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BERKELEY COMMUNITY HEALTH PROJECT v. CITY OF BERKE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


June 17, 1997

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

The opinion of the court was delivered by: WILKEN

ORDER VACATING INJUNCTION, DISMISSING ACTION AND PROVIDING FOR ATTORNEYS' FEES

 The Court having read and considered the stipulated settlement of the parties herein: IT IS HEREBY ORDERED as follows:

 1. The preliminary injunction heretofore issued by this Court enjoining the enforcement of Berkeley Municipal Code chapter 13.37 is hereby vacated and dissolved.

 2. This action is dismissed with prejudice.

 3. Defendants shall pay plaintiffs' attorneys' fees in the amount of $ 110,000 as set forth in the stipulation of the parties.

 Dated: JUN 17 1997

 CLAUDIA WILKEN

 Judge of the District Court

 ATTACHMENT

 MANUELA ALBUQUERQUE, City Attorney (Bar No. 67464)

 MATTHEW J. OREBIC, Deputy City Attorney (Bar No. 124491)

 BRUCE A. SOUBLET, Deputy City Attorney (Bar No. 83919)

 2180 Milvia Street, Fourth Floor

 Berkeley, California 94704

 TEL: (510) 644-6380

 FAX: (510) 644-8641

 Attorneys for Defendants

 UNITED STATES DISTRICT COURT

 NORTHERN DISTRICT OF CALIFORNIA

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

 NO. C95 00665 CW

 STIPULATION REGARDING SETTLEMENT, VACATION OF INJUNCTION AND DISMISSAL OF ACTION

 It is hereby stipulated by and between the plaintiffs and defendants in the above-entitled matter as follows:

 1. The Berkeley City Council intends to adopt the following two ordinances:

 a. A repeal of Berkeley Municipal Code ("B.M.C.") sections 13.36.015 and related provisions of B.M.C. section 13.36.100, which regulate sitting and lyingn on sidewalks in commercial districts; and

 b. An amendment to B.M.C. chapter 13,37 to delete the provisions thereof relating to solicitation after dark, from persons entering or exiting automobiles and within six feet of building fronts adjacent to the public right of way.

 2. Upon adoption of such ordinances, the parties stipulate that an order may be entered in this matter as follows:

 a. As the parties have entered into a stipulated settlement, the injunction entered herein against the enforcement of B.M.C. chapter 13.37 shall be vacated and the parties request that the Court submit this order for publication;

 b. This action shall be dismissed with prejudice.

 3. Defendant City of Berkeley shall pay one of plaintiffs' counsel of record, the American Civil Liberties Union Foundation of Northern California (ACLU), the sum of one hundred and ten thousand dollars ($ 110,000.00) in total satisfaction of any claims plaintiffs or their attorneys may have by way of damages, attorneys' fees or costs in this action.

 4. Plaintiffs and their attorneys and each of them, release defendants and each of them, and any of the City's current or former officials, affiliates, agents, employees, attorneys, successors, predecessors or assigns, from any complaint, claim, charge, claim for relief, demand, action, suit, action or cause of action existing at any time up to the date of this Agreement, whether in law or equity, which they could assert at common law or under statute, constitutions, regulation, order or law whether federal, state or local, or under any contract, or based upon any grounds whatsoever, with respect to any event, matter, claim, occurrence, damage or injury arising out of or associated with the enactment or modification of the laws challenged in this action, whether known or unknown.

 5. Defendants and their attorneys and each of them, release plaintiffs and their attorneys and each of them, their current or former officials, affiliates, agents, employees, attorneys, successors, predecessors or assigns, from any complaint, claim, charge, claim for relief, demand, action, suit, action or cause of action existing at any time up to the date of this Agreement, whether in law or equity, which they could assert at common law or under statute, constitutions, regulation, order or law whether federal, state or local, or under any contract, or based upon any grounds whatsoever with respect to any event, matter, claim, occurrence, damage or injury arising out of or associated with the enactment or modification of the laws challenged in this action, whether known or unknown.

 Dated: May 16, 1997

 MANUELA ALBUQUERQUE, City Attorney

 MATTHEW J. OREBIC, Deputy City Attorney

 BRUCE A. SOUBLET, Deputy City Attorney

 By: MANUELA ALBUQUERQUE

 Attorneys for Defendant CITY OF BERKELEY

 Dated: 5/29/97

 AMERICAN CIVIL LIBERTIES UNION

 FOUNDATION OF NORTHERN CALIFORNIA

 By: ALAN SCHLOSSER, Attorney for Plaintiff

 Dated: 5-25-97

 LAW OFFICES OF JAMES B. CHANIN

 By: JAMES B. CHANIN, Attorney for Plaintiff

 Dated: 5-20-97

 WILSON, SONSINI, GOODRICH & ROSATI

 By: HARRY B. BREMOND, Attorney for Plaintiff

 Dated: 5/20/97

 LAW OFFICES OF OSHA NEUMANN

 By: OSHA NEUMANN, Attorney for Plaintiff

 ORDINANCE NO. 6372-N.S.

 REPEALING ORDINANCE NO. 6267-N.S., PROHIBITING SITTING AND LYING ON SIDEWALKS IN COMMERCIAL DISTRICTS

 BE IT ORDAINED by the Council of the City of Berkeley as follows:

 Section 1: That Ordinance No. 6267-N.S. is hereby repealed.

 Section 2: Copies of this Bill shall be posted for two days prior to adoption in front of the Civic Center Building. Within fifteen days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

 At a regular meeting of the Council of the City of Berkeley, held on April 29, 1997, this Bill was passed to print and ordered published by posting by the following vote:

 Ayes: Councilmembers Breland, Maio, Shirek, Spring, and Worthington.

 Noes: Councilmembers Armstrong, Olds, Woolley and President Dean.

 Absent: None.

 At a regular meeting of the Council of the City of Berkeley, held on May 13, 1997, this Ordinance was adopted by the following vote:

 Ayes: Councilmembers Breland, Maio, Shirek, Spring, and Worthington.

 Noes: Councilmembers Armstrong, Olds, Woolley and President Dean.

 Absent: None.

 Shirley Dean

 Mayor and President of the Council

 In effect: June 12, 1997

 ORDINANCE NO. 6371-N.S.

 AMENDING CHAPTER 13.37 OF THE BERKELEY MUNICIPAL CODE ORDINANCE NO. 6266-N.S., AS AMENDED BY ORDINANCE NO. 6282-N.S., REGULATING THE TIME, PLACE AND MANNER OF SOLICITATION FOR THE IMMEDIATE PAYMENT OF MONEY OR GOODS IN PUBLIC PLACES, TO DELETE THE PROVISIONS RELATING TO SOLICITING FROM PERSONS ENTERING OR EXITING AUTOMOTIVE VEHICLES WITHIN SIX FEET OF CERTAIN BUILDINGS IN COMMERCIAL DISTRICTS AND AFTER DARK

 BE IT ORDAINED by the Council of the City of Berkeley as follows:

 Section 1. That Ordinance No. 6266-N.S., as amended by Ordinance No. 6282-N.S. codified as Chapter 13.37 of Title 13 (Public Peace, Morals and Welfare) of the Berkeley Municipal Code is hereby amended to read as follows:

 Chapter 13.37

 

LIMITATION OF THE TIME, PLACE AND MANNER OF SOLICITATION FOR THE IMMEDIATE PAYMENT OF MONEY OR GOODS IN PUBLIC PLACES.

 Sections:

 13.37.010 Definitions

 13.37.020 Prohibited Acts

 13.37.030 Violation- Penalty

 Section 13.37.010 Definitions

 For purposes of this Ordinance the following terms shall be defined as set forth in this section.

 A. "Coerces, threatens, hounds or intimidates the person solicited" means soliciting another in any of the following manners:

 1. The solicitor acts in a manner which would cause a reasonalbe person who was solicited to fear for his or her own safety. Factors to be weighed in determining whether the behavior would cause a reasonable person to fear for his or her own safety include but are not limited to, the making of threatening gestures, the proximity of the solicitor to the person solicited, the duration of the solicitation, making physical contact with the person solicited.

 2. The person who solicits persists in following the person solicited closely, after the person being solicited has informed the solicitor by words or conduct that such person does not want to be solicited.

 B. "Public place" means a publicly owned building and premises appurtenant thereto, any public park, sidewalk, or other right of way open to the general public and includes alleys, bridges, buildings, driveways, parking lots, parks, plazas, and streets. This Ordinance does not regulate solicitation on private property.

 C. "Solicit" means to ask for the immediate payment of money or goods, whether or not in exchange for goods services or other consideration, by words, bodily gestures, signs or other means.

 E. "Solicitor" means one who solicits as defined herein.

 Section 13.37.020 Prohibited Acts

 A. 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. Within ten (10) feet of any automatic teller machine in the City of Berkeley;

 B. Non-exclusivity. Nothing in this chapter shall limit or preclude the enforcement of other applicable laws.

 Section 13.37.030 Violation- Penalty

  Any person who shall be convicted of a violation of any of the provisions of this Chapter shall be deemed guilty of an infraction and shall be punishable as set forth in Chapter 1.20 of this code.

  Section 2. Publication

  Copies of this Bill shall be posted for two days prior to adoption in front of the Civic Center Building. Within fifteen days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

  At a regular meeting of the Council of the City of Berkeley, held on April 29, 1997, this Bill was passed to print and ordered published by posting by the following vote:

  Ayes: Councilmembers Armstrong, Breland, Maio, Shirek, Spring, Woolley, Worthington and President Dean.

  Noes: None.

  Abstain: Councilmember Olds.

  Absent: None.

  At a regular meeting of the Council of the City of Berkeley, held on May 13, 1997, this Ordinance was adopted by the following vote:

  Ayes: Councilmembers Armstrong, Breland, Maio, Shirek, Spring, Woolley, Worthington and President Dean.

  Noes: None.

  Abstain: Councilmember Olds

  Absent: None.

  Shirley Dean

  Mayor and President of the Council

  In effect: June 12, 1997

19970617

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