Alternatives for California Women, Inc. v. County of Contra Costa

Citation145 Cal.App.3d 436,193 Cal.Rptr. 384
PartiesALTERNATIVES FOR CALIFORNIA WOMEN, INC., Plaintiff and Appellant, v. COUNTY OF CONTRA COSTA, et al., Defendants and Respondents. A011808. Civ. 49524.
Decision Date27 July 1983
CourtCalifornia Court of Appeals Court of Appeals

Morgenstein, Ladd & Jubelirer, Lee Ann Huntington, Heller, Ehrman, White & McAuliffe, Robert A. Rosenfeld, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for plaintiff and appellant.

John B. Clausen, County Counsel Contra Costa County by Elizabeth B. Hearey, Deputy County Counsel, Martinez, for defendants and respondents.

RATTIGAN, Associate Justice.

The subject of this litigation is an ordinance which was initially enacted by the Board of Supervisors of defendant and respondent County of Contra Costa (County) prior to 1978. In its form as enacted, the ordinance prohibited door-to-door "soliciting" in the unincorporated area of the County between 7 p.m. and 8 a.m. Plaintiff and appellant Alternatives for California Women, Inc. (ACW), is a nonprofit California corporation which is organized and operated for charitable and political purposes. It distributes information about itself, and ACW commenced this action against respondents (the County and its sheriff) in 1978, seeking (1) injunctive relief against the enforcement of the ordinance on the ground that it was unconstitutional and (2) a declaratory judgment to that effect. The action was submitted on stipulated evidence received at a nonjury trial. The trial court entered a judgment in which it denied injunctive relief and declared in effect that the ordinance was constitutional.

solicits funds, in "door-to-door canvassing" by its representatives.

ACW appealed from the judgment. During the pendency of the appeal, and long after it had been fully briefed, the board of supervisors amended the ordinance to prohibit "soliciting" between "sunset and sunrise" instead of between 7 p.m. and 8 a.m. In proceedings to be described, this court took judicial notice of the ordinance as amended. The appeal was thereupon argued and submitted. We have concluded that the issue properly before us is the validity of the ordinance as amended, and that the ordinance as amended is unconstitutional. We therefore reverse the judgment initially entered and remand the cause to the trial court with appropriate directions.

THE PLEADINGS

ACW commenced the action by filing a verified "Complaint For Declaratory And Injunctive Relief." The defendants named in the complaint were the County; the sheriff; and "officers, agents, representatives, and employees of the County" sued as "DOES I through XX." In the first of two causes of action stated in separate counts, ACW alleged in pertinent part as follows:

"Plaintiff, ACW, is a non-profit California corporation formed to promote the social welfare by supporting issues and activities that provide residential, employment, therapeutic, legal and medical alternatives for battered women and their children."

"Plaintiff, ACW, has been and is presently trying to distribute information about its services and to solicit donations in ... [the] ... County. The most effective means of information distribution available to Plaintiff is door-to-door canvassing. This is because many potential beneficiaries of Plaintiff's services are bound [sic ] to their homes by force or fear and have no significant alternative means of receiving such information. Door-to-door canvassing is also ... [plaintiff's] ... most effective means of soliciting donations."

"ACW's distribution and solicitation activities are protected by the guarantee of freedom of speech provided by the ... United States Constitution and by the California Constitution ...." "Defendant ... [County] ... has enacted an ordinance, ... Ordinance Code § 56-4.408, which ... prohibits solicitation within the unincorporated area of the county except between the hours of 8 a.m. and 7 p.m." 1

On two occasions early in 1978, the County, "acting through its Board of Supervisors and on the advice of ... the county Sheriff," had denied requests by ACW that the ordinance be amended "to extend the permissible hours of solicitation to 9:00 p.m."

ACW further alleged: The ordinance, "both facially and as it has been applied to restrain Plaintiff from distribution and solicitation, is overbroad and is an unconstitutional restriction of Plaintiff's right to freedom of speech." The County's "interest in limiting permissible hours of solicitation is not sufficiently compelling to justify such restriction of Plaintiff's right to freedom of speech. Further, ... [the County's] ... means of protecting such interest is not the least restrictive means available. It is sufficient that solicitation be prohibited on premises with 'no-solicitation signs,' which In its second count, ACW incorporated the foregoing allegations by reference and added allegations to state a cause of action for a declaratory judgment to the effect that the ordinance was unconstitutional.

                is the present rule for the hours of 8 a.m. to 7 p.m."   ACW had no adequate remedy at law and would "suffer ... irreparable injury in that Defendants have enforced and will continue to enforce" the ordinance
                

In the prayer of the complaint, ACW requested preliminary and permanent injunctions restraining the enforcement of the ordinance; a declaratory judgment to the effect that the ordinance "is unconstitutional on its face and/or as applied to Plaintiff [ACW] insofar as it prohibits solicitation after 7 p.m."; and general relief.

Respondents filed an answer in which they admitted material facts alleged in the complaint, including the enactment of the ordinance and the refusal to amend it; denied that the ordinance, "as written or as enforced, violates plaintiffs' [sic ] right of freedom of speech"; and otherwise pleaded general denials.

THE TRIAL

The action was tried at a brief hearing conducted in 1979. Both sides offered "testimony" in the form of written exhibits, and other documents, all of which were received in evidence by stipulation. Some of the exhibits containing written "testimony" were in the form of questions and answers. Others were declaratory. The several documents received support the recitals which follow.

Evidence Introduced By ACW

Sue Stephenson testified that she is ACW's "Canvass Coordinator" and a member of its board of directors. She described the organization and its activities as follows: "ACW is a nonprofit corporation that raises money for political lobbying and funding programs and services for battered women. In addition to seeking contributions, we pass out resource cards to residents explaining local services in their communities. We also explain current legislation which affects battered women and request signatures on petitions for use in lobbying.... We are totally funded by contributions received by door-to-door canvassing."

Ms. Stephenson further testified that the number of ACW's canvassers "varies from 5 to 30." They were "most likely to find residents at home ... [i]n the evening after dinner from approximately 7:00 p.m. to 9:00 p.m." They had canvassed in the County between 7 and 9 p.m. "for about one month before we were aware of the 7:00 p.m. curfew." They stopped because "[w]e were told we would be arrested for violating the curfew." The canvassers were "very effective in finding residents at home" before they stopped, but thereafter "it was not practical to go door to door at all." The "only way to communicate with people ... is through direct contact" at their homes. ACW's canvassers could not reach residents during the day because "economically we could not function this way."

Daniel B. Lambert testified that he is ACW's "Administrative Coordinator." He "canvass[es] to raise money for the organization ... in all nine Bay Area counties." He had been "more successful in finding people at home" between 7 p.m. and 9 or 9:30 p.m. He had not been "successful ... in contacting residents during the morning and afternoon hours."

Respondents' Evidence

Richard Rainey, respondent sheriff, testified as follows: "It is my opinion as an expert in law enforcement ... that time restrictions on soliciting and peddling which limit these activities to the hours between 8:00 a.m. and 7:00 p.m. are useful, reasonable law enforcement measures. They protect citizens' rights to privacy in their homes during the nighttime and evenings and serve as a deterrent to violent crimes." The ordinance was "required because it is well known ... that many burglaries of homes and other crimes against citizens and their property are committed by persons allegedly going from door-to-door as peddlers or solicitors at night or in the morning....

.... The erection of 'No Peddling or Soliciting' signs by citizens would not be as effective a law enforcement device because many citizens [145 Cal.App.3d 443] do not erect signs. Furthermore, in the evenings these signs may not be visible. Often, signs are not obeyed."

Testimony by Captain Moore, a deputy sheriff, may be summarized as follows: The sheriff had "received numerous complaints from citizens in the unincorporated area [of the County] because they were being annoyed or frightened by solicitors, especially after 7:00 p.m." The ordinance "aids in preventing serious crimes" because "[i]t is common knowledge among law enforcement officers that there is a clear link between door-to-door solicitors and peddlers and violent crime ... at night and in the evening." The use of "No Soliciting or Peddling" signs had not been an "effective crime prevention device ... at night and in the evening."

Holly Patterson testified that she lives with her husband and children in a "single family home" in Lafayette. "I often have solicitors and peddlers come to my door during the hours after 7:00 p.m." Ms. Patterson...

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