Untitled California Attorney General Opinion ( 1994 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 94-206
of :
: June 6, 1994
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE JOHN VASCONCELLOS, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
May a city ordinance prohibit the placement of all vending machines on public
property located within the city?
CONCLUSION
A city ordinance may not prohibit the placement of all vending machines on public
property located within the city to the extent that such prohibition would include newsracks.
ANALYSIS
The subject of this opinion request is a proposed city ordinance banning all vending
machines1 on public property located within the city's boundaries. Vending machines on privately-
owned property would not be affected. We are advised that the proposed ordinance might have
1
Not being directed otherwise, we will adopt the definition of "vending machine" contained in
Business and Professions Code section 17571:
"``Vending machine' means any mechanical device the operation of which
depends upon the insertion of a coin or other thing representative of value in the
denomination of five cents ($0.05) or more and which dispenses or vends a product,
service, or exchange of equal value, other than telephone service furnished under
public utility tariffs. The term shall not be construed to include any equipment used
by a financial institution for the purpose of facilitating transactions, whether such
equipment is located on the premises of the financial institution or at a location
remote therefrom."
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several purposes, minimizing problems created by vending machines with respect to matters of
safety, esthetics, pedestrian movement, and the like.2 We conclude that such an ordinance would
not be sufficiently narrow in scope to pass constitutional muster.
The general authority of cities to adopt local ordinances is set forth in article XI,
section 7 of the Constitution:
"A county or city may make and enforce within its limits all local, police,
sanitary, and other ordinances and regulations not in conflict with general laws."
This constitutional authority, often referred to as the "police power," is subject only to the
limitations that it be exercised within territorial limits and be subordinate to state law. Apart from
these limitations, a city's police power is as broad as the police power exercisable by the Legislature
itself. (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal. 3d 878, 885;
Birkenfeld v. City of Berkeley (1976) 17 Cal. 3d 129, 140; 73 Ops.Cal.Atty.Gen. 28, 29-30 (1990);
73 Ops.Cal.Atty.Gen. 13, 13-14 (1990).)
Of course, the exercise of the police power by the Legislature or by cities and
counties is subject to the limitations imposed by the state and federal Constitutions. Among these
limitations is the requirement that where the legislation, whether statute or local ordinance, infringes
upon a protected liberty, it must be narrowly drawn and further a substantial governmental interest.
(Schad v. Mount Ephraim (1980) 452 U.S. 61, 68.) Here such an infringement would exist because
the scope of the proposed ordinance would preclude the placement of newsracks in areas where they
are traditionally present and serve as important means of conveying both commercial and
noncommercial speech protected by the First Amendment. (See City of Cincinnati v. Discovery
Network, Inc. (1993) 507 U.S. ____ [123 L. Ed. 2d 99, 113 S. Ct. 1505].)3 City sidewalks are
considered a forum for public communication where governmental authority to restrict speech is at
a minimum. As stated in Chicago Newspaper Publishers v. City of Wheaton (N.D. Ill. 1988) 697
F. Supp. 1464, 1466:
"It is beyond dispute that the First Amendment protects the right to distribute
newspapers in newsracks. [Citations.] The degree of protection provided by the
constitution depends ``on the character of the property at issue.' [Citation.] In this
case, the ``property at issue' is city streets in Wheaton, Illinois. The Supreme Court
has repeatedly recognized public streets ``as the archetype of a traditional public
forum.' [Citation.]
2
We note that "every person who owns a vending machine shall have his name and address
affixed thereto in a place where it may be seen by anyone using the machine," or "in the event that
a person owns more than one vending machine located at the same place, such a person may as an
alternative to the above, post a clearly readable sign containing his name and address in a
conspicuous location near the machines," and that "[a]ny person who violates [this requirement] is
guilty of a misdemeanor punishable by imprisonment in the county jail not to exceed six months,
or of a fine not to exceed one thousand dollars ($1,000), or by both, for each violation." (Bus. &
Prof. Code, §§ 17570, 17572.)
3
The degree of First Amendment protection is not diminished merely because the newspaper is
sold rather than given away. (Pittsburgh Press Co. v. Human Rel. Comm'n (1973) 413 U.S. 376,
385.)
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"In these traditional public fora, government's authority to restrict speech is
at its minimum. . . ."
Since the proposed ordinance would infringe on First Amendment rights associated
with the distribution of newspapers in public areas, the issues to be resolved are whether the
ordinance would be narrowly drawn and whether it would further a substantial government interest.
Taking the latter question first, we will assume that the ordinance would advance some legitimate
subject of government concern such as enhancing esthetics by reducing visual clutter or promoting
public safety by minimizing hazards and facilitating pedestrian movement. Each of these objectives
would, we assume, be furthered by an outright ban on vending machines. However, whether they
represent sufficiently substantial government interests will depend in part on the significance of the
problems actually posed by the vending machines in the particular community. "The cure of slight
inconveniences or annoyances will not justify the regulation." (Remer v. City of El Cajon (1975)
52 Cal. App. 3d 441, 443.) The city must show that the banned machines "pose real and certain
hazards to the well-being of its citizenry." (Id., at p. 444.)
The more critical question, though, is whether a total proscription against all vending
machines on public property would be too broad in its coverage to meet the constitutional standard.
Even in more narrowly drawn situations where the placement of vending machines on public
sidewalks was all that was proscribed, the courts have consistently found that the implementing
ordinance was too broad in scope. (See Remer v. City of El Cajon, supra, 52 Cal.App.3d at 444;
Chicago Newspaper Publishers v. City of Wheaton, supra, 697 F.Supp. at 1469-1470; Philadelphia
News., Inc. v. Borough C., etc., Swarthmore (E.D. Pa. 1974) 381 F. Supp. 228, 244; Passaic Daily
News v. Clifton (1985) 200 N.J.Super. 468 [491 A.2d 808, 811].) In the Philadelphia case, for
example, the court examined each of the evils thought to be attributable to newsracks on public
sidewalks and determined that none of them justified a broad-based proscription:
". . . [O]ur decision does not preclude the Borough from ``making reasonable
regulations relating to the use of vending devices on sidewalks in the exercise of its
police power.' In particular, if the feared evil is obstruction of the sidewalks that will
interfere with the public's rights to unhampered passage thereon, narrow regulations
as to the size and location of newspaper boxes could be formulated which would
certainly survive constitutional scrutiny. [Citation.] If the feared evil is traffic
congestion or illegal parking or stopping by motorists in order to purchase
newspapers, narrow regulations with respect to the location of newspaper boxes in
relation to the character of the roadway could also be formulated.
"If destruction or damage to municipal property because of chaining
newspaper boxes to traffic standards or other fixtures is feared, suitable prohibitions
could be enacted which would have only an incidental restrictive effect upon
distribution by means of newspaper boxes. Finally, aesthetic considerations could
justify the promulgation of reasonable regulations as to the size and appearance of
the boxes, and the type and format of permissible identification or advertising.
"Regulations of such character fall well within the permissible bounds of the
police power of a municipality. The fatal flaw in the ordinance and resolution as
applied to plaintiff is the unreasonably restrictive and hence impermissible means to
achieve permissible ends. As the Supreme Court noted in NAACP v. Alabama, 377
U.S. 288, 307, 84 S. Ct. 1302, 1314, 12 L. Ed. 2d 325 (1964), ``a governmental purpose
to control or prevent activities constitutionally subject to state regulation may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms.'" (381 F.Supp at 244; fns. omitted.)
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The same reasoning was succinctly stated by the court in Remer v. City of El Cajon, supra, 42
Cal. App. 3d 441:
". . . We concede the conjectural evils perceived by the city may warrant
action by its council, but we conclude the city's objectives must be achieved in a less
broadly restrictive fashion. The city might consider controlling the number, size,
construction, placement and appearance of the vending devices in order to achieve
its goals without unduly restricting the free dispersal of information. As it stands,
the blanket prohibition, without more, makes the ordinance overbroad and
unconstitutional on its face [citation]." (Id., at p. 444.)
Here, the proposed ordinance goes well beyond what is necessary to attack many of
the "conjectural evils" of vending machines. The same measures suggested in the Philadelphia and
Remer cases could be effectively employed instead of an outright ban on all vending machines on
public property. For example, in Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal. 3d
294, 303-306, the court upheld a city ordinance which prohibited placement of sidewalk newsracks
"within three feet of any area improved with lawn, flowers, shrubs or trees" or in a location that
"unreasonably interferes with or impedes the flow of pedestrian or vehicle traffic" and required that
such newsracks "be maintained in a clean, neat and attractive condition and in good repair at all
times." In contrast, the proposed ordinance in question would make no attempt to provide a tailored
approach in dealing with any characteristics of vending machines perceived to be undesirable.
Since it would not be narrowly drawn, the proposed ordinance would be
constitutionally invalid. In reaching this conclusion, we are aware that the proposal would not be
specifically directed at the distribution of newspapers. Such was also the case in the Philadelphia
case, where the court noted:
"The fact that the ordinance is not specifically directed at curtailment of
newspaper distribution is immaterial. The crucial fact from the standpoint of the
First and Fourteenth Amendments is that, as applied, the ordinance has the effect of
impermissibly restricting distribution of newspapers." (381 F.Supp. at 243, fn. 10,
citing Flower v. United States (1972) 407 U.S. 197.)
Of course, if the proposed ordinance banned only newsracks, it would similarly fail
the constitutional standard. After examining a number of prior decisions, the Supreme Court in
Kash Enterprises v. City of Los Angeles, supra, 19 Cal. 3d 294, concluded:
"Applying the general constitutional principles underlying the above line of
authority, numerous courts -- both in California and out-of-state --have in recent
years uniformly held that First Amendment protections are applicable to the public
distribution of newspapers and periodicals through newsracks and that, as a
consequence, municipalities lack constitutional authority to foreclose all use of such
newsracks on their streets and sidewalks. [Citations.]" (Id., at p. 302.)
As previously indicated, a city has the authority to address its legitimate concerns in
areas protected by the First Amendment. "The State may . . . enforce regulations of the time, place,
and manner of expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication." (Perry Ed.
Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45.)
Even a content-based regulation may be upheld in appropriate circumstances. In
Sebago, Inc. v. City of Alameda (1989) 211 Cal. App. 3d 1372, the court struck down a city's ban on
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the sale of adult materials in vending machines located in various areas of the city; however, the
court noted:
"This conclusion does not leave government helpless to protect minors from
unsupervised access to harmful pornography through newsracks; it just requires
careful drafting by legislators." (Id., at p. 1387.)
The language of Penal Code section 313.1, subdivision (c), was given by the court as an example
of "specific and narrow drafting." (Ibid.)
Similarly, in Sable Communications of California, Inc. v. Federal Communications
Commission, et al. (1989) 492 U.S. 115, the United States Supreme Court upheld Congress' ban on
"obscene" telephone calls but struck down the federal ban on "indecent" telephone calls. With
respect to the latter, the court observed:
"Sexual expression which is indecent but not obscene is protected by the First
Amendment . . . . The Government may, however, regulate the content of
constitutionally protected speech in order to promote a compelling interest if it
chooses the least restrictive means to further the articulated interest. We have
recognized that there is a compelling interest in protecting the physical and
psychological well-being of minors. This interest extends to shielding minors from
the influence of literature that is not obscene by adult standards. [Citations.] The
Government may serve this legitimate interest, but to withstand constitutional
scrutiny, ``it must do so by narrowly drawn regulations designed to serve those
interests without unnecessarily interfering with First Amendment freedoms.
[Citation.]' [Citation.] It is not enough to show that the Government's ends are
compelling; the means must be carefully tailored to achieve those ends.
"In Butler v. Michigan, 352 U.S. 380 (1957), a unanimous Court reversed a
conviction under a statute which made it an offense to make available to the general
public materials found to have a potentially harmful influence on minors. The Court
found the law to be insufficiently tailored since it denied adults their free speech
rights by allowing them to read only what was acceptable for children. As Justice
Frankfurter said in that case, ``[s]urely this is to burn the house to roast the pig.' Id.,
at 383. In our judgment, this case, like Butler, presents us with ``legislation not
reasonably restricted to the evil with which it is said to deal.' Ibid." (Id., at p. 126-
127.)
In answer to the question presented, therefore, we conclude that a city ordinance may
not prohibit vending machines on public property located within the city to the extent that such
prohibition includes newsracks.
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