By JOHN EARL
Note: This article was originally published in the OC Voice Oct. 2007 print edition. It is reprinted here because it relates to Joe Shaw’s column about the banning of street signs by the Huntington Beach City Council. His column focused on the economic consequences, this article focuses on the related constitutional issues at they played out in the city of Costa Mesa. Also read Shaw’s column here.
Costa Mesa day laborers looking for work on street corners at two separate locations in the city, Placentia Avenue and 17th Street, and Placentia Avenue and Victoria Street, say that city police are routinely harassing them and making it difficult for them to find employment.
Almost without exception, workers at both corners who were interviewed by the OC Voice on three separate occasions during September claimed that police routinely—from once in a while to several times a week—approached them while they were standing on sidewalks or in parking lots and told them, sometimes without giving a reason, that they had to leave the area, sometimes threatening them with tickets or even arrest if they returned.
Costa Mesa Chief of Police Christopher Shawkey says that his officers are only enforcing a city ordinance that prohibits anyone from soliciting employment, commercial, or charitable transactions on public streets in a manner that distracts motorists and creates a potential safety hazard, and that prohibits the same types of solicitation in private parking lots where the owners have posted signs banning those activities.
It is not a violation of the Municipal Code to look for work on public sidewalks, but the city’s ordinance places tight restrictions on the process.
The Orange County chapter of the American Civil Liberties Union (ACLU), however, says that the city’s ordinance violates the free speech rights of day laborers and their potential employers, as well as people advertising for real estate sales, solicitors for charitable organizations and even high school students seeking to raise money for school projects by signaling to potential car wash costumers from sidewalks and street corners.
ACLU attorney Hector Villagra told the OC Voice that he has received complaints from day laborers and that “[W]e are investigating the possibility of a lawsuit against Costa Mesa.”
Other cities, including Redondo Beach and Glendale have had similar types of ordinances thrown out in court in recent years. The ACLU filed a lawsuit against the city of Lake Forest in March over a 1993 ordinance that prohibited anyone from looking for work on public sidewalks. In that case, city officials claimed that they had stopped enforcing the law after the Glendale case in 2005 and that they had meant to repeal it anyway, which they quickly did, finally, in response to the ACLU lawsuit.
The Costa Mesa ordinance was first passed in 1988, the same year that the city opened a labor center for day laborers at the corner of 17th Street and Placentia Avenue. The ordinance was revised in 2005, about the same time the city council voted to close down the center and after the Glendale and Redondo Beach ordinances went to the courts.
The Costa Mesa ordinance makes it unlawful “for any person to stand on a street [including sidewalk] and actively solicit employment, business, or contributions from any person in a motor vehicle traveling along a street.” It also prohibits “any person in a motor vehicle traveling along a street to solicit employment of any person standing on a street, to solicit from or make contributions to any such person, or to solicit and engage in a business transaction with such person” (emphasis added).
The term “actively solicit” is defined by the ordinance as solicitation “accompanied by action intended to attract the attention of a person in a vehicle traveling in the street such as waving arms, making hand signals, shouting to someone in a traveling vehicle, jumping up and down, waving signs pointed so as to be readable by persons in traveling vehicles, quickly approaching nearer to vehicles which are not lawfully parked, and entering the roadway portion of a street.”
The ordinance does not stop job seekers and others who solicit by “peaceably standing”on a sidewalk and holding—but not waving, “with a sign seeking employment, contributions, or business” or by distributing literature “to pedestrians or occupants of legally parked vehicles” or who communicate their “desire or availability for employment, contributions or business to pedestrians or to persons in lawfully parked vehicles.”
Villagra says that Costa Mesa’s updated ordinance is a response to the failed Redondo Beach and Glendale ordinances and that, even though it separates “active” from “passive” solicitations, it still discriminates based on the content of speech and places more of a burden on free speech than is necessary to advance the legitimate [safety] interests of the city. “They are trying to respond to the district court decisions striking down the Glendale and Redondo Beach ordinances,” Villagra said. “I appreciate the effort. I don’t think they have succeeded in addressing the constitutional problem,” he added.
Villagra points out that the city could not prohibit political protesters from using the same speech techniques that solicitors can not engage in under the ordinance. “You can stand on the sidewalk and jump up and down and wave your arms and scream as loud as you want with a sign that says the war is wrong or the president is great, but you can’t do that if your sign says ‘able to work’… They can’t discriminate against speech that way.”
Costa Mesa City Attorney Kimberly Hall Barlow disagrees. “Frankly, I don’t see any reason to take our ordinance off the books. I believe as it’s written, it’s constitutional,” she told the OC Voice
The ordinance is not about preventing people from seeking work, Barlow said, but about preventing drivers from being distracted.
“It’s not a prohibition on carrying signs,” Barlow said, “It’s just a prohibition on waving them around and trying to distract drivers…If people are protesting on the sidewalk and walking with signs or people are walking on sidewalks with signs saying looking for work, that’s not illegal.”
But the solicitation ordinance does not deal with the routine traffic safety issues that even Villagra says the city has a legitimate role in regulating, but with a specific message and the manner in which it is presented. In contrast, as a recent history of Costa Mesa based immigrant and anti-immigrant rights protests proves, protesters can wave their signs at motorists all they want without legal consequence.
Chief Shawkey says that the courts sometimes allow limitations on free speech, however, such as the prohibition against yelling fire in a theater. “And I think that they generally rely on the intent of the protester… The protester is different from somebody that is soliciting employment.”
Under the city’s ordinance, however, the “distinction between active and passive solicitation is impossible to determine,” counters Villagra. “It’s a classic chilling effect…At what point does raising the altitude of the sign or moving your arms or walking from one side to another become active solicitation?”
Making that determination will create a climate of self-censorship surrounding a worker who is afraid of communicating his need for work due to fear of violating the law, Villagra believes, and will harm his chances of finding work.
Villagra says that the right to solicit work or business is just as important a free speech right under the Constitution as is political speech. “Here…the First Amendment is really an avenue for the day laborers to support themselves and their families. And it is vitally important that these workers be granted access to an audience.”
Employer’s free speech rights are equally challenged by the ordinance, he says, “because you have people who are communicating a message and people who want to receive the message…And they definitely have a right to communicate.”
‘Why are you here?’
Proving the ordinance’s chilling effect in order to repeal it would be part of Villagra’s task in the event the ACLU does make a court challenge. But out on the city’s street corners day laborers are well aware of the effect of the cat and mouse game played between themselves and the police.
“They tell us to go, but because we have to pay the rent we come back,” says Juan Fernandez, a legal permanent resident of the United States, who says he has worked on the corner of Placentia Avenue and 17th Street for 12 years. He has regular employers who choose him to do work, so he often gets about 30 hours a week for wages that range between $10-15 per hour.
Most of the other day laborers run when they see the police, Fernandez says, but he knows his rights and stays to hear what they have to say. “Why are you here,” the police sometimes ask him. “You have to go because you have to,” he has been told.
Sometimes the police ask him for his I.D. for no apparent reason, he says. On one occasion, he recalled, police told him to leave the area and warned that if he returned he would be sent to jail. But he keeps coming back and hasn’t been to jail yet, he says.
Chief Shawkey acknowledges that police officers should not be telling any person, who is not violating any law to leave, but he cautions that police officers have the right, just like anyone else, to approach others for conversation. “There’s nothing really illegal about us going up and talking to you… I could certainly do that and you could choose to talk to me or not.”