VAN NUYS PUBLISHING COMPANY v. CITY OF THOUSAND OAKS

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Court of Appeal, Second District, Division 2, California.

The VAN NUYS PUBLISHING COMPANY, Incorporated, etc., Plaintiff and Appellant, v. The CITY OF THOUSAND OAKS, etc., Defendant and Respondent.

Civ. 35846.

Decided: January 08, 1971

Willard R. Pool, Garden Grove, for plaintiff and appellant. Hathaway, Clabaugh & Perrett by E. E. Clabaugh, Jr., Ventura, for defendant and respondent.

Plaintiff and appellant, Van Nuys Publishing Co., Inc. (hereinafter referred to as Publisher) sought to enjoin the City of Thousand Oaks (hereinafter referred to as the City) from enforcement of one of its ordinances on the grounds that the ordinance unconstitutionally abridged freedom of speech and press. The trial court found the ordinance to be ‘constitutional in general and as applied to plaintiff,’ and denied the injunction. Publisher appeals.

Publisher's newspaper ‘The Valley News and Green Sheet,’ is a newspaper of general circulation which contains local news and advertising as well as general information covering social, economic and religious subject matters. It is distributed in parts of Los Angeles and Ventura County.

Publisher's circulation in 1966 in the City of Thousand Oaks was 3500. Some of Publisher's papers were distributed free and some were distributed by way of subscription contracts. Publisher's circulation in Thousand Oaks was ‘controlled’ in that Publisher knew where every copy was distributed. Finally, both non-subscription and subscription home deliveries were made by newsboys between the ages of eleven and fifteen.

In July 1966, City enacted Ordinance No. 98, to become effective on or about the 18th of August 1966.

Section 4 of the Ordinance reads as follows:1

‘No person may throw, cast, distribute, scatter, deposit, pass out, give away, circulate or deliver any handbill, dodger, circular, newspaper, paper, booklet, poster, other printed matter or advertising literature of any kind in the yard or grounds of any house, building structure, on any porch, doorstep or vestibule, in any public hallway, or upon any vacant lot or other private property without having first obtained permission of the owner or of an adult resident or occupant thereof.’ Violation of this ordinance is made a misdemeanor.

Section 1 of Ordinance No. 98 serves as the City's preamble for the ordinance and declares that ‘The City Council of the City of Thousand Oaks finds and determines that entire communities within the City and a considerable number of citizens are adversely affected by persons, without consent, throwing, casting, distributing, scattering and depositing handbills, dodgers, circulars, newspapers, booklets, posters, printed matter and advertising literature upon public and private property. These acts are declared to constitute a public nuisance.’

On August 12, 1966, the Superior Court for the County of Ventura issued a preliminary injunction enjoining the enforcement of the ordinance against Publisher.

On November 7, 1967, the superior court rendered judgment in favor of Publisher and permanently enjoined City from enforcing Ordinance No. 98 against Publisher. Thereafter, City moved for a new trial. The court reopened the case on May 17, 1968, in lieu of granting a new trial. Finally, on March 14, 1969, the court reversed its previous position and ordered judgment for City, resting its decision on the authority of Di Lorenzo v. City of Pacific Grove, 260 Cal.App.2d 68, 67 Cal.Rptr. 3.

Publisher's attack on the City's ordinance raises two critical issues. First, Publisher argues that the section in question is not within the constitutionally permissible range of legislative regulation and impinges on Publisher's guaranteed rights of free speech and free press.

Second, ostensible distinctions between the language of the Di Lorenzo ordinance and the City's ordinance require consideration of whether City's ordinance is too broadly constructed and includes within its scope, activities which cannot constitutionally be regulated. For reasons hereinafter noted we conclude that the stated purpose of Ordinance No. 98 is both legitimate and substantial and is not ‘pursued by means that broadly stifle fundamental personal liberties.’ (Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231.)

The reported opinions of the appellate courts throughout this country contain a chronicle of numerous and colorful conflicts between municipal authorities and persons who contended that legislative enactments of the municipalities impinged upon their various constitutional freedoms.

We are called upon to examine once again the question of whether the actions of a municipal legislative body in seeking to protect its constituency against conduct which is apparently offensive to a majority has overstepped constitutional boundaries.

We agree with the trial judge in the instant case that the result reached in Di Lorenzo, supra, and the rationale supporting it are dispositive of the issue of municipal regulation of Publisher's activities.

The express purpose of Section 4 of the ordinance is to alleviate acts which were determined by City to constitute a public nuisance to ‘communities within the City and a considerable number of citizens * * *’

In Di Lorenzo v. City of Pacific Grove, supra, (where a similarly worded ordinance was held not violative of any constitutional provision) the City of Pacific Grove indicated its reason for enacting the ordinance was the need to prevent newspapers and advertising material from collecting on residential property. The ordinance's specific purpose was to protect residents who are unaware that such material was going to be thrown on their property and who are unable to make proper provisions for the stopping of such deliveries. The City of Pacific Grove determined that such an ordinance was a reasonable regulation necessary to prevent burglaries which directly resulted from the notice of the absence of the owner provided to criminals by the accumulation of uncollected newspapers. In other words, the City of Pacific Grove sought to prevent burglaries and the City of Thousand Oaks seeks to prevent litter.

It is clear that while each city selected a different goal to be achieved by its ordinance, enforcement of either ordinance serves both goals and either stated objective is a proper matter for the exercise of the municipal police power.

On the other hand, if an ordinance is constitutionally defective the stated purpose of the City Council, however praiseworthy, would not save it.

The crucial issue before this court is whether Ordinance No. 98 wrongfully prohibits activity which enjoys a preferred status under both the United States and California Constitutions. The Supreme Court ‘has characterized the freedom of speech and that of the press as fundamental personal rights and liberties.’ (Schneider v. Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155.) (See also De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138.)

The court in Schneider, supra, 308 U.S. at 161, 60 S.Ct. at 151, underscored the importance of preventing the restriction of enjoyment of these liberties. The court therein set out the following constitutional admonition concerning legislative regulation of speech or the press: ‘In every case * * * where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.’ (See also Martin v. Struthers, 319 U.S. 141, 144, 63 S.Ct. 862, 87 L.Ed. 1313.)

Although freedom of speech and press are preferred rights which enjoy special constitutional protection, such protection will not deter reasonable and necessary regulation of such activities when it is shown that the purpose and effect of the regulation substantially outweighs the impingement on the exercise of these freedoms. (See Wollam v. City of Palm Springs, 59 Cal.2d 276, 285, 29 Cal.Rptr. 1, 379 P.2d 481.)

Publisher correctly notes that its right to distribute and the homeowner's right to receive Publisher's papers are firmly embraced by the constitutional protection of speech and press and therefore Publisher's activities are deserving of the same protection afforded ‘pure speech.’ (Martin, supra, 319 U.S. at 143, 63 S.Ct. 862.) Accordingly, Publisher contends that the Section 4 requirement of obtaining advance approval from the householder for the distribution of its newspapers directly abridges its right to free speech and press in that the ordinance is an over-reaching and onerous requirement which would in effect make it impossible for it to distribute its product.

It contends that the cost of third class mail is prohibitive and that the ordinance in effect requires that prior to every delivery the newsboy would have to request permission to deliver the paper. This latter contention is predicated on the fact that the ordinance does not state that once approval by the householder is given, it is good until revoked.

An enactment of a legislative body carries with it a presumption of constitutionality. (See Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 496, 20 Cal.Rptr. 621, 370 P.2d 325; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 626, 91 P.2d 577.) In applying that presumption the courts are obliged to give to the legislation an interpretation which is reasonable and which will if possible support the constitutional presumption. (In re Cregler, 56 Cal.2d 308, 310, 14 Cal.Rptr. 289, 363 P.2d 305; Warner v. Kenny, 27 Cal.2d 627, 629, 165 P.2d 889.) It seems apparent to us that once having obtained an approval from a householder, the Publisher would not be required to obtain that approval on each and every delivery. We do not accept the Publisher's unreasonable interpretation of the ordinance.

The Publisher suggests also that the City could achieve its objective by placing the burden on the homeowner to notify the paper to stop distribution rather than unreasonably burdening the Publisher with seeking prior consent.

The trial court, however, found that in occasional cases residents of the City have requested that the unsolicited distribution of Publisher's newspaper be discontinued and that although in some instances distribution may be discontinued, subsequently and without request, the newspaper was again distributed in spite of the resident's request that Publisher discontinue the distribution. Publisher's suggested alternative then has apparently been tried and found unsatisfactory

Beyond that, however, if the device adopted by the City to control the problem is constitutionally permissible it will not be rejected by the courts simply because there is an equally effective alternative available.

The City Council is entrusted by the citizens with the power to deal with the myriad of problems which arise in the municipality. The determination of the Council as to how to deal with these problems should not be interfered with by the court unless it is clearly and patently unconstitutional.

It is difficult to accept Publisher's contention that the impact of this ordinance will have such a devastating effect upon its ability to disseminate the newspaper when it admits in the pleadings that it already distributes some of the newspapers on subscription contract in the area.

Prior cases which have dealt with this general problem area contain a discernible common theme. In Di Lorenzo, 260 Cal.App.2d at page 74, 67 Cal.Rptr. at page 7, the court said: ‘In determining First Amendment rights a distinction is to be made between communications transmitted to willing recipients and messages forced upon those who do not wish to receive them. Martin v. Struthers, supra, 319 U.S. pp. 146–147, 63 S.Ct. [862] 865, comments upon the right to transmit information as follows: ‘Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.’' (Emphasis added.)

Kovacs v. Cooper, 336 U.S. 77, 87, 69 S.Ct. 448, 454, 93 L.Ed. 513, makes the same distinction thusly: ‘The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention.’ (Emphasis added.)

In Buxbom v. City of Riverside, 29 F. Supp. 3, pp. 6–7, the court said: ‘Freedom of the press is a part of that freedom of expression which includes free speech. The right to speak freely does not imply the right to force one's speech on another's private premises. * * * no constitutional principle gives one the right to stand on my front lawn and deliver a speech to whomever may listen. * * * In like manner, the right to distribute literature and pamphlets does not imply the right to ‘force’ acceptance by placing them on another person's premises without his permission. * * * Nor is any constitutional norm violated when he who would spread literature or advertising on private premises is compelled to obtain the owner's consent. A man's home is still his castle.'

In Schneider, supra, the United States Supreme Court struck down an ordinance of the City of Los Angeles which was designed to prevent litter. That ordinance prohibited the distribution of handbills and circulars on the public streets.

In holding that the purpose to keep the streets clean is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it, the court noted however that the municipality was not deprived of all power to prevent littering, stating: ‘There are obvious methods of preventing littering. * * * [such as] punishment of those who actually throw papers on the streets.’ (308 U.S. page 162, 60 S.Ct. page 151.)

It is our opinion that the ordinance in question here is expressly mindful of the protection envisioned in Martin and Schneider, supra. The requirement that Publisher obtain the consent of a homeowner prior to the delivery of Publisher's paper protects the homeowner's right to receive welcome information or refuse undesirable litter without unreasonably abridging Publisher's right to write, print and distribute its thoughts and information. All the ordinance requires is that before casting the free copies of the newspaper onto the property, Publisher make contact with the householder and determine that he is a person who is willing or desires to receive it. Such contacts appear to represent no greater inconvenience than Publisher now ‘suffers' in seeking paid subscriptions for the same newspaper.

Finally, we would distinguish cases such as Martin, supra, wherein the court struck down an ordinance which forbade activities such as knocking on doors and ringing doorbells, for the purpose of distributing handbills.

Ordinance No. 98, unlike the Martin and Schneider ordinances, does not substitute the judgment of the community for the individual as to what speech or literature is to be digested. No license is required from the municipal authorities and the City does not undertake to pass judgment on who may distribute or what kind of literature may be distributed within the City.

As noted, the language of the Di Lorenzo ordinance differs slightly from Ordinance No. 98. Whereas the regulation in Di Lorenzo, supra, 260 Cal.App.2d at p. 70, 67 Cal.Rptr. at p. 4, prohibits ‘any person * * * to throw into, leave upon, or scatter onto any residential property * * *’ newspapers, handbills, etc. without prior consent, Ordinance No. 98 denies any person the right to ‘* * * throw, cast, distribute, scatter, deposit, pass out, give away, circulate, or deliver * * *’ newspapers, handbills, etc. without prior consent. It may be argued that, even if Publisher's activities here may be constitutionally regulated, this ordinance is overly broad in that it appears to prohibit other types of protected activity.

The Supreme Court has held that ‘* * * even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly acchieved.’ (Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231; Wollam, supra, 59 Cal.2d at p. 288, 29 Cal.Rptr. 1, 379 P.2d 481.) However, no such conflict is presented in the instant case. City's ordinance appears to be reasonably and narrowly drawn in that Publisher is permitted to solicit consent from the householder and thereon distribute the newspaper to any householder who will accept it. Such words as ‘distribute,’ ‘pass out,’ or ‘circulate’ may in a different context connote activities readily distinguishable from those activities described by ‘throw,’ ‘cast,’ ‘scatter,’ or ‘deposit.’ Certainly it is possible to ‘distribute,’ ‘pass out,’ or ‘circulate’ material without littering. Thus, Ordinance No. 98 if so interpreted could become an unconstitutional regulation of protected activity. Such an interpretation, however, does violence to logic and the clear intention of the ordinance's language.

‘It is elementary that, if possible, statutes will be so construed as to avoid absurd applications and to uphold their validity. [Citation.] A statute ‘will not be given an interpretation in conflict with its clear purpose, and * * * general words used therein will be given a restricted meaning when reason and justice require it, rather than a literal meaning which would lead to an unjust and absurd consequence.’' (In re Cregler, supra, 56 Cal.2d at 312, 14 Cal.Rptr. at 291, 363 P.2d at 307, citing from People v. Kelley, 27 Cal.App.2d Supp. 771, 774, 70 Cal.Rptr. 276; People v. Grubb, 63 Cal.2d 614, 620, 47 Cal.Rptr. 772, 408 P.2d 100.) ‘Where a statute contains a reasonably adequate disclosure of the legislative intent regarding an evil to be combatted in language giving fair notice of the practices to be avoided, a court will be slow to say that such a statute is too indefinite to be enforced. The complexities of the social problems dealt with by the [city council] require that a practical construction be given to the language employed by the draftsmen * * * lest their purposes be too easily nullified by over-refined inquiries into the meanings of words.’ (People v. Deibert, 117 Cal.App.2d 410, 418, 256 P.2d 355, 360.)

The purpose of Ordinance No. 98 is clearly set out in its preamble and its legislative history had been clearly chronicled. The language of Ordinance No. 98 which gave Publisher fair warning of the practices which were to be avoided, must be interpreted in light of City's avowed purpose of preventing unsolicited litter. ‘The terms of the [ordinance] gain content and definition by reference to this purpose.’ (People v. Grubb, supra, at 620, 47 Cal.Rptr. at 105, 408 P.2d at 777.) City's ordinance does not suffer from over-breadth. (People v. McCaughan, 49 Cal.2d 409, 414, 317 P.2d 974.)

As we interpret the ordinance, it could not be applied to prohibit the depositing of newspapers, political or religious literature or other protected material in mail slots or similar types of receptacles in a manner which assures that the littering which the ordinance seeks to prevent, will not occur.

Our duty in this matter is not to pass upon the wisdom or desirability of the ordinance which the City has enacted. We must confine our attention to the question of whether or not the legislative body for the City has the constitutional power to do what it has done.

We conclude that City has the power to and does through its ordinance constitutionally regulate activities deemed by it to be a public nuisance.

From a consideration of the purpose, effect and circumstances surrounding the application of the ordinance to Publisher, we conclude as the court did in Di Lorenzo, supra, 260 Cal.App.2d at p. 74, 67 Cal.Rptr. at p. 7, ‘[T]hat the ordinance in question has no First Amendment or other constitutional taint.’

The judgment is affirmed.

FOOTNOTES

1.  Although Publisher's complaint attacked the constitutionality of the entire ordinance, this appeal is directed solely to Section 4 of Ordinance No. 98.

COMPTON, Associate Justice.

HERNDON, Acting P. J., and FLEMING, J., concur.