San Anselmo Chamber

4th Quarter 2014 • San Anselmo Network Success 10 Legal Lectern: Solicitors! Part II Jay W. Luther, Attorney at Law, Law Offices of Jay W. Luther 415-456-6197 • jluther@lutherlaw.com I n the last column, we started discussing abusive and fraudulent solicitation by noting that the first line of defense is local ordinances that require a permit to solicit. All localities served by the Central Marin Police Authority (CMPA) have such ordinances, and they are useful because a LOT of the bad apples don't bother to apply for a permit. For the potential victims of these unlawful solicitors, the police can provide considerable relief. Ask to see their permits, and if they don't have one, tell them to leave. If they hesitate, call the CMPA. San Anselmo also has a unique provision called "Prohibition by Sign." In pertinent part, it prohibits all solicitors or peddlers from contacting occupants of dwellings or business premises if a sign is correctly posted "prohibiting soliciting or peddling and soliciting." Again, if the solicitors refuse to follow the sign, call the CMPA. But what if there's no sign, and a particular organization actually has obtained a permit, but is aggressive to the point of offense? Now things begin to get sticky for the police and the business. The problem begins with a 1979 California Supreme Count case called Roberts v. Pruneyard Shopping Center. Plaintiffs in the case were a group of high school students who wanted to solicit signatures against a United Nations resolution. The defendant shopping center maintained a policy prohibiting all publically expressive activity on its property apart from commercial ventures. Siding with the plaintiffs, the Court directed entry of an injunction against Pruneyard invalidating the policy, holding that the California Constitution protected speech and petitioning within private shopping centers. In support of its conclusion, it cited In re Lane, in which it had earlier held that the privately owned walkway in front of a store was subject to the First Amendment rights of the public. With the passage of time and several decisions of both the California and the U.S. Supreme Court, In re Lane ceased to be good law. As explained recently in Ralphs Grocery Co. v. UFCWU Local 8, the basic rule under the federal constitution became that the free speech guaranty of the First Amendment "does not extend to speech activities on privately owned sidewalks in front of the entrances to stores." Until the California Supreme Court decided the Ralph's Grocery case, however, it was not clear whether the State Constitution continued to extend free speech protections onto shopping centers and the private areas in front of stores. The case answered the question squarely: We agree with [earlier lower court] decisions that to be a public forum under our state Constitution's liberty- of-speech provision, an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store's merchandise and advertising displays. . . . . A private sidewalk in front of a customer entrance to a retail store in a shopping center is not a public forum for purposes of expressive activity under our state Constitution's liberty-of- speech provision as construed in Pruneyard. . . . On the private property of a shopping center, the public forum portion is limited to those areas that have been designed and furnished to permit and encourage the public to congregate and socialize at leisure. (Emphasis added). Here's the business practice pointer: clearly designate what areas are public forums, and which are not. The business owner can say that no solicitation of any kind shall be allowed. Or it can say that solicitation can occur only in a specific place (which obviously should NOT be immediately in front of the store). Or it can exclude specific areas from being public forums, such as the front of the business and the adjacent parking lot and the passages to it. It can adopt other reasonable time, place and manner rules (preferably with the aid of an attorney) that, for example, prohibit touching customers, shouting, and abusive behavior. Finally, recalling that public forums are, well, public, the business owner probably cannot pick and choose among the messages that speakers choose to advance in the public forums; assuming everyone is well behaved, if you allow the Girl Scouts to sell cookies in public forums, you're going to have to allow an anti-Girl Scout group to do the same. Given that constitutional protections are more defined today than in 1979, at least with respect to non-public forum areas, what can police do where abusive solicitation is going on, albeit with a permit? Quite a bit. In San Anselmo, they can enforce the "Prohibition by Sign" ordinance for both businesses and residences, and can require solicitors to leave residential property if the owner tells the solicitor to leave under the general permit ordinance. Elsewhere, other permit ordinances, or particular permit conditions, may provide the basis for police action on both private property and entirely public streets in front of stores. Residences can request police to remove solicitors from their property under the State trespass statute, which makes it a misdemeanor to refuse or fail to "leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public," upon proper request, including a request by the police. Sadly, businesses usually cannot take advantage of this statute, since they are typically open to the general public. Businesses can, of course, take advantage of other criminal statutes when they are applicable. Laws prohibiting disturbing the peace, assault, battery, and the like are available in serious confrontations. In less serious encounters, the statute that is designed as the business analog of the trespass statute is Penal Code Section 602.1, which prohibits "intentional interference with a business establishment." Unfortunately, it has a high bar. The perpetrator has to intentionally obstruct or intimidate business personnel or customers who are attempting to carry on business, and refuse to leave on request of the owner or police. The section expressly does not apply to "any person on the [business's] premises who is engaging in activities protected by the California Constitution or the United States Constitution." Police quite fairly hate being forced to determine what constitutes constitutionally protected activity. Ralph's Grocery has now made it very clear that solicitors who are making nuisances of themselves in other than established public forum areas don't have a chance of claiming constitutionally protected conduct. That helps, since at least the business can ask the police to vigorously warn solicitors who are just short of criminal conduct. Still, even when we're past the Constitutional bar, it's a lot harder to charge "intentional interference" than mere "refusal to leave." And if the police finally tell you in frustration that they are unable to help further, because the business's rules make the constitutional problem incapable of resolution (e.g., the business allows solicitors it likes anywhere on the property), or because of the difficulties in meeting the other elements of the statutes, private lawyers fill the void. Even where criminal charges may not be available, there are a lot of civil remedies for common law trespass, assault, battery, intimidation, harassment, interference with prospective advantage, and so on. Many theories will support overall Solicitors! Part II Continued on page 11

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