2009, 08-11 Regular Meeting MinutesMayor Munson called the meeting to order at 6:00 p.m. and welcomed everyone to the 165th meeting.
Attendance:
Rich Munson, Mayor
Dick Denenny, Deputy Mayor
Rose Dempsey, Councilmember
Bill Gothmann, Councilmember
Ian Robertson, Councilmember
Gary Schimmels, Councilmember
Diana Wilhite, Councilmember
MINUTES
City of Spokane Valley
City Council Regular Meeting
Tuesday, August 11, 2009
City Staff.
Dave Mercier, City Manager
Mike Jackson, Deputy City Manager
Mike Connelly, City Attorney
Cary Driskell, Deputy City Attorney
Ken Thompson, Finance Director
Kathy McClung, Community Development Dir.
Neil Kersten, Public Works Director
Greg McCormick, Planning Manager
Mike Stone, Parks & Recreation Director
Rick VanLeuven, Police Chief
Morgan Koudelka, Sr. Administrative Analyst
John Whitehead, Human Resources Manager
Karen Kendall, Assistant Planner
Carolbelle Branch, Public Information Officer
Bill Miller, IT Specialist
Chris Bainbridge, City Clerk
INVOCATION: Pastor Darrell Cole of Spokane Valley Wesleyan Church gave the invocation.
PLEDGE OF ALLEGIANCE: Councilmember Robertson led the Pledge of Allegiance.
ROLL CALL: City Clerk Bainbridge called the roll; all Councilmembers were present.
APPROVAL OF AGENDA: It was moved by Councilmember Wilhite, seconded and unanimously
agreed to approve the agenda.
INTRODUCTION OF SPECIAL GUESTS AND PRESENTATIONS: n/a
COMMITTEE, BOARD, LIAISON SUMMARY REPORTS:
Councilmember Schimmels: said he attended last week's Solid Waste Liaison Board meeting where they
had a presentation on the audit in process, which he said is complete except for some fine- tuning.
Councilmember Wilhite: reported that she attended the United Way Board meeting; attended several
National Night Out parties and said she was pleased with the community's turnout and with the turnout of
police force members; said she attended the Spokane Valley Chamber's Government Affairs meeting
where Mr. Mercier gave a presentation on the City's finances; and attended two meetings of the Spokane
Regional Transportation Council, one concerning the state audit, and one regarding the committee's
structure.
Councilmember Gothmann: said he attended one of the National Night Out celebrations.
Councilmember Dempsey: reported that she attended her first briefing at a Solid Waste meeting; attended
a few of the National Night Out parties; and said the Clean Air Agency is completing the new boundaries
for no -burn areas.
Council Regular Meeting: 8 -11 -2009 Page 1 of 7
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Deputy Mayor Denenny: explained that he attended a National Night Out gathering; met with Mayor
Verner, Bruce Rawls, Dale Arnold and others from the City of Spokane and Spokane County Sewer
Department and said he felt there was a sense of regional cooperation during that meeting.
Councilmember Robertson: although he has not yet been appointed to any committees, he explained that
he spent about twenty hours reading various materials trying to catch up.
MAYOR'S REPORT: Mayor Munson reported that he attended the Governor's Affairs Committee
meeting with the Valley Chamber and said Mr. Mercier's "city finance 101" presentation was well
received; he also met with Mayor Verner, Bruce Rawls and others where the idea of a regional sewer
authority was discussed; and he read a letter from the Washington State Department of Transportation to
Councilmember Gothmann on his appointment to the Transportation Improvement Board, which
appointment expires June 30, 2012.
PUBLIC COMMENTS: Mayor Munson invited general public comments.
Maureen Ramos, 12909 E 26` said she is representing her neighborhood: she explained that since about
1985, she and other neighbors have voiced concern with the home and yard at 12915 E 26 belonging to
the McMichaels, she had several documents and an historical overview of the twenty -year old on -going
problem; she said the yard is filled with junk, disabled cars and boats; that that residence has never had
garbage service and the garage contains junk and garbage; that about a week ago a foul smell was
emitting from that residence and she asked Crime Check to investigate; that they brought over the owner,
who lives fairly close by in another residence, and it was discovered the smell was rotted meat and
garbage; she said that odor continues; she said there have been warrants of arrest previously, and when
she complained to the police, she was told there is a house like this in every neighborhood; she said the
neighbors have followed all the procedures and are begging for help. Mayor Munson said he will ask staff
to report to council on the actions taken and those that will be taken, and he said this won't be forgotten.
Christie Zungia, Community Development Specialist with Spokane County Community Services,
Housing and Community Development Department: spoke about the planning they are about to undertake
in the next few months; that they are required by HUD to develop a consolidated plan every five years,
and a precursor to that is a needs assessment; and said they have a link available on their website to
complete the survey and she encouraged everyone to participate on what they think the needs are
regarding community development; she said the purposes of the funds from HUD are to create a suitable
living environment, and decent housing opportunities for low and moderate income people; and said that
in the last six years, Spokane Valley has received $4,344,688.00 from HUD and CDBG, and HOME has
equaled $3,322,959; said they have had a good working relationship, and it is time to update the plan and
they hope to complete all the surveys in August so they can undertake the planning in September and
October and meet the deadlines.
Tommy Marks, 1808 S University: said he is part of the Marks family, and said he believes he spoke with
Mayor Munson yesterday; that the problem they are having is, he had a vehicle stolen from him; that he
reported it stolen, he has the title; but said his word is not good enough; said he has been in this town for
ten years; and in ten years nothing has changed because he has the last name Marks; he said that George
Marks is his grandfather not Grover Marks; he said they did not sue our city; they did not file any
lawsuits; said they pay their taxes and pay their dues and do everything they are supposed to do; he said
his $50,000 car was stolen and the City's law enforcement said that he scammed some old lady; he said
he has the title and a bill of sale that indicates it has been paid for in cash, and said they have this problem
with the City's law enforcement that they won't protect them because their last name is Marks; he said he
thought racism was over; and said he is just trying to figure out how to get his $50,000 car back that he
bought and paid for three years ago; and said without help from the police, he has to sue and it makes no
sense; he said that is what he is here to talk about and has a problem with the Chief that had internal
affairs investigate this whole entire thing when internal affairs has nothing to do with stolen vehicles; he
Council Regular Meeting: 8 -11 -2009 Page 2 of 7
Approved by Council: 08 -25 -09
said that a lady at the County /City building who works in licensing told him that she never felt threatened
in her life by an officer who kept telling her that you understand his last name is Marks and is a gypsy and
they do this to people? He asked, what do we do to people besides stick up for our rights and buy and sell
cars; he said we can check out his arrest record, that he drives without a driver's license and said that half
of this town does and that is why our jails are over -full. He said if he commits a crime, then arrest him
and he has no problem going to jail; he said he doesn't commit crimes and is a bonded, licensed car dealer
and has been that way since he was fifteen years old and he is thirty-three now, and said it is getting a
little irritating that he has to spend every dollar he makes to get his car back that he paid for and bought
because the City's police department won't listen to him because he is a gypsy and automatically a liar;
and he left a copy of the title with the clerk as proof he paid for the car.
1. PUBLIC HEARING: 2010 Budget Hearing — Ken Thompson
Mayor Munson opened the public hearing at 6:23 p.m. and invited Mr. Thompson to the podium. Finance
Director Thompson said tonight is the first of three public hearings to get input on the 2010 budget; that
the budget is about $111 million which is down about $9 million from the current year; that the property
tax levy is up around $300,000 or 2.9 %, sales tax are expected to be down $3.4 million which is a product
of the economy, and planning and building fees are down about $388,000; he said he is still trying to fine
tune the street fund and the winter weather operations and said the REET (real estate excise tax) funds are
down about $1.2 and that we use those funds to match state and federal funds for capital projects, adding
that he expects these numbers to change a little and that our insurance premium will be going up, which
he was made aware of after the budget was put together; and said he expects the budget to be ready for
adoption in October. Mayor Munson asked Mr. Thompson if this is a balanced budget with no significant
cuts in services, and Mr. Thompson confirmed that is correct. Councilmember Wilhite said three
councilmembers sit on the Finance Committee and spent time with Mr. Thompson and staff in examining
numerous budget items and the committee feels staff did an excellent job with the declining revenue
stream and making sure we have a balanced budget. Mayor Munson invited public comments.
Troy Dilley, 2400 N Wilbur Road, asked where in the budget is the money for plowing our roads; and
Mayor Munson said there is $500,000 for snow removal; that we just purchased five plows from the state
to provide arterial plowing, we are negotiating with Waste Management for a place to put the equipment;
and are working with Poe Asphalt to man and maintain the equipment; and Councilmember Gothmann
explained that there is another $500,000 budgeted in case we have an excessive winter, with $5.2 million
in a fund designated for a "rainy day" or snowy days. Mr. Dilley said he is concerned about the senior
citizens and if the plows would plow in their driveways; and Mayor Munson explained that with
approximately 44,000 households, it would take an excessive amount of time to lift the blade for every
driveway; but there are outside agencies to help seniors and by dialing 211, citizens can get that
information. There being no further public comments, Mayor Munson closed the public hearing at 6:32
p.m.
2. PUBLIC HEARING: Cable Franchise — Morgan Koudelka
Mayor Munson opened the public hearing at 6:32 p.m. and invited Mr. Koudelka to the podium. Senior
Administrative Analyst Koudelka explained that the City has been negotiating the renewal of the
franchise agreement and made reference to the draft agreement; and said tonight is an opportunity to
receive public comments on the process; adding that he anticipates coming back in a month or two to
present the final draft to council; and can incorporate requested changes at that time. Mr. Koudelka
explained that this includes a 5% franchise fee; and he covered the main points of the agreement, and said
there have been no major changes since this was discussed last June. Mr. Koudelka also mentioned that
the senior discount will be extended. After some basic discussion about rates and use of fees, Mayor
Munson invited public comment.
Council Regular Meeting: 8 -11 -2009 Page 3 of 7
Approved by Council: 08 -25 -09
Nancy Holmes of Avista, 1411 E Mission: presented a letter requesting revisions to Section 24,
Movement and Relocation of Facilities; said they recommend modification of paragraph la which gives
the franchisee the right to recover relocation costs at the request of another city franchise holder; and said
since that paragraph conflicts with joint use pole attachment agreements currently in place, they
recommend striking paragraph lc; and suggested reordering the paragraphs within Section 24 so that "city
requested" changes come prior to "third party" requests. Dick Behm, 3626 S Ridgeview Drive: asked
about senior discounts and said he has never seen, read or heard if senior discounts are available and
would like further explanation. Mayor Munson said requests for senior discounts should be made to
Comcast. There being no further comments, Mayor Munson closed the public hearing at 6:47 p.m.
3. CONSENT AGENDA: Consists of items considered routine which are approved as a group. Any
member of Council may ask that an item be removed from the Consent Agenda to be considered
separately.
a. Claim Vouchers, Voucher #17924 through #18068; 72209008: total: $2,303,574.31
b. Payroll for pay period ending July 31, 2009: $368,839.23
c. Approval of July 21, 2009 Council Study Session Meeting Minutes
d. Approval of July 23, 2009 Council Minutes of Joint Meeting with Spokane City
e. Approval of July 28, 2009 Regular Council Meeting Minutes
f. Approval of August 4, 2009 Special Executive Session Minutes
g. Approval of August 4, 2009 Council Study Session Meeting Minutes
It was moved by Councilmember Wilhite, seconded, and unanimously agreed to approve the consent
agenda.
NEW BUSINESS:
4. Second Reading Proposed Interim Ordinance 09 -015, Development Agreement (CPA 01 -09) — Mike
Connelly
After City Clerk Bainbridge read the ordinance title, it was moved by Councilmember Wilhite and
seconded to adopt Interim Ordinance 09 -015. City Attorney Connelly said the need for this ordinance
came about as the comprehensive plan doesn't provide for the possibility that someone would want to
condition a zone change amendment; he said state law allows for developer agreements but we didn't
have a section in our code to provide for that, adding that one comp plan change and companion zone
change was continued for further consideration until this ordinance could be considered. Mayor Munson
invited public comment; no comments were offered. Vote by Acclamation: In Favor: Unanimous.
Opposed: None. Abstentions: None. Motion carried.
5. First Reading Proposed Ordinance 09 -016 to Amend SVMC 3.50, Small Works — Cary Driskell
After City Clerk Bainbridge read the ordinance title, it was moved by Councilmember Wilhite and
seconded to advance Ordinance 09 -016 to a second reading. Deputy City Attorney Driskell explained
that the statutory limit for small works purchases is set at $200,000 per project, but in 2009, the
Legislature amended that amount to $300,000 per project, and said this limit had not been increased since
2000. Mr. Driskell said staff recommends increasing the limit set forth in the Spokane Valley Code to
coincide with the new limit, which became effective July 26, 2009. Mr. Driskell also mentioned that
SVMC 3.35 addresses the authority of the City Manger with a limit of $200,000, that staff can use the
small works process if the project is under $300,000 but the matter will still need to come to Council for
approval. Mayor Munson invited public comments; no comments were offered. Vote by Acclamation: In
Favor: Unanimous. Opposed: None. Abstentions: None. Motion carried.
6. Motion Consideration: Mayoral Appointment, Ian Robertson to the Convention Center and Visitor's
Bureau — Mayor Munson
It was moved by Councilmember Wilhite and seconded to confirm the Mayoral appointment of
Councilmember Robertson to the Spokane Regional Convention and Visitor's Bureau Board of Directors.
Council Regular Meeting: 8 -11 -2009 Page 4 of 7
Approved by Council: 08 -25 -09
Mayor Munson explained that this appointment was formerly held by Steve Taylor. Mayor Munson
invited public comments; no comments were offered. Vote by Acclamation: In Favor: Unanimous. .
Opposed: None. Abstentions: None. Motion carried.
7. Motion Consideration: Ballot Proposition — Mayor Munson
It was moved by Deputy Mayor Denenny and seconded that this council endorse the renewal of the
Spokane County Criminal Justice and Public Safety Sales Tax. Mayor Munson said we get about
$750,000 from this all of which all gets applied to criminal justice costs within the city. Deputy Mayor
Denenny added that the County is struggling financially now and we need to do whatever we can to help
with those revenue shortfalls, and said the County gets about $4 million; and in today's environment, not
having those funds would be devastating for law enforcement operations. Mayor Munson invited public
comments; no comments were offered either pro or con. Several Councilmembers also voiced their
encouragement to citizens to vote in favor of this proposition. Vote by Acclamation: In Favor:
Unanimous. Opposed: None. Abstentions: None. Motion carried.
PUBLIC COMMENTS: Mayor Munson invited public comments; no comments were offered.
Mayor Munson called for a recess at 7:02 p.m. and reconvened the meeting at 7:16 p.m.
ADMINISTRATIVE REPORTS:
8. Preliminary Budget Presentation — Dave Mercier
City Manager Mercier said in today's economic times, it is satisfying to be able to deliver a balanced
budget, he said copies of the budget information are on the counter as well as copies of page 21 of the
proposed budget, which is the summary page. Mr. Mercier said there are still some moving parts and
when the numbers change, staff will provide insert sheets; he mentioned pending Initiative 1033 and said
this budget does not treat that matter; said he is aware the County is working on their budget session with
a contemplated $12 million shortfall, and said some County departments with which we do business may
result in consideration of an operational change on our part. Deputy Mayor Denenny asked and Mr.
Mercier confirmed that the proposed 1 /10 of 1% tax dollars are not in the budget yet as we never count on
a revenue source until it is a certainty; he said the Finance Committee and staff worked together and have
oriented the budget around the accomplishments of the primary council goals, which he then briefly
explained, and Mr. Mercier highlighted the information from page three of the budget introduction. Mr.
Mercier also mentioned that the ADA project originally called for an outside consultant but we have
elected to do that work in -house and therefore retain those employees; and said in further budget savings,
we will deploy one of the development review engineers to the stormwater area as a result of a recent
vacancy due to a retirement; and added that there are two funded positions in that department which we
will not fill. City Manager Mercier said the street fund provides dollars for basic maintenance in the
community and there continues to be challenges associated with winter services as some of the costs are
presently unknown; and of course depends upon the harshness of the winter. Mr. Mercier continued
giving highlights of the budget including page 37 public safety, which he said is Council's highest
priority and the largest portion of the general budget; and explained the items on page 21 and said that
page shows the spending pattern for 2010. Mr. Mercier also mentioned that each department director will
provide department highlights later this year.
Mr. Mercier explained that there remains some unknowns, that since June we have been paying the
current 2009 rates for the law enforcement contract; that we have not accomplished the settle and adjust
for 2006, 2007 and 2008, and will also have a settle and adjust for 2009; he said that both parties
recognize the contract needs to be re- negotiated and we don't know all the cost components, but we have
$1 million to deal with a variety of things. Mr. Mercier said he was informed the County developed a
new cost allocation plan for law enforcement services but he hasn't seen it yet and a meeting has been
arranged for this Thursday when he is hopeful to see that information so he can assess the impact on
Council Regular Meeting: 8 -11 -2009 Page 5 of 7
Approved by Council: 08 -25 -09
Spokane Valley; and explained that part of whatever the wage is with the County Deputy Association is
pro -rated to us, and said a cost of living adjustment applicable now is 3 %. Councilmember Gothmann
noted that law enforcement expenses increased 6 %, and Mr. Mercier acknowledged that there are
numerous expenses associated with the operation of a police department including fuel costs, supplies,
ammunition; etc., and said the Sheriffs Office has not yet received their budget target for 2010; but the
Sheriff's Office was quoted if the tax measure is not successful, it would mean eliminating eighteen
positions above those already eliminated; but such would not affect our law enforcement FTE level.
Deputy Mayor Denenny mentioned that Council will need to make a policy decision on full -width paving
concerning where to find funds, and Mayor Munson remarked that we have a balanced budget with no
cuts in services, and he is hopeful the economy will start to improve, but Council's goal is to be
conservative on the revenue estimations while being aggressive on the cost side. Councilmember
Gothmann said that concerning the property tax, this estimates to an increase of $1.53 or $1.54 from the
present $1.50; and said we won't see anything about an Appleway repavement schedule as the SARP was
a zoning change; and said those things in the future will come out of the regular budget and not from the
street fund. Mr. Mercier said the median home assessed value is $164,000, which represents an annual
cost of $246 retained for the City of Spokane Valley, which equates to $20.54 a month, which compares
favorably with other services such as cell service or broadband. In response to Councilmember
Schimmels' question about the winter service and the part time staff, Mr. Mercier said those two part-time
positions are anticipated for five months, and said staff is negotiating with Poe Contractors to provide for
a range of operators to operate the equipment through the snow events.
9. Code Amendment CTA -01 -09 — Karen Kendall
Assistant Planner Kendall explained that this is a report regarding proposed amendments to Title 19 and
Appendix A of the Spokane Valley Municipal Code. Per her PowerPoint presentation, Ms. Kendall gave
a summary of the proposed changes which were recommended by the Planning Commission. In response
to a question from Councilmember Gothmann, Ms. Kendall explained that the Community Facilities Zone
was removed but the Community Facilities Use remains. Councilmember Dempsey also noted the
typographical error on Title 19, Fl. There was no council objection to bring this forward for an ordinance
first reading at the August 25, Council meeting.
10. Site Selector Agreement — Kathy McClung
Community Development Director McClung highlighted the Site Selector Agreement and explained that
the sharing of costs could result in our current allocation of $15,000 being reduced if additional cities join
or private parties decide to donate; she explained that the contract will automatically renew, and the new
agreement is in synch with our budget process, and that the agreement includes an escape clause to
withdraw with thirty day's notice. Ms. McClung said she received notice today from the City of Spokane
that they have some minor refinements to some of the language; and said this agreement will be included
in the next council packet as the context is not changing. There was Council discussion about the
automatic renewal clause, and Mayor Munson said he is not too excised about not looking at this every
year as they are unable to identify the return for the dollars, and don't know how many people actually
use the site selector. Mr. Mercier said he shared that concern as well as the idea that now the bulk of the
expense is picked up by public sector organizations, and on two previous occasions we urged them to
recruit additional private sector contributions, and that this will influence our behavior in accounting for
how many subscribers there are from Spokane Valley as well as continuing to expand their private sector
consortium; and Council concurred not to include language for automatic renewal. As this agreement
involves several parties, it was noted this item will not be ready for council consideration next week, but
that staff will bring it back then they have a finished product.
Council Regular Meeting: 8 -11 -2009 Page 6 of 7
Approved by Council: 08 -25 -09
11. Proposed Panhandling Ordinance — Cary Driskell
Deputy City Attorney Driskell mentioned that his Request for Council Action form references an
attachment which was not attached and he distributed copies of the July 16, 2009 letter to him from
Bonne Beavers of the Center for Justice. As per his August 4, 2009 memorandum, Mr. Driskell provided
Council an update on the panhandling issue including an opinion from the Center for Justice; he explained
that due to Constitutional limitations as set forth in a number of case law decisions as referenced in his
memorandum, Mr. Driskell advised it would be in the best interest of the City not to pursue this, but to
proceed with the educational element previously discussed; and it was determined to proceed with that
educational element, that Councilmembers Gothmann and Robertson would volunteer their time and work
to form a regional committee to include citizens from Spokane and Liberty Lake.
12. INFORMATION ONLY: The Tourism Promotion Agency Interlocal Agreement was for
information only and was not reported or discussed.
13. EXECUTIVE SESSION: Labor Negotiations
It was moved by Councilmember Wilhite, seconded and unanimously agreed to adjourn into executive
session for approximately thirty minutes to discuss labor negotiations; and that no action is anticipated
thereafter. Council adjourned into executive session at approximately 8:50 p.m. Mayor Munson declared
Council out of executive session at 9:12 p.m. It was then moved by Councilmember Wilhite, seconded and
unanimously agreed to adjourn. The meeting adjourned at 9:13 p.m.
ristine Bainbridge, City Clerk
Council Regular Meeting: 8 -11 -2009 Page 7 of 7
Approved by Council: 08 -25 -09
NAME
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GENERAL PUBLIC COMMENT
SIGN -IN SHEET
SPOKANE VALLEY CITY COUNCIL MEETING
DATE: August 11, 2009
GENERAL CITIZEN COMMENTS
YOUR SPEAKING TIME WILL GENERALLY BE LIMITED TO THREE MINUTES
Please sign in if you wish to make public comments.
SPOKANE VALLEY CITY COUNCIL MEETING
Tuesday, August 11, 2009
Please sign below if you would like to speak at the
CABLE FRANCHISE Public Hearing
PRINT NAME AND ADDRESS FOR THE RECORD. There may be a time limit for your comments. Any documents
for Council consideration should be provided to the City Clerk for distribution.
NAME
PLEASE PRINT
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ADDRESS
TELEPHONE
TA
August 11, 2009
City of Spokane Valley
11707 East Sprague Avenue
Spokane Valley, WA 99206
Re: Cable Franchise Comments
Dear Mayor Munson and Council Members:
Thank you for allowing Avista the opportunity to comment on the renewal of the Cable
Franchise between The City of Spokane Valley and Comcast.
Avista is requesting revisions to Section 24, Movement and Relocation of Facilities.
Specifically, we are recommending the modification of paragraph la which gives the
franchisee the right to recover relocation costs at the request of "another City franchise
holder." This paragraph conflicts with joint use pole attachment agreements currently
in place. Along the same lines, we recommend striking paragraph lc.
We would also suggest a reordering of the paragraphs within Section 24 so that "City
requested" changes come ahead of "third party" requests. All proposed changes have
been discussed with City legal staff.
We appreciate the input and assistance of City staff. Thank you again for the
opportunity to provide comments.
Sincerely,
1
Nancy A. Holmes
Regional Business Manager
Avista - Spokane
Y: (509) 835 -5211
F: (509) 8351 -3867
COMMUNITY $UCLDINO
35 WEST MAIN, STE. 300
SPOKANE, WA 99201
WWW. GPORJ U STIUE.ORG
Cary P. Driskell
Deputy City Attorney
City of Spokane Valley
11707 East Sprague Avenue
Suite 103
Spokane Valley, WA 99206
Bonne Beavers
Staff Attorney
Center for Justice
OR Jrr
July 16, 2009
Dear Cary,
We appreciate your asking us to provide comments on Spokane Valley's proposed Ordinance
Limiting Solicitation, SVMC § 7.40.020. This ordinance is substantially similar to Spokane Municipal
Code 10.10.27, which we previously reviewed along with several others for the City of Spokane. The
following comments on SVMC 7.40.020 were lifted from our comments to the City of Spokane with a
few revisions tailored to your proposal and the benefit of the Ninth Circuit's "captive audience" analysis
in its reversal of the Berger case issued last month. I've also attached a copy of our comments to the
City of Spokane in the event they might be helpful.
If you have any questions, feel free to give us a call.
All the best,
COMMITTED TO CR BATE?5(1 THE EXp£R1'8. 106 OC JUSTICY. 805 TH06F. op LIMITED D 88S0U C85
08 INFLUENCE. =ROUGH COMPASSION AND AN AWA.R.ENTSS OP TOR SACREDNESS OF TOE EARTH,
bbeaver..s@cfoiiustice.org
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100% rrgered paper
CENTER FOR JUSTICE COMMENTS
RE: SVMC 7.40.020 Limitations on Solicitation
Date: 7.16.09
This section prohibits solicitation within 15 feet of an automated teller machine, the entrance of a
building, unless the solicitor has permission from the owner or occupant, a self - service fuel pump, a
public transportation stop, and any parked vehicle as occupants of such vehicle enter or exit when the
occupants are the subject of solicitation or designated loading/unloading, for -hire vehicle of taxi zones.
Solicitation under the code is limited to requests for immediate contributions. SVMC 7.40.010(A)(8).
We believe the regulation may be subject to challenge as a content -based restriction on protected speech.
As you know, begging or panhandling, i.e. solicitation for the purpose of immediately receiving
contributions, is a constitutionally protected activity under the First Amendment Roulette v. City of
Seattle, 850 F. Supp. 1442, 1451 (1994) (citing Schaumburg v. Citizens for a Better Environment, 444
U.S. 620 (1980)); U.S. v. Kokinda, 497 U.S. 720 (1990); Spokane v. Marr, 129 Wn. App. 890, 894)
(Div. 3 2005) (citations omitted). Where such activity occurs in traditional public fora, such as
sidewalks, streets or public parks, "the government's ability to permissibly restrict expressive conduct is
very limited." Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1021 (9th Cir.
2008) (quoting United States v. Grace, 461 U.S. 171, 177 (1983)). See also Hague v. CIO, 307 U.S. 496,
515 (1939) (these fora have been immemorially held in trust for the public for "assembly,
communicating thoughts between citizens, and discussing public questions "). Because government
restrictions on the use of these public spaces "risk placing speech on topics of public importance within
the purview of only the wealthy or those who enjoy the support of local authorities," (Long Beach, 522
F.3d at 1021 citing Grossman v. City of Portland, 33 F.3d 1200, 1205 n. 8 (9th Cir.1994); City of
Richmond, 743 F.2d at 1356, "First Amendment protections are strongest and regulation is most
suspect" within those areas. Id. (quoting Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir.
CFI Comments
2 of 7
1994). See also A.C.L. U. of Nevada v. City of Las Vegas, 466 F.3d 784, 791 (9th Cir. 2006) (warning of
trend toward privatization of public property and transforming public fora into "heavily - regulated
domains ").
Although regulation of speech in traditional public fora is disfavored, it may nevertheless be
regulated according to prescribed principles. To pass constitutional muster, such regulations must
satisfy four criteria. They must be 1) justified without reference to the content of the regulated speech;
2) narrowly tailored to serve a significant government interest; 3) leave open ample channels for
communication of the information, and 4) provide adequate standards to guide government discretion,
particularly in licensing decisions. Forsythe County v. Nationalist Movement; 505 U.S. 123, 130 (1992);
Clark v. Cmty for Creative Non - Violence, 468 U.S. 288, 293 (1984).
We believe this ordinance is content -based because it only prohibits speech that includes a
request for immediate contributions. A law is content -based rather than content - neutral if "the main
purpose in enacting it was to suppress or exalt speech of certain content, or if it differentiates based on
the content of speech on its face." ACLU of Nevada v. City of Las Vegas (ACLU II), 466 F. Supp: 784,
793 (9th Cir. 2006). Even if a law is content - based, it may yet pass constitutional muster if it is
necessary to serve a compelling state interest and is narrowly tailored to achieve that end. Perry Educ.
Ass 'n v. Perry Local Educ. Ass 'n,, 460 U.S. 37,. 45 (1983); Loper v. New York Police Dept., 999 F.2d
699, 703 (2 Cir. 1993). Under federal jurisprudence, a regulation is narrowly tailored if it "promotes a
substantial government interest that would be achieved less effectively absent the regulation." Ward v.
Rock Against Racism, 491 U.S. 781, 799 (1989) (citations omitted). Further, it may not burden
substantially more speech than necessary to achieve the scheme's important goals. United States v.
Baugh, 187 F.3d 1037, 1043 (9th Cir. 1999).
As drafted, this ordinance is arguably content based and hence subject to strict scrutiny. City of
Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 (2002). SVMC 7.40.020 prohibits only speech
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which asks for immediate contributions. Speech that does not include such a request does not fall
within the reach of this ordinance. Thus one could approach someone exiting a vehicle and ask for
signatures for political calls to action or to pass out leaflets and not run afoul of this ordinance, even
where doing so might make that person uncomfortable or unable to easily disengage. As such, it is not
content - neutral. See ACORN v. St. Louis County, 930 F.2d 591 (8th Cir. 1991) (anti - solicitation law was
content - neutral because it limited solicitations for all purposes); ACORN v. City of Phoenix, 798 F.2d
1260 (9th Cir. 1986) (city's statute content - neutral because it prohibits all kinds of solicitation, including
that by charitable organizations); International Society for Krishna Consciousness of New Orleans, Inc.
v. City of Baton Rouge, 876 F.2d 494 (5th Cir. 1989) with Benefit v. City of Cambridge, 424 Mass. 918,
679 N.E.2d 184 (Mass. 1997) (anti- solicitation law content -based because the content determined guilt
or innocence); Loper v. New York City Police Department , 999 F.2d 699 (2d Cir. 1993).
Content -based laws must be narrowly tailored to a compelling state interest to pass constitutional
muster. The "state interest" identified in the draft appears to be to protect persons from potential
discomfort or feelings of coercion due to an inability to easily disengage based on the place in which the
solicitation occurs. It does not prohibit coercive solicitation — the code already deems this unlawful —
but is merely prophylactic — "to help ensure that donations arising from such contact are less likely to be
coerced."
Without evidence of improper behavior, however, a listener's annoyance or discomfort "does not
provide a basis for a law burdening that activity." Texas v. Johnson, 491 U.S. 397, 408 -09 (1989). See
also Seattle v. Webster, 115 Wn. 2d 635, 653 (1990) (J. Utter, concurring and dissenting) ( "While a
municipality may regulate First Amendment activity to prevent obstruction of passage, see
Shuttlesworth v. Birmingham, 382 U.S. 87, 91 (1965), it may not restrict First Amendment rights just to
prevent annoyance to the citizenry "). Clearly, many people feel uncomfortable and unable to disengage
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when someone, perhaps disheveled and obviously poor, asks for money. The courts have never,
however, deemed this sufficient to outlaw panhandling.
While promoting this interest is unlikely to trump protected speech activities, public safety
might. Madsen v. Women's Health Center, 512 U.S. 753 (1994) (public safety is a recognized legitimate
state interest). However, because the ordinance allows others to approach persons in these locations, the
City must show that these place restrictions are necessary to promote the safety of its citizens from
solicitation that is otherwise lawful. Given that the place restrictions are not targeted to intimidating
behavior, as defined in this code, it appears on its face unrelated to safety.
It would also appear the City may be attempting to regulate panhandling on the basis of the
"captive audience" doctrine. Under this doctrine, some courts have allowed restrictions where the
audience does not have the freedom to choose whether or not to hear the message. Cohen v. California,
403 U.S. 15, 21 (1 971) (courthouse visitors were not captive to displays of free speech). Courts have
refused, however, to extend this doctrine to restrictions on speech in a public forum. Kuba v. 1-A
Agricultural Association, 387 F.3d 850, 861 (9th Cir. 2004). As far as we can find, no court has ever
upheld the type of protection from solicitation that the City wants to extend to public fora, especially
where the public can simply "avert their eyes" from an unwelcome solicitation. Erznoznik v. City of
Jacksonville, 422 U.S. 205, 212 (1975) (pedestrians on public street are not captive audience and can
simply avert their eyes from any unwanted speech).
This issue was addressed more recently by the Ninth Circuit in Berger v. City of Seattle, -T- F.3d
- - -, 2009 WL 1773200 (9 Cir 2009). As the court explained,
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The Supreme Court's "captive audience" jurisprudence fully supports our conclusion that
public park - goers, in general, are not a protectable captive audience for constitutional
purposes. "The plain, if at times disquieting, truth is that in our pluralistic society,
constantly proliferating new and ingenious forms of expression, we are inescapably
captive audiences for many purposes." Erznoznik v. City of Jacksonville, 422 U.S. 205,
210, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (internal quotation marks and citation
omitted). Only in "narrow circumstances" may government restrain speech to protect
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such audiences. Id., at 210 -11, 95 S.Ct. 2268. "The ability of government, consonant with
the Constitution, to shut off discourse solely to protect others from hearing it is, in other
words, dependent upon a showing that substantial privacy interests are being invaded in
an essentially intolerable manner." Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780,
29 L.Ed.2d 284 (1971).
Such substantial privacy interests include "the psychological [and] physical well -being of
the [hospital] patient held `captive' by medical circumstance." Madsen v. Women's
Health Ctr., 512 U.S. 753, 768 -71, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (validating
an injunction creating a 36 -foot buffer zone around entrances of an abortion clinic in
which picketing and demonstrating, among other activities, were barred); see also Hill v.
Colorado, 530 U.S. 703, 728 -30, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (upholding an
eight -foot regulatory buffer around clinic entrances due to the "unique concerns that
surround health care facilities," where those using the facilities "are often in particularly
vulnerable physical and emotional conditions "). They also encompass "the quiet
enjoyment" of one's home. Frisby, 487 U.S. at 483, 108 S.Ct. 2495 (upholding a ban on
"focused picketing taking place solely in front of a particular residence ").
The unique privacy and self - determination interests involved in protecting medical
facilities and residences simply do not exist for those waiting in line or having lunch
outdoors in a public park. Indeed, we have already rejected such a comparison in Kuba,
387 F.3d at 861 n. 10, explaining that patrons of a "place of public entertainment" were
not a captive audience similar to the intended audiences in Madsen and its progeny,
because they were obviously not "particularly vulnerable," as are the patients and doctors
in such cases.
Id. at 17.
As the Berger court makes clear, the captive audience doctrine is an attempt to balance one's
right to be left alone while in public against another's First Amendment rights. It is doubtful that
substantial privacy interests are implicated for those merely filling their gas tanks or emerging from
buildings or vehicles, or waiting for a ride. This is not to say that the privacy interests of persons at
ATMs might be implicated, however. One could argue that most people feel uncomfortable when
anyone approaches close enough to see how much money was obtained from the ATM or to decipher
one's pin number, whether or not they intend to ask for anything. The question then is whether a
content -based restriction is necessary to achieve the legitimate goal of public safety in this context. If
the City's intent is really safety, then the City might consider an ordinance targeting the "act" of
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approaching within a certain distance of ATMs, which is not a regulation of speech, or an ordinance that
prohibits all solicitation, which would more likely be seen as narrowly tailored to that interest.
The analysis might also be somewhat different for gas stations which, I presume, are on private
property. It may be that the owners could themselves, unlike the City, prohibit solicitation of all kinds
as may home owners without running afoul of the constitution.
Without a doubt, panhandlers who obstruct traffic or threaten individuals are in violation of
existing law. For those who do not, even in the places implicated here, the distinction is not narrowly
drawn. Further, the distinction is not narrowly drawn where solicitation near the entrance of a building
but on a public sidewalk is left to the unfettered discretion of private persons. Such a provision may also
be unreasonable as susceptible to arbitrary and discriminatory enforcement. State v. Smith, 111 Wn. 2d
1, 7 (1988).
Thus as drafted, we believe this ordinance is subject to attack as a content -based restriction that
is not narrowly tailored to a compelling government interest.
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