HomeMy WebLinkAbout4. Door to Door Solicitation RegulationsKLEIN, THCIRPE & yEIKINS, LT L7.
/itt�rri�yrs t�rt� Lravv
20 N. Wacker Drive, Ste 1000
Chicago, Illinois 00000 -2903
T 312 984 6400 F 312 984 6444
DO 312 984 6425
jelevds[oktjlaw.com
MEMORANDUM
TO:
Dave Strahl
FROM:
Julie E. Lewis
DATE:
February 9, 2012
RE:
Solicitation Ordinance
15010 S. Ravinia Avenue, Ste ID
Orland Park, Illinois 60462 -5353
T 708 349 3888 F 708 3491506
wvvw.ktjlaw.com
RECOMMENDATIONS
Amend the registration requirements /provisions currently in the Village of Mount Prospect
Ordinance so that they will withstand a constitutional challenge. As they currently stand some of
the requirements would likely be struck down if challenged as a prior restraint on speech under
the First Amendment. ,See Section 11.2824 of the Village Code. This section provides the chief
of police with discretion regarding the approval of the applications of potential solicitors or
canvassers and courts have found that this is a prior restraint on speech. Courts have found this
to be a violation of the First Amendment and have determined that the ability of residents to post
"No Soliciting" signs protects residents from unwanted visitors, while requiring such registration
does nothing to abate the annoyance if a resident does not post the sign. Courts have also
determined that registration does not prevent crime if would -be criminals decide to utilize other
techniques — such as knocking on doors to ask for directions or posing as census takers or as
surveyors. (See below).
In Watchtotiver Bible and Tract ,Soc. of New York, Inc. v. Village of ,Stratton, 536 U.S. 150, 168
(2002), the U.S. Supreme Court struck down a permitting requirement for solicitors after it
determined that an ordinance "which provides for the posting of `No— Solicitation' signs ...,
coupled with the resident's unquestioned right to refuse to engage in conversation with
unwelcome visitors, provides ample protection for the unwilling listener." Citing Village of
,Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 639, 100 S.Ct. 826, 63 L.Ed.2d
73 (1980) ( "[T]he provision permitting homeowners to bar solicitors from their property by
posting [no- solicitation] signs ... suggest[s] the availability of less intrusive and more effective
measures to protect privacy. ") Requiring a permit does nothing to abate "[t]he annoyance caused
by an uninvited knock on the front door." Stratton, 536 U.S. at 168 -69. With regard to the
Village's stated purpose of crime prevention as a rationale for requiring solicitors to obtain
permits, the Court found that it "seems unlikely that the absence of a permit would preclude
criminals from knocking on doors and engaging in conversations not covered by the ordinance.
They might, for example, ask for directions or permission to use the telephone, or pose as
surveyors or census takers. Or they might register under a false name with impunity because the
ordinance contains no provision for verifying an applicant's identity or organizational
credentials." Watchtower Bible, 536 U.S. at 169.
281665 1 1
In New Jersey Environmental Federation v. Wayne Township, 310 F.Supp.2d 681, 699 (D.N.J.
2004), the Court determined that the Township's solicitation ordinance was unconstitutional
because the registration scheme it contained exempted certain canvassers from the permit
requirement based solely on the content of their speech, because it placed impermissible
restrictions on political, religious, charitable and non - profit canvassers who ask for donations as
part of their canvassing activities, and because Township officials discretion regarding potential
canvassers "good moral character" when applying for a permit was an impermissible prior
restraint on speech in that it allowed the Township unbridled discretion to deny or grant permits
at it sees fit. The Court noted that there was nothing that constrained the Township from denying
a license on any ground that it sees fit. Furthermore, the ordinance fails to provide any minimum
standards that must be met by groups applying for a license. Accordingly, the Court held that the
ordinance was an impermissible prior restraint on speech in that it allowed Township officials to
exercise unbridled discretion to deny or grant permits at it sees fit. New Jersey Environmental
Federation, 310 F.Supp.2d at 699.
Court considerations regarding time limitations
There is one Seventh Circuit Court of Appeals case that specifically addresses the issue of
limiting the times of day solicitation can occur within a municipality's limits. In City of Watseka
v. Illinois Public Action Council, 796 F.2d 1547 (7 Cir. 1986), the Court found no evidence of a
relationship between Watseka's prevention of crime objective and the 5 p.m. to 9 p.m. ban on
solicitation, and thus determined that the ordinance was not narrowly tailored to achieve
Watseka's legitimate interest in preventing crime. The Watseka ordinance was a comprehensive
attempt by the City to deal with the problems which the city perceived as arising from door -to-
door solicitation. In addition to forbidding all solicitation except between the hours of 9 a.m. and
5 p.m. on Monday through Saturday, the ordinance also required all solicitors to register with the
city clerk, who would issue Certificates of Registration. The ordinance also provided that
citizens could forbid solicitation at their residences by posting a sign.
First, the Court found that 5 p.m. was not synonymous with darkness year -round because in view
of daylight savings time, there were many hours of daylight remaining after 5 p.m. Second, the
Court found that the City failed to present any evidence of its own crime rate (or whether its
nighttime crime rate went down during the three years the ordinance was in effect). Finally,
Watseka failed to offer any evidence to substantiate its claim that the ordinance lessened the
burden on its police force which it claimed unregulated soliciting caused. Watseka, 796 F.2d at
1555 -56.
As the Village of Mount Prospect's time limitations take daylight savings time into account, it
would likely be viewed as a valid time, place and manner restriction.
IntroductionBasic Protections afforded solicitors and canvassers
Courts afford a high level of First Amendment protection to canvassers due to the
important role of canvassing in spreading ideas. See, e.g., Watchtower Bible v. Village of
,Stratton, 536 U.S. 150, 160 -62, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (discussing the history
of canvassing restrictions). In Watchtower Bible v. Village of ,Stratton, the offending ordinance
281665 1 2
prohibited "canvassers" and others from "going in and upon" private residential property for the
purpose of promoting any cause without first having obtained a permit from the office of the
mayor. There was no charge for the permit, and one is issued routinely after an applicant fills
out a fairly detailed "Solicitor's Registration Form." Id. at 154 -55. This protection applies even
if the canvassers solicit for funds. Village of ,Schaumburg v. Citizens for a Better Environment,
444 U.S. 620, 633, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) ( "[O]ur cases long have protected
speech even though it is in the form of ... a solicitation to pay or contribute money. "). But
canvassing is subject to reasonable governmental regulation. Pennsylvania Alliance for Jobs and
Energy v. Council of Munhall, 743 F.2d 182, 185, 187 (-1 Cir. 1984) (upholding "time of day"
restriction as precisely tailored to address interests of municipalities with "significant incidence
of burglary and home invasion "). While commercial speech, like other varieties, is protected by
First Amendment, some forms of commercial speech regulation are surely permissible. See
Virginia State Board of Pharmacy, et al. v. Virginia Citizens Consuruer Council, Inc., 425 U.S.
748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). In some instances, courts have found solicitation
and speech to be "so intertwined" that a prior permit could not be required. See Thomas v.
Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); see also Citizens for a Better
Environment v. City of Park Ridge, 567 F.2d 689 (7 Cir. 1975) (in the case of a nonprofit group
that expresses essentially political ideas, a city may not impose a blanket prohibition on
canvassing for funds). However, in Watchtower Bible v. Village of,Stratton, the Court states that
the ordinance adopted by the Village would have been upheld if it had been narrowly tailored to
apply only to commercial activities:
The text of the Village's ordinance prohibits "canvassers" from going on private
property for the purpose of explaining or promoting any "cause," unless they
receive a permit and the residents visited have not opted for a "no solicitation"
sign. Had this provision been construed to apply only to commercial activities and
the solicitation of funds, arguably the ordinance would have been tailored to the
Village's interest in protecting the privacy of its residents and preventing fraud.
Id. at 165.
For a time, place and manner restriction to be valid, it must meet three criteria: (1) the
restrictions must not make any reference to the content of the regulated speech; (2) the
restrictions must serve a significant government interest; and (3) the restrictions must leave open
ample alternative channels for communication of the information. Heffi°on v. International
Society for Krishna Consciousness, Inc., 452 U.S. 640, 647 -48, 101 S.Ct. 2559, 69 L.Ed.2d 298
(1981). Any regulations must be "precisely drawn to serve the interests they are designed to
further." Id. at 187. Thus, under Chicago Tribune Co. v. Village of Downers Grove, 155
ll1.App3d 265, 508 N.E.2d 439 (2" a Dist. 1987), while the ordinance must be narrowly tailored,
there must also be a reasonable relationship between the ordinance and the stated purpose. In
that case, the ordinance ran afoul of the Equal Protection Clause because it regulated only
"commercial" solicitors with the purpose of protecting Village residents from annoying
solicitors, while imposing virtually no restrictions upon charitable, religious or political
solicitation. As such, the court found that the ordinance drew a distinction that failed to advance
its stated purpose.
281665 1 3
The test set forth in Central Hudson v. Public ,Service Connin 447 U.S. 557, 100
S.Ct. 2343, 65 L.Ed.2d 341 (1980), to determine the validity of government restrictions on
commercial speech is as follows: "(1) The First Amendment protects commercial speech only if
that speech concerns lawful activity and is not misleading. A restriction on otherwise protected
commercial speech is valid only if it (2) seeks to implement a substantial governmental interest,
(3) directly advances that interest, and (4) reaches no farther than necessary to accomplish the
given objective. Id. at 563 -566.
Attempts to place permitting requirements on solicitors and canvassers have been struck
down by Courts
As a result of the significant burden that registration and permitting requirements place
on those canvassing, the Supreme Court has consistently struck down permitting systems that
apply to individual speakers — as opposed to large groups — in the one context in which they have
been put in place with some regularity: solicitation of private homes. See, e.g. Watchtower Bible
v. Village of ,Stratton, 536 U.S. 150, 166 -67, 122 S.Ct. 2080 (2002); Village of ,Schaumburg v.
Citizens for a Better Environment, 444 U.S. 620, 638 -39, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980)
(striking down a solicitation permit requirement); Cantwell v. ,State of Conn., 310 U.S. 296, 301,
306 -7, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (striking down a license requirement as applied to
Jehovah's Witnesses "going singly from house to house" for the purpose of religious
solicitation); ,Schneider v. ,State ofN.J., 308 U.S. 147, 163 -64, 60 S.Ct. 146, 84 L.Ed. 155 (1939)
(striking down a permitting scheme covering all forms of solicitation). Accordingly,
municipalities typically are only able to require large groups to register for permits through other
means, such as ordinances regulating parades.
The U.S. Supreme Court has recognized that the government interests asserted in these
door -to -door solicitation cases — the prevention of crime and fraud, and the protection of
residential privacy — are weighty. See, e.g., Watchtotirer Bible, 536 U.S. at 164 -65, 122 S.Ct.
2080. Nonetheless, it has repeatedly concluded that single - speaker permitting requirements are
not a constitutionally valid means of advancing those interests because, typically, (1) they sweep
too broadly, see, e.g., Village of ,Schawvburg, 444 U.,S. at 636 -37, 100 ,S.Ct. 826 (invalidating
registration requirement because, among other things, it applied to groups engaged in legitimate
activities as well as those who were not); Watchtotirer Bible, 536 U.S. at 165 -66, 122 S.Ct. 2080
(same), (2) they only marginally advance the government's asserted interests, see, e.g.,
Watchtotirer Bible, 536 U.,S. at 168 -69, 122 ,S.Ct. 2080 (noting that a permitting requirement is
"unlikely ... [to] preclude criminals from knocking on doors and engaging in conversations [with
homeowners]," and that "[t]he annoyance caused by an uninvited knock on the front door is the
same whether or not the visitor is armed with a permit "), and (3) the government's interests can
be achieved by less intrusive means, see id at 168 -69, 122 S.Ct. 2080 (noting that a
homeowner's privacy interests can be adequately protected by "No Solicitation" signs); see also
Village of ,Schaumburg 444 U.S. at 637, 100 S.Ct. 826 (asserting that "[f]raudulent
misrepresentations can be prohibited and the penal laws used to punish such conduct directly."
(Oting,Schneider, 308 U.S. at 164, 60 S.Ct. 146)).
281665 1 4
Although the Supreme Court has not addressed the validity of single - speaker permitting
requirements for speech in a public forum, it stands to reason that such requirements would be at
least as constitutionally suspect when applied to speech in a public park, where a speaker's First
Amendment protections are at their highest, than when applied to speech on a citizen's doorstep,
where substantial privacy interests exist. See Frisby v. ,Schultz, 487 U.S. 474, 483 -84, 108 S.Ct.
2495, 101 L.Ed.2d 420 (1988). Therefore, almost every Circuit Court of Appeals that has
considered the issue has refused to uphold registration requirements that apply to individual
speakers or small groups in a public forum. See, e.g., Santa Monica Food Not Bombs v. City of
Santa Monica, 450 F3d 1022, 1039 (9 Cir. 2006) ( "As the cautionary language in our earlier
opinions indicates, the significant governmental interest justifying the unusual step of requiring
citizens to inform the government in advance of expressive activity has always been understood
to arise only when large groups of people travel together on streets and sidewalks. "); see also
Cox v. City of Charleston, 416 F3d 281, 285 (4 Cir. 2005) ( "[U]nflinching application" of a
permitting requirement "to groups as small as two or three renders it constitutionally infirm. ");
Douglas v. Brotivnell, 88 F3d 1511, 1524 (8 Cir. 1996) ( "[A]pplying the permit requirement to
groups as small as ten persons compounds our conclusion that the parade permit ordinance is not
narrowly tailored [to advance the government's interest in protecting the safety and convenience
of users of public sidewalks and streets.] "); American Arab Anti Discrimination Committee v.
City of Dearborn, 418 F3d 600, 608 (6 Cir. 2005) (striking down a permit requirement as
"hopelessly overbroad" on the ground that the requirement could conceivably apply to groups as
small as "two or more persons ").
Even in instances where municipalities have required only commercial solicitors to
obtain permits, courts have struck down those ordinances as well. In Chicago Tribune Co. V.
Village of Dotivners Grove, 155 E1.App3d 265, 508 N.E.2d 439 (2" a Dist. 1987), the newspaper
brought a declaratory judgment action seeking to determine whether the Village's door -to -door
commercial solicitation ordinance violated federal and state constitutional guarantees. The
Appellate Court held that the ordinance created an unreasonable classification in violation of
equal protection provisions of the Federal and State Constitutions.
Licensing requirement
Municipalities have also attempted to regulate solicitors by requiring them to apply for a
license in order to be able to solicit in a particular municipality. Licensing requirements have
included passing a criminal background check after providing fingerprints and requiring them to
pay a fee and post a bond. See, e.g., Pacific Frontier Corp .v. Pleasant Grove City, 414 F3d
1221 (10 Cir. 2005). In Pacific Frontier Cotp., the Court held that threatened injury to the First
Amendment rights of individuals and entities engaged in selling vacuum cleaners through door -
to -door solicitations, who challenged validity of municipal ordinance establishing a solicitors
licensing procedure, outweighed any harm to the City from issuance of a preliminary injunction.
The Court determined that the City failed to show that the ordinance's bond or fingerprint
requirements materially advanced its interests, in that the City had never compensated a citizen
through a bond posted by solicitors and had no mechanism for doing so, thus making it unlikely
that City would suffer any harm from having to incur costs of tracking down a tortfeasing
solicitor. The Court also found that the ordinance contained other prophylactic measures, and
the City provided no evidence that fingerprinting solicitors operated as a cost - saving mechanism.
281665 1 5
Sterling Codifiers, Inc. Page 1 of 4
11.2819: SOLICITORS; REGISTRATION:
It shall be unlawful for any person to engage in the business of "soliciting" or canvassing, as defined in
Article I of this Chapter upon any premises within the corporate limits of the Village wherein an owner or
occupant has posted a small sign at the principal entrance inviting therein only solicitors who have
registered with the Police Department without such solicitor first registering with the Police Department in
the manner provided in this Article. (Ord. 3403, 3 -6 -1984; Ord. 3617, 3 -4 -1986)
11.2820: SOLICITING:
It is hereby declared to be the policy of the Village that the occupant or occupants of buildings in this
Village shall make the determination of whether solicitors or canvassers as defined in Article I of this
Chapter shall be, or shall not be, invited into their respective buildings. (Ord. 5007, 4 -6 -1999)
11.2829: NOTICE REGULATING SOLICITING:
Every owner or occupant desiring to restrict or prohibit solicitors or canvassers and to secure the
protection intended to be provided by the regulations pertaining to soliciting contained in this Article, shall
give notice of a restricted invitation to solicitors, or prohibition of solicitations, to any premises, by the
following means:
A. A weatherproof card, no larger than three inches by four inches (3 x 4) in size shall be exhibited upon
or near the main entrance door to the building, indicating the determination by the owner or an
occupant, containing the applicable words, as follows:
ONLY SOLICITORS REGISTERED
WITH THE MOUNT PROSPECT
POLICE DEPARTMENT INVITED
or
SOLICITATION PROHIBITED
B. The letters shall be at least one -third inch ( ") in height. For the purpose of uniformity the cards shall
be provided, at the Village's cost, by the Finance Director to persons requesting them.
C. The card shall constitute sufficient notice to any solicitor of the intention of the occupant with respect to
the information contained on the card. (Ord. 5007, 4 -6 -1999)
11.2822: DUTY OF SOLICITORS:
http: / /www. sterlingc odifters. com/co debooklgetBookData.php ?id =& chapter _ id =54506 &key... 2/8/2012
Sterling Codifiers, Inc.
Page 2 of 4
A. It shall be the duty of every solicitor when going onto any premises to first examine the notice provided
for in Section 11.2821 of this Article, and to be governed by the statement contained on the notice.
1. If the notice states "ONLY SOLICITORS REGISTERED WITH THE MOUNT PROSPECT POLICE
DEPARTMENT INVITED ", and the solicitor has not obtained a certificate of registration as provided
in this Article, the solicitor shall immediately, without further notice, leave the premises.
2. If the notice states "SOLICITATION PROHIBITED" or "NO SOLICITORS INVITED ", then the
solicitor, whether registered or not, shall immediately, without further notice, leave the premises.
B. Any solicitor who has gained entrance to any building, whether invited or not, shall immediately and
peacefully depart from the premises when requested to do so by the owner or occupant. (Ord. 5007, 4
-6 -1999)
11.2823: APPLICATION FOR REGISTRATION:
All applicants for registration to solicit or canvass upon premises within the village, wherein an owner or
occupant has posted a sign upon or near the principal entrance inviting therein only those solicitors who
have registered with the police department, shall execute an application blank at the office of the chief of
police, which applicant shall truthfully state the information requested on the application:
A. Name and address of present place of residence and length of residence at such address; also
business address if other than residence address;
B. Address of place of residence during the past three (3) years if other than present address;
C. Physical description of the applicant;
D. Name and address of the person by whom the applicant is employed or represents and the length of
time of such employment or representation;
E. Description sufficient for identification for the subject matter of the soliciting which the applicant will
engage in;
F. Period of time for which the certificate is applied for;
G. The date, or approximate date, of the latest previous registration application under this article, if any;
http: / /www. sterlingcodifiers. com/ codebook /getBookData.php ?id= &chapter_id =545 06 &key... 2/8/2012
Sterling Codifiers, Inc.
Page 3 of 4
H. If a certificate of registration for the applicant or the organization he represents under this article has
ever been denied or revoked, a statement to that effect and the reasons therefor;
I. If the applicant has ever been convicted of a violation of any of the provisions of this article or the
provisions of any other municipality regulating soliciting, a statement to that effect with particulars; and
J. If the applicant has ever been convicted of the commission of a felony under the laws of the state or
any other state or federal laws of the United States, a statement to that effect with particulars. (Ord.
3403, 3 -6 -1984; amd. Ord. 3617, 3 -4 -1986; Ord, 5007, 4 -6 -1999)
11.2824: INVESTIGATION AND ISSUANCE OF REGISTRATION CERTIFICATE:
A. Within seventy two (72) hours of the receipt of an application for registration, the chief of police shall
complete his investigation and shall issue a certificate of registration to each applicant found to be
qualified. The registration certificate shall state the expiration date thereof.
B. No certificate of registration shall be issued to any person who has been convicted of the commission
of a felony under the laws of the state or any other state or federal laws of the United States, within
five (5) years of the date of application; nor to any person who has been convicted of a violation of any
of the provisions of this article, nor to any person or organization whose certificate of registration
issued or applied for hereunder has previously been revoked or denied as herein provided.
C. No certificate of registration shall be issued to any person or organization whose application, upon
oath, contains false material information or statements.
D. The chief of police shall cause to be kept in his office an accurate record of every application received
and acted upon, together with all other information and data pertaining thereto, of all certificates of
registration issued under the provisions of this article, and of the denial of applications. Applications for
certificates shall be numbered in consecutive order as filed, and every certificate issued shall be
identified with the duplicate number of the application upon which it was issued. (Ord. 3403, 3 -6 -1984;
amd. Ord. 3617, 3 -4 -1986; Ord, 5007, 4 -6 -1999)
11.2825: LIMITATIONS ON SOLICITATION:
It is hereby declared to be unlawful and shall constitute a nuisance for any person whether registered
under this article or not, to go upon any premises and ring the doorbell upon or near any door of a
residence located thereon, or rap or knock upon any door, or create any sound in any other manner
calculated to attract the attention of the occupant of such residence, for the purpose of securing an
audience with the occupant thereof and engage in soliciting prior to nine o'clock (9:00) A.M. of any
weekday or Saturday, or after eight o'clock (8:00) P.M. on any weekday or Saturday during daylight -
saving time, or prior to nine o'clock (9:00) A.M. of any weekday or Saturday or after six o'clock (6:00) P.M.
of any weekday or Saturday during central standard time, or at any time on a Sunday or on a state or
http: / /www. sterlingeodifiers .comleodebooklgetB ookData.php ?id= &chapter _ id =545 06 &key... 2/8/2012
Sterling Codifiers, Inc.
Page 4 of 4
national holiday. (Ord. 3403, 3 -6 -1984; amd. Ord. 3617, 3 -4 -1986; Ord. 4911, 1 -20 -1998; Ord. 5007, 4 -6-
1999)
11.2826: REVOCATION OR DENIAL OF REGISTRATION:
A. Any certificate of registration issued hereunder shall be revoked by the chief of police if the holder of
the certificate is convicted of a violation of any of the provisions of this article, or has made a false
material statement in the application, or otherwise becomes disqualified for the issuance of a
certificate of registration under the terms of this article. Immediately upon such revocation, written
notice thereof shall be given by the chief of police to the holder of the certificate in person or by
certified U.S. mail addressed to his or her residence address set forth in the application.
B. Immediately upon the giving of such notice, the certificate of registration shall become null and void.
C. Any person or organization whose certificate of registration has been revoked as provided herein shall
be denied any subsequent certificate of registration. (Ord. 3403, 3 -6 -1984; amd. Ord. 3617, 3 -4 -1986;
Ord. 5007, 4 -6 -1999)
11.2827: PENALTY:
In addition to any other penalties described in this article, every person found guilty of a violation of any
provision of this article shall be punished by a fine as set forth in appendix A, division III of this code. (Ord.
5189, 5 -15 -2001)
http: / /www.sterlingcodifiers. corn /codebook/getBookData.php ?id= &chapter _ id =54506 &key... 2/8/2012