Loading...
HomeMy WebLinkAbout10-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Dept: CITY ATTORNEY Subject: An Ordinance of the City of San Bernardino Amending Section 5.04.360 of the San Bernardino Municipal Code and Adding Chapter 9.60 to the San Bernardino Municipal Code to Prohibit Aggressive Soliciting. Date: September 16.2004 ORlGlNAl Synopsis of Previous Council Action: None. Recommended motion: That said ordinance be laid over for final adoption. ~9~ S' gnature Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Reoort Ward: All FUNDlNG REQUIREMENTS: Amount: None at this time Source: Finance: Council Notes: Agenda lte ~IO IO/~! 01 STAFF REPORT Council Meeting Date: September 20, 2004 TO: FROM: DATE: AGENDA: Mayor and Common Council City Attorney's Office September 16,2004 An Ordinance of the City of San Bernardino amending Section 5.04.360 of the San Bernardino Municipal Code and adding Chapter 9.60 to the San Bernardino Municipal Code to prohibit aggressive soliciting (Agenda Item #27). There has been an ever increasing number of incidents wherein residents and visitors of this City find themselves approached and subjected to aggressive soliciting. This form of aggression includes, but is not limited to, abusive language, unwanted physical contact, or the intentional blocking of pedestrian and vehicular traffic. It is carried out at numerous locations, including, but not limited to, at or near banks or automated teller machines, parking lots and parking structures, bus stops, and while people are sitting in traffic in their vehicles. This form of aggressive solicitation in manner and location often carries with it an implicit threat to both person and property. The current City ordinance addressing this subject matter is located in Chapter 5 of the San Bernardino Municipal Code, entitled Business Registration And Regulations, specifically, Section 5.04.360, entitled "Soliciting, selling, advertising and begging." The current City ordinance is insufficient to address the problems enumerated herein and as set forth in the proposed ordinance. Accordingly, it is proposed that the current ordinance be amended to strengthen its provisions, but that said ordinance become inoperative upon the effective date of the new, proposed ordinance, which is to be set forth in Chapter 9 of the San Bernardino Municipal Code, entitled Public Peace, Morals And Welfare. Specifically, a new Chapter 9.60 is proposed to address this growing problem. The proposed new Chapter 9.60 is modeled after the current ordinance in the City of Los Angeles, which was implemented after litigation challenging its prior (and defective) version. Los Angeles' current subject ordinance has not been challenged. The restrictions contained in the proposed ordinance to address this growing problem of aggressive solicitation are neither overbroad nor vague, and are narrowly tailored to serve a substantial governmental interest. As long as Chapter 9.60 is in effect, Section 5.04.360 would remain inoperative. If Chapter 9.60 is stricken, enjoined, or suspended by any court oflaw, then the provisions of Section 5.04.360 (with the amendments proposed herein) will be automatically reenacted. In this way, the City can more effectively address the current growing problem through the provisions of Chapter 9.60, while having a "safety net" for enforcement purposes should Chapter 9.60 be some day successfully challenged in court. The Legislative Review Committee recommended approval of the subject ordinance to the Mayor and Common Council. It is requested that the ordinance be laid over for final adoption. o o o ORDINA~~n .., AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 5 WHEREAS, it is the intent of the Mayor and Common Council in enacting this 6 Ordinance to improve the quality oflife and economic vitality ofthe City, and to protect the safety 7 of the general public against certain abusive conduct of persons engaged in solicitation, by 8 imposing reasonable manner and place restrictions on solicitation while respecting the 9 constitutional rights of free speech for all citizens; and, 10 WHEREAS, the Mayor and Common Council find that an increase in aggressive II solicitation throughout the City has become extremely disturbing and disruptive to residents and 12 businesses, and has contributed not only to the loss of access to and enjoyment of public places, 13 but also to an enhanced sense of fear, intimidation, and disorder; and, 14 WHEREAS, the Mayor and Common Council find that aggressive panhandling usually IS includes approaching or following pedestrians, the use of abusive language, unwanted physical 16 contact, or the intentional blocking of pedestrian and vehicular traffic; and, 17 WHEREAS, the Mayor and Common Council further find that the presence of 18 individuals who solicit money from persons at or near banks or automated teller machines is 19 especially threatening and dangerous; and, 20 WHEREAS, the Mayor and Common Council further find that motorists also find 21 themselves confronted by persons who, without permission, wash their automobile windows, 22 despite explicit indications by drivers not to do so. Such activity often carries with it an implicit 23 threat to both person and property; and, 24 WHEREAS, the Mayor and Common Council further find that people driving or parking 25 on City streets, in parking lots, and in parking structures frequently find themselves faced with 26 panhandlers seeking money. Such activity also often carries with it an implicit threat to both 27 person and property; and, 28 III BGR/bgr [Aggressive Soliciting.Ord) 1 August 27, 2004 o c o AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 WHEREAS, the Mayor and Common Council further find as abusive the solicitation of 5 people in places where they are a "captive audience" in which it is difficult or impossible for them 6 to exercise their own right to decline to listen to or to avoid solicitation from others. Such places 7 include buses, parking lots, and parking structures. Restricting solicitation in such places will 8 provide a balance between the rights of solicitors and the rights of persons who wish to decline or 9 avoid such solicitations, and will help avoid or diminish the threat of violence in such unwarranted 10 and unavoidable confrontations; and, II WHEREAS, this law is timely and appropriate because current laws and City regulations 12 are insufficient to address the aforementioned problems. The restrictions contained herein are 13 neither overbroad nor vague and are narrowly tailored to serve a substantial governmental interest. 14 Furthermore, in enacting this legislation, the Mayor and Common Council recognize the 15 availability of community service and other sentencing alternatives, which may be appropriate 16 remedies for violations of this law. The goal of this law is to protect citizens from the fear and 17 intimidation accompanying certain kinds of solicitation that have become an unwelcome and 18 overwhelming presence in the City. 19 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY 20 OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 21 SECTION 1. Section 5.04.360 of the San Bernardino Municipal Code is hereby 22 amended to read as follows: 23 24 25 26 27 28 5.04.360 Soliciting, Selling, Advertising, and Begging. [This Section shall become inoperative as of the date this Ordinance becomes operative and shall remain inoperative so long as Chapter 9.60 prohibiting aggressive solicitation remains in full force and effect. Should Chapter 9.60 be stricken, enjoined, or suspended by any court of law, this Section will automatically be reenacted to read as follows:] A. It is unlawful for any person to solicit to street or sidewalk traffic, by any means, the sale of any tangible personal property or the employment of any services or facilities upon any BGR/bgr [Aggressive Soliciting,Ord) 2 August 27, 2004 C I AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 sidewalk or parkway adjacent to a part of the congested streets as defined in Subsection E of this Section. 5 B. It is unlawful for any person to sell to street or sidewalk traffic any tangible personal 6 property or any services or facilities upon any sidewalk or parkway adjacent to or a part of any of the congested streets as defined in Subsection E of this Section. 7 C. It is unlawful for any person to have, bear, wear, or carry upon any sidewalk or parkway 8 adjacent to or part of any of the congested streets as defined in Subsection E of this Section.any advertising banner, flag, board, sign, transparency, wearing apparel or other 9 device, any of which has an area greater than fourteen square inches, commanding, publishing, announcing, or calling attention to any goods, wares, merchandise, or 10 commodities, or to any place of business, occupation, show, exhibition, entertainment, or event. II O. It is unlawful for any person(s) to beg, ask for, solicit, or receive alms for his or her own 12 benefit: 13 1. In any building or facility owned or leased by the City when such action disrupts the normal conduct of activities of such building or facility; or, C 14 2. Upon any sidewalk or parkway adjacent to or part of any congested street as 15 defined in Subsection E of this Section. 16 E. "Congested streets" within the meaning ofthis Article are described as follows: 17 1. Base Line Street between "0" Street and "G" Street; 18 2. "E" Street between Rialto Avenue and Thirteenth Street; 19 3. "0" Street between Second Street and Sixth Street; 20 4. Highland Avenue between Waterman Avenue and "G" Street; 21 5. Mt. Vernon Avenue between Rialto Avenue and Eighth Street; 22 6. Second Street between Arrowhead Avenue and "G" Street; 23 7. Third Street, Fourth Street, Fifth Street, and Court Street between Arrowhead Avenue and "G" Street; 24 8. Waterman Avenue from Second Street north to the City limits; and, 25 9. Any street or highway within the City of San Bernardino where the property 26 adjacent thereto is zoned for commercial use, or where an adjacent business has a current business registration certificate issued by the City of San Bernardino. C 27 III 28 III BGRJbgr [Aggressive Soliciting.Ord) 3 August 27, 2004 c c c 13 14 15 16 17 18 19 20 21 22 23 24 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 5 6 7 8 F. Exemptions. The provisions of this law shall not be applicable to veterans who are physically unable to obtain a livelihood by manual labor and are entitled to the exemption of Section 16001 or Section 16001.5 of the Business and Professions Code, bona fide nonprofit religious and charitable organizations engaging in lawful and authorized religious and charitable activities, persons and organizations engaging in lawful distribution or dissemination of literature or otherwise engaging in their exercise of freedom of speech or press and persons or organizations exempted here from by Section 5.04.630 or other provision oflaw. 9 SECTION 2. Chapter 9.60 is hereby added to the San Bernardino Municipal Code as 10 follows: II Chapter 9.60 12 PROHIBITION AGAINST CERTAIN FORMS OF AGGRESSIVE SOLICITATION. Sections: 9.60.010 9.60.020 9.60.030 9.60.040 9.60.050 9.60.060 9.60.070 Definitions. Aggressive Solicitation Prohibited. All Solicitation Probibited at Specified Locations. Penalty. Severability. Saving Clause. Non-Exclusivity. 9.60.010 Definitions. For purposes of this Section: A. "Solicit, ask, or beg" shall include using the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services. B. "Public place" shall mean a place to which the public or a substantial group of persons has access, and includes, but is not limited to, any street, highway, sidewalk, parking lot, plaza, transportation facility, school, place of amusement, park, playground, and any doorway, entrance, hallway, lobby, and other portion of any business establislunent, an apartment house or hotel not constituting a room or apartment designed for actual residence. 25 9.60.020 Aggressive Solicitation Prohibited. 26 A. No person shall solicit, ask, or beg in an aggressive manner in any public place. 27 28 III B. "Aggressive manner" shall mean any of the following: BGRlbgr {Aggressive Soliciting.Ord] 4 August 27, 2004 c c 12 I3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c I AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 5 6 7 8 9 10 (I) Approaching or speaking to a person, or following a person before, during, or after soliciting, asking, or begging, if that conduct is intended or is likely to cause a reasonable person to: (a) (b) fear bodily harm to oneself or to another, damage to or loss of property, or otherwise be intimidated into giving money or other thing of value; (2) Intentionally touching or causing physical contact with another person or an occupied vehicle without that person's consent in the course of soliciting, asking, or begging; Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means, including unreasonably causing a pedestrian or vehicle operator to take evasive action to avoid physical contact; (3) II (4) Using violent or threatening gestures toward a person solicited either before, during, or after soliciting, asking, or begging; (5) Persisting in closely following or approaching a person, after the person solicited has been solicited and informed the solicitor by words or conduct that such person does not want to be solicited or does not want to give money or any other thing of value to the solicitor; or, (6) Using profane, offensive, or abusive language which is inherently likely to provoke an immediate violent reaction, either before, during, or after solicitation. 9.60.030 All Solicitation Prohibited at Specified Locations. A. Banks and A TMs. No person shall solicit, ask, or beg within 15 feet of any entrance or exit of any bank, savings and loan association, credit union, or check cashing business during its business hours or within 15 feet of any automated teller machine during the time it is available for customers' use. Provided, however, that when an automated teller machine is located within an automated teller machine facility, such distance shall be measured from the entrance or exit of the automated teller machine facility. Provided further that no person shall solicit, ask, or beg within an automated teller machine facility where a reasonable person would or should know that he or she does not have the permission to do so from the owner or other person lawfully in possession of such facility. Nothing in this paragraph shall be construed to prohibit the lawful vending of goods and services within such areas. (I) Definitions. For purposes of this section: (a) "Bank" means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operated under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation. BGRfbgr (Aggressive Soliciting,Ord) 5 August 27, 2004 o o o AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 B. 21 22 23 24 25 26 27 28 III (b) "Savings and loan association" means any federal savings and loan association and any "insured institution" as defined in Section 40 I of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act. (c) "Credit union" means any federal credit union and any state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration. (d) "Check cashing business" means any person duly licensed as a check seller, bill payer, or prorater pursuant to Division 3 of the California Financial Code, commencing with Section 12000. (e) "Automated teller machine" shall mean any electronic information processing device which accepts or dispenses cash in connection with a credit, deposit, or convenience account. (f) (2) "Automated teller machine facility" shall mean the area comprised of one or more automated teller machines, and any adjacent space which is made available to banking customers after regular banking hours. Exemptions. The provisions of Subdivision A shall not apply to any unenclosed automated teller machine located within any building, structure, or space whose primary purpose or function is unrelated to banking activities, including, but not limited to, supermarkets, airports, and school buildings, provided that such automated teller machine shall be available for use only during the regular hours of operation of the building, structure, or space in which such machine is located. Motor Vehicles and Parking Lots. (I) Motor Vehicles. No person shall approach an operator or occupant ofa motor vehicle for the purpose of soliciting, asking, or begging while such vehicle is located in any public place. Parking Lots. No person shall solicit, ask, or beg in any public parking lot or structure any time after dark. "After dark" means any time from one-half hour after sunset to one-half hour before sunrise. (2) (3) Exemptions. Subdivision B shall not apply to any of the following: (a) to solicitations related to business which is being conducted on the subject premises by the owner or lawful tenants; (b) to solicitations related to the lawful towing of a vehicle; or, (c) to solicitations related to emergency repairs requested by the operator or other occupant of a vehicle. 6 BGR/bgr {Aggressive Soliciting.Ord] August 27, 2004 o o o 22 III 23 III 24 III 25 III 26 III 27 28 III I AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OFTHE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 5 6 c. Public Transportation Vehicles. (I) "Public transportation vehicle" shall mean any vehicle, including a trailer bus, designed, used, or maintained for carrying 10 or more persons, including the driver; or a passenger vehicle designed for carrying fewer than 10 persons, including the driver, and used to carry passengers for hire. 7 8 9 (2) Any person who solicits, asks, or begs in any public transportation vehicle is guilty of a violation of this Section. 9.60.040 Penalty. lOA violation of this Section is punishable as a misdemeanor or infraction, chargeable at the City Attorney's discretion. II 12 13 14 15 16 9.60.050 Severability. The provisions of this Ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this Ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this Ordinance, or the validity of its application to other persons or circumstances. 9.60.060 Saving Clause. 17 18 19 20 Should this Chapter be stricken, enjoined, or suspended by any court oflaw, the provisions of Section 5.04.360 of the San Bernardino Municipal Code, which were made inoperable by this Ordinance, will be automatically reenacted as of the date this Chapter was stricken, enjoined, or suspended. 9.60.070 Non-Exclusivity. 2 I Nothing in this Chapter shall limit or preclude the enforcement of other applicable laws. III BGR/bgr {Aggressive Soliciting.Ord} 7 August 21, 2004 o o o AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60 2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE SOLICITING. 3 4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof, held on the 6 _ day of 7 COUNCIL MEMBERS: 8 ESTRADA 9 LIEN 10 MCGINNIS II DERRY 12 KELLEY 13 JOHNSON 14 McCAMMACK , 2004, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT 15 16 17 18 19 20 21 22 City Clerk The foregoing Ordinance is hereby approved this _ day of ,2004. Judith Valles, Mayor City of San Bernardino 23 24 Approved as to form and legal content: JAMES F. PENMAN, 25 City Attorney 26 27 28 By:L9.~ (J BGR/bgr {Aggressive Soliciting.Ord] August 27, 2004 8 L ,~"!o'i. ' ''':"~~ .' . . " r.xn:u>:U: A **'J='9R OFFICE USE O'NLY. 'NOT,A PUBLlCDOCUMEMTO.P, .' '-J~~~~~_:-':> ~;~. :~E{Vr:~_-: - ::'~~1;2:~~ '~2':~~~~_'>;. .': ~r~;~:Y~~'F,~}~'.~:' .~z:.7:.~tk~,,;:~;r~,~.~-~~~~7?{ , - ., ,'.y,", <. " 0 CITv OF SAN 'BERNARDINO:: ciTY ClERK;SOFFICE,.;;c.'lii. ~__.z~..:'; ., . ,. '. . ''''c' ' RECORDS & INFORMATION MJ\NAGEMENT PROGRAM ~~~.. - . -;' .,-.....~ Meeting Date/Date Adopted: Resolution/Ordinance No, Effective Date: Vote: Ayes: / - 7 Abstain: -9- Date Sentto Mayor: II) -5:-0 'f Date of Mayor's Signature: 10- s: -0,/ Date Summary Sent to Attorney: fO -.s; -() i Date ,published: J:;~ Meeting Type:~__ Continued Fro~ & Item No, Item No. Nays: Absent: CJ -e- Date of Clerk's Signature: Date Summary Returned from Attorney: ItJ-S'-o,/ /() -S-OY' Date Returned from Mayor: /t!-S'~y , Date Seal Impressed: 10-5 -tN t9~ ~~ To Whom: Date Retumed: )(~gI1X' f/d;, if-r' j?~, 'l.u- ~'-'v"..-' Date Sent for Signature: Expiration Date: Copies Distributed To: Exhibits Complete & Attached to Resolution/Ordinance: Reminder letter Sent: Reminder Letter Sent: Reminder Letter Sent: Request for Council Action & Staff Report Attached: N.,... if..l..%-t" /' ~- ~ 6 Iii; ~ ( _V Yes No /) Ready to File: ;:;( ~~ DOC'UMfNT lOCATlON: FORMSIApIda 11Im TraddItc Fonn..CCFomt No. 111.laM l,IJIdIIId: Ilt04I1996 Date: / iJj C;;/d 7