HomeMy WebLinkAboutSS2 - Amendment to NBMC Chapter 5.42CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Study Session Agenda Item No. SS2
January 12, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David R. Hunt, City Attorney
ext. 3131, dhunt(a)newaortbeachca.ciov
SUBJECT: AMENDMENTS TO NEWPORT BEACH MUNICIPAL CODE CHAPTER
5.42, REGULATING SOLICITATION WITHIN THE CITY
ISSUE:
Does the City Council wish to amend Newport Beach Municipal Code ( "NBMC") Chapter 5.42
to provide additional restrictions on solicitation in evening hours, and make additional changes
to make the ordinance consistent with recent decisions on government restrictions on free
speech?
RECOMMENDATION:
First Amendment law does not allow the City to prohibit solicitation in daytime and early -to
mid - evening hours. However, protection of residents who do not wish to receive evening
solicitation can be enhanced through other measures not currently provided by Chapter
5.42. In addition, recent court decisions make it advisable to make certain amendments to
the solicitation ordinance in order to bring the ordinance into compliance with current law.
Staff seeks your direction, but at the very least recommends that the City Council direct staff
to prepare amendments to NBMC Chapter 5.42, to bring it into conformity with new case
law.
DISCUSSION:
NBMC Chapter 5.42 (Solicitation) currently regulates the activity of persons involved in
commercial and noncommercial solicitation on public and private property within the City.
"Solicit" or "solicitation" is defined in the ordinance as a "request for, or offer of, money,
services, opinion, support, information or property."
NBMC Chapter 5.42 includes a requirement that no person or entity solicit within the City
unless he or she has first applied for and received a registration card from the City Manager's
Office. ( §5.42.025) In addition, Chapter 5.42:
Prohibits any solicitation activity between the hours of 9:00 p.m. and 8:00 a.m.
( §5.42.170(A) — note: this restriction applies to solicitation on all property, not just
residential properties);
AMENDMENTS TO NEWPORT BEACH MUNICIPAL CODE CHAPTER
5.42, REGULATING SOLICITATION WITHIN THE CITY
Study Session
January 12, 2010
Page 2
• Prohibits the distribution or placement of handbills on residential property, and
prohibits solicitation at residential property, when such property displays a 'no
solicitors" sign ( §§ 5.42.120, 5.42.170(8);
• Prohibits solicitation on public piers, beaches, parking lots or parking structures, docks,
ferry landings, public transportation vehicles or facilities, private vehicles, within 50 feet
of an automated teller machine, indoor or outdoor dining areas without dining
establishment owner's permission, and queue of five or more persons waiting in line.
( §5.42.170(G)); and
• Prohibits the placing of any handbill or other written material on any automobile or
other vehicle in the City. ( §5.42.110 — note: as written, this restriction applies to cars
parked anywhere in the City, not just on public streets or parking lots.)
1. Timing Restrictions.
Although there was one early Third Circuit case that upheld a city's prohibition on door -to-
door solicitation after 6:00 p.m. (Pennsylvania Alliance for Jobs and Energy v. Borough of
Munhall (Third Circuit 1984) 743 F.2d 182), subsequent decisions have consistently
invalidated attempts to enforce ordinances that prohibit door -to -door solicitation before 9:00
p.m. (See Wisconsin Action Coalition v. City of Kenosha (Seventh Cir. 1985) 767 F.2d
1248; New Jersey Citizen Action v. Edison Township (Third Cir. 1986) 797 F.2d 1250.)
The Wisconsin Action Coalition court held that an ordinance that prohibited solicitation
between the hours of 8:00 p.m. and 8:00 a.m. violated the First Amendment. (767 F.2d at
1257.) Agreeing with the district court below that 9:00 p.m. was not a magically
constitutional hour at which to prohibit solicitation the court recognized that the city's interest
in protecting the privacy and peace of its residents increased with the lateness of the hour.
The court also noted that there had been no case where a court had struck down a
prohibition after 9:00 p.m. (767 F.2d at 1258.)
The New Jersey Citizen Action Coalition court also struck down a city ordinance restricting
evening solicitation, and stated the district court should have found that regulations that
precluded canvassing before 9:00 p.m. violated First Amendment requirements. (797 F.2d
at 1258 — 1259.) Noting that a municipality may draft an ordinance "aimed at the protection
of the householders from annoyance, including intrusion upon the hours of rest," (797 F.2d
at 1258, quoting Martin v. City of Struthers (1943) 310 U.S. 141) the court stated, "Here, the
ordinances go beyond the usual 'hours of rest' by prohibiting canvassing in the early
evening." (797 F.2d at 1258.)
Under the circumstances, we recommend against further restricting the time when
solicitation can occur.
AMENDMENTS TO NEWPORT BEACH MUNICIPAL CODE CHAPTER
5.42, REGULATING SOLICITATION WITHIN THE CITY
Study Session
January 12, 2010
Page 3
2. Delivery of Unsolicited Newspapers and Tabloids.
On the other hand, cases reviewing restrictions on hours of solicitation consistently point to
the remedy of prohibiting solicitation at properties that display "no soliciting" signs. Courts
have considered this an acceptable and more narrowly tailored restriction that municipalities
can constitutionality adopt, and NBMC section 5.42.170(B) already provides this restriction.
We can, however, strengthen this restriction to further address unsolicited deliveries of
newspapers and tabloid publications. While newspapers, periodicals and magazines are
currently exempt from the provisions of NBMC Chapter 5.42 (see NBMC § 5.42.030(E)) the
provisions of the ordinance can be strengthened to deal with unsolicited deliveries.
At the time NBMC Chapter 5.42 was adopted, the case law discouraging the City from
placing restrictions on the delivery of unsolicited newspapers and periodicals was
reasonably clear. Two 1994 cases found municipal ordinances that prohibited distribution
of unsolicited newspapers to properties that allowed residents to opt out of receiving
unsolicited newspapers to be unconstitutional, Distribution Systems of America, Inc. v.
Village of Old Westbury (E.D.N.Y. 1994) 862 F.Supp. 950, and City of Fresno v. Press
Communications, inc. (1994) 31 Cal.App.4° 32. In both cases, the courts noted that the
newspapers in question provided contact information for individuals who did not wish to
receive the publication so that individuals could opt out of receiving the publications directly.
Courts are also clear that individuals may decline delivery of free newspapers directly to the
newspaper itself, and that the newspaper distributor should comply. (id at p. 41; see also
Miller v. Distribution Systems of America, inc. (1997) 670 N.Y.S.2d 668.) Similarly, in
Tillman v. Distribution Systems of America, inc. (1996) 24 A.2d 79, the court held that
newspaper publisher did not have a constitutional right to throw newspapers onto the
property of an unwilling recipient after receiving notice from the resident not to continue
delivery of the newspaper. (224 A.2d at 86 -87.)
In addition, recent federal decisions upheld the ability of cities to prohibit delivery of
unsolicited materials. The court in Courier - Journal, Inc. v. Louisville /Jefferson County Metro
Government, (W.D.KY 2009) 2009 WL 2982923, upheld a city's restrictions on the delivery
method of all unsolicited written materials, including newspapers, delivered to any premises
in order to prevent litter by requiring that unsolicited written materials be placed in a
distribution box, on a front porch or exterior of a mailbox, between an interior and exterior
door, or personally delivered to the resident. In addition, in American Community
/Newspapers v. City of Plano (E.D.TX 2008) 540 F.Supp.2d 717, a district court upheld an
ordinance that prohibited delivery of unsolicited handbills to residences that displayed "no
soliciting" or similar signs, and noted that the ordinance's definition of handbills was broad
enough to encompass newspapers. (540 F.Supp.2d at 719.)
With these authorities in mind, the least controversial action would be for the City to
continue to exempt newspapers and periodicals from the restrictions of NBMC Chapter
5.42, and advise residents who do not want to receive unsolicited newspapers and
periodicals to contact publishers and distributors of such materials, and pursue their private
AMENDMENTS TO NEWPORT BEACH MUNICIPAL CODE CHAPTER
5.42, REGULATING SOLICITATION WITHIN THE CITY
Study Session
January 12, 2010
Page 4
trespass remedies if deliveries persist. The City can, however, amend NBMC Chapter 5.42
to provide restrictions on the manner of delivery of all unsolicited printed material, restricting
delivery to specific locations that will address litter and residential crime prevention and
security concerns. Such an amendment can provide further protection for the City's
residents, but it would also take the City to the "edge of the envelope" on the issue, thus
exposing it to potential challenge.
3. Other changes in First Amendment law since chapter adoption.
NBMC Chapter 5.42 was added to the NBMC in 1998 by Ordinance No. 98 -5. Since that
time, there have been significant federal court decisions limiting the ability of cities to
enforce registration requirements against noncommercial speakers, and to enforce a
blanket prohibition on leaving leaflets and other printed material on vehicles parked on
public streets and parking lots.
a. U.S. Supreme Court struck down city registration requirements for
noncommercial solicitors.
In 2002, the U.S. Supreme Court held that a city's requirement that individuals obtain
permits prior to engaging in door -to -door advocacy, and to display the permit containing that
individual's name on demand, violated the First Amendment as it applied to religious
proselytizing, anonymous free speech, and the related distribution of handbills. In
Watchtower Bible and Tract Society v. Village of Stratton (2002) 536 U.S. 150, the Court
found the requirement went beyond what was required to further city's legitimate interests in
preventing fraud and other crimes, as well as protecting its residents' privacy. (536 US at
164 — 165, 167.)
However, the Supreme Court indicated that registration requirements for commercial
solicitation can be acceptable regulations narrowly tailored to protect important government
interests by the least restrictive means. "A State may protect its citizens from fraudulent
solicitation by requiring a stranger in the community ... to establish his identity and his
authority to act for the cause which he purports to represent." (536 U.S. at 162 — 163, citing
Cantwell v. Connecticut (1940) 310 U.S. 296, 306.)
While the Supreme Court's statement above appeared to allow the City to retain the
registration requirements for noncommercial solicitors who also solicit donations for their
causes, a subsequent case removed this option. (Ohio Citizen Action v. City of Mentor -on-
the -take (2003) 272 F.Supp.2d 671.) "When a charitable or other non - profit organization
incorporates a request for donations or other fund - raising activities with their otherwise fully
protected speech, the courts may not parcel out the financial or 'commercial' aspect of the
speech in order to justify the application of a lower level of scrutiny." (272 F.Supp.2d at
680.)
AMENDMENTS TO NEWPORT BEACH MUNICIPAL CODE CHAPTER
5.42, REGULATING SOLICITATION WITHIN THE CITY
Study Session
January 12, 2010
Page 5
Therefore, our office recommends amending NBMC Section 5.42.030 to exempt persons
engaging in noncommercial speech from the registration requirements of NBMC Section
5.42.025.
prohibition.
Recently, the Ninth Circuit Court of Appeals granted a preliminary injunction against
enforcement of a provision of the City of San Clemente Municipal Code that prohibited the
placement of leaflets on unoccupied vehicles parked on city streets. (Klein v. City of San
Clemente (2009) 2009WL 3152381.)
The San Clemente regulation is similar in purpose to the City of Newport Beach's
prohibition on placing handbills or other printed materials on vehicles. NBMC Section
5.42.110 provides "No person shall distribute, deposit or place any handbill, or any other
written material, in or upon any automobile or other vehicle in the City" Like the San
Clemente ordinance, Newport Beach's prohibition is based primarily on preventing litter or
trash on streets and property adjacent to the parked vehicles. However, the Newport Beach
prohibition is not limited to cars parked on public property.
The court in Klein v. City of San Clemente said that in order to base such a restriction on
preventing litter and visual blight, "[t]he city would have to show some nexus between
leaflets placed on vehicles and a resulting substantial increase in litter on the streets ...°
(2009WL 3152381 at 3.) The court also noted that preventing a marginal quantity of litter
was not a sufficiently significant interest to justify the leafleting prohibition, and that
discarded paper, coffee cups and food wrappers also potentially added litter, but were not
similarly prohibited on city streets. (ld. at 4.) (Italics in original.) As the City did not produce
evidence that any significant litter had resulted from leaflets placed on parked cars within
the city, the court determined the restriction was not narrowly tailored to advance a
significant city interest. (!d. at 5.)
However, in considering the city's purpose of protecting the private property rights of car
owners, the Klein court indicated that placing a "no handbills" sign on the dashboard was an
acceptable way for car owners to opt out of receiving unwanted communications. (!d.)
Therefore, rather than removing the prohibition on placing handbills on parked vehicles from
the NBMC, our office recommends amending Section 5.42.110 to prohibit the placement of
handbills and written materials on any car displaying a "no handbills" or similar notice either
on the dashboard, or anywhere on or in the car (so long as the notice can be read from the
outside of the vehicle.) This is consistent with the prohibition on soliciting or leafleting at
residential properties displaying a "no soliciting" sign, and can apply to vehicles on public or
private property.
AMENDMENTS TO
5.42,
4. Recommendation.
NEWPORT BEACH MUNICIPAL CODE CHAPTER
REGULATING SOLICITATION WITHIN THE CITY
Study Session
January 12, 2010
Page 6
Staff seeks the direction of the Council on this matter and at the least recommends the City
Council consider the amendments suggested in this staff report, advise staff on
amendments the City Council wishes to adopt, and direct staff to prepare the ordinance with
any revisions to be scheduled for first reading at a regular City Council meeting.
Environmental Review: This is not a project under CEQA.
Public Notice: This agenda item has been noticed according to the Ralph M. Brown Act (72
hours in advance of the public meeting at which the City Council considers the item.) It was
posted at City Hall and on the City's website.
Funding Availabilitk No funding is necessary.
Alternatives: The Council may choose not to take the action recommended or instruct staff
to consider alternatives for Council's consideration.
Prepared by:
Catherine M. Wolcott,
Deputy City Attorney
[A09- 00046] Solicitation Ordinance - 100104 Study Session
Approved by:
David R. Hunt,
City Attorney