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BERKELEY COMMUNITY HEALTH PROJECT v. CITY OF BERKE

May 5, 1995

BERKELEY COMMUNITY HEALTH PROJECT, et al., Plaintiffs,
v.
CITY OF BERKELEY, et al., Defendants.



The opinion of the court was delivered by: WILKEN

 Statement of Facts and Issues

 This action challenges two recently enacted ordinances of the City of Berkeley, Berkeley Municipal Code § 13.37 (the "Solicitation Ordinance") and Berkeley Municipal § 13.36.015 (the "Sitting Ordinance"). The instant motion seeks to enjoin Defendants from taking action to implement or enforce the two challenged ordinances pending final determination of this action.

 The Solicitation Ordinance regulates the act of solicitation, defined as asking for the immediate payment of money or goods by words, gestures, signs or "other means," whether or not in exchange for goods, services or other consideration, as follows:

 
It is unlawful for any person to solicit another in any public place at the times, locations and in the manner specified below: (1) In any manner which coerces, threatens, hounds, or intimidates the person solicited; (2) From any person entering or exiting from an automotive vehicle; (3) Within ten (10) feet of any automatic teller machine in the City of Berkeley; (4) Within six feet of the face of any building fronting the right-of-way in any commercial zone in the City of Berkeley; (5) After dark as defined in this ordinance.

 "After dark" is defined as "any time from one-half hour after sunset to one-half hour before sunrise." *fn1"

 The Sitting Ordinance generally prohibits sitting or lying on a public sidewalk near a building as follows:

 
No person shall sit or lie down upon a public sidewalk, or upon a blanket, chair, stool, or any other object placed upon a public sidewalk, within six feet of the face of any building fronting the right-of-way in any commercial zone in the City of Berkeley between the hours of 7:00 a.m. and 10:00 p.m.

 This ordinance contains exceptions for persons seated in wheelchairs or baby strollers, a person in the midst of a medical emergency, and the proprietor, patrons and employees of a business licensed to conduct business in the public right-of-way.

 Each ordinance provides that no person shall be cited for being within a prohibited distance without first having been warned by a law-enforcement officer. Each ordinance also contains a severability clause.

 Defendants contend, and make a factual showing, that the two challenged ordinances were enacted in response to complaints regarding intimidation by panhandlers and concerns about a host of civic problems which citizens and officials believed were linked to panhandling, ranging from unsanitary conditions in the streets to violent crimes. The City Council approved the recommendations of a task force convened by the mayor to consider issues regarding street behavior. One of the express goals of the task force was "to reduce the amount of solicitation on our streets." Defendants proffer declarations of Berkeley citizens and officials which illustrate the range of concerns.

 These declarants relate incidents relevant to the challenged solicitation ordinance, including continued solicitation after an initial refusal, aggressive soliciting by persons pacing in front of restaurants, presence of a number of people in one block soliciting money "such that a gauntlet effect is created," rejection of a proffered voucher with obscenities, and remarks designed to make people feel guilty if they decline to give alms.

 The declarations also describe conduct related to the challenged sitting ordinance, including blocking of access to store windows, presence of such a large number of people sitting on the curb in front of the entrance to a bank that it is difficult to enter, and being forced to step over or avoid "reclining or sleeping bodies." A Berkeley official states that he has received complaints about and has personally observed:

 
...persons lying and sitting on sidewalks in such a manner as to essentially stake out parts of the public right of way virtually as their private preserve. Often, these people imbibed liquor and other illegal substances, were intoxicated, and littered the street with food and beverage containers and human urine. Their presence also lead to street drug dealing.

 The declarants also describe incidents not specifically related to either solicitation or sitting, such as derogatory comments and obscenities being yelled and unspecified bizarre behavior. Finally, the declarants tell of incidents of solicitation and sitting which would not be affected by this ordinance, such as solicitors entering private restaurants, being forced to walk close to buildings because of the presence of people sitting or lying on the sidewalk, and people "camping" within private doorways.

 The Berkeley Police prepared to enforce the ordinances by creating training and information bulletins regarding each ordinance. Each bulletin points out that:

 
The ordinance applies to the portion of the sidewalk closest to a building. It does not apply to persons ... on the sidewalk nearer the curb. [Note that B.M.C. section 13.36.010 prohibits any person from intentionally standing, sitting or lying on any portion of a sidewalk substantially blocking free passage.]

 Shortly after passage of the ordinances challenged herein, the City amended its Municipal Code and zoning ordinance to authorize use permits for sidewalk cafe seating in the public right-of-way. The City Manager's recommendation for this action specifies that "for many years, it has been City policy to provide a variety of outdoor spaces in the Downtown for people to gather and enjoy themselves. The Downtown Plan, adopted by the Council in 1990, specifically calls for more outdoor sitting areas for pedestrians..."

 Plaintiffs in this action are as follows. Chris Stanley and Toni Catano are indigent individuals who solicit money to meet their immediate survival needs. CopWatch and the Green Party are "grass roots" political organizations which solicit money to support their political efforts while disseminating information and political views. Berkeley Community Health Project is a non-profit organization which solicits money to support the Berkeley Free Clinic while distributing information. Plaintiffs make the following showing regarding the harm they would suffer as a result of the enforcement of the challenged ordinances.

 Chris Stanley solicits from 9:00 a.m. until 9:30 p.m., using a sign to ask for money. Toni Catano solicits money orally. Both sit rather than standing while soliciting because of physical disabilities. In addition, both sit against or close to buildings in order to take advantage of the shelter the building provides from the elements, to avoid blocking traffic, and because it is a visible location. Finally, Ms. Catano sits because sitting "allows more effective communications with the passers-by." Plaintiffs also proffer the declaration of a street musician, who sits or stands next to a building while performing because the building wall improves the acoustics so as to make his music audible to passersby, to avoid blocking foot traffic, and to reduce his vulnerability to thieves.

 CopWatch volunteers distribute information regarding police practices and solicit donations of money and goods to fund these efforts. *fn2" Because CopWatch volunteers typically work or attend school during the day, most of these activities take place in the evening and on weekends. They frequently solicit within six feet of a building so as not to block traffic.

 Berkeley Community Health Services uses disabled and elderly solicitors, most of whom are unable to stand for long periods of time. They solicit within six feet of buildings for their own safety and to avoid blocking foot traffic. They claim that the most effective time to solicit donations is during the early evening, from 5:00 to 7:00 p.m., especially during the winter holiday season, when people tend to donate more. Two of their primary solicitation sites are within 10 feet of Automated Teller Machines.

 Defendants dispute the organizational Plaintiffs' claims that they conduct evening solicitation. Defendants proffer declarations of police officers that in surveys of the commercial areas on Solano Avenue, Shattuck Avenue and Telegraph Avenue conducted on five evenings in March, 1995, only one solicitor, for the Berkeley Free Clinic, was seen.

 There is also a dispute regarding the availability of space for soliciting and sitting if the challenged ordinances are enforced. Defendants proffer the declaration of a public works engineer with scaled drawings depicting sidewalks in four areas of Berkeley. These drawings show a sidewalk on Shattuck Avenue which is 18 feet wide, two sidewalk areas on Shattuck Avenue surrounding the BART station with widths ranging from 20 to 65 feet, and a sidewalk on Telegraph Avenue ranging from 14 to 24 feet wide.

 Plaintiffs respond with photographs and the photographer's declaration. The declaration avers that the width of the Telegraph Avenue sidewalk depicted in Defendants' scaled drawing actually ranges from 10.5 feet to 16 feet. The photographs depict five locations on Telegraph Avenue and demonstrate that a six foot restriction would confine solicitation to a two to three and a half foot area directly in front of the street vendor tables licensed by the City to operate in particular locations. Plaintiffs' final photograph depicts a portion of sidewalk on College Avenue which is nine feet, four inches wide, so that the six foot restriction would confine solicitation to less than a three and half foot area directly next to the curb and the passenger doors of parked cars. In addition, Plaintiffs proffer the declaration of a local owner of a cafe, who states that ...


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