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HomeMy WebLinkAboutORD-19-07 Add Ch 9.37- Regulating SolicitationORDINANCE NO. 19- 07 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE ADDING A NEW CHAPTER 9. 37 REGULATING SOLICITATION.WHEREAS, for nearly two decades, if not more, the City of Orange (hereafter, City) has experienced negative secondary impacts arising out of the activities of pedestrians and motorists who utilize public right of ways and commercial parking lots to solicit for employment services,goods and contributions (hereafter, off-site solicitation); and WHEREAS, while the primary reason the City Council desires to regulate solicitation is due to negative secondary effects created by activities of day laborers, any solicitation which involves individuals soliciting motorists from medians or locations adjacent to streets that have no on-street parking can cause traffic hazards; and WHEREAS, individuals who engage in day laborer solicitation typically congregate in large numbers on both public and private property; and WHEREAS, solicitation of motorists driving on City streets and in commercial parking lots distracts motorists from their primary duty, which is to safely operate a motor vehicle so as to not impede the free flow of traffic and to avoid causing damage to property and/ or injury to persons; and WHEREAS, the negative impacts caused by solicitation include, but are not limited to:traffic hazards caused by vehicles stopping in traffic lanes, vehicles stopping on driveway aprons, jay walking, individuals running out into streets to contact potential employers, including a phenomena known as "swarming" wherein groups of solicitors will converge on a vehicle and in some cases enter the vehicle or jump into the back of pickup trucks without invitation and on occasion in vehicles in which the motorists are not even seeking workers; day laborer solicitors being transported in vehicles in an unsafe and illegal manner; littering; public urination;interference with access to public sidewalks; increased drug, gambling and other criminal activity on public sidewalks; interference with on-site commercial business operations by various means including, but not limited to, solicitors making lewd gestures or comments to customers,congregating around entrances to businesses, standing in the path of customers, occupying bathrooms intended for customers, occupying tables at restaurants without purchasing any items,and ignoring repeated requests by the restaurants and business owners to leave the premises; and WHEREAS, the City Council takes official notice of the negative impacts caused by solicitation countrywide; and WHEREAS, for two decades the City and private property owners have made numerous attempts and expended significant resources to address the negative impacts of off-site solicitation including opening a day labor center (the Resource Center) in 1990; dropping the identification requirement at the Resource Center in 2005 (subsequently re-instituted in 2007);adopting and enforcing private property no solicitation ordinances; targeted enforcement efforts relating to other City code violations committed by as public urination and jaywalking; handing out flyers in English and Spanish apprising off- site solicitors and employers of the Resource Center; changing the manner in which the Resource Center operates; advertising the Resource Center in the Orange Progress which reaches all residents; involving community groups in outreach efforts; keeping the public sidewalks available for off-site solicitation; interviewing businesses for possible solutions; posting signs prohibiting off-site solicitation; and hiring security guards to move solicitors off private property;and WHEREAS, none of these efforts have had any lasting impact and some have actually exacerbated the negative impacts; and WHEREAS, enforcement of violations of other City laws such as public urination,littering and trespass has not resolved the secondary effects for several reasons including the fact that for a police officer to cite the individual, he or she must catch them in the act; day laborers often quickly disperse from posted private property upon seeing a police vehicle only to return when the police vehicle leaves and at times have stationed lookouts; day laborers generally do not appear in court to answer to their citations and bench warrants for their arrest are often futile because they provide false names or produce false identity: there are numerous informal day labor sites in the City and stationing police officers at all such sites would be a huge financial burden, would result in sites moving to other places and would significantly detract from policing activity for other criminal activities; and WHEREAS, it is recognized that while not all day laborers engage in all the types of conduct which gives rise to the secondary negative impacts, the evidence shows that the vast majority do not respect the right of a property owner to not have them gather on their private property and ignore posted signs and repeated requests to leave and are at times openly hostile responding with cursing and lewd gestures; and WHEREAS, over the past years and at least as far back as 1989, the City has received substantial numbers of complaints from residents, business customers and businesses concerning aggressive and unsanitary conduct by solicitors that results in customers not patronizing a business at all, customers altering the hours they shop, an enhanced sense of fear, intimidation and disorder and a decrease in business when off-site solicitors are present; and WHEREAS, day laborer solicitation at informal day labor sites is by its nature disorderly and competitive and encourages aggressive behaviors because often the day laborer who is the most aggressive with both the potential employer and competing day laborers is the individual who obtains employment; and WHEREAS, the congregation of individuals engaged in solicitation on commercial property has been shown to cause negative impacts to not only that property, but also to adjacent and nearby commercial properties; and WHEREAS, individuals engaged in day labor solicitation often congregate in commercial parking lots and interfere with the safe ingress and egress of motorists and often occupy parking spots intended for or customer or WHEREAS, under current City law property owners are required to post signs at all entrances to property stating that employment solicitation is not permitted on their property which results in additional costs to the property owner, the proliferation of signs in the City and signs being stolen; and WHEREAS, in opening the Resource Center, the City has designated a site at which individuals can legally and more safely engage in day laborer solicitation and provides a reasonable alternative for day laborers to advertise their availability for employment; and WHEREAS, the Resource Center appears to have caused day laborers to congregate on adjoining and nearby public and private property for the purpose of avoiding the rules and regulations of the Resource Center; and WHEREAS, numerous studies have shown that employment of day laborers at informal employment centers such as street corners and parking lots present numerous additional problems that arise during the course of employment including violations of state and federal labor and tax laws, low wages, high injury rates to day laborers, day laborers being left abandoned at work sites, day laborers not being paid at all, unsafe working conditions, etc; and WHEREAS, studies indicate that formal day labor centers reduce these problems and thus, encourage regulations that provide incentives to day laborers to utilize formal day labor centers at which employees and employers register; and WHEREAS, outside of the Resource Center there are numerous alternative forms of communication which can be utilized by off-site solicitors, including, but not limited to, public sidewalks adjacent to streets with on-street parking, employment agencies which can be accessed via the City's website and are listed at the Resource Center, want ads, direct solicitation to employers who may require day labor services at the employers' places of business, the opportunity for private property owners to establish hiring centers, telephone and mail solicitation, distribution of flyers and solicitation directed to lawfully parked vehicles and pedestrians.NOW THEREFORE, the City Council of the City of Orange does ordain as follows: SECTION I:Chapter 12.65 shall be deleted in its entirety. SECTION II:Chapter 9.37 shall be deleted in its entirety and replaced with the Chapter 9.37 SOLICITATION FROM PUBLIC AND PRIVATE PROPERTY Sections: 9.37.010 9.37.020 9.37.030 9.37.040 9.37.050 9.37.060 Purpose of Chapter. Definitions. Prohibitions. Exceptions. Resource Center Regulations. Penalty. 9.37.010 Purpose of Chapter. Large congregations of day laborers at informal day labor sites have for many years, if not decades, blocked and obstructed the public's use of public right of ways, interfered with the use and enjoyment of private property by private property owners, created traffic hazards and have caused other negative impacts and therefore constitute a public nuisance. In addition, solicitations for the exchange of money, property or employment services directed from or toward motorists traveling on City streets impede the free flow of traffic and create traffic hazards on those streets where there is no on-street parking. It is the intent of this Chapter to remove obstructions for the safe passage of motorists and pedestrians on the streets and sidewalks, to minimize the interference with the use and enjoyment of private property caused by solicitation, to encourage the use of the Resource Center and other hiring centers, and to encourage more formal and orderly alternative means for solicitation to minimize the negative secondary impacts. The City Council finds that regulations are needed to prohibit day laborer solicitation in public areas near the Resource Center and private property hiring centers to increase their utilization and to minimize negative secondary effects to nearby properties caused by day labor activity in and around formal hiring centers. The following regulations are content neutral and impose reasonable time, place and manner regulations on solicitation from public right of ways and commercial parking lots.9.37.020 Definitions.For purposes of this Chapter the following definitions shall apply:A. "City property" shall mean and include any City street, highway, sidewalk, easement or other City property that is not specifically designated for off-site soliciting activities.B. "City street" shall mean all portions of a roadway used by motor vehicles for travel or parking, including any medians lying within such roadways.C. "Commercial parking lot" shall mean privately owned property that is designed or primarily used by customers of the property owner for parking, ingress and egress.D. "Day laborer solicitation" shall mean and include any action by a person to announce his availability for employment to persons operating motor vehicles or by a person operating a motor vehicle to offer employment to a E. "Solicitation" or "solicit" shall mean and include any request, offer, enticement, or similar action by an individual to advertise or announce his availability for employment, to offer employment, to sell or purchase goods, property or services or to seek or make contributions of money or property, that is intended to consummate a physical exchange of money and/or property between a motorist and pedestrian or entry by a pedestrian into a vehicle. A solicitation shall constitute a violation of this Chapter when made whether or not an actual employment, sale, purchase or contribution transaction is completed. F. "Public right of way" shall mean and include any street, highway, driveway, parkway or sidewalk within the City limits. G. "Property owner" shall mean the fee owner of the property, the property owner's authorized agent, any tenant in lawful possession of the property and/or the tenant's authorized agent. H. "Resource Center" shall mean the City's day labor hiring center located on McPherson Road in the City of Orange. 9.37.030 Prohibitions. A. No person shall solicit from any public sidewalk that is immediately adjacent to any City street or highway upon which a motorist cannot legally park. B. No person shall, while operating a motor vehicle on or along a City street, solicit from the motor vehicle unless the motor vehicle is legally parked. C. No person shall, from a location on any private property engage in solicitation absent the express written permission of the property owner. 1. For this subsection "C" to become operative the property owner shall either notify the City's Police Department in writing that solicitation is not permitted on their property and the location of such property, orally inform a police officer that such permission has not been granted and request removal of solicitors and/or post a sign at each entrance to the property not less than eighteen by twenty-four inches in size with lettering not less than one inch in height and not to exceed six square feet which substantially provides as follows:It is a misdemeanor to engage in the solicitation for and of employment other than to perform the employment on or for the owner or occupants of the premises."The written no solicitation notice shall be effective until withdrawn in writing.The oral request for removal of solicitors shall be effective only for the day upon which it IS gIven.D. No person shall solicit while stopped or standing in any through traffic lane, upon any street median or upon any driveway apron located within the public right of way.E. No person shall engage in day laborer solicitation on any public right of way that is immediately adjacent to any private property that has been issued a permit for a hiring center in accordance with Section 17.30.070 of this Code.F. No person shall solicit from any public sidewalk in a manner that impedes pedestrian access to such public sidewalk.G. No person shall remain on any private property for the purpose of engaging in solicitation after they have been requested to leave by the private property owner.H. This Chapter shall not be interpreted to relieve any person from obtaining a certificate of identification to engage in those solicitation activities governed by Chapter 5.66 of this Code. 9.37.040 Exceptions. A. A person may solicit from a commercial parking lot if such person has the express permission of the property owner. However, if a property owner permits five or more persons to congregate for the purpose of engaging in solicitation upon their private property, a permit issued by the City in accordance with Section 17.30.070 of this Code must be obtained by the property owner. A person with the property owner's express written permission to engage in off- site solicitation shall not be liable for a violation of this Chapter solely on the basis that the property owner has failed to obtain a permit.B. This Chapter shall not apply to solicitations from private property to perform services that are provided upon the property from which the solicitation occurs or to sell or purchase goods from or to the subject property owner.C. This Chapter shall not apply to conduct which solely involves the distribution of literature or to private property which is required by law to be open to the public for communicative purposes such as plaza areas and walkways of large shopping centers where the general public is invited to congregate. .9.37.050 Resource Center Regulations.A. Persons engaged in the solicitation for employment may utilize the Resource Center for such solicitation provided that such persons abide by the rules and regulations established by the Resource Center. Persons who do not abide by such rules and regulations may be prohibited from using the Resource Center for a minimum period of three months and a maximum period of one year.B. Other than the Resource Center property, no person shall engage in any day laborer solicitation on any City property, which is located on McPherson Road between its intersection with Chapman Avenue to the south and its intersection with Spring Street to the north. No person shall engage in day laborer solicitation upon any property located within Grijalva Park or upon any public right of way immediately adjacent to Grijalva Park. This subsection shall only apply to those hours in which the Resource Center is open.9.37.060 Penalty.Any person violating the provisions of this Chapter shall be guilty of a misdemeanor and upon conviction thereof shall be subject to fine of $250 for the first offense, $500 for the second offense and $1,000 and imprisonment in the Orange County Jail for a term not exceeding three months for the third offense.SECTION III:Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION IV: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted. A summary of this Ordinance shall also be published once within fifteen (15) days after this Ordinance's passage in a newspaper of general circulation, published, and circulated in the City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of such adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933. This Ordinance shall take effect thirty (30) days from and after the date of its final passage. ADOPTED this 11 th day of December, 2007. ATTEST: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF ORANGE ) I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 2ih day of November, 2007, and thereafter at the regular meeting of said City Council duly held on the 11 th day of December, 2007, was duly passed and adopted by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: Smith, Murphy, Cavecche, Dumitru, Bilodeau COUNCILMEMBERS: None COUNCILMEMBERS: None COUNCILMEMBERS: None Mary E 7