May v. People

• Decision Date: 21 September 1981
• Docket Number: No. 80,80
• Citation: 636 P.2d 672
• Parties: John Fount MAY, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent. SC 77.
• Court: Colorado Supreme Court

Page 672

636 P.2d 672

John Fount MAY, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 80 SC 77.

Supreme Court of Colorado, En Banc.

Sept. 21, 1981.

Charles T. Flett, Arvada, for petitioner.

Stuart A. VanMeveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Cristine A. Loucks, Deputy Dist. Atty., Fort Collins, for respondent.

DUBOFSKY, Justice.

The defendant, John Fount May, Jr., appeals his conviction in county court, affirmed by the district court, for aiding and abetting a juvenile ¹ in door-to-door sales solicitation in violation of several sections of the Fort Collins Code commonly described as the City's "Green River" ordinance (ordinance). ² Because we find that the ordinance violated by the defendant does not unconstitutionally restrict commercial speech, we affirm the defendant's conviction.

On December 3, 1977, a Fort Collins police officer issued the defendant a summons for violation of the ordinance. The defendant, an employee of Rocky Mountain Youth, had brought a group of juveniles from Denver to Fort Collins to sell on consignment candy manufactured in Sante Fe Springs, California. The defendant stipulated that his co-defendant, Kennon Burnett Robertson, ³ instructed the juveniles to go from door-to-door in a residential area of Fort Collins to make a sales pitch for the candy. Because the juveniles complied with Robertson's instructions, the stipulation admitted that the defendant would be guilty of complicity in an offense if the court were to find that the facts constituted a violation of the ordinance. The defendant called several witnesses in the county court proceedings to testify that the ordinance was not enforced against the Girl Scouts or the Camp-Fire Girls who sold cookies or candy door-to-door.

Section 73-32 of the Fort Collins Code provides:

"The practice of going in and upon private residences, streets, public buildings and offices in the City of Fort Collins, Colorado, by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of goods, wares and merchandise, services, books, pictures and periodicals, not having been requested or invited to do so by the owner or owners, occupant or occupants of said private residences, streets, public buildings or offices, for the purpose of soliciting orders for the sale of goods, wares and merchandise, services or books, pictures or periodicals, or for the purpose of disposing of or peddling or hawking the same, is hereby declared to be a nuisance and to be unlawful."

Section 73-33 of the Code provides:

"Any attempt to obtain an invitation to visit such private residences, public buildings and offices by personal solicitations or promise of any demonstrations, pecuniary benefit, advantage or any gift shall be deemed a violation of the terms and provisions of this Article." ⁴

Violation of this ordinance is an unclassified misdemeanor. On June 30, 1978, the county court denied the defendant's motion to dismiss and, on July 28, 1978, found the defendant guilty of violating the ordinance and fined him $100.00. The defendant appealed his conviction to the district court which, on January 28, 1980, ruled that the Fort Collins ordinance merely regulated the place and manner of certain sales activities. Because the ordinance did not completely prohibit sales, the district judge concluded that it was an appropriate constraint on direct solicitation sales, promoting valid governmental interests in protecting individual privacy and preserving the public peace, order and dignity. The district court affirmed the defendant's conviction.

On appeal to this Court, the defendant contends that the ordinance abridges the freedom of speech guaranteed by the First Amendment of the United States Constitution; that the ordinance is facially overbroad; that the ordinance prohibits legitimate business interests in violation of Colo. Const. Art. II, Sec. 3; ⁵ and that the ordinance conflicts with the Commerce Clause of the United States Constitution, art. I, sec. 8, because it prohibits the solicitation of orders for goods which have been shipped in interstate commerce; and that the discriminatory enforcement of the ordinance against the defendant-but not against others engaged in door-to-door solicitation-denied him equal protection of the laws. U.S.Const. amend. XIV. We disagree.

We conclude first that the ordinance, construed narrowly to apply only to commercial speech, ⁶ is a legitimate time, place and manner regulation of commercial speech. We find no evidence in the record to support the defendant's contention that the ordinance, as we construe it, is enforced in a manner to deny him equal protection of the laws. The ordinance does not prohibit legitimate business interests nor does it unconstitutionally interfere with interstate commerce.

I.

Although the defendant acknowledges that, as applied to his conduct in this case, the ordinance prohibits only purely commercial speech, he asks us to invalidate the ordinance on its face because it also authorizes Fort Collins to ban non-commercial door-to-door solicitation. Generally, a party has standing to question an ordinance only if he has suffered "injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions." Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). An exception to the Wimberly rule is recognized in First Amendment cases where the rules of standing are broadened to permit a party to assert the facial unconstitutionality of a statute which may chill the protected expression of third persons, even though the statute could be constitutionally applied to the party before the court. Marco Lounge, Inc. v. City of Federal Heights, Colo., 625 P.2d 982 (1981).

The United States Supreme Court has held that the First Amendment overbreadth doctrine may not be invoked to invalidate a statute which threatens to deter only commercial speech. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). However, the Bates rule does not prevent a litigant with a commercial interest in speech from challenging the facial validity of a statute on the grounds that it may substantially infringe the protected, non-commercial speech of others. Metromedia, Inc. v. City of San Diego, --- U.S. ----, 101 S.Ct. 2882, 69 L.Ed.2d 2882 (1981).

Overbreadth claims may be entertained where statutes purport to regulate the time, place, and manner of expressive or communicative conduct. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Grayned v. City of Rockford, 408 U.S 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), but facial overbreadth has rarely been found when a suitable limiting construction has been or could be placed on the challenged statute. Broadrick v. Oklahoma, supra; Marco Lounge, Inc. v. City of Federal Heights, supra. Where conduct and not merely speech is involved, the overbreadth of a statute must be both real and substantial. Broadrick v. Oklahoma, supra. If a statute is not substantially overbroad, "whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which it sanctions, assertedly, may not be applied." Id. 413 U.S. at 615-616, 93 S.Ct. at 2917, 37 L.Ed.2d at 842. Here we construe the ordinance to apply only to commercial speech, and thus, conclude that it is not substantially overbroad.

It has been recognized for more than forty years that door-to-door solicitation ordinances may not ban non-commercial speech. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). ⁷ Section 73-32 of the ordinance, most recently amended in 1965, is couched in terms which imply its application to purveyors of commercial goods: peddlers, hawkers, itinerant merchants and transient vendors. ⁸ That it is intended to apply only to commercial solicitation is confirmed by trial testimony elicited by the defendant that charitable organizations such as the Camp-Fire Girls and Girl Scouts sell or solicit orders for candy and cookies door-to-door unhindered in Fort Collins. Because the ordinance has not deterred and is unlikely to deter protected, non-commercial activities, whatever overbreadth may exist can be cured through case-by-case adjudication. The defendant's facial overbreadth claim is therefore dismissed for want of standing. See Parrack v. Town of Estes Park, Colo., 628 P.2d 1014 (1981); Williams v. City and County of Denver, Colo., 622 P.2d 542 (1981).

II.

Charitable solicitations in residential neighborhoods, on the street or door-to-door, involve a variety of speech interests-communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes-protected by the First Amendment. Schaumburg v. Citizens for a Better Environment, supra; Hynes v. Mayor of Oradell, supra; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Martin v. Struthers, supra; Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Schneider v. State, supra; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). However, it is settled that a municipality has the power to protect its citizens from crime and undue annoyance by regulating charitable soliciting and canvassing in accordance with a narrowly drawn ordinance that "does not vest in municipal officials the undefined power to determine what messages residents will hear." Hynes v. Mayor of Oradell, 425 U.S. at 617, 96 S.Ct. at 1759, 48 L.Ed.2d at 251.

Commercial solicitation in residential neighborhoods on the other hand has not received similar protection. The United States...