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Home My WebLink About8.1 ProhibitAdMaterialDistrHomes ,.. . . ". CITY OF DUBLIN AGENDA STATEMENT CITY COUNCIL MEETING DATE: July 25, 1994 SUBJECT: Prohibition of Advertising Material distributed to Homes in Plastic Bags with Rocks (Prepared by: Richard C. Ambrose, City Manager) EXHIBITS ATTACHED: /Memorandum from City Attorney dated July 18, 1994 RECOMMENDATION: r; ;J\ieview City Attorney's memorandum and provide Staff ~ with appropriate direction. FINANCIAL STATEMENT: None at this time. DESCRIPTION: At the City Council meeting of July 11, 1994, Councilmember Guy Houston requested Staff to investigate the legality of distributing advertising material to homes in plastic bags with rocks. The City Attorney has researched this issue and has determined that currently there are no existing ordinances which preclude this type of advertising activity. The City Attorney has 'indicated that "the Council could constitutionally adopt an ordinance prohibiting all distribution of all commercial advertising on public and private property. The ordinance should survive attack as long as it is restricted to commercial speech but is otherwise content neutral and as long as the Council makes explicit findings which establish legitimate reasons for the ordinance." It is Staff's recommendation that the City COuncil review the memorandum prepared by the City Attorney and provide Staff with appropriate direction. a: 72Sadver.agenda#15 ---------------------------------------------------------------------- COPIES TO: ITEM NO. 8.1 CITY CLERK FILE ~ -" _ ,:::"--=:::::z., .. - .. . . Michael R Nave Steven R Meyers Elizabeth H. Silver Michael S. Riback Kenneth A. Wilson MEYERS, NAVE, RIBACK, SILVER & WILSON A Professional Law Corporation Gateway P1aza m Davis Street, Suite 300 San Leandro, CA 94577 Telephone: (510) 351-4300 Facsimile: (510) 351-4481 Peninsula Office 1220 Howard Avenue, Suite 2SO Burlingame, CA 94010-4211 Telephone: (415) 348-7130 Facsimile: (415) 342-0886 Qifford F. Call1pbeU Michael F. Rodriquez Kathleen Faubion Wendy A. RobertS David W. Skinner Steven T. Mattas Rick W. Jarvis Veronica A. Nebb Santa Rosa Office 555 Fifth StRCt, Suite 230 Santa Rosa, CA 95401 (707) S4S-8OO9 (707) ~17 (Fax) Of counsel: Andrea J. Saltzman Reply to: 8m Lcandm KEKORANDUX TO: city council city of DUblin Elizabeth H. Silver city Attorney DATE: July 18, 1994 FROM: RE: Prohibition of advertising material distributed to homes in plastic bags with rocks Back9round: At the July 11, 1994 council meeting, councilmember Houston asked what actions, if any, the Council could take to regulate or prohibit an annoying and offensive method of distribution of adver- tising material to city residents. certain businesses, primarily gardening services, distribute fliers or handbills advertising their services by tossing them on the yard, driveway or front steps of residences in a plastic bag containing a rock or rocks. Conclusion: While I do not believe that the method of distribution of advertising material in question is unlawful under existing law and while advertising is considered constitutionally protected "com- mercial speech" under the First Amendment, it ,is my opinion that the City could constitutionally adopt an ordinance banning this method of distribution of advertising material. Analvsis: "Littering," defined as throwing "waste matter" on private or public property (Penal Code S 374(a)), is an infraction. (Penal Code S 374.4.) The distribution of advertising material by in- ~ .. . . TO: FROM: RE: DATE: PAGE: city council Elizabeth H. Silver Advertising material distribution July 18, 1994 2 serting the material in a plastic bag along with a rock or rocks and tossing the bag on private residential property would probably not be considered littering, however, because the advertising material would not be considered "waste matter," which is defined as "discarded, used, or leftover substance" (penal Code S 374(a)). Chief Rose concurs with this interpretation. A "trespass" occurs whenever a person enters the property of another or causes an object to enter the property of another, but the mere tossing of advertising material on private property, even in a plastic bag containing a rock or rocks, would not amount to a "criminal trespass" under the Penal Code. Criminal trespass is reserved for more harmful intrusions. (See, Penal Code S 602.) An activity "which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of pro- perty, so as to interfere with the comfortable enjoyment of life or property" may constitute a "nuisance." (civil Code S 3479.) "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of person . . ." (Civil Code S 3480.) Under these definitions, the tossing of advertising material in plastic bags onto private property pro- bably would probably not be considered a public nuisance. More- over, a public nuisance is a condition maintained on private property which may be abated by imposing a lien on the property for abatement costs. A public nuisance is not the invasion of private property without the consent of the owner. Such an invasion of property rights could not be so abated. Because I know of no other arguably applicable criminal provisions, I believe that the method of distribution of adver- tising material in question is not unlawful under existing law. However, I believe that the council could adopt an ordinance making this method of distribution of advertising material unlawful in the city. Advertising materials and their distribution are protected under the First Amendment to the united states Constitution as "commercial speech." Nevertheless, a city may adopt an ordinance restricting commercial speech, inCluding imposing a total pro- hibition on certain methods of distribution of advertising material, as long as the ordinance is: 1) narrowly drawn so as not to impinge on speech accorded greater constitutional protection than commercial speech (i.e., _.. ..p . . TO: FROM: RE: DATE: PAGE: city Council Elizabeth H. Silver Advertising material distribution July 18, 1994 3 election materials) but is otherwise content neutral; 2) serves a legitimate public interest; and, 3) allows for alternative channels of communication. Thus, in National Deliverv Systems. Inc. v. City of Inqlewood (1974) 43 Cal.App.3d 573, 117 Cal.Rptr. 791, the plaintiff, who distributed commercial advertising materials by placing the materials in plastic bags and attaching the bags to doorknobs, challenged a city ordinance making it unlawful, absent permission, to so distribute commercial advertising. Specifically, the ordinance provided: "It shall be unlawful to pass out, give away, circulate or deliver any printed or written handbill, circular, or advertising literature offering to sell or buy any goods, wares, merchandise, or commercial services or offering to buy, sell, or list any real property: (a) in any public place within the city; or (b) into or upon any motor vehicle within the city; or (c) in the vard or qrounds or on the doorsteD. Dorch. or vestibule of any residence. dwellinq or aDartment within the city: or (d) upon any vacant lot or other private property within the city; without first having obtained permission of the owner, adult occupant, or other person in control thereof." (Emphasis added.) The Court of Appeal upheld the ordinance and its application to plaintiff, noting that the ordinance was narrowly drawn to ad- dress only commercial speech and that, although the ordinance may have been intended to prevent sales of real estate to minority groups, other purposes of the ordinance (i.e., protecting resi- dences against litter, invasion of privacy and crime) were them- selves sufficient to justify it as a proper exercise of the police power. (See also, Buxbom v. Riverside (O.C.Cal. 1939) 29 F.Supp. 3 [upholding an ordinance prohibiting distribution of leaflets on private property without the owner's consent because it advanced the city's legitimate goal of preventing clutter and trash from discarded and unwanted materials]; Welton v. Citv of Los Anqeles (1976) 18 CaL3d 497, 505, 134 CaL Rptr. 668 [upholding an ordinance which prohibited all distribution of materials on city streets because it "obviously furthers public safety, constituting a valid place restriction"].) ----- ,.., . . TO: FROM: RE: DATE: PAGE: city Council Elizabeth H. silver Advertising material distribution July 18, 1994 4 Moreover, a ci ty may protect its residents from unwanted solicitations or speech in their homes. "Under the First Amendment to the federal Constitution, private individuals do not have an unqualified right to engage in free expression and assembly on private property." (Hudqens v. NLRB (1976) 424 U.S. 507, 518, 96 S.ct. 1029.) Thus, in Frisbv v. Schultz (1988) 487 U.S. 474, 108 S.ct. 2495, the United states Supreme Court, following a long line of cases that individuals are not required to welcome unwanted speech in their homes and that they have a right of privacy in their homes, upheld a city ordinance that forbade targeted picket- ing in residential areas (in order to prevent picketing of homes of doctors who performed abortions). (See also, Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390, 18 Cal.Rptr.2d 531 [Upholding a private clinic's injunction against anti-abortion picketing, stating: "As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership. " ] . ) Accordingly, the Council could consti tutionally adopt an ordinance prOhibiting all distribution of commercial advertising on public and private property. The ordinance should survive attack as long as it is restricted to commercial speech but is otherwise content neutral and as long as the Council makes explicit findings which establish legitimate reasons for the ordinance (i.e., the desire to prevent clutter and trash and to protect residential privacy). If the council so directs, we will prepare such findings and ordinance. Very truly yours, MEYERS, NAVE, RIBACK, SILVER & WILSON cAlL) S;~ Elizabeth H. silver cc: City Manager 114\memo\Ol\advrtae.aja