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HomeMy WebLinkAboutA001 - Memo from City Attorney with proposed ordinance Memo City Attorney's Office Caring People Quality Programs Exceptional Service f �..Qa�•�� T� TO: Steve Schainker, City Manager OCT I I%9 Paul Wiegand, Director of Public Works L - Scott Logan, Traffic Engineer L--Cl11C E-_—__�Kj i Dennis Ballantine, Chief of Police Cl;Y Aid—,M IOINA FROM: John R. Klaus, City Attorney9qA DATE: October 21, 1999 SUBJECT: Roadway Solicitations With this is an ordinance to establish a traffic regulation to prevent the hazards caused by people who stand in the roadway to solicit the operators of vehicles. The ordinance is modeled on the regulation upheld by the 8th Circuit Court of Appeals in the case of ACORN v. St. Louis County, 930 f.2d 591 (1991). A copy of that case report is also attached to give you insight into the legal and evidentiary issues that will be involved if the measure is challenged in court. With your support, I would like to submit the proposed ordinance to the City Council for first consideration at its meeting of November 9. Encls. cc Diane Voss S t • • 930 F.2d 591 Page 1 (Cite as: 930 F.2d 591) ASSOCIATION OF COMMUNITY street, will be permitted if restrictions are justified ORGANIZATIONS FOR REFORM NOW a/k/a without reference to content of regulated speech, are ACORN, and David narrowly tailored to serve significant government Clohessy, Appellants, interests, and leave open ample alternative channels V. for communication of information. U.S.C.A. ST. LOUIS COUNTY; Gilbert H. Kleinknecht, Const.Amend. 1. Superintendent of Police, St. Louis County; and Lester A. Liebmann, Director of [4] CONSTITUTIONAL LAW 90.1(4) Department of Revenue, St. Louis 92k90.1(4) County, Appellees. County ordinance restricting in-the-roadway solicitations was content neutral, for purposes of No. 89-3011. determining whether regulation was permissible time, place, and manner restriction on charitable United States Court of Appeals, solicitations of motorists. U.S.C.A. Const.Amend. Eighth Circuit. 1 Submitted Nov. 14, 1990. [5] CONSTITUTIONAL LAW (S 90(3) 92k90(3) Decided April 8, 1991. Time, place, and manner restriction on First Amendment rights must not burden substantially Charitable organization and member filed suit, more speech than is necessary to further challenging a county ordinance that prohibited government's legitimate interests. U.S.C.A. solicitation in the roadways of the county. The Const.Amend. 1. United States District Court for the Eastern District of Missouri, 726 F.Supp. 747, Stephen Nathaniel [6] CONSTITUTIONAL LAW G-90(3) Limbaugh, J., upheld the ordinance. Appeal was 92k90(3) taken. The Court of Appeals, John R. Gibson, Validity of time, place, and manner regulation on Circuit Judge, held that the ordinance prohibiting in- First Amendment rights is judged by regulation's the-roadway solicitations of motorists was narrowly general effect, not whether enforcement in particular tailored to the governmental interest in public safety case is necessary to protect important governmental and, thus, was a valid time, place, and manner interest. U.S.C.A. Const.Amend. 1. restriction on First Amendment activities. [7] CONSTITUTIONAL LAW ,&-90(3) Judgment affirmed. 92k90(3) "Narrowly tailored" requirement for testing validity [1] CONSTITUTIONAL LAW C-90.1(1.1) of time, place, and manner restriction on First 92k90.1(1.1) Amendment activities governs degree of intrusion Right to solicit contributions to charitable or political that government may impose on behavior that cause is protected by First Amendment. U.S.C.A. threatens government's interests to some degree; Const.Amend. 1. government must show that there is real need for action to protect its interest, but once government [2] CONSTITUTIONAL LAW «90.1(4) meets that threshold, its choice among means to 92k90.1(4) accomplish its end is entitled to deference. County had burden of justifying ordinance that U.S.C.A. Const.Amend. 1. restricted in-the-roadway solicitations; county was seeking to limit behavior protected by First [8] CONSTITUTIONAL LAW cE�-90.1(4) Amendment. U.S.C.A. Const.Amend. 1. 92k90.1(4) County ordinance prohibiting solicitation in [3] CONSTITUTIONAL LAW C-90.1(4) roadways was narrowly tailored to county's interest 92k90.1(4) in public safety and, thus, was valid time, place, and Time, place, and manner of restrictions on exercise manner restriction on charitable solicitations, despite of First Amendment rights in public forum, such as organization's claims that none of its solicitors had Copr. ©West 1999 No Claim to Orig. U.S. Govt. Works • • 930 F.2d 591 Page 2 (Cite as: 930 F.2d 591) been hurt and that its particular solicitation practices Districts of Missouri. were safe; evidence showed that solicitors walked across lanes of traffic while cars were moving, in I. order to approach motorists who were waiting for red lights, detained cars after lights turned green, ACORN has in the past raised money in St. Louis and crossed between cars. U.S.C.A. Const.Amend. County by soliciting donations from drivers at busy 1. intersections in an operation it calls a "toll road". ACORN's practice is to post solicitors at [9] CONSTITUTIONAL LAW (9-90.1(4) intersections with traffic lights. They wait on 92k90.l(4) medians or on the sidewalk or road shoulder until Once county established that its prohibition against the light turns red. Then they walk into the street in-the-roadway solicitations served interest in public and approach the stopped vehicles carrying cans for safety, county was not obligated to show that collecting money and "tags," which are little slips of prohibition was least restrictive means of paper with information about ACORN. They start accomplishing its goals in order to establish that with the first car at the light, then work their way prohibition was valid time, place, and manner down the row, briefly telling each driver about one restriction on charitable solicitations. U.S.C.A. of ACORN's goals, asking him for a contribution Const.Amend. 1. and giving him a tag. Solicitors may be in each of *592 John D. Lynn, St. Louis, Mo., for appellants. several lanes of traffic at an intersection, including lanes that are not adjacent to a median or curb. Michael E. Shuman of Clayton, Mo., for appellees. Sometimes, ACORN stations someone at the intersection to shout at the solicitors when the light Before JOHN R. GIBBON, Circuit Judge, for the cross street turns yellow, and sometimes the HENLEY, Senior Circuit Judge, and CONMY, solicitors depend on familiarity with the length of [FN*] District Judge. the red light or cues from sounds and driver behavior. In any case, ACORN's ideal is that the FN* The Honorable Patrick A. Conmy, Chief solicitors leave the roadway when the light for the United States District Judge for the District of North cross street turns yellow. ACORN had for a Dakota, sitting by designation. number of years obtained permits from St. Louis *593 JOHN R. GIBBON, Circuit Judge. County for its solicitation activities. This case presents a first amendment challenge to a St. Louis County Traffic Code § 1209.090, enacted traffic code provision prohibiting solicitation in the on November 22, 1985, provides: roadways of St. Louis County, brought by ACORN, Pedestrians Soliciting Rides or Business-4. No a non-profit advocacy organization, and one of its person shall stand in a roadway for the purpose of members, against St. Louis County, Missouri, its soliciting a ride, employment, charitable Superintendent of Police and its Director of contribution or business from the occupant of any Revenue. After a bench trial, the district court vehicle. [FN1] held that the challenged regulation is a The County thereafter advised ACORN that it will permissible time, place and manner restriction enforce section 1209.090 against ACORN solicitors serving the government's interest in safety and who go out into the roadway to solicit contributions traffic efficiency and entered judgment for St. Louis from drivers, and stopped issuing permits to County. Association of Community Organization ACORN. There was testimony at the trial that the for Reform Now v. St. Louis County, 726 F.Supp. County's purposes in enacting section 1209.090 747 (E.D.Mo.1989). ACORN appeals, arguing that were to promote pedestrian and motorist safety; and its method of in-the-roadway solicitation is safe, and that the County's interest in traffic efficiency was that St. Louis County could have achieved its also threatened by the "toll roads." desired result in a less restrictive manner. We affirm. The evidence at trial consisted primarily of testimony about the dangers of in-the-roadway FN1. The Honorable Stephen N. Limbaugh, United solicitation generally, in-the-roadway solicitation as States District Judge for the Eastern and Western practiced by ACORN, and ideal in-the-roadway Copr. ©West 1999 No Claim to Orig. U.S. Govt. Works 930 F.2d 591 Page 3 (Cite as: 930 F.2d 591, *593) solicitation. St. Louis County's experts all agreed sidewalk or median and allow solicitors to approach that in-the-roadway solicitation generally is only the driver's side of vehicles. dangerous. ACORN's own expert testified that toll 7. Require soliciting organizations to post a roads are dangerous unless regulated by an extensive supervisor with a whistle at each intersection to set of rules. St. Louis County even produced monitor the traffic light and to ensure compliance testimony by a volunteer for another organization with these safety rules. who had been hit by a car and seriously injured 8. Restrict solicitation to daylight hours. while collecting charitable contributions in the roadway. St. Louis County also introduced a St. Louis County's expert Robert Reeder videotape of an actual ACORN "toll road," in which specifically addressed the Box plan and stated that it j according to ACORN's own expert, "ACORN would improve the safety of the solicitation, but that jon- the-roadway solicitation would still not be a safe people were violating practically every tenet that I have shown here in terms of safety," and delaying practice. St. Louis County's Traffic Planning traffic after the light changed sixteen percent of the Supervisor, Joseph Passanise, also stated that in- traffic solicitation subject to the eight time. The district court *594 found that "[w]ithout doubt, the tape demonstrates that there is a restrictions still would not be safe. significant safety concern linked with solicitation. It The parties stipulated that section 1209.090 does showed solicitors darting in between and around the cars, front and back, and from lane to lane. not forbid solicitors from soliciting drivers as long Occasionally, some of the individuals even remained as they stand off the roadway--on the curb, median in the street soliciting after the light had turned or shoulder of the road. Therefore, there is no ban \ � drivers-- only on standing in the green." At 751. roadway to do The only area of possible conflict in the testimony II. was whether in-the- roadway solicitation could ever be done safely and without impairing traffic s efficiency. St. Louis County's experts testified that [1][2][3][4] The right to solicit contributions to a charitable or political cause is protected by the first they knew of no technique that would_make on-the- amendment. Schaumburg v. Citizens for Better roadway solicitation safe. However, ACORN t.Environment, 444 U.S. 620, S.Ct. 826, introduced the testimony of Mr. Paul Box, a traffic engineering consultant, who said that by the use of 834, 63 L.Ed.2d 73 (1980). S St. Louuisis County, as his eight point plan, [FN2] in-the-roadway the party seeking to limit behavior protected by the solicitation could be done at "very little" risk to first amendment, bears the burden of justifying its pedestrians, and with "no significant adverse affect regulation. Philadelphia Newspapers, Inc. v. Hepps, [sic] on the flow of traffic." 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986); ACORN v. City of Phoenix, FN2. The eight point plan would: 798 F.2d 1260, 1263 (9th Cir.1986). In a public 1. Require solicitors to be 18 or older. forum, such as the streets, time, place and manner 2. Require solicitors to wear high-visibility clothing, restrictions on the exercise of first amendment rights for example, orange vests. will be permitted if they "are justified without 3. Limit the number of solicitors per approach to the reference to the content of the regulated speech ... intersection to two or three individuals. are narrowly tailored to serve a significant 4. Require solicitors to leave the roadway and return governmental interest, and ... they leave open ample to their stations in a neutral area (sidewalk or alternative channels for communication of the median) when the traffic signal changes to yellow information." Clark v. Community for Creative for the cross traffic. Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 5. Restrict solicitation to the occupants of those 3069, 82 L.Ed.2d 221 (1984). In this case, the vehicles detained by a red traffic light in(a) the left government interest in safety and traffic efficiency is lane of one-way streets where there is no curbed "significant"; the restriction is clearly neutral as to parking and(b)the lane adjacent to a median in two- way streets if the median is at least six feet wide. the content of the regulated speech; and ACORN 6. Forbid solicitors from ever crossing in front of or makes no argument that ample alternative avenues of in back of such vehicles. In other words, restrict communication do not exist. See Frisby v. Schultz, solicitation to only one lane of traffic adjacent to the 487 U.S. 474, 482-85, 108 S.Ct. 2495, 2500-02, Copr. ©West 1999 No Claim to Orig. U.S. Govt. Works 930 F.2d 591 Page 4 (Cite as: 930 F.2d 591, *594) 101 L.Ed.2d 420 (1988). invalid because the government's interests in protecting persons and property on the grounds and The only issue that remained for consideration by protecting the Court's image as being free from the district court, and that this court must address, is political influence were not sufficiently threatened whether the restriction is narrowly tailored to serve by the banned activity to warrant governmental a significant governmental interest. This test action. Id. at 182-83, 103 S.Ct. at 1709-10. The governs the intrusiveness of governmental regulation danger the regulation protects against must be real, in two ways. First, it governs *595 the extent to not speculative. Bay Area Peace Navy v. United which the regulation can have the incidental effect of States, 914 F.2d 1224, 1228 (9th Cir.1990). But, burdening behavior that does not threaten the once over that threshold, the government's choice governmental interest in question. among the means to accomplish its end is entitled to deference. [5][6] A regulation must not "burden substantially more speech than is necessary to further the In Clark, the National Park Service had adopted a government's legitimate interests." Ward v. Rock ban on sleeping in Lafayette Park and the Mall in Against Racism, 491 U.S. 781, 109 S.Ct. 2746, Washington, D.C., in order to conserve those parks. 2758, 105 L.Ed.2d 661 (1989) (emphasis added). 468 U.S. at 296, 104 S.Ct. at 3070. An advocacy On the other hand, the validity of the regulation is group planned a demonstration that would involve judged by its general effect, not whether sleeping in those parks and challenged the ban on enforcement in a particular case is necessary to first amendment grounds. Id. at 291-92, 104 S.Ct. protect the important governmental interest. United at 3067-68. The Supreme Court upheld the ban. States v. Albertini, 472 U.S. 675, 688-89, 105 S.Ct. Once the Court concluded that the Park Service 2897, 2906, 86 L.Ed.2d 536 (1985). In Ward, New regulation furthered the valid interest of park York City required groups performing in its park to conservation, the law of the first amendment did not use the city's sound system. One of the reasons for "assign to the judiciary the authority to replace the the requirement was that the city needed to make Park Service as the manager of the Nation's parks sure that the sound amplification was sufficient to or endow the judiciary with the competence to judge reach all listeners within the defined concert ground. how much protection of park lands is wise and how 109 S.Ct. at 2757. In upholding the city's that level of conservation is to be attained." Id. at requirement, the Supreme Court stated, "No doubt 299, 104 S.Ct. at 3072. this concern [about inadequate sound] is not applicable to respondent's concerts, which The Supreme Court recently summarized both apparently were characterized by more-than- aspects of the "narrowly tailored" requirement in adequate sound amplification. But that fact is beside Ward. "[A] regulation of the time, place or manner the point, for the validity of the regulation depends of protected speech ... need not be the least- on the relation it bears to the overall problem the restrictive or least-intrusive means of [serving the government seeks to correct, not on the extent to government's legitimate content-neutral interests]. which it furthers the government's interests in an Rather, the requirement of narrow tailoring is individual case." Id. at 2759. Accord, Carew-Reid satisfied 'so long as the ... regulation promotes a v. Metropolitan Transp. Auth., 903 F.2d 914, 918 substantial government interest that would be (2d Cir.1990). achieved less effectively absent the regulation.' " 109 S.Ct. at 2757-58 (citations omitted) (emphasis [7] Second, the "narrowly tailored" requirement added). governs the degree of intrusion the government can impose on behavior that does threaten its interests to In applying the "narrowly tailored" requirement to some degree. To justify any intrusion at all there the facts of this case, we must conduct an must be a threshold showing that the factual situation independent review of the "constitutional facts" at demonstrates a real need for the government to act issue. See Bose Corp. v. Consumers Union, Inc., to protect its interest. In United States v. Grace, 466 U.S. *596 485, 508-09 n. 27, 104 S.Ct. 1949, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 1964 n. 27, 80 L.Ed.2d 502 (1984); see also Doe (1983), a ban on carrying signs on the sidewalks v. City of Minneapolis, 898 F.2d 612, 616 (8th surrounding the Supreme Court building was held Cir.1990). Copr. ©West 1999 No Claim to Orig. U.S. Govt. Works • • 930 F.2d 591 Page 5 (Cite as: 930 F.2d 591, *596) [8] ACORN first argues that its toll roads are not that the regulation does not burden substantially dangerous and that the scope of the regulation is more speech than is necessary to further the therefore too broad. It argues that it has not had an government's interests. accident occur during the conduct of a toll road in the five and one-half years experience of one of its Furthermore, the evidence clearly showed that the witnesses. ACORN argues that its solicitors are ACORN solicitors' behavior did fall within the specially trained for safety and the regulation is scope of the problems the government was trying to therefore an unnecessary burden on its first address. The videotape showed ACORN solicitors amendment rights. ACORN characterizes the walking across lanes of traffic while cars were evidence of the solicitor from another charity who moving, detaining cars after the light turned green, was hit by a car as the "isolated exception that and crossing between the front of one car and the proves the general rule of safety." rear of another. The solicitors regularly returned to the median only after the light turned green. The fact that there was no evidence of ACORN's ACORN's own expert testified that the tape showed solicitors being hurt is of no probative value. The ACORN's solicitors "violating practically every government need not wait for accidents to justify [safety] tenet" he had espoused. The district court safety regulations. United States Labor Party v. found that the tape showed a "significant safety Oremus, 619 F.2d 683, 688 n. 4 (7th Cir.1980) (in concern linked" with ACORN's practices, slip op. at upholding ban on in-the-roadway solicitation court 6, and that finding is supported abundantly by the states that the State need not wait for personal record. There is no merit to ACORN's argument injuries). that the regulation is unwarranted in ACORN's case. Nor is it sufficient for ACORN to show that its particular practices are safe if the practice of in-the- [9] ACORN next argues that the regulation is roadway solicitation generally is dangerous. It is the unduly intrusive, because St. Louis County could regulation's relationship "to the overall problem the accomplish the same goals less intrusively by government seeks to correct," not its necessity in adopting the Box eight-point plan. [FN3] St. Louis ACORN's particular case, that determines its County easily passed the threshold test of proving validity. See Ward, 109 S.Ct. at 2759. Experts that it acted in response to a real, not speculative, called by both parties in this case testified that danger. After satisfying this threshold requirement, soliciting in the roadway generally is dangerous and *597 the county is not required to show that the slows traffic. The district court found that "there regulation adopted was the least restrictive can be no doubt from the evidence, as well as one's alternative. After Ward, the inquiry is whether St. own common sense, that soliciting in the streets is Louis County "could reasonably have determined that its interests overall would be served less inherently dangerous." At 753. Other circuit courts effectively without [section 1209.090] than with it." have upheld similar regulations based on the " 'evident dangers of physical injury and traffic Ward, 109 S.Ct. at 2759. The regulation easily disruption that are present when individuals stand in survives this test. [FN4] the center of busy streets trying to engage drivers FN3. As we read ACORN's argument, this is not and solicit contributions from them.' " United States simply another argument that the regulation applies Labor Party, 619 F.2d at 688. Accord, ACORN v. to conduct that is not dangerous. Rather, ACORN City of Phoenix, 798 F.2d at 1268-70; International argues that the County could make solicitation safe Soc'y for Krishna Consciousness, Inc. v. City of by regulating it as Mr. Box proposes and Baton Rouge, 876 F.2d 494, 498 (5th Cir.1989) prosecuting solicitors who violated such a (solicitation ban also prohibited soliciting while regulation. standing on median or shoulder of road). Therefore, even accepting ACORN's argument that FN4. Moreover, the record was at best its solicitors were specially trained so as to remove contradictory as to whether even the Box eight-point their behavior from the realm of problems the plan would render in-the-roadway solicitation safe. The County's experts said it would not. See supra government seeks to correct, the relationship at 594. We note that two other circuit courts have between the regulation and the government's interest upheld district court findings that in-the- roadway in safety and traffic efficiency is sound, and we hold solicitation cannot be made safe. International Copr. ©West 1999 No Claim to Orig. U.S. Govt. Works 930 F.2d 591 Page 6 (Cite as: 930 F.2d 591, *597) Soc'y for Krishna Consciousness, Inc., 876 F.2d at was unsafe). We have no district court finding on 498 (upholding district court finding that there is no this issue in this case, nor is one necessary, in light way in-the-roadway solicitation can be made safe); of our holding above. ACORN v. City of Phoenix, 798 F.2d at 1270 (affirming decision in which district court found that The judgment of the district court is affirmed. even using the plan roughly equivalent to the Box proposal in this case, in-the-roadway solicitation END OF DOCUMENT Copr. © West 1999 No Claim to Orig. U.S. Govt. Works