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HomeMy WebLinkAbout04 - Solicitation Within the CityCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 4 March 23, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David R. Hunt, City Attorney ext. 3131, dhunt newportbeachca.gov SUBJECT: AMENDMENTS TO NEWPORT BEACH MUNICIPAL CODE CHAPTER 5.42, REGULATING SOLICITATION WITHIN THE CITY ISSUE: Newport Beach Municipal Code (NBMC) Chapter 5.42 regulates solicitation and distribution of handbills on public and private property within the City. Recent court decisions require changes to Chapter 5.42 to maintain compliance with federal law limiting government regulation of speech. In addition, the City has received complaints from residents that some solicitors are not abiding by current City restrictions on solicitation and handbill distribution at residential properties displaying "no soliciting" or similar signs. The City Council has requested that the Office of the City Attorney draft additional regulation to provide protection to residents who do not wish to receive in- person solicitation or unsolicited written materials at their homes. RECOMMENDATION: Staff recommends that the City Council adopt for introduction the proposed amendments summarized in the staff report below, and in the redlined version of NBMC Chapter 5.42 attached hereto as Attachment A. The ordinance will return for second reading and adoption at the next regular session of the City Council. 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." This definition incorporates commercial solicitation, noncommercial solicitation or delivery of opinions or views, and solicitation of charitable or other noncommercial donations. Staff provided a summary of recent federal case law affecting cities' ability to regulate each category of solicitation in a staff report for the City Council's review at the January 12, 2010 study session (attached hereto as Attachment B.) Solicitation Ordinance Amendments March 23, 2010 Page 2 A. Registration Requirements Chapter 5.42 currently 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 Managers Office. ( §5.42.025) As written, this requirement applies to both commercial and noncommercial solicitors. Since Chapter 5.42 was added to the NBMC, federal court decisions have held that cities are prohibited from enforcing registration requirements against noncommercial speakers, or individuals soliciting donations for noncommercial entities and causes. (See Attachment B, January 12, 2010 study session staff report, for a summary of the legal developments in this area.) Therefore, the attached proposed amendments to Chapter 5.42 apply the registration requirement only to persons engaging in commercial solicitation, and commercial entities or individuals paid to perform solicitation on behalf of noncommercial entities. Deletion of the current registration exemption for persons or entities holding Newport Beach business licenses is included in the proposed amendment. The exemption was deleted because solicitation in residential neighborhoods can intrude on residential privacy if not conducted in accordance with City regulations, and it is therefore appropriate to provide business license holders with the same information other commercial solicitors receive through the registration process. The Newport Beach Police Department has an interest in residential safety and will assist in enforcing reasonable solicitation restrictions. The Police Department has agreed to maintain and administer the commercial solicitation registration list. B. "Do Not Solicit" List A number of residents have informed the City that they do not wish to receive unsolicited handbills or in- person solicitation at their homes. As discussed in the January 12, 2010 staff report, the most effective protection residents have from receiving unwanted communications at their homes is the display of a "no soliciting" sign. Courts have repeatedly upheld cities' prohibitions on commercial and noncommercial solicitation at properties where "no soliciting" signs are displayed. Under the current NBMC, when an occupant displays a "no soliciting" sign at a residential property, both commercial and noncommercial solicitation (including handbill delivery) are prohibited at that residence. However, some residents have reported that even with the display of a "no soliciting" sign on their properties, they still received handbills and solicitations. This may be due in part to the fact that much of the solicitation occurs in the evening hours, when solicitors are likely to find residents at home. This is also the Solicitation Ordinance Amendments March 23, 2010 Page 3 time that darkness renders the occupants' "no soliciting' signs less visible. Similarly, "no soliciting" signs may be less visible from streets and curbs, and during the pre -dawn hours, when delivery of some handbills and unsolicited publications takes place. To help address this issue, staff proposes that the City Manager's Office maintain a "do not solicit" registry. The "do not solicit" registry is proposed to supplement and enhance, not substitute for, the display of a "no soliciting" sign. Under the proposed system, occupants of residential properties who display "no soliciting" signs on their property would be eligible to sign up for the "do not solicit" registry, which would be operated primarily through the City's website. (Residents without Internet access could sign up through the City Manager's Office at City Hall.) The list would display addresses only, and would not include the names of residents. For First Amendment reasons, staff suggests that residents be required to renew their status on the "do not solicit" list annually, so that changes in residency do not create an out -of -date list that may not reflect the wishes of current occupants. The proposed "do not solicit" list will also provide greater convenience and guidance to solicitors and handbill distributors. The City's Information Technology Department has said that the "do not solicit" list can be programmed to be sorted by address and publicly accessible through the City website. Having easy access to a list of addresses that have already expressed a wish not to receive unsolicited communications will enable solicitors and handbill distributors to more effectively focus their solicitation efforts and materials. Residents concerned with the unsolicited delivery of written materials that do not fit within the NBMC's definition of "handbill" are referred to Page 5 of Attachment B, the January 12, 2010 staff report. That staff report highlights remedies available to residents who continue to receive unsolicited publications after they have informed the publication that they do not wish to receive such deliveries. If these remedies prove ineffective, staff recommends the City revisit this issue at a future date. C. Handbills on Vehicles As discussed at the January 12, 2010 study session, the Ninth Circuit Court of Appeals recently 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, Solicitation Ordinance Amendments March 23, 2010 Page 4 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. The Klein v. City of San Clemente court 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.) 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. (Id. at 5.) 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. (Id.) 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 applies to vehicles on public or private property. SUMMARY: Staff seeks the City Council's approval of the proposed amendments to NBMC Chapter 5.42, and any comments or changes the City Council suggests. Staff recommends that the City Council direct staff to bring amendments to NBMC Chapter 5.42 in final form to the next regular session of the City Council for second reading and adoption. Environmental Review: This action is not subject to the California Environmental Quality Act ( "CEQX) 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.) 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. Solicitation Ordinance Amendments March 23, 2010 Page 5 Funding Availability: 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 Approved by: David R. Hunt, City Attorney Attachment A: NBMC Chapter 5.42 Attachment B: January 12, 2010 Study Session Staff Report ATTACHMENT A NBMC Section 5.42 - Regulating Solicitation Redline Version of Chapter 5.42 'A 0, "K Chapter 5.42 SOLICITATION Sections: 5.42.010 Findings and Purpose. 5.42.020 Definitions. 5.42.025 Commercial Solicitation - Registration Card Required. 5.42.030 Exemptions. 5.42.040 Application for Registration Card. 5.42.050 Registration Fee. 5.42.060 Issuance of Registration Card. 5.42.070 Term of Registration Card. 5.42.080 Nontransferability of Registration Card. 5.42.090 Waiver of Requirements in Emergency. 5.42.100 Handbills in Public Places. 5.42.110 Placing Handbills in Vehicles. 5.42.120 Distribution of Handbills on Residential Property. 5.42.125 Residential Properties Displaying "No Soliciting' Signs – "No solicitation" list. 5.42.130 Posting on Public Property. 5.42.140 Posting on Street. 5.42.150 Handbill Exceptions. 5.42.160 Publicly Soliciting Prohibited. 5.42.170 Time, Place and Manner of Spltctt li — Prohibitions. 5.42.180 Violations. 5.42.010 Findings and Purpose. A. Persons and organizations have been and are soliciting funds, support, and opinions in residential areas of the City at times, and in ways, which interfere with the reasonable expectations of privacy of the occupants of dwellings. B. Persons have been soliciting funds, support and opinions in certain public areas where members of the public are not able to easily avoid the �dlibb ii Ci, in areas where the soloitatiora could endanger the safety of the public, and in ways which may reasonably create fear on the part of the person being solicited. C. Handbills soliciting funds, support or opinions frequently become litter or trash which impacts the aesthetics of public and private property unless distributed or placed in ways which ensure they are received by interested persons. unwanted solicitation and distribution of printed material delivered in the evening or early morning hours when the residents' "no soliciting' signs are less clearly visible to solicitors. ED. The provisions of this Chapter constitute reasonable and content_ neutral time, place and manner restrictions and limitations which allow persons and organizations ample opportunity to solicit funds, opinions and support while protecting and promoting the public peace, health, safety and welfare. FE. The provisions of this Chapter that require registration are for the purpose of identifying commercial solicitors and advising them of the regulations relative to solicitation[- within the Citv is not required of those who have already-prGvided-the-G"ith substantially all of the iRfORnation FequiFed by the application. (Ord. 98 -5 § 1 (part), 1998) 5.42.020 Definitions. The words and terms used in this Chapter shall be defined as follows: "Applicant" means the person applying to the City Manager for a Registration Card. "City Council" means the City Council of the City of Newport Beach. "City Manager' means the City Manager of the City of Newport Beach or his /her designee. "Commercial solicitation" means solicitation related primarily to an economic transaction such as the exchange of goods or services for a financial fee or cost This "Handbill" means any document or written matter such as a circular, leaflet, or pamphlet which advertises, promotes or informs of a product, business, service, event, commercial enterprise or any noncommercial activity, event, organization or purpose. "Newspaper" means and includes any newspaper of general circulation as defined by State law, any newspaper duly entered with the Post Office Department of the United States in accordance with Federal statute or regulation, and shall include any periodical or current magazine regularly published with not less than four issues per month and sold to the public. of monetary or non - monetary donations to non - profit entities, when such solicitation is not conducted by a for - profit entity that is paid for solicitation on the non -profit entity' behalf, or that retains any portion of the funds solicited on behalf of the non - profit entity. "Person" means any individual, partnership, corporation, or association, firm, company, society, organization, church, congregation, assembly, or league, and shall include any director, officer, trustee, receiver, assignee, agent, or other similar representative thereof. "Police Department" means the Newport Beach Police Department. "Public place" means and includes all publicly owned and maintained streets, sidewalks, alleys, parks, beaches, grounds and buildings. "Registration card" means the card, which authorizes a person to engage in Wor "Residential property" means any dwelling, house, building or other structure, designed or used in whole or in part for residential purposes and shall include any yard, walkway or driveway appurtenant to the structure. "Solicit and soltpitafi " means request for, or offer of, money, services, opinion, support, information or property. "Solicitor" means an individual who solicits. (Ord. 98 -5 § 1 (part), 1998) 5.42.025 Commercial Solicitation - Registration Card Required. A. Except as provided in Section 5.42.030, no person shall engage in commercial solicitation in the City of Newport Beach without first applying for, and receiving, a registration card. Multiple registration cards may be issued pursuant to a single application for all solicitors engaged in commercial aplicitatidri on behalf of, and under the immediate direction and control of, the applicant. Commercial sSolicitors shall carry registration cards on their persons at all times while soliciting and shall display the registration card upon request of any person being solicited or anyone authorized to enforce this Code. B. The City Manager has no authority to, and shall not, grant, deny, suspend, revoke or refuse to renew any registration card by reason of disapproval or disagreement with the philosophy, opinion, or belief of the card holder. (Ord. 98 -5 § 1 (part), 1998) 5.42.030 Exemptions. The following are exempt from the provisions of this Chapter: A. Any organization's sbliQ66on of its members; B. 861l61146q on premises owned or controlled by the solicitor; C. SghcllaEfon which is subject to disclosure under State or Federal political disclosure laws; D. The issuance of any announcement or advertisement that such gdlt� as described in subsections (A), (B), or (C) of this Section will occur or which announces or advertises an event at which unannounced solve Pali¢@ as described in subsections (A), (B), or (C) of this Section occurs; E. Newspapers; or magazines that have not been contacted by owners or FDdirect Solbli?ttp± through United States mail; 65� conducted solely by means of radio or television broadcasts; G €. Any person who is engaged in, or acting as an agent for, any business entitled to an exemption from local taxation by reason of its being engaged in interstate commerce, shall be required to make application for a registration card in accordance with the requirements of this Chapter, but shall be exempt from any fee upon satisfactory evidence being presented to the City Manager of his /her right to an exemption; G: --- Rersen or -bus; es-e,,,t that bas-a- Newport - Beach - businessaieense and -their employ f: 42 0M and G 42 04- ihrn ..h G 42 0W ..tie V..I..:f.... on behalf of the b n n ' licensee. (Ord. 98 -5 § 1 (part), 1998) 5.42.040 Application for Registration Card. A. An application for a registration card shall be made to the City-- ManaWaiplice Department on forms supplied by the City. The applicant shall verify the application for a card under penalty of perjury and file it with the City- ManagerPolice Department at least ten days prior to the date the applicant intends to begin soliciting. The City - Manager Police Department may, for good cause shown, allow the filing of an application less than ten days prior to the date the card is requested. B. The application shall contain the following information: 1. The full name, mailing address, principal business or residential address and telephone number, and the nature of the relationship between the applicant and the card holder, including whether the applicant is a volunteer, a paid officer or employee, an independent contractor, or an agent of the card holder; 2. Written authorization of permission to solicit from any person or organization for which the applicant intends to solicit. 3. Where applicable, documentation from the State of California that the cardholder is in compliance with Government Code Section 12599. 4. If the applicant is: (a) An individual, the application shall state the full name, mailing address and principal business or residential address and telephone number; (b) A partnership, the application shall state the full name, mailing address, and principal business or residential address and telephone number of each partner. However, if there are more than ten principal partners, only the ten principal partners need to be listed; (c) A corporation, the application shall state whether it is organized under the laws of California or is a foreign corporation and, if a foreign corporation, the place of incorporation, the full name, mailing address, and principal business or residential address, the State Corporation or Federal Employer Identification Number, and telephone number of the individual in charge of the local office of the corporation and of three principal officers or directors of the corporation; (d) An association, the application shall state mailing address, and principal business or residential address, the State Corporation or Federal Employer Identification Number, and telephone number of the association and the full name, mailing address, and principal business or residential address and the telephone number of three principal members of the association. If the association is part of a multi -state association, the mailing address and principal business or residential address and telephone number of its central office shall also be given. 5. The full name, mailing address, and principal business or residential address and telephone number of each individual who will be in charge of supervising the 40'(do * oia; 6. The full name of each individual who will be soliciting - contributions on behalf of the card holder; 7. The time during the day when the soh(f$ for will be made and the dates for the commencement and termination of the sdlici(atton; 8. A general outline of the method or methods to be used in conducting the including the number of solicitors to be used; 9. A statement that the registration card will not be used or represented in any way as an endorsement by the City or any department, officer, or employee thereof. C. If, while the application is pending or during the term of any card provides granted thereon, there is any change in fact, policy, or method that would alter the information given in the application, the applicant shall notify the Gity-Manager- Police Department in writing within twenty-four (24) hours after such change. (Ord. 98 -5 § 1 (part), 1998) 5.42.050 Registration Fee. An applicant for a registration card shall, when the application is filed, pay the fee established by resolution of the City Council. The filing fee shall not exceed the administrative cost of processing the application and issuing the card. (Ord. 98 -5 § 1 (part), 1998) 5.42.060 Issuance of Registration Card. - The City4&nagerPolice Department shall issue the card to the applicant within ten days after the date the completed application is filed. (Ord. 98 -5 § 1 (part), 1998) 5.42.070 Term of Registration Card. A registration card shall be valid for the time period of time stated in the application but in no case shall the time exceed a period of one year from the date of the issuance of the permit. (Ord. 98 -5 § 1 (part), 1998) 5.42.080 Nontransferability of Registration Card. No registration card issued pursuant to this Chapter shall be transferred or assigned, and any attempted assignment or transfer shall be void. (Ord. 98 -5 § 1 (part), 1998) 5.42.090 Waiver of Requirements in Emergency. The City Manager or Police Department may waive the requirements of this Chapter in whole or in part when he /she /it determines that a waiver is necessary to allow the 'S'6000icin of immediate aid in response to an emergency. (Ord. 98 -5 § 1 (part), 1998) 5.42.100 Handbills in Public Places. No person shall distribute, deposit or place any handbill or any other written material in or on any public place. The provisions of this Section shall not prohibit any person from personally delivering a handbill in any public place to any person willing to accept the handbill. (Ord. 98 -5 § 1 (part), 1998) 5.42.110 Placing Handbills in Vehicles. 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 that displays a sign stating "no handbills" or sign with similar wording that indicates the vehicle's owner or driver does not wish to receive such materials. (Ord. 98 -5 § 1 (part), 1998) 5.42.120 Distribution of Handbills on Residential Property. No person shall distribute, deposit or place any handbill, or any other written material, in or to any residential propertt which has displayed any sign indicating "No Solicitors" or similar wording that no t21� is desired by the occupant. All handbills distributed to, or deposited or placed in any residential property shall contain a legible notice to the effect that anyone who does not desire to receive additional handbills may notify the person or organization responsible for the distribution whose name address and phone number shall be listed on the handbill. Subsequent to receipt of notice that the occupant does not desire additional handbills, the registration card holder(s) shall not distributed handbills to that residential property. (Ord. 98 -5 § 1 (part), 1998) 5.42.125 Residential Properties Displaying "No Soliciting" Signs — "No Solicitation" list. Occupants of residential properties who visibly display "no soliciting" signs, or signs with similar wording may annually request to have their addresses included on a registry of residential properties whose occupants do not wish to receive unsolicited handbills or solicitation. The registry shall be maintained by the City Manager's Office and through the City's website, and shall be available on the City website to the public and all potential commercial and noncommercial solicitors. It shall be a violation of this Section for any commercial or noncommercial solicitor to solicit or distribute handbills at or to any dwelling unit that is included on the City's "no soliciting" registry. 5.42.130 Posting on Public Property. No person, except a public officer or employee in performance of a public duty, shall place or fasten any handbill, sign, poster or notice of any kind on any lamp post, pole, hydrant, bridge, wall, tree or other object in any public place, except as may be required or allowed by law. (Ord. 98 -5 § 1 (part), 1998) 5.42.140 Posting on Street. No person shall erect or construct any billboard or sign upon any street, sidewalk or public right -of -way, or cause the same to be done, except as may be required or allowed by law. (Ord. 98 -5 § 1 (part), 1998) 5.42.150 Handbill Exceptions. The provisions of this chapter shall not apply to the distribution of mail by the United States Post Office. (Ord. 98 -5 § 1 (part), 1998) 5.42.160 Publicly Soliciting Prohibited. No person shall solicit in any public place by means of loud and unreasonable noise that could reasonably be expected to disturb persons of ordinary sensitivity. (Ord. 98 -5 § 1 (part), 1998) 5.42.170 Time, Place and Manner of Prohibitions. No person shall solicit in violation of any of the following provisions: A. No S,p)iis tio- is permitted between the hours of 9:00 p.m. and 8:00 a.m., except by prior appointment; B. No sxlrcitaitor( is permitted at any residential property at which a sign is displayed indicating "No Solicitors' or a similar indication that no Olfi � is desired by the occupant(s); C No solicitor shall use profane or abusive language or verbal threats, during any ib Itcitiot or following any refusal by the person solicited; D. No solicitor shall step onto or over the threshold of a doorway, unless invited to do so by the occupant(s); E. No solicitor shall place his /her hands, legs, or any portion of the body in any doorway or exit so that it would reasonably appear to the occupant that the door may not be closed or the exit may not be accessible, unless the occupant grants permission to do so; F. No solicitor shall refuse to leave the premises when asked to do so by the occupant(s); G. No solicitation shall occur when the person to be solicited is in or on any of the following places: 1. Any public pier, beach, parking lot or parking structure, dock or ferry landing; 2. Any public transportation vehicle or facility; 3. Any vehicle on the public or private street, alleyway or public right -of -way; 4. Within fifty (50) feet of any automated teller machine; 5. Outdoor and /or indoor dining areas of restaurants or other dining establishments serving food for immediate consumption without the express permission of the restaurant owner, manager or operator; or 6. A queue of five or more persons waiting to gain admission to a place or vehicle, or waiting to purchase an item or admission ticket; H. No solicitor shall block or impede the path of the individual(s) being solicited; I. No solicitor shall continue to solicit, follow, or accompany, any individual who has been solicited after the individual has asked the solicitor to leave or after the individual being solicited has declined the soficitatior; J. No solicitor shall touch the individual(s) being solicited without that individual(s) consent; K. No solicitor shall make any statements, gesture, or other communication which a reasonable person in the situation of the individual(s) being solicited would perceive to be a threat and has a reasonable likelihood to produce in the victim a fear that the threat will be carried out; H. No solicitor shall knowingly make false statements or misrepresentations during the course of the solicitation. (Ord. 98 -5 § 1 (part), 1998) 5.42.180 Violations. Violations of this chapter shall be enforced in accordance with the provisions of Chapter 1.04 of the Newport Beach Municipal Code. (Ord. 98 -5 § 1 (part), 1998) NBMC Section 5.42 - Regulating Solicitation Study Session Staff Report dated January 12, 2010 le �� CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Study Session Agenda Item No. January 12, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David R. Hunt, City Attorney ext. 3131, dhuntCctinewoortbeachca.clov 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? 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(B); • 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.41' 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 -Lake (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. b. Ninth Circuit Court of Appeals recently granted preliminary injunction against enforcement of City of San Clemente's vehicle leafleting 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. (Id. 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. (Id. 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. (Id.) 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 NEWPORT BEACH MUNICIPAL CODE CHAPTER 5.42, REGULATING SOLICITATION WITHIN THE CITY Study Session January 12, 2010 Page 6 4. Recommendation. 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 Availability: 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 COJ iL AGENDA N0. 4- 3- ,23 -10 ORDINANCE NO. 2010- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CHAPTER 5.42 OF TITLE 5 OF THE NEWPORT BEACH MUNICIPAL CODE, PERTAINING TO SOLICITATION NOW THEREFORE, the City Council of the City of Newport Beach HEREBY ORDAINS that certain Newport Beach Municipal Code section is amended to read as follows: SECTION 1: Chapter 5.42 is hereby amended to read as follows: Sections: 5.42.010 5.42.020 5.42.025 5.42.030 5.42.040 5.42.050 5.42.060 5.42.070 5.42.080 5.42.090 5.42.100 5.42.110 5.42.150 5.42.160 5.42.170 5.42.180 Chapter 5.42 �SYIIlMJ� ^ Findings and Purpose. Definitions. Commercial Solicitation - Exemptions. Application for on Residential Property. ]isplaying "No Soliciting" Signs — "No solicitation" ly Soliciting Prohibited. Place and Manner of 111111iff— Prohibitions. SECTION 2: Section 5.42.010 of Chapter 5.42 is amended to read as follows: 5.42.010 Findings and Purpose. A. Persons and organizations have been and are soliciting funds, support, and opinions in residential areas of the City at times, and in ways, which interfere with the reasonable expectations of privacy of the occupants of dwellings. B. Persons have been soliciting funds, support and opinions in certain public areas where members of the public are not able to easily avoid the ffifft*n, in areas where the s E P could endanger the safety of the public, and in ways which may reasonably create fear on the part of the person being solicited. C. Handbills soliciting funds, support or opinions freq e litter or trash which impacts the aesthetics of public and private p e erty unf. distributed or placed in ways which ensure they are received by intr ed persons. D. Occupants of residential property who display signs indicati a occupant does not wish to receive unsolicited handbills and in- pgrsott3olicita have received unwanted solicitation and distribution.4fipFir�ftgd, material deliver etfsin the evening or early morning hours when the rekldents' "r4FiWlicltigq" signs are less clearly visible to solicitors. M: E. The provisions of this Chapter constitute N�sona, and cont ent - neutral time, place and manner restrictions and lims hich allow persons and .�y:. organizations ample opportunity tosoliei' bpinions and support while protecting and prorWting the public peak health, safety and welfare. s F. The provisions his er that � uire registration are for the purpose of P Q fi P idenf n corn t 'al s tors and advising them of the regulations relative to thin re City. (Ord. 98- 1 (part), 1998) SECTION 3: 5.42':U20 of Chap 5.42 is amended to read as follows: 5.42.0 finiti;: The woe s usl.in this Chapter shall be defined as follows: "Applicant" the n applying to the City Manager for a Registration Card. "City Council" mVs the City Council of the City of Newport Beach. "City Manager" means the City Manager of the City of Newport Beach or his/her designee. "Commercial solicitation" means solicitation related primarily to an economic transaction, such as the exchange of goods or services for a financial fee or cost. This definition shall automatically incorporate court rulings defining the terms "commercial speech" and "commercial solicitation." This definition shall also include solicitation by 2 for - profit entities that solicit funds on behalf of non -profit entities, when such for -profit entities are paid for solicitation on the non -profit entity's behalf, or retain any portion of funds raised on a non -profit entity's behalf. "Handbill" means any document or written matter such as a circular, leaflet, or pamphlet which advertises, promotes or informs of a product, business, service, event, commercial enterprise or any noncommercial activity, event, organization or purpose. "Newspaper" means and includes any newspaper of general circulation as defined by State law, any newspaper duly entered with the Post Office DO p�tment of the United States in accordance with Federal statute or regulation, and sha1P ddhde any periodical or current magazine regularly published with not less than four issuet;-per month and sold to the public. "Noncommercial solicitation" means solicitation not ortmarily cionrill ial in nature, and not primarily related to an economic transaction such as.tM exc e.of goods or services for a financial fee or cost. Noncommercial solicttErffon may inadde solicitation of monetary or non - monetary donations to non -profit entitiesVepch solicitation is not conducted by a for -profit entity that is paid for solicitation on- profit entity's behalf, or that retains any portion of the funds solicited on behnon -profit entity. ky "Person" means any individual, piership, tfo,r,� ration, or association, firm, company, society, organization, churoly.00ngregation; L#P rbly, or league, and shall include any director, officer, trustee, ,�eeiver, assignee' ftpt, or other similar representative thereof.`.•.. "Police Department" &Cthe Newport BeacWolice Department. "Public plac " ans anc s all publicly owned and maintained streets, sidewalks, alleys, parks, g d buildings. t� "Regisi7# Wp card an-Whilliard, which authorizes a person to engage in "Residers tt p " s any dwelling, house, building or other structure, designed or used in viol r residential purposes and shall include any yard, walkway or driveway " ena the structure. "Solicit° and " means request for, or offer of, money, services, opinion, support , informal n or property. "Solicitor" means an individual who solicits. (Ord. 98 -5 § 1 (part), 1998) SECTION 4: Section 5.42.025 of Chapter 5.42 is amended to read as follows: 5.42.025 Commercial Solicitation - Registration Card Required. 3 A. Except as provided in Section 5.42.030, no person shall engage in commercial solicitation in the City of Newport Beach without first applying for, and receiving, a registration card. Multiple registration cards may be issued pursuant to a single application for all solicitors engaged in commercial $Wk*atM on behalf of, and under the immediate direction and control of, the applicant. Commercial solicitors shall carry registration cards on their persons at all times while soliciting and shall display the registration card upon request of any person being solicited or anyone authorized to enforce this Code. B. The City Manager has no authority to, and shall not, grant, deny, suspend, revoke or refuse to renew any registration card by reason of disapproval or disagreement with the philosophy, opinion, or belief of the card holder. SECTION 5: Section 5.42.030 of Chapter 5.42 is anianded to read as follows: 5.42.030 Exemptions. The following are exempt from the provjsions of this Chapter. A. Any organization's of it! the solicitor. C. IOMW which "W1 subject to 4 los'dW,6der Slate or Federal political disclosure la ;= D. The issuance o nnoti�ement or advertisement that such as descri in sub (A ;r(B), or (C) of this Section will occur or which annou�-or ad is an event at which unannounced as descri 'W. s S( ), or (C) of this Section occurs; E. NBwsp. pers o ga that have not been contacted by owners or occupants of property and tructed not to deliver such materials to that property or dwelling unit,, , F. Direct through United States mail; conducted solely by means of [edio or television broadcasts; G. Any person who is engaged in, or acting as an agent for, any business entitled to an exemption from local taxation by reason of its being engaged in interstate commerce, shall be required to make application for a registration cans in accordance with the requirements of this Chapter, but shall be exempt from any fee upon satisfactory evidence being presented to the City Manager of his/her right to an exemption; 4 SECTION 6: Section 5.42.040 of Chapter 5.42 is amended to read as follows: 5.42.040 Application for Registration Card. A. An application for a registration card shall be made to the Police Department on forms supplied by the City. The applicant shall verify the application for a card under penalty of perjury and file it with the Police Department at least ten days prior to the date the applicant intends to begin soliciting. The Police Department may, for good cause shown, allow the filing of an application less than ten days prior to the date the card is requested. B. The application shall contain the following information: 1. The full name, mailing addm and telephone number, and applicant and the card hol volunteer, a paid officer or agent of the card holder; 2. Written authorization: organization fo hich t 3. Where applii cardholder is 4. If the business or r ",jd ptial address of the relationsW between the tg whether the applicant is a ry fadependent contractor, or an licit from any person or solicit. the State of California that the lent Code Section 12599. indict; thelfpplication shall state the full name, mailing addre and' �Vrincipal business or residential address and A ps ership, the application shall state the full name, mailing re and principal business or residential address and tel one number of each partner. However, if there are more than ten principal partners, only the ten principal partners need to be listed; (c) A corporation, the application shall state whether it is organized under the laws of California or is a foreign corporation and, if a foreign corporation, the place of incorporation, the full name, mailing address, and principal business or residential address, the State Corporation or Federal Employer Identification Number, and telephone number of the individual in charge of the local office of 5 the corporation and of three principal officers or directors of the corporation; (d) An association, the application shall state mailing address, and principal business or residential address, the State Corporation or Federal Employer Identification Number, and telephone number of the association and the full name, mailing address, and principal business or residential address and the telephone number of three principal members of the association. If tha association is part of a multi -state association, the mailing ado's . and principal business or residential address and telephone 16Mber of ftt,central office shall also be given. 5. The full name, mailing address, an erincipal business o residential address and telephone number of each kWividMI who A-163h charge of supervising the ` n; 6. The full name of each individual whNth ing on behalf of the card holder, 7. The time during the day. will be made and the dates for the commencement aof the B. A general outl-.of the method or >rrreth fo be used in conducting the MOM Zing the number of. hors to be used; 9. A staternent th istration caul will not be used or represented in any way..aa:An rsement by the City or any department, officer, or employee'ih f. C. If, wh*t—PP pli n pefi�ing or during the term of any card provides rante'!to te is a ,..change in fad, policy, or method that would after forma g the application, the applicant shall notify the Police nt in i iting n twenty -four (24) hours after such change. 5.42.050 R istrtilion Fe Na. An applicant a registration card shall, when the application is filed, pay the fee established by thsolution of the City Council. The filing fee shall not exceed the administrative cost of processing the application and issuing the card. SECTION 7: Section 5.42.060 of Chapter 5.42 is amended to read as follows: 5.42.060 Issuance of Registration Card. The Police Department shall issue the card to the applicant within ten days after the date the completed application is filed. Lj- 5.42.070 Term of Registration Card. A registration card shall be valid for the time period of time stated in the application but in no case shall the time exceed a period of one year from the date of the issuance of the permit. 5.42.080 Nontransferability of Registration Card. No registration card issued pursuant to this Chapter shall lie +ansferred or assigned, and any attempted assignment or transfer shall be void. SECTION 8: Section 5.42.090 of Chapter 5.42 is an 3'ed to read.as follo*s: 5.42.090 Waiver of Requirements in Emergency. ' ?":` The City Manager or Police Department may waive the req en f this Chapter in whole or in part when he /she /it determines that a w, r i' sary to allow the 00 of immediate aid in response'to an emergency. (�rd. -5 § 1 (part), 1998) 5.42.100 Handbills In Public PIS No person shall distribute, deposit or *ce any h Al or any other written material in or on any public place. Tha.provisions of`14iis Sec Ushall not prohibit any person from personally delivering AghandWiUvAny pubWplace to any person willing to accept the handbill. (Ord. 98 -5 § NOW ), O SECTION 9:Agg<ion 5.4 11& Chapter 9.42 is amended to read as follows: 5.42.110 No pen distn deftit or place any handbill, or any other written material, in or upon bi other vehicle in the City that displays a sign stating "no handbills ° I im r wording that indicates the vehicle's owner or driver does not wish to suds aterials. 5.42.120 Distrifton of Handbills on Residential Property. No person shall distribute, deposit or place any handbill, or any other written material, in or to any residential property which has displayed any sign indicating "No Solicitors" or similar wording that no is desired by the occupant. All handbills distributed to, or deposited or placed in any residential property shall contain a legible notice to the effect that anyone who does not desire to receive additional handbills may notify the person or organization responsible for the distribution whose name address and phone number shall be listed on the handbill. Subsequent to receipt of notice that the occupant does not desire additional handbills, the registration card holders) shall not distributed handbills to that residential property. SECTION 10: Section 5.42.125 of Chapter 5.42 is amended to read as follows: 5.42.125 Residential Properties Displaying "No Soliciting" Signs — "No Solicitation" list. Occupants of residential properties who visibly display "no soliciting" signs, or signs with similar wording, may annually request to have their addresses included on a registry of residential properties whose occupants do not wish to receive unsolicited handbills or solicitation. The registry shall be maintained by the CjW. Manager's Offioe:and through the City's website, and shall be available on the CK websife to the public and all potential commercial and noncommercial solicitors. Itshall be a violation of1his Section for any commercial or noncommercial solicitor to soli. r,distribute haw0fils at or to any dwelling unit that is included on the City's "no solicitinfiregistry. 5.42.130 Posting on Public Property. No person, except a public officer, or employee in performance of a public duty, shall place or fasten any handbill, sign Oster or notice of any Rind on any lamp post, pole, hydrant, bridge, wall, tree or er *act in any public plaice, except as may be required or allowed by law. 5.42.140 Posting on eet. No person shall erect` stru ny boboard or sign upon any street, sidewalk or public right �5 !ax, or a be done, except as may be required or allowed by ,,N. .; 5.42.1!0 ndbili`e The pro ns is c` ter shall not apply to the distribution of mail by the United States Pos i 5.42.160 PubMly Prohibited. No person shall licit in any public place by means of bud and unreasonable noise that could reasonably be expected to disturb persons of ordinary sensitivity. 5.42.170 Time, Place and Manner of rohibitions. No person shall solicit in violation of any of the following provisions: E A. No solidti *n is permitted between the hours of 9:00 p.m. and 8:00 a.m., except by prior appointment; B. No sottdl is permitted at any residential property at which a sign is displayed indicating "No Solicitors" or a similar indication that no sdidtemon is desired by the occupant(s); C. No solicitor shall use profane or abusive language or verbal threats, during any solldtSW or following any refusal by the person solicited; D. No solicitor shall step onto or over the threshold of a: doorway, unless invited to do so by the occupant(s); E. No solicitor shall place his/her hands, legs, or any portion of the body in any doorway or exit so that it would reasonably appear to the occupant that the door may not be closed or the exit may not be accesslble, unless the occupant grants permission to do so; F. No solicitor shall refuse to le4ye thVWremises-".en en asked to do so by the occupant(s); r` G. No stta shall occur =the person to be cited is in or on any of the following places: ` 1. Any public 'fir, `bead, png lot or parking structure, dock or ferry landing; 2. Any public-transport ve ' or facility; a�w 3. A j bicle on the4su lic private street, alleyway or public right -of -way; I 4. ;.,., Withir % fifty (50) feet of any automated teller machine; 5. r atk/or indoor dining areas of restaurants or other dining es enit serving food for immediate consumption without the ess ission of the restaurant owner, manager or operator, or 6. Aue of five or more persons waiting to gain admission to a place or vehi le, or waiting to purchase an item or admission ticket; H. No solicitor shall block or impede the path of the Individual(s) being solicited; I. No solicitor shall continue to solicit, follow, or accompany, any individual who has been solicited after the individual has asked the solicitor to leave or after the individual being solicited has declined the ; U, J. No solicitor shall touch the individual(s) being solicited without that individual(s) consent; K. No solicitor shall make any statements, gesture, or other communication which a reasonable person in the situation of the individual(s) being solicited would perceive to be a threat and has a reasonable likelihood to produce in the victim a fear that the threat will be carried out; H. No solicitor shall knowingly make false statements or misrepresentations during the course of the solicitation. °zr" 5.42.180 Violations. Violations of this chapter shall be enforced in 1.04 of the Newport Beach Municipal Code. the Mvisions of Chapter SECTION 11: If any section, subsection, sentence, cla or phrase of this ordinance is, for any reason, held to 4q. M invalid or uncons�iiilt3 such decision shall not affect the validity or cons al ity of the remaining portions of this ordinance. The City Council herk.y d es that it wogki have passed this ordinance, and each section, subsecla r phrase hrteof, irrespective of the fact that anyone or more sections, r�s tenoett ;lauses and phrases be adeclared unconstitutional � ' SECTION 12: The shall sign and the Clerk shall attest to the passage of this ordinance. The ' �lerk shall cause me to be published once in the official newspa.per of tfiAi and,>jt sh$"be effective thirty (30) days after its adoption. SECTt�lN 12: of they of adopted 'on thi AYES, NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS iMt>duced at a regular meeting of the City Council Bid on the _ day of , 2010, and , 2010, by the following vote, to wit: 10 ATA ATTEST: By: LEILANI BROWN, CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: DAVID R. HUNT, CITY ATrORN'EY*- 00 11