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Ordinance 2010-10 ORDINANCE NO. 2010 - 10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY ADOPTING NEW ARTICLE V OF CHAPTER 16A OF THE GILROY CITY CODE REGULATING AGGRESSIVE SOLICITATION OF MONEY, GOODS AND SERVICES AND REGULATING THE SOLICITATION OF MONEY, GOODS AND SERVICES IN SPECIFIED LOCATIONS. WHEREAS, the City Council finds that there is an increasing presence in Gilroy's high traffic areas of persons soliciting the immediate exchange of money and/or soliciting immediate work from certain locations and/or in an aggressive manner such that public safety and welfare are negatively affected; WHEREAS, the City Council finds that solicitations directed at people operating vehicles from locations adjacent to commercial parking area entrances and exits, and from locations adjacent to signalized intersections, have adverse effects on the health, safety and well-being of the City of Gilroy and its citizens by obstructing drivers' views, by distracting drivers from their primary duties to watch traffic and be alert for vehicles, pedestrians and potential hazards in the roadway, observe traffic control signals and be prepared to move through streets and intersections, by negatively affecting the flow of traffic, and by causing drivers to pull over unexpectedly, which conduct may result in traffic accidents, pedestrian accidents and related serious injuries and property damage; and WHEREAS, the City Council finds that the solicitation of persons operating vehicles from the center medians of public streets and roads, including solicitors entering traffic lanes on foot to accept donations, has adverse effects on the health, safety and well-being of the City of Gilroy and its citizens by obstructing drivers' views, by distracting drivers, by causing drivers to search for money to donate while operating vehicles, and by negatively affecting the flow of traffic, which conduct may result in traffic accidents, pedestrian accidents and related serious injuries and property damage; and WHEREAS, the City Council finds that the immediate exchange of money in an aggressive and harassing manner may have adverse effects on the health, safety and well-being of the City of Gilroy, its citizens and visitors by causing people to feel harassed, threatened, held captive, pressured to give money, inconvenienced, and in danger of being assaulted, battered and/or robbed, and that such conduct is subject to reasonable time, place and manner regulations (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal. 4th 352); and WHEREAS, the City Council finds that the solicitation by persons seeking the immediate exchange of money adjacent to banks and A TMs, in parking lots after dark, and at or near public transportation stops, may have adverse effects on the 1 ORDINANCE NO. 2010-10 \MDOLlNGER\818350.1 042110~706083 health, safety and well-being of the City of Gilroy, its citizens and visitors by causing people at those locations to feel harassed, held captive, pressured to give money, inconvenienced, and in danger of being assaulted, battered and/or robbed, and that such conduct is subject to reasonable time, place and manner regulations; and WHEREAS, Gilroy has substantial interests in protecting vehicle drivers in Gilroy from traffic accidents, in protecting pedestrians from traffic accidents, in maintaining the free flow of vehicle traffic through high-traffic areas, in protecting Gilroy citizens and visitors from feeling harassed, threatened, held captive, pressured to give money, inconvenienced, and in danger of being assaulted, battered and/or robbed while they are in public places, and from actually being harassed, held captive, pressured to give money, assaulted, battered or robbed; WHEREAS, Chapter 16A of the Gilroy City Code currently regulates peddlers, solicitors, venders and other transient businesses by imposing permit requirements, but does not adequately regulate unsafe, aggressive and harassing solicitation as described herein; and WHEREAS, existing provisions of the California Vehicle Code and the Gilroy City Code do not adequately address the unsafe, aggressive and harassing solicitation conduct described above; and WHEREAS, the regulation of conduct that uses the spoken, written or printed word, bodily gestures, signs or other means, with the purpose of obtaining an immediate donation of money or other thing of value or with the purpose of soliciting work is "content-neutral" speech meriting an intermediate level of constitutional scrutiny. The City Council takes legislative notice of the following cases holding that ordinances that regulate aggressive solicitation and vehicle-addressed solicitation are "content-neutral": Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal. 4th 352, 378; Xiloj- Itzep v. City of Agoura Hills (1994) 24 Cal. App. 4th 620, 637; ACORN v. City of Phoenix (9th Cir. 1986) 798 F.2d 1260, 1267-68; and WHEREAS, the City Council finds that the specific time, place and manner limitations on solicitation contained in this ordinance are a legitimate and reasonable means of: protecting the health, safety, and welfare of the City's residents from traffic accidents and related damages and injuries; protecting Gilroy citizens and visitors from feeling harassed, held captive, threatened, pressured to give money and in danger of assault, battery or robbery; and preserving the quality of life, property values, and the character of Gilroy business districts; and WHEREAS, the City Council fmds that the time, place and manner limitations on solicitation contained in this ordinance do not restrict constitutionally protected solicitation activities in Gilroy more than is necessary to achieve the purposes of this ordinance; and WHEREAS, notwithstanding the restrictions contained in this ordinance, persons soliciting the immediate donation of money (including but not limited to 2 ORDINANCE NO. 2010-10 \MDOLlNGER\818350.1 042110~706083 panhandlers), and persons soliciting work (including but not limited to day laborers), will have ample alternative avenues of communicating their messages, including but not limited to: non-aggressive face-to-face and written solicitations directed at pedestrians from public sidewalks and other public places, provided such solicitations are not adjacent to banks, A TMs, and similar financial institutions, and are not at or near public transportation stops; non-aggressive face-to-face and written solicitations directed at pedestrians in public parking lots during the day time; solicitations of persons driving motor vehicles provided such solicitations are more than 100-feet from signalized intersections, more than 50-feet from commercial parking entrances and exits, and not otherwise conducted in an aggressive manner; and WHEREAS, it is not the intent of the City Council in enacting this ordinance to suppress any speech activities protected by the California Constitution of the First Amendment of the United States Constitution, but rather to enact a content-neutral ordinance that addresses the adverse direct and indirect effects of unsafe and aggressive panhandling and solicitation in a manner that ensures the rights to engage in solicitation that is conferred by the United States Constitution and California Constitution; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES ORDAIN AS FOLLOWS: SECTION I A new Article V is added to Chapter 16A of the Gilroy City Code and is hereby adopted to read as follows: ARTICLE V. LIMITS ON SOLICITATION Sections: 16A.19.1 Definitions 16A.19.2 Aggressive solicitation prohibited 16A.19.3 Solicitation at specified locations prohibited 16A.19.4 Violation - Penalty 16A.19.5 Other Regulations 16A.19.6 Severability 16A.19.1 DEFINITIONS. Unless otherwise expressly stated herein, whenever used in this Article, the following terms shall respectively be deemed to mean: AGGRESSIVE MANNER: Any of the following: 1. Approaching or speaking to a person, or following a person before, during or after soliciting, asking or begging, if that conduct is intended or is likely to cause a reasonable person to fear bodily harm to oneself or to another, damage to or loss of property, or otherwise be intimidated into giving money or other thing of value; 3 ORDINANCE NO. 2010-10 \MDOLlNGER\818350.1 042110~706083 2. Intentionally touching or causing physical contact with another person or an occupied vehicle without that person's consent in the course of soliciting, asking or begging; 3. Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means, including but not limited to intentionally causing a pedestrian or vehicle operator to take evasive action to avoid physical contact; 4. Using violent or threatening gestures toward a person solicited either before, during, or after, soliciting, asking or begging; 5. Persisting in closely following or approaching a person, after the person solicited has informed the solicitor by words or conduct that such person does not want to be solicited or does not want to give money or any other thing of value to the solicitor; or 6. Using profane, offensive or abusive language which is inherently likely to provoke an immediate violent reaction, either before, during, or after solicitation. AUTOMATED TELLER MACHINE (A TM): Any electronic information processing device which accepts or dispenses cash in connection with a credit, deposit or convenience account. AUTOMATED TELLER MACHINE FACILITY: The area comprised of one or more automated teller machines, and any adjacent space which is made available to banking customers after regular banking hours. BANK: Any member bank of the Federal Reserve System and any bank, banking association, trust company, savings bank or other banking institution organized or operated under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation. CHECK-CASHING BUSINESS: Any person duly licensed as a check seller, bill payer or prorater pursuant to Division 3 of the California Financial Code, commencing with Section 12000. CREDIT UNION: Any federal credit union and any state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration. PUBLIC PLACE: A place to which the public or a substantial group of persons has access and includes but is not limited to any street, highway, sidewalk, parking lot, plaza, transportation facility, school, place of amusement, park, playground and any doorway, entrance, hallway, lobby and other portion of any business establishment, apartment house or hotel not constituting a room or apartment designed for actual residence. PUBLIC TRANSPORTATION VEHICLE: Any vehicle owned by the City or any other public entity, or contracted for use by the City, and used for the provision of public transportation services. RESTAURANT: Any business establishment which engages in the business of serving food to customers for immediate consumption, including "fast food" restaurants and traditional "sit-down" restaurants. SAVINGS AND LOAN ASSOCIATION: Any federal savings and loan association and any "insured institution" as defined in Section 401 of the National 4 ORDINANCE NO. 2010-10 \MDOLlNGER\818350.1 042110~706083 Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act. SOLICIT, ASK OR BEG: The use of the spoken, written or printed word or use of bodily gestures, signs or other means for the purpose of obtaining an immediate donation of money or other thing of value or for the purpose of selling or trading goods or servIces. 16A.19.2 AGGRESSIVE SOLICITATION PROHIBITED. No person shall solicit, ask or beg in an aggressive manner in any public place. 16A.19.3 SOLICITATION AT SPECIFIED LOCATIONS PROHIBITED. A. Banks and ATMs: No person shall solicit, ask or beg within twenty-five feet (25') of any entrance or exit of any bank, savings and loan association, credit union or check-cashing business during its business hours or within twenty-five feet (25') of any automated teller machine during the time it is available for customers use. Provided, however, that when an automated teller machine is located within an automated teller machine facility, such distance shall be measured from the entrance or exit of the automated teller machine facility. 1. Exemption: The provisions of subsection 16.A.19.3.A shall not apply to any unenclosed automated teller machine located within any building, structure or space whose primary purpose or function is unrelated to banking activities, including but not limited to supermarkets and school buildings, provided that such automated teller machine shall be available for use only during the regular hours of operation of the building, structure or space in which such machine is located. B. Motor vehicles and parking lots: 1. Motor Vehicles (a) No person shall approach an operator or occupant of a motor vehicle for the purpose of soliciting, asking or begging while such vehicle is being operated in a lane of traffic on a public street or public right of way, in a public parking lot, or in an entrance or exit to a public parking lot, whether the motor vehicle is moving or not, and whether or not the person is being solicited by the driver of the vehicle. (b) No person shall solicit, ask or beg from any traffic median within any public street or public right of way. (c) No person shall solicit, ask, or beg any operator or occupant of a motor vehicle that is being operated in a lane of traffic on a public street or public right of way, whether the motor vehicle is moving or not, and whether or not the person is being solicited by the driver of the vehicle, , where the motor vehicle is located within one hundred feet (100') of any intersection controlled by an official traffic signal as defined in Vehicle Code Section 21450, or within fifty (50') of any entrance or exit to a parking lot of any business establishment located within a commercial district of the City of Gilroy Persons may otherwise solicit, ask or beg by conduct that includes but is not limited to the holding of signs on public sidewalks and other public places at locations that are more than one 5 ORDINANCE NO. 2010-10 \MDOLINGER\818350.1 042110~706083 hundred feet (100') from any intersection controlled by an official traffic signal and more than fifty (50') from any entrance or exit to a parking lot of any business establishment located within a commercial district. 2. Parking lots: No person shall solicit, ask or beg in any public parking lot or structure any time after dark. "After dark" means any time from one-half hour after sunset to one-half hour before sunrise. 3. Exemptions: Subsections 16A.19.2 and 3 shall not apply to any of the following: a. Solicitations related to business which is being conducted on the subject premises by the owner or lawful tenants; b. Solicitations related to the lawful towing of a vehicle; c. Solicitations related to emergency repairs requested by the operator or other occupant of a vehicle; d. Solicitations of emergency vehicles; and e. Hailing a taxicab or public transportation vehicle. C. Public transportation vehicles and stops: Other than a person hailing a public transportation vehicle, no person shall solicit, ask or beg within twenty-five feet (25') of any public transportation vehicle stop, facility or area designated for the pick up of passengers. D. Restaurants: Any person who solicits, asks, or begs in any outdoor or indoor dining area of a restaurant or other establishment serving food for immediate consumption is guilty of a violation of this section if he or she remains there after being asked to leave by: the owner, manager or supervisor of the restaurant or other food establishment; the agent of the owner, manager or supervisor of the restaurant; or a member of a security force employed by the restaurant or by a peace officer as defined in Chapter 4.5 of Title 3 of the California Penal Code (commencing with Penal Code, 830), acting at the request of any of the persons specified in this subdivision. E. Written Material: This Article V shall not prohibit persons from soliciting, asking, or begging, in a non-aggressive manner, with the use of signs, leaflets or other written material at locations or in a manner that is not otherwise prohibited by Subsections 16A.19.2 and 3. 16A.19.4 VIOLA TION--PENAL TY. Any violation of the provisions of this Chapter is punishable in accordance with Chapter 1, Section 1.7 ,of this Code. 16.A.19.5 OTHER REGULATIONS. Nothing in this Article V is intended to supercede or conflict with any requirement or limitation contained in Articles I through IV of Chapter 16A. 16.A.19.6 SEVERABILITY. If any section, subsection, subdivision, sentence, clause, phrase or word of Ordinance No. 2010-10, establishing this Article V, is for any reason held to be invalid or 6 ORDINANCE NO. 2010-10 \MDOLlNGER\818350.1 042110~706083 " unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity ofthe remaining portions of Ordinance No. 2010- 10, establishing this Article V. The City Council hereby declares that it would have passed and adopted Ordinance No. 2010-10, establishing this Article V, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid or unconstitutional. SECTION II If any section, subsection, subdivision, sentence, clause, phrase or word of this Ordinance is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed and adopted this Ordinance, and each and all provisions hereof, irrespective of the fact that one or more provision may be declared invalid or unconstitutional. SECTION III This Ordinance shall be effective thirty (30) days from and after the date of the final passage and adoption hereof. The City Clerk shall certify to the passage and adoption of this ordinance and cause the same to be published in the manner prescribed by law. PASSED AND ADOPTED THIS 19th DAY OF JULY, 2010, by the following vote: AYES: COUNCILMEMBERS: ARELLANO, BRACCO, DILLON, TUCKER, WOODWARD and PINHEIRO NOES: COUNCILMEMBERS: GARTMAN ABSENT: COUNCILMEMBERS: NONE APPROVED: ~- Albert Pinheiro, Mayor 7 ORDINANCE NO. 2010-10 \MDOLlNGER\818350.1 042110~706083 I, SHA WNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2010-10 is an original ordinance, or true and correct copy of a City ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 19th day of July, 2010, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 22nd day of July, 2010. hawna Freels, CMC City Clerk of the City of Gilroy (Seal)