HomeMy WebLinkAbout04 - Solicitation Regulations1"0
FROM:
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
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Agenda Item No. 4
March 23, 2010
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
David R. Hunt, City Attorney
ext. 3131, dhunt(o)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
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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
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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
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