City of Eugene v. Miller

• Decision Date: 07 April 1994
• Citation: 318 Or. 480,871 P.2d 454
• Parties: CITY OF EUGENE, Petitioner on Review, v. David Henry MILLER, Respondent on Review. CC 91-50062, 91-50073; CA A75143 (control), CA A75145; SC S40396.
• Court: Oregon Supreme Court

Page 454

871 P.2d 454

318 Or. 480

CITY OF EUGENE, Petitioner on Review, v. David Henry MILLER, Respondent on Review.

CC 91-50062, 91-50073; CA A75143 (control), CA A75145; SC S40396.

Supreme Court of Oregon.

Argued and Submitted Oct. 29, 1993.

Decided April 7, 1994.

William F. Gary, Eugene, argued the cause and filed the petition for petitioner on review. With him on the petition was Ellen D. Adler of Harrang Long Watkinson Laird & Rubenstein, P.C., Eugene.

Rebecca R. Davis, Eugene, argued the cause and filed the responses for respondent on review.

Madelyn K. Wessel, Deputy City Atty., Portland, filed a brief for amicus curiae League of Oregon Cities.

Edmund J. Spinney, Eugene, filed a brief for amicus curiae American Civil Liberties Union.

Before CARSON, C.J., and PETERSON, ^* GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and GRABER, JJ.

GILLETTE, Justice.

In these consolidated cases, defendant was convicted of violating Eugene Code section 4.860(d), one of the sidewalk vending ordinances of the Eugene city code, ¹ by selling joke books on a city sidewalk. The Court of Appeals reversed the convictions, concluding that the Eugene sidewalk vending ordinance violated Article I, section 8, of the Oregon Constitution. ² City of Eugene v. Miller, 119 Or.App. 293, 851 P.2d 1142 (1993). Because we agree that the ordinance as applied to defendant's activities violated defendant's rights under Article I, section 8, we affirm the decision of the Court of Appeals, albeit on different grounds.

At all times relevant to these proceedings, the Eugene Code contained the following provisions related to sidewalk vending. ³ Eugene Code section 4.860 prohibited certain activities on streets and sidewalks. Subsection (d) of that section provided:

"Unless otherwise authorized by this code, no person shall:

" * * * * *

"(d) Set 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."

Eugene Code sections 3.336 to 3.342 established a scheme for the licensing of sidewalk vendors, thereby providing an exception to the prohibition in section 4.860(d). ⁴ Section 3.338 imposed certain requirements on licensed vendors. One of those requirements, set out in section 3.338(e), was that vendors "[s]ell only the food, beverages, flowers or balloons designated on the license." ⁵ The sale of any other kind of merchandise, including books, was not authorized. According to the city, the purpose of the sidewalk vending scheme was "to reduce congestion, ensure public safety, promote business development by fostering a carnival-like atmosphere, lessen unfair competition and minimize city liability by restricting unlicensed commercial sales transactions on public sidewalks."

On July 24, 1991, and again on August 13, 1991, defendant was cited for selling a joke book to a pedestrian on a sidewalk in Eugene in violation of Eugene Code section 4.860(d) (set out above). In the municipal court, and again on appeal in the district court, defendant argued that the limitation of licenses to vendors of food, beverages, flowers, and balloons violated various state and federal constitutional provisions, including the free speech guarantee of Article I, section 8, of the Oregon Constitution. ⁶ The municipal and district courts rejected defendant's constitutional claims and convicted him of both charges.

The Court of Appeals reversed the convictions. A five-member majority of that court concluded that the sidewalk vending ordinance violated Article I, section 8, because the ordinance was overbroad. City of Eugene v. Miller, supra, 119 Or.App. at 297-98, 851 P.2d 1142. The majority also concluded that the ordinance was invalid as a "content-based regulation," because "it regulates different exercises of the same commercial activity differently, on the basis of what is sold and communicated." Id. at 299, 851 P.2d 1142 (emphasis deleted). Three dissenting judges concluded that the ordinance did not violate Article I, section 8. Id. at 301-06 (Edmonds, J., dissenting). ⁷ We allowed the city's petition for review to address this important constitutional issue.

We first address a threshold issue regarding appellate jurisdiction. In the Court of Appeals, the city argued that the court did not have jurisdiction, because defendant could not attack the constitutionality of Eugene Code section 3.338(e) on appeal from his convictions for violating section 4.860(d). See ORS 221.360 (allowing appeal from district court to Court of Appeals in cases "involving the constitutionality of the * * * ordinance under which the conviction was obtained"). The Court of Appeals concluded that it had jurisdiction in these cases under ORS 221.360, because section 3.338(e) "is in pari materia with the ordinance under which [defendant] was convicted." City of Eugene v. Miller, supra, 119 Or.App. at 296, 851 P.2d 1142. At oral argument before this court, the city again raised its jurisdictional argument. For the reason stated in that court's opinion, we agree with the Court of Appeals that appellate jurisdiction is proper in these cases.

We turn to the central question in these cases--whether applying the prohibition in Eugene Code section 4.860(d) to defendant, while relieving certain other persons of the burden of that section under the terms of Eugene Code section 3.338(e), violates defendant's right to free speech guaranteed by Article I, section 8.

Defendant first contends that the Eugene ordinance is invalid as a regulation directed at the "content" of speech, because the ordinance "allows the selling of some objects but not others." Defendant also contends that the ordinance is unconstitutionally overbroad, because "the restriction based on the types of goods sold does nothing to further the stated purpose of the ordinance."

In response, the city argues that the ordinance does not violate Article I, section 8, because the ordinance "regulates commerce, not speech." That distinction is of questionable value, however, in view of this court's recognition that "[s]elling is a form of communicative behavior that includes speech" and that regulations on selling therefore implicate "speech." ⁸ City of Hillsboro v. Purcell, 306 Or. 547, 555, 761 P.2d 510 (1988).

The city attempts to distinguish Purcell by arguing that that case involved "solicitation" and that Eugene Code section 3.338(e) "does not presume to regulate solicitation." Contrary to the city's assertion, however, its ordinance does regulate solicitation ⁹ and, under prior decisions of this court, a law that regulates solicitation implicates Article I, section 8. See Moser v. Frohnmayer, 315 Or. 372, 845 P.2d 1284 (1993) (statute regulating use of automatic dialing and announcing devices to solicit purchase of real property, goods, or services held invalid under Article I, section 8); City of Hillsboro v. Purcell, supra, (ordinance criminalizing door-to-door solicitation held invalid under Article I, section 8).

Nevertheless, we need not decide whether applying to defendant the prohibition of Eugene Code section 4.860(d), as qualified by the exception in Eugene Code section 3.338(e), violates Article I, section 8, by impermissibly regulating "solicitation" or some other part of a sales transaction that might be characterized as "speech" subject to constitutional protection. Even assuming, arguendo, that the words of offer and acceptance in a sales transaction are not "speech" that is protected by Article I, section 8, we nonetheless conclude that the Eugene ordinance violates Article I, section 8, because, as applied to defendant, it unreasonably impinges on the dissemination of expressive material that is itself protected under Article I, section 8.

The city does not dispute that defendant's joke books are expressive material. The city also does not dispute that expressive material may be protected as speech under Article I, section 8. See City of Hillsboro v. Purcell, supra, 306 Or. at 555, 761 P.2d 510 ("[s]elling * * * may involve goods that are protected expression"); id. at 555 n. 6, 761 P.2d 510 ("licensing may implicate speech rights if applied to the sale or distribution of products, such as newspapers and magazines, involving expression"). Finally, the city does not dispute that, by expressly permitting the sale of food, beverages, flowers, and balloons only, the operative combination of sections 4.860(d) and 3.338(e) limits the dissemination of expressive material such as defendant's joke books. ¹⁰ The city's contention is that the limitation on the sale of expressive material is nonetheless valid, because "[e]xpressive material as a commodity, like any other commodity, is not exempt from content-neutral regulations." According to the city, "the analysis in this case is the same whether the commodity involved is joke books or furniture." In other words, the city contends that, so long as it does not distinguish among expressive material based on the material's content, it may regulate the sale of expressive material like any other commodity. For the reasons that follow, we disagree.

The city is correct to the extent that it is arguing that expressive material is not exempt from all "content-neutral" regulation. As this court stated in City of Portland v. Tidyman, 306 Or. 174, 182, 759 P.2d 242 (1988) "A grocery store gains no privilege against a zoning regulation by selling The National Enquirer and Globe at its check- counter. The same applies to 'adult businesses' that sell other merchandise besides books, pictures or records. Even structures and activities unquestionably devoted to constitutionally privileged purposes such as religion or free expression are not immune from regulations imposed for reasons other than...