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Home My WebLink About2009-10-27; City Council; 20020; Amending the CMC section 8.28.055CITY OF CARLSBAD - AGENDA BILL AB# 20,020 MTG. 10/27/09 DEPT. CA Ordinance Amending Carlsbad Municipal Code Section 8.28.055 Regarding the Prohibition of Depositing Handbills on Vehicles in Parking Lots DEPT. HEAD . CITY ATTY. Jff* CITY MGR. fl[Lh-~ RECOMMENDED ACTION: CS-068 amending Carlsbad Municipal Code section 8.28.055 regardingIntroduce Ordinance the prohibition of depositing handbills on vehicles in parking lots. ITEM EXPLANATION: From time to time, it is necessary to revise City ordinances in order to reflect the current state of the law, particularly with regard to activities which enjoy some First Amendment protection. In light of recent developments in the law, the City Attorney is recommending revisions to the Municipal Code with regard to the City's prohibition of depositing handbills on vehicles in parking lots. In a recent decision of the Ninth Circuit in Klein v. City of San Clemente (2009), the 9th Circuit Court of Appeals struck down the City of San Clemente's ordinance prohibiting the leafleting of unoccupied vehicles parked on city streets. The Court stated that in order for a City "to justify restricting a constitutionally-protected speech, the City must demonstrate that the restrictions imposed by its ordinance are 'narrowly tailored to serve a significant government interest and they leave open ample alternative avenues for communication of the information.'" The City of San Clemente offered two governmental interests that were being served by the ordinance: prevention of littering and the unauthorized use of private property. As to the first governmental interest (prevention of littering), "a City must show not only that vehicle leafleting can create litter, but that it creates an abundance of litter significantly beyond the amount the City already manages to clean up." The Court alluded to language in Supreme Court decisions "suggesting that preventing littering is simply not a sufficiently significant interest to preclude leafleting." As to the second governmental interest (unauthorized use of private property), 'this assertion runs counter to the general rule that the 'right to distribute literature...necessarily protects the right to receive it.'" Furthermore, "[t]he mere fact that an unwilling recipient must take the unsolicited leaflet from her windshield and place it in the garbage cannot justify an across-the-board restriction." In sum, the Ninth Circuit held, "the protection of private property is not a sufficiently substantial government interest to justify an across-the-board ban on [...] placing leaflets on the windshields of empty vehicles parked on public streets." Therefore, it is recommended that the prohibition of depositing handbills on vehicles in parking lots be repealed since it is inconsistent with the current state of the law. Should City Council approve the amendment to section 8.28.055, it would no longer be unlawful for any person to place, or distribute any handbill in or upon any vehicle in a public or private parking lot, without charge to the receiver thereof a handbill to any occupant of a vehicle in an otherwise lawful manner. DEPARTMENT CONTACT: Ronald R. Ball 760-434-2891 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED * D D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES D D D D Page 2 FISCAL IMPACT: The proposed procedural amendments to the Carlsbad Municipal Code will not result in any discernable cost to the City. ENVIRONMENTAL IMPACT: The proposed action has no potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and therefore is not a "project" within the definition of that term under the California Environmental Quality Act (Pub.Res. Code section 21065). EXHIBITS: 1. Ordinance No. cs-osa 2. Redline Version of Municipal Code Section 8.28.055. 3. Amended Version of Municipal Code Section 8.28.055. 1 ORDINANCE NO. CS-068 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING SECTION 3 8.28.055 TO THE CARLSBAD MUNICIPAL CODE 4 REGARDING THE PROHIBITION OF DEPOSITING HANDBILLS ON VEHICLES IN PARKING LOTS 5 6 WHEREAS, from time to time, it is necessary to revise City ordinances in order to 7 reflect the current state of the law, particularly with regard to activities which enjoy some 8 First Amendment protection; and 9 WHEREAS, in light of a recent decision of the Ninth Circuit in Klein v. City of San 10 Clemente (2009), the Court struck down an ordinance prohibiting the leafleting of 11 unoccupied vehicles parked on city streets; and 12 WHEREAS, the Court stated that in order for a City "justify restricting a constitutionally-protected speech, the City must demonstrate that the restrictions 15 imposed by its ordinance are narrowly tailored to serve a significant government interest 16 and they leave open ample alternative avenues for communication of the information;" 17 and 18 WHEREAS, the Court held, "the protection of private property [or the prevention in of littering] is not a sufficiently substantial government interest to justify an across-the- 20 board ban on ... placing leaflets on the windshields of empty vehicles parked on public 21 streets;" and 22 WHEREAS, it is the determination of the City Council that the measure set forth 23 herein to be known as Depositing Handbills on Vehicles, corrects the inconsistencies 25 with the current state of the law, by no longer prohibiting any person to place, or 26 distribute any handbill in or upon any vehicle in a public or private parking lot, without 27 28 1 charge to the receiver thereof a handbill to any occupant of a vehicle in an otherwise 2 lawful manner, 3 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 4 Carlsbad, California, as follows: 5 1. That the above recitations are true and correct. 6 2. Subsections (a) and (b) of Section 8.28.055 are hereby repealed in their 8 entirety, these sections contain items that are inconsistent with the current 9 state of the law. 1° 3. Section 8.28.055 of the Carlsbad Municipal Code is amended by repealing 11 subsections (a) and (b) and preserving subsection (c). 12 4. Section 8.28.055 will read as follows: 13 Section 8.28.055 Depositing Handbills on Vehicles. 14 This section does not make it unlawful for a person to hand out or distribute 15 without charge to the receiver thereof a handbill to any occupant of a vehicle in an otherwise lawful manner.16 17 // 18 // 19 // 20 21 " 22 » 23 // 24 // 25 // 26 // 27 28 1 2 its adoption and the City Clerk shall certify the adoption of this ordinance and cause it 3 to be published at least once in a newspaper of general circulation in the City of 4 Carlsbad within fifteen days after its adoption. 5 INTRODUCED AND FIRST READ at a regular meeting of the EFFECTIVE DATE: This ordinance shall be effective thirty days after Carlsbad City Council on the 27th day of October . 2009, and thereafter AYES: NOES: ABSENT: 6 7 8 g 10 11 12 13 14 15 16 17 18 19 CLAUDE A. LEWIS, Mayor20 21 ATTEST: 22 23 APPROVED AS TO FORM AND LEGALITY: RONALD R. BALL, City Attorney 24 (SEAL) 25 26 27 28 LORRAINE M. WOOD, City Clerk 8.28.055 - Depositing handbills on vehicles in parking lots prohibited (a) — It is unlawful for any person to place, throw or deposit any handbill in or upon any vehicle in a public parking lot or to place, throw or deposit any handbill in or upon any vehicle in a private parking lot without the written permission of the owner, or the person entitled to immodiato possession, or tho authorized agont of oithor. Said written pormiscion shall bo prosontod to a poaco officor upon roquost. (b) It is unlawful for any person to hiro, direct or ordor another person to do tho unlawful acts described in subsection (a) of this section. This section does not make it unlawful for a person to hand out or distribute without charge to the receiver thereof a handbill to any occupant of a vehicle in an otherwise lawful manner. 3 8.28.055 - Depositing handbills on vehicles This section does not make it unlawful for a person to hand out or distribute without charge to the receiver thereof a handbill to any occupant of a vehicle in an otherwise lawful manner.