HomeMy WebLinkAboutAgenda Statement 1989/02/14 Item 12 COUNCIL AGENDA STATEMENT
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Meeting Date---244443-9--,;Z
ITEM TITLE: Ordinance c 7 V Amending Title 9 of the Chula Vista
Municipal Code Relating to/ he ceasing of Solicitors
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SUBMITTED BY: Deputy City Attorne I
fL (4/5 hs Vote: Yes No X )
In the recent past, local ordinances similar to ours that attempt to regulate
solicitation for charitable or religious purposes have come under attack by
certain groups seeking to overturn the statutes prior to attempting
solicitation. In one case, it cest a municipality some $40,000 to defend a
lawsuit by the Hare Krishnas which succeeded in overturning a local
solicitation statute. With this in mind, we recently analyzed our
solicitation scheme (Chula Vista Municipal Code Sections 9.20.010 through
9.20.260) in light of developments in case law to see whether or not we are in
danger of coming under a similar expensive attack. As discussed below, our
solicitation lam statutes r law to achieve the goal�of the ordinances constitutional hile attack
eliminating
should amen
the potential for liability.
;COMMENDATION. thpoulg h 9.20. Municipal
260 and adoptaw Se�a 9.20.020
ion 9 20 030
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
Our current scheme goes as follows:
Section 9.20.030 prohibits the soliciting of contributions for either
charitable or religious purposes without a permit issued by the Director of
Public Safety. Section 9.20.070 requires the applicant to apply for the
permit two days in advance of the permit's effective date and requires the
furnishing of a substantial amount of information. The City Attorney has the
discretion to prosecute a violation of these sections as a wobbler (an
infraction or a misdemeanor) . When our statutory scheme is viewed in light of
recent court decisions, it is clear that we run a substantial risk of having
our scheme found unconstitutional;enforcement we also run a
of ordinances, risk
and of
esearchd suggests lawsuit
seeking to enjoin enfo that
there is a pretty good chance that we would lose.
While the courts have consistently confirmed that there is a substantial
governmental interest in preventing crime and protecting the privacy of
citizens, ordinances similar to ours have been held to be overbroad, with the
courts directing the City to go back to the drawing board to draft a statute
__ .ire narrowly tailored to the objectives we seek. We do have the option of
Agenda Item: ;k ) \141
Meeting Date: 2=LH'ify
Page Two
drafting a narrower statute that would still require the licensing of door to
door solicitors, but which would also, unlike our statute, provide for prompt
legal relief in the event that the permit is denied. We would also have to
build into our statute some limitation on the discretion of the Director of
Public Safety, which would limit his ability to refuse the license. Another
problem with our ordinance that we could address by revision is that it places
no time limitations on the initial decision as to whether or not to issue a
permit. Yet another problem is it discriminates against charitable and
religious groups in favor of both commercial and political interests.
A review of the courts' decisions as to these statutes reveals that although
they pay lip service to the notion that it is possible
constitutional licensing statute, they consistently uphold new and unique
challenges to such statutes. The feeling one gets notwithstanding the courts'
surface endorsement of licensing is that there is some hostility to the whole
idea of requiring people to get such a license or permit prior to peddling
whatever idea or service it is they wish to peddle.
A check with our Police Department to find out what the effect of our statute
has been in carrying out the apparent intent of the ordinance (prevention of
'-ime and fraud) reveals that there is no real such benefit. There is simply
data that suggests that the licensing of peddlers either prevents crime or
enables us to identify thieves who are disguised as peddlers. What I would
propose in view of this and also taking into consideration the legitimate
privacy needs of the citizens, as well as the courts' treatment of such
ordinances, is that instead of attempting to manipulate our licensing statute
to address the many concerns of various appellate courts, we adopt instead a
new scheme which would make it unlawful for a solicitor to soli it a resident
who has expressed his desire not to be disturbed. This type of
been acceptable to the courts because it places the burden on the homeowner to
protect himself from unwanted speech, rather than on the speaker to do
anything. We would be on safe ground in passing such an ordinance, because
the California Supreme Court has endorsed such ordinances, and has held that a
city can punish those who call on a home in defiance of the previously
expressed will of the occupant.
The ordinance that we would therefore propose would be as follows:
It is unlawful for any person to act as a canvasser or solicitor at a
residence for the purpose of soliciting orders, sales, subscriptions or
business of any kind, or seeking information or doationscitorsy, e idence at
which is posted a sign stating "No Solicitin g , no
similar import.
FISCAL IMPACT: N/A
- '03a
by t City Council of
Chula Vista, California
Dated _ /_ �-