HomeMy WebLinkAboutAgenda Report - September 7, 1988 (87)C O U N C I L C O M M U N I C A T I O N
TO: THE CITY COUNCIL COUNCIL MEETING DATE
FROM: THE CITY MANAGER'S OFFICE SEPTEMBER 7, 1988
SUBJECT: LODI MUNICIPAL CODE § 10.44.040 (FOR SALE SIGNS ON VEHICLES)
PREPARED BY: City Attorney
BACKGROUND INFORMATION:
Attached is a copy of Judge Seibly's decision dated August 8, 1988 in
the matter of People v. Walton, Case No. 139671. In this ruling, the
Judge declares LMC § 10.20.070 (later amended and re -codified as LMC §
10.44.040) as it pertains to the parking of vehicles on a public
roadway for the "purpose of displaying such vehicle ... for safe..." to
be an unconstitutional regulation of commercial speech.
The Court relied heavily upon People v. Man (1978) 89 Cal. App. 3d
Supp. 1; 152 Cal . Rptr. 704 i n which an ordinance of the City of
Berkeley, remarkably similar to Lodi's ordinance, was likewise declared
to be an unconstitutional infringement upon freedom of speech. While
it is noted that People v. Moon was decided by an appellate panel of
the Alaineda County Superior Court, and thus has no binding
precedentia? value, and while I do not necessarily agree with the
reasoning in either People v. Moon or Judge Seibly's decision, I
believe it is indicative of the thinking of appellate courts, and would
be given some weight if the City chose to appeal.
It appears that the City has three options: First, to simply accept
Judge Seibly's ruling and take no further action, thereby allowing
"For Sale" signs to be placed in vehicles upon City streets. Second,
the Council may direct that a new ordinance be drafted, taking into
account the constitutional infirmities found by the Court. Third, vie
could appeal Judge Seibly's decision to the Appellate Division of San
Joaquin County Superior Court, as was done in People v. Moon.
If the first option is chosen by the Council, no further action would
be required. However, I have received a few phone calls from people
who were concerned that having an invalid ordinance and not putting
something in its place would result in a proliferation of "For Sale
signs all over town, creating an eyesore.
If the Council decides that it is more
appropriate to
attempt
to modify
our ordinance, it is possible that a "time, place and
manner"
ordinance
could be drawn, although I was unable
to locate any
case in
which an
ordinance such as this survived. This
means w have
no tried
and true
blueprint or model upon which to base a
new ordinance.
Council Communication
Page Two
If the decision is made to appeal Judge Seibly's ruling, it would
have to be done in the near future, since our time for notifying the
Court of our intent to appeal commenced to run on August 29, 1988 when
the City received a copy of the Judge's decision for the first time.
It does not appear likely, based on the somewhat inconclusive law now
available, that a appeal would be successful.
Council direction is requested.
Respectfully subm tted ,
bt-
Bob McNatt.
Ci ty Attorney
BM:vc
attachment
VEHICLES.ALE/TXTA.OIV
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City Attorr:ey's Office
MUNICIPAL COURT OF CALIFORNIA, COUNTY OF SAN JOAQUIN
LODI JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff(s)
:LODI MUNICIPAL CODE SECTION 10-20-070
GENE G. ivALTON
vs
Defendant(s)
)
Case No. _13967j
3 D
E
C
I
S
I
O N
)
for sale
-- the
Defendant
however has argued that Ordinance 1381,
Lodi Municipal
Code,
}
The Court has studied the briefs of the
parties,
the cited
cases
The Defendant has previously appeared befcre the
Court,
admitted
that the automobile in question was his
and that
it was
parked at;
its location with intent to display it
for sale
-- the
Defendant
however has argued that Ordinance 1381,
Lodi Municipal
Code,
Section 10-20-070 be declared unconstitutional.
The Court has studied the briefs of the
parties,
the cited
cases
1
2
3
4
5
6
7
W71
GENE A. WATAON
179571
PACE
itutional by the Alameda Superior Court, Aopeilate De?artment in
Monle vs Noon, (1978) 89CA3J Supp.1,152 Cal. Rptr.704, under whicr
DrAinance an owner. was not prohibited from advertising a vehicle on
the public street lo nq as "the advertising was not the primary
nurpose for which the Vehicle wa's n5rhe,' .there."
Mile there is no question that the aesthetics and traffic manage-
nent are two significant Yuni6inal interests of the City of Lodi ---
Jarring all vehicles upon which there are ''For Sale" "signs is a
-peat cleaver approach where a knife is recruired. It isover7- broal
in banning even those "For Sale" signs which are in no way: h threat
to Municinal charm nor a danger to the free and nroPer f low,',of
traffic.
rhe only question before this Court is the constitutionality of
this ordinance. This holding ismot that any ordinance regulating
the sale of Vehicles on city streets or private nroperty is per se
unconstitutional. Numerous constitutional ord.inances exist or may
be drawn.
rhis citation is dismissed.
August 1988
--AMSEIBLY, JLn
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W71
GENE A. WATAON
179571
PACE
itutional by the Alameda Superior Court, Aopeilate De?artment in
Monle vs Noon, (1978) 89CA3J Supp.1,152 Cal. Rptr.704, under whicr
DrAinance an owner. was not prohibited from advertising a vehicle on
the public street lo nq as "the advertising was not the primary
nurpose for which the Vehicle wa's n5rhe,' .there."
Mile there is no question that the aesthetics and traffic manage-
nent are two significant Yuni6inal interests of the City of Lodi ---
Jarring all vehicles upon which there are ''For Sale" "signs is a
-peat cleaver approach where a knife is recruired. It isover7- broal
in banning even those "For Sale" signs which are in no way: h threat
to Municinal charm nor a danger to the free and nroPer f low,',of
traffic.
rhe only question before this Court is the constitutionality of
this ordinance. This holding ismot that any ordinance regulating
the sale of Vehicles on city streets or private nroperty is per se
unconstitutional. Numerous constitutional ord.inances exist or may
be drawn.
rhis citation is dismissed.
August 1988
--AMSEIBLY, JLn