HomeMy WebLinkAbout03 - Vehicle Addressed Solicitation Law - NBMC 10.62Agenda Item No. 3
May 8, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Aaron C. Harp, City Attorney
949-644-3131, aharp newportbeachca.gov
PREPARED BY: Kyle E. Rowen, Deputy City Attorney
APPROVED:
TITLE: Adoption of an Ordinance Repealing the City's Vehicle Addressed
Solicitation Law, Newport Beach Municipal Code, Chapter 10.62
ABSTRACT:
Due to a recent decision of the Ninth Circuit Court of Appeals, staff is recommending
that the City Council adopt an ordinance repealing Chapter 10.62 of the Newport Beach
Municipal Code ( "NBMC "), dealing with the vehicle addressed solicitation.
RECOMMENDATION:
Introduce ordinance number 2012- 12 (Attachment "A ") regarding the repeal of the
City's Vehicle Addressed Solicitation Law.
FUNDING REQUIREMENTS:
No financial impact is anticipated to result from repealing the vehicle addressed
solicitation ordinance.
DISCUSSION:
Chapter 10.62 is the City's vehicle address solicitation law. The primary provision of
this chapter is Section 10.62.030, which provides:
A. No person shall, while standing, sitting or occupying any portion of
the public right -of -way, solicit, or attempt to solicit any employment,
business or contributions of money or property from any person traveling
in a vehicle along the public right -of -way.
B. No person while the occupant of any vehicle traveling along the public
right -of -way shall solicit, or attempt to solicit any employment, business or
Adoption of an Ordinance Repealing the City's Vehicle Addressed Solicitation Law,
Newport Beach Municipal Code, Chapter 10.62
May 08, 2012
Page 2
contributions of money or property from any person who is within the
public right -of -way.
When adopted by the City in 1996, this ordinance was modeled after a similar law
enacted by the City of Phoenix, which was upheld as a valid, content - neutral, time,
place, and manner restriction on speech by the Ninth Circuit Court of Appeals.
(ACORN v. City of Phoenix (9th Cir 1986), 798 F.2d 1260.)
A recent decision by the same court of appeal, however, invalidated a similar anti -
solicitation ordinance that was enacted by the City of Redondo Beach. (Comite de
Jornaleros v. City of Redondo Beach (9th Cir. 2011) 657 F.3d 936, cert. denied
_S.Ct._ (Comite).) The Ninth Circuit, in holding that Redondo Beach's ordinance
was invalid, overruled its prior decision in ACORN.
Based on the Court's decision in Comite, and because Chapter 10.62 of the NBMC is
almost identical to the code provision at issue in Comite, it is recommended that the City
repeal its vehicle addressed solicitation ordinance, as codified in NBMC Chapter 10.62.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
) " C. #,,. --
Aaron C. Harp,
City Attorney
Attachments: A. Ordinance #2012- 12
A09 -00275
ORDINANCE NO. 20112-12
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, REPEALING
CHAPTER 10.62 OF THE NEWPORT BEACH MUNICIPAL
CODE PERTAINING TO VEHICLE ADDRESSED
SOLICITATION
WHEREAS, in 1986, the Ninth Circuit Court of Appeals held in ACORN v. City of
Phoenix, (9th Cir. 1986) 798 F.2d 1260, that anti - solicitation laws could be enacted as
valid, content - neutral, time, place and manner restrictions; and
WHEREAS, following the Ninth Circuit's decision in ACORN, the City of Newport
Beach enacted a vehicle addressed solicitation ordinance, codified in the Newport Beach
Municipal Code in Chapter 10.62, to protect public safety, including vehicular and
pedestrian safety; and
WHEREAS, in a recent case entitiled Comite de Jornaleros de Redondo Beach v.
City of Redondo Beach (9th Cir. 2011) 657 F.3d 936 (Comite), the Ninth Circuit Court of
Appeals found Redondo Beach's street solicitation ordinance to be an unconstitutional
restraint on speech and thus barred that City from enforcing provisions of its ordinance;
and
WHEREAS, Chapter 10.62 of the Newport Beach Municipal Code is almost
identical to the code provision at issue in Comite; and
WHEREAS, in 2012, the United States Supreme Court denied the City of Redondo
Beach's petition for certiorari in Comite and the decision of the Ninth Circuit Court of
Appeals is now final.
NOW, THEREFORE, the City Council of the City of Newport Beach, California,
HERREBY ORDAINS as follows:
SECTION 1: Chapter 10.62 of the Newport Beach Municipal Code is hereby
repealed in its entirety.
SECTION 2: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby 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 unconstitutional.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of
this ordinance. The City Clerk shall cause the same to be published once in the official
newspaper of the City, within fifteen (15) days after its adoption, and it shall be effective
thirty (30) days after its adoption.
This ordinance was introduced-at a regular meeting of the City Council of the City of
Newport Beach, held on the day of , 2012, and adopted on
the day of , 2012, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MA'
ATTEST:
Leilani Brown,
City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
A ,l^� c. �
Aaron C. Harp,
City Attorney
A09 -00275