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HomeMy WebLinkAboutV (B1) Ordinance No. 96-21. amending Ch. 119 of Code re: Peddlers/ Solicitors/ Open-Air Vendors AG '?DA 10-15-96 Item VB 1 FOLEY & LARDNER ATTORNEYS AT LAW SUITE 1800 111 NORTH ORANGE AVENUE A MEMBER OF GLOBALEX ORLANDO, FLORIDA 32801 WITH MEMBER OFFICES IN JACKSONVILLE BERLIN TALLAHASSEE TELEPHONE (407)423-7656 BRUSSELS TAMPA FACSIMILE (407) 648-1743 DRESDEN WEST PALM BEACH FRANKFURT MILWAUKEE MAILING ADDRESS LONDON MADISON POST OFFICE BOX 2193 PARIS CHICAGO ORLANDO, FL 32802-2193 SINGAPORE WASHINGTON,D.C. STUTTGART TAIPEI MEMORANDUM TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorney V DATE: October 11, 1996 RE: Ordinance No. 96-21 Regarding Peddlers and Solicitors: Alternative Approaches and Impact on Litigation Brought by Liberty Counsel This memorandum is supplemental to my memorandum of September 27, 1996 discussing proposed Ordinance No. 96-21. In connection with the litigation brought by Liberty Counsel, we have continued our research regarding the law governing the regulation of both commercial and non-commercial solicitors and peddlers. Ordinances regulating solicitors and peddlers have been the subject of extensive litigation, including several decisions of the United States Supreme Court. In general, it is possible to find case law supporting and opposing most types of regulation of commercial and non-commercial solicitors and peddlers. We have found cases which, in our opinion, support the constitutionality of proposed Ordinance No. 96-21. At the same time, we have found cases which could be utilized to challenge the proposed Ordinance. Some courts have struck down ordinances which attempt to require a permit for any type of religious solicitation, including the sale of religious materials and the solicitation of donations for religious purposes; however, these cases have generally involved ordinances which have other problems and are not as narrowly drafted as the proposed Ordinance. While the United States Supreme Court has upheld the right of municipalities to regulate solicitation in order to prevent crime and protect the rights of citizens to quiet enjoyment of their homes, any such regulation must be "content neutral", must be narrowly drawn to serve the government's interests, and must leave ample alternative channels of communications available for the exercise of First Amendment rights. These restraints have been interpreted ESTABLISHED 1 8 4 2 The Honorable Mayor and City Commissioners of the City of Ocoee October 11, 1996 Page 2 differently by various courts, resulting in inconsistent rulings on challenges to ordinances which are seemingly identical. We have relied in large part on the IMLA Model Ordinance (which was the result of extensive research and a survey of ordinances from municipalities throughout the United States) . We have found case law which could be utilized to challenge the constitutionality of portions of the IMLA Model Ordinance. The wide range of cases makes it difficult to predict the outcome of any litigation which might challenge the constitutionality of the proposed Ordinance. As drafted, it is potentially subject to challenge due to the requirement for a permit in order to engage in the door-to-door sale of religious or political materials. We have been verbally advised by Liberty Counsel that they intend to comment on the proposed Ordinance and may submit suggested revisions. As of the agenda printing deadline, we have not received their comments. If the proposed Ordinance does not satisfy their concerns, then it is likely that the lawsuit will be amended to challenge Ordinance No. 96-21, if adopted. In such event, the City could incur legal fees of between $30, 000 and $40, 000 defending the ordinance in federal court. If Liberty Counsel prevails, the City will also be responsible for their legal fees. Even if the City prevails, the City may already have liability for Liberty Counsel legal fees based on the challenge to the current ordinance. While potential litigation costs should not dictate the City Commission decision, they are a relevant factor to be considered in reviewing proposed Ordinance No. 96-21. If the revised ordinance is acceptable to Liberty Counsel, then the future exposure to legal fees would be reduced and we would pursue discussions regarding a settlement based on legal fees incurred by the Plaintiffs with Liberty Counsel. We considered the option of creating a blanket exemption for religious, charitable and political activities. Such an exemption exists in many comparable ordinances. However, recent case law suggests that such ordinances are not "content neutral". Also, they call upon enforcement officials to decide whether the activity is a religious, political or charitable activity and this exercise of discretion is subject to challenge. As a result, we have not proposed a blanket exemption for religious, charitable and political solicitation activities. In an effort to reduce the prospect of future litigation regarding the City of Ocoee regulation of peddlers and solicitors, we have, in consultation with City staff, prepared a proposed amendment to Ordinance No. 96-21 which would eliminate all permitting requirements. This amendment would regulate certain activities of solicitors and peddlers (including those selling goods and merchandise for political, charitable, religious and The Honorable Mayor and City Commissioners of the City of Ocoee October 11, 1996 Page 3 other non-commercial purposes) , but would not require any permit. In effect, control over individual solicitors and peddlers would be transferred to the residents of the City through the use of a "No Solicitors" sign. The authority of the City to adopt an ordinance on this basis 'appears to clear and unambiguous. It is unlikely that a challenge would be brought against an ordinance based on this alternative and, if a challenge were brought, it is unlikely that any such challenge would be successful. It should be noted that this alternative would only regulate sales activities and would not impact persons going door- to-door expressing religious or political ideas or seeking donations. Even if the definitions were expanded, it is not as clear that a person distributing free religious or political materials or seeking donations would know that a "No Solicitors" sign precludes them from approaching a door. A "No Trespassers" sign may be necessary to prevent individuals from approaching a home for such purposes. Section 810. 09, Florida Statutes, currently prohibits entering upon property which is posted against trespassing. We do not recommend attempting to regulate non- commercial activity beyond the enforcement of the current trespassing statute. My partner Ron Schirtzer, who has done the research relating the litigation, will be present at the City Commission meeting to address any questions you may have regarding the law affecting your decision. PER:dh Enclosures cc: Ronald M. Schirtzer, Esq. ORDINANCE NO. 96-21 ALTERNATIVE AMENDMENT: Move to amend Ordinance No. 96-21 as follows: 1) Delete in its entirety the proposed text of Section 5 of Ordinance No. 96-21 and substitute the following in lieu thereof: 5 119-27. Solicitors, peddlers and open-air vendors. A. Prohibitions. It is unlawful for any individual solicitor or peddler to: (1) Enter the premises of a private residence when a "No Solicitors" sign, or a sign with words of similar import, is posted. (2) Remain upon the premises of a private residence after the owner or occupant requests the solicitor or peddler to depart. (3) Approach the back or rear doors or the sides or rear of any private residence. (4) Conduct the activities of a peddler or solicitor, whether licensed or unlicensed, between the hours of 9:00 p.m. and 9: 00 a.m. B. Penalty. Any person violating any provision of this section shall, upon conviction, be punishable as provided in Section 1-12 of Article II of Chapter 1, General Provisions, of the Code of the City of Ocoee. Each day such violation is committed or permitted to continue shall constitute a separate offense. 2) Amend the title of Ordinance No. 96-21 so as to be consistent with this amendment.