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Home My WebLink AboutAgenda Statement 1981/04/14 Item 8 COUNCIL AGENDA STATEMENT .}{f ~ Item~ Meeting Date m-/ai ., . ITEM TITLE: Ordinance 11'10 - Amending Chapter 9.20 of the Municipal Code relating to the regulation of charitable solici ta tions (First Reading) City Attorney "..-.'-. "Aj:;(~ths Vote: Yes_ No~J SUBMITTED BY: The California Appellate Court has ruled that the standard ordi- nance adopted by most cities regulating charitable solicitations is unconstitutional on its face as an abridgment of First Amend- ment rights. For reasons discussed herein, I urge the City Council to immediately repeal major sections of our regulatory ordinance in this area, and significantly amend those provisions which still have validity. RECOMMENDATION: That the Council adopt the ordinance The Director of VlibllC Servlces approve~ thlS resorULlon. . BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: The City Attorney has consistently practiced what is called preventative law. It can be clearly shown that the volume of . litigation involving the City of Chula Vista is significantly less than that of comparable cities of size, location and growth patterns. It is of no benefit to the City to engage in litigation if legal premises have been announced by the courts which give guidance to change and modification of existing regulations, thus avoiding not only the possibility of damages and penalties being assessed against the City, but perhaps, more importantly, in this most litigious age, the new threat of actions in federal and state court of the civil rights laws where attorneys' fees of a considerable amount can and have been assessed. At the recent meeting in Borrego, one of our most able City Attorneys relayed to us that in the city he represented, Temple City, the charitable solicitation ordinance had been challenged and his only response in the federal court was that, yes, in fact, both he and the city were fully aware that the ordinance had fatal constitutional defects and that the city was in the process of making appropriate changes in the ordinance to eliminate such constitutional objections. The court agreed that there would be no penalty or assessment against the City based upon the lawsuit that had been filed, which consisted of a Complaint and Points and Authorities two inches high, however, the court did assess attorneys' fees in the amount of $40,000 against the City. . (Continued) Form A-113 (Rev. 11/79) . . . ,.,. Page Two ,? Agenda Item-H""~ ;A4 Meeting of J.,l64/Bi:-' 4- ;':'/~J If you have any doubt as to the desire to obtain such attorneys' fees, if nothing else, I offer you the following paragraphs from a letter from one of the attorneys in our county relating to that matter: "A far more interesting alternative is the possibility of a suit for damages under federal law. Title 42 of the United States Code ~ ~1983 and 1985 provide a civil remedy for damages, including punitive damages, for persons who have been denied civil rights by those who are acting 'under color of law'. One section provides the remedy for denial of civil rights by an act of a single individual, and the other section for denial by a conspiracy of individuals. We have done preliminary research in this area and have determined that ~l983 and ~l985 actions are available for denial of due process in the context of land use decision-making. Also, it is our opinion that there is sufficient circumstantial evidence of an intent to deny you a fair hearing at the Poway City Council by one or more Council members. We believe that a complaint could be fashioned out of the facts cited above, and that there is a good chance it would survive a demurrer in federal court. With such a case then heading for trial, I believe you would be in a much better negotiating position with the City of Poway. However, it should be noted that even winning such a case would only give monetary damages and not a Permit for the project. However, it is not inconceivable that under the pressure of such a lawsuit, which would entail personal liability, the Council members might back down and allow some reasonable residential development of the property. Although such a decision might be politically unpopular, it could be made in such a manner that it appeared to be almost dictated by the courts. My recommendation to you is that you proceed for both a Writ of Mandamus and an action in federal court under ~~1983 and 1985. Establishing in the Writ proceeding that an abuse of process had occurred would add immeasurably to the federal action. The federal action in turn would put considerable pressure on the Council to reconsider its decision and perhaps sit down and negotiate some compromise position. I would estimate that taking the two cases to trial, one in the state court and one in the federal court, would cost between $25,000 and $50,000 in legal fees. However, if the federal action were successful, then there is authority for the award of attorney's fees to the successful litigant." ,'\~t> . . '. \~~o Page Three ~ ~ Agenda Item K ./1'11 Meeting of ~f81 lfl "'t, The new legal weapon against municipalities which encompasses the full range of municipal problems is the utilization of the Civil Rights Act beginning with the Civil Rights Act of 1871. The Civil Rights Act of 1871, now codified as Section 1983 of Title 42, United States Code provides: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and law, shall be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress." For nearly one hundred years, the Civil Rights Act lay unused even for its original purpose which was to curb the activities of the Ku Klux Klan against the newly freed blaCks. However, in 1961, the case of Monroe v. Pape, arising out of a massive intrusion of police forces into the wrong household in the City of Chicago, began a whole gamut of litigation pressing federal civil rights against officers and employees of state and local governments and within the past two years, the governmental entities are now liable under the various provisions of the federal Civil Rights Act. Therefore, it is essential that we carefully analyze any of our regulatory ordinances especially those involving First Amendment rights, e.g., adult entertainment businesses such as adult bookstores and pornographic movies and charitable solicitation ordinances with allow discretion to police officials as to the validity of such charities. Because the charitable solicitation ordinance can be amended without going through the Planning Commission public hearing process, I strongly urge your immediate action to eliminate those provi sions of our existirjg'bfi11'Tnm-ee..,.~ ~ '. ~..,. T.,",,-- which have now been held clearly unconstitutional rJy both state Ac ~ _ ~ _ t and federal courts. A'~":,,,,~~=, FISCAL IMPACT: N/A ~ ',,,..;.~._,"';'; _U',; :..~.-' GDL: Igk I ~~ -$I'-;Z.r1' ~ , ! --.-----. u. ,.. H '_ '. u____ ~ 1 " ,. f , 'v '" ,-, f ~ t, ~ ' ~ >J . - -:j._:~,-~ -:: ~-___, f ----.....,~,~c>""'O:_'..._'~.oI-_*~.1.,"',"~:.- -"~'."+.';~-~'~,~.....4: ~ ~~ 1_~4;iJ r, , J ~J ' .' '~ ,~....-,-,,-...- ;L IfL// \", ," ...~ '." . . ,f - ? -~(.:=:-_J .._ "_',' 4 .'" .e....~