City of Eugene v. Miller

• Decision Date: 24 August 1993
• Parties: CITY OF EUGENE, Respondent, v. David Henry MILLER, Appellant. 91-50062, 91-50073; CA A75143 (Control) and CA A75145. . *
• Court: Oregon Court of Appeals

Page 1142

851 P.2d 1142

119 Or.App. 293

CITY OF EUGENE, Respondent, v. David Henry MILLER, Appellant.

91-50062, 91-50073; CA A75143 (Control) and CA A75145.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted Dec. 21, 1992.

Resubmitted in banc Feb. 10, 1993.

Decided April 21, 1993.

Reconsideration Denied July 21, 1993.

Review Allowed Aug. 24, 1993.

Rebecca R. Davis, Eugene, argued the cause and filed the briefs for appellant.

Milo R. Mecham, Eugene, argued the cause for respondent. With him on the brief were William F. Gary, James E. Mountain and Harrang Long Watkinson Arnold & Laird, P.C., Eugene.

RICHARDSON, Chief Judge.

In these consolidated appeals, defendant seeks reversal of his convictions, pursuant to ORS 221.350, for violating section 4.860(d) of the Eugene Code by selling "joke books" on a city sidewalk. That code provision makes it an offense to

"[s]et up or operate a vehicle, stand or place for the display or sale of merchandise, or sell, vend, or display for sale an article in the streets or on the sidewalks or in doorways or stairways of business houses, or in any other place where such activity causes congregation and congestion of people or vehicles on the streets or sidewalks."

Section 3.338 of the code establishes a license requirement and licensing procedures for sidewalk vending but, under subsection (e), licenses can only be issued for the sale of "food, beverages, flowers or balloons." Defendant did not have a license and, apparently, had not applied for one. ¹ He contends that section 3.338(e) violates the equal protection, the equal privileges and immunities and the free speech provisions of the state and federal constitutions. He assigns error to the denial of his demurrer, his motion to dismiss and his motion for judgment of acquittal, through which he raised the constitutional arguments.

The city first contends that we lack jurisdiction because, under ORS 221.360, our review is limited to issues "involving the constitutionality of the * * * ordinance under which the conviction was obtained." Defendant was convicted under section 4.860(d), but his constitutional challenge focuses on section 3.338. Hence, the city maintains, defendant does not come within the jurisdictional limitation of ORS 221.360. That argument is analogous to one addressed in the concurring opinion in City of Portland v. Ayers, 93 Or.App. 731, 764 P.2d 556 (1988), rev. den., 308 Or. 79, 775 P.2d 322 (1989). There, the defendant was charged under a provision of the city code that essentially duplicated a second provision, except that the latter contained an exemption procedure for which the defendant was not facially ineligible and of which he had not availed himself. Responding to the proposition that the second provision and the possible availability of an exemption were irrelevant to the appeal from the conviction under the first provision, the concurrence stated:

"In my view, exactly the opposite conclusion follows. The proper approach is to read the provisions in pari materia. When they are so read, any overbreadth in section 14.24.160 is cured by the variance and exemption procedures that Title 18 establishes. Given the fact that their substantive regulations are materially identical, it is untenable to assume, as the dissent appears to do, that a person who seeks and obtains a variance under section 18.14.020 would or could be prosecuted under section 14.24.160." 93 Or.App. at 742, 764 P.2d 556.

Similarly, in this case, the licensing provision and the inculpating provision are inseparable. It is untenable to assume that the city would or could prosecute a person for carrying on an activity that it has licensed. Accordingly, defendant's challenge to section 3.338, in effect, involves the constitutionality of an ordinance that provides an exemption to prosecution. It is in pari materia with the ordinance under which he was convicted. We decline to interpret the jurisdictional limitation in ORS 221.360 as grudgingly as the city does, or as defeating our jurisdiction over this appeal.

The city also maintains, in support of its jurisdictional argument:

"Defendant has assumed that, without offering proof, he can challenge EC § 3.338 during an appeal of a conviction for violating EC § 4.860(d). The evidence offered by defendant, however, shows that the ordinances are not so linked that a challenge to EC § 4.860 is also a challenge to EC § 3.338. Eugene Code § 3.337 provides that EC § 3.338 is not the only method to obtain authorization to vend on City sidewalks. During the trial, defendant himself testified that he regularly sells his products on City sidewalks during the 'Saturday Market.' These sales are legally authorized by the City. Defendant has not come forward with any evidence that he has been denied a permit issued pursuant to EC § 3.338.4

That point, if correct, might have bearing on the substantive resolution of defendant's challenge to the ordinance and, interestingly the city does not repeat the point in its argument on the merits. However, the point does not change the fact that defendant does challenge the constitutionality of the ordinance. We have jurisdiction.

The city next argues that neither the demurrer nor the motion to dismiss were proper or effective procedural vehicles for raising the contentions that defendant makes. Whether that is correct we need not decide, because there is no such problem with the presentation of the constitutional issues through a motion for judgment of acquittal, and defendant made the same arguments below and here in connection with the ruling on that motion as well as the other rulings that he assigns as error. We turn to the merits.

Defendant relies on City of Hillsboro v. Purcell, 306 Or. 547, 761 P.2d 510 (1988), and contends that the limitation on the types of goods for which street vending may be licensed allows the criminal ordinance to be applied against protected expression. Therefore, he asserts, the ordinance is overbroad and violates Article I, section 8.

At issue in Purcell was the constitutionality of a city ordinance that forbade and criminalized door-to-door solicitation for the purpose of selling goods, wares or merchandise. The court held that the ordinance was overbroad under Article I, section 8. It explained:

"Although facially valid, the ordinance focuses on one type of entry--for the purpose of selling merchandise. Selling is a form of communicative behavior that includes speech and may involve goods that are protected expression. Because speech is implicated, we must examine the ordinance for overbreadth.

"The parties debate the activities the ordinance prohibits. The city argues that the ordinance prohibits only solicitation by commercial enterprises and exempts the same activities if carried out by community, religious, charitable or political entities. The minutes of the city council meeting at which the ordinance was adopted do not show any distinction or exception for solicitations for these purposes or for sales of books, magazines, or newspapers. Councillors were told, and the council's legislative 'findings' preceding the prohibitory language of the ordinance reflect, only that the ordinance was designed primarily to control fraud by unscrupulous and unethical solicitors.

"The ordinance is overbroad, not because it regulates solicitation for one purpose differently from another, but because it prohibits all solicitation for any purpose at any time. The ordinance as written is broad enough to preclude any person or group from approaching a door in a residential neighborhood to solicit financial support for any purpose through the sale of merchandise. This is far more than a regulation limited to and contained by the consequences the law seeks to prevent." 306 Or. at 555-56, 761 P.2d 510 (Footnotes omitted.)

We conclude that the same is true here.

For a number of reasons, we disagree with the dissent's and the city's attempts to distinguish Purcell. The overbreadth issue in Purcell and the one here are not rendered materially different by the fact that the Hillsboro ordinance prohibited all door-to-door solicitations, while the ordinance in this case allows the sidewalk sale of four types of merchandise. The critical fact is not that the Eugene ordinance allows some sales, but that it does not allow the sale of defendant's books. It therefore reaches protected expression in essentially the same way that the Hillsboro ordinance did. Like that ordinance, this legislation is not "contained by the consequences" that it seeks to prevent. The very fact that it allows some sales, while prohibiting defendant's, demonstrates that it reaches his expression, without applying the same prohibition to other sales that are equally offensive to the city's regulatory objective of assuring that the streets and sidewalks are available for their principal purposes.

The city and the dissent appear to posit that the city may regulate the sidewalk sales of different commodities differently, because the ordinance regulates effects of speech rather than speech itself. It is true, as a general proposition, that regulation of effects of speech is permissible under Article I, section 8. However, as both the majority and the specially concurring opinion in Moser v. Frohnmayer, 315 Or. 372, 845 P.2d 1284 (1993), make clear, legislative regulations of the effects of speech "must, expressly or by clear implication, identify a substantial harm that the law seeks to ameliorate," 315 Or. at 384, 845 P.2d 1284 (Graber, J., specially concurring), and "must proscribe those effects by * * * a law that identifies and focuses on those effects." 315 Or. at 379, 845 P.2d 1284.

It may be that the city's legislation identifies a harmful effect, but nothing in it addresses or implies why the sale of joke books gives rise to that effect in any way that the sale of balloons does not. Accordingly, the city's prohibition does not proscribe...