412 Page 2 of 11 "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 MINES (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 11 PART 11. Regulation of Residential Solicitation Activity 5810 — 5816 [Omitted] 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 thre ats, 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. (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 and City 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 Ordinance No. 1412 Page 4 of 11 Code sections 17510 et seq. and the charitable solicitation permit requirements in Tustin City Code section 2513(f). 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 5818(b). Contact the property manager for a permissible solicitation location." 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. Ordinance No. 141 Page 5 • 11 1 0 PART 111. Prohibition of Aggressive Solicitation and Solicitation at Certain in 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-r 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 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: Ordinance No. 1412 Page 6 of 11 "Aggressive manner" shall mean any of the following: 1. 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 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. Ordinance No. 1412 Page 7 of 11 "Solicitation" shall have the same meaning set forth in Tustin City Code IBM Section 5801. 110 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 10-1-11 mo-s (a) Findings and Intent. The City has received complaints from business rmslimi 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. (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: I Ordinance No. 1412 Page 8 of 11 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: (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 ON THIS PROPERTY PURSUANT TO TUSTIN CITY CODE SECTION 5343." The size of the sign shall be not less than 22 by 17 inches with lettering not less than one inch in height. The sign shall be posted in plain view in at least one (1) prominent location on the property. "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). (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 *rdinance No. 1413 Page • • 11 shall not extend to include city sidewalks. Skateboards shall yield the right of way to pedestrians at all times. SECTION 4. Severabilily. 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. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this 15th day of May, 2012. ATTEST: -----7 A jh Y t3LIC21, PAMELA STOKER,'-, City Clerk Ordinance No. 1412 Page 10 of 11 way DAVID E. KENDIG, City Attorney STATE OF CALIFORNIA ) COUNTY OF ORANGE ss. CITY OF TUSTIN CERTIFICATION FOR ORDINANCE NO. 1412 1, 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 15th day of May, 2012, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the 5th day of June 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER;----) City Clerk Ordinance No. 1412 Page 11 of 11 Nielsen, Murray, Amante, Gavello, Gomez (5) None (0) None (0) None