City of Eugene v. Miller

851 P.2d 1142, 119 Or. App. 293, 1993 Ore. App. LEXIS 590

• Court: Court of Appeals of Oregon
• Decided: April 21, 1993
• Docket: 91-50062, 91-50073; CA A75143, A75145
• Status: Published

Opinions

RICHARDSON, C. J.

In these consolidated appeals, defendant seeks reversal of his convictions, pursuant to ORS 221.350, for violating section 4.860(d) of the Eugene Code by selling “joke books” on a city sidewalk. That code provision makes it an offense to

“ [s] et up or operate a vehicle, stand or place for the display or sale of merchandise, or sell, vend, or display for sale an article in the streets or on the sidewalks or in doorways or stairways of business houses, or in any other place where such activity causes congregation and congestion of people or vehicles on the streets or sidewalks.”

Section 3.338 of the code establishes a license requirement and licensing procedures for sidewalk vending but, under subsection (e), licenses can only be issued for the sale of “food, beverages, flowers or balloons.” Defendant did not have a license and, apparently, had not applied for one.¹ He contends that section 3.338(e) violates the equal protection, the equal privileges and immunities and the free speech provisions of the state and federal constitutions. He assigns error to the denial of his demurrer, his motion to dismiss and his motion for judgment of acquittal, through which he raised the constitutional arguments.

The city first contends that we lack jurisdiction because, under ORS 221.360, our review is limited to issues “involving the constitutionality of the * * * ordinance under which the conviction was obtained.” Defendant was convicted under section 4.860(d), but his constitutional challenge focuses on section 3.338. Hence, the city maintains, defendant does not come within the jurisdictional limitation of ORS 221.360. That argument is analogous to one addressed in the concurring opinion in City of Portland v. Ayers, 93 Or App 731, 764 P2d 556 (1988), rev den 308 Or 79 (1989). There, the defendant was charged under a provision of the city code that essentially duplicated a second provision, except that the latter contained an exemption procedure for which the defendant was not facially ineligible and of which he had not availed himself. Responding to the proposition that the second provision and the possible availability of an exemption were irrelevant to the appeal from the conviction under the first provision, the concurrence stated:

“In my view, exactly the opposite conclusion follows. The proper approach is to read the provisions in pari materia. When they are so read, any overbreadth in section 14.24.160 is cured by the variance and exemption procedures that Title 18 establishes. Given the fact that their substantive regulations are materially identical, it is untenable to assume, as the dissent appears to do, that a person who seeks and obtains a variance under section 18.14.020 would or could be prosecuted under section 14.24.160.” 93 Or App at 742.

Similarly, in this case, the licensing provision and the inculpating provision are inseparable. It is untenable to assume that the city would or could prosecute a person for carxying on an activity that it has licensed. Accordingly, defendant’s challenge to section 3.338, in effect, involves the constitutionality of an ordinance that provides an exemption to prosecution. It is in pari materia with the ordinance under which he was convicted. We decline to interpret the jurisdictional limitation in ORS 221.360 as grudgingly as the city does, or as defeating our jurisdiction over this appeal.

The city also maintains, in support of its jurisdictional argument:

“Defendant has assumed that, without offering proof, he can challenge EC § 3.338 during an appeal of a conviction for violating EC § 4.860(d). The evidence offered by defendant, however, shows that the ordinances are not so linked that a challenge to EC § 4.860 is also a challenge to EC § 3.338. Eugene Code § 3.337 provides that EC § 3.338 is not the only method to obtain authorization to vend on City sidewalks. During the trial, defendant himself testified that he regularly sells his products on City sidewalks during the ‘Saturday Market.’ These sales are legally authorized by the City. Defendant has not come forward with any evidence that he has been denied a permit issued pursuant to EC § 3.338.⁴

That point, if correct, might have bearing on the substantive resolution of defendant’s challenge to the ordinance and, interestingly, the city does not repeat the point in its argument on the merits. However, the point does not change the fact that defendant does challenge the constitutionality of the ordinance. We have jurisdiction.

The city next argues that neither the demurrer nor the motion to dismiss were proper or effective procedural vehicles for raising the contentions that defendant makes. Whether that is correct we need not decide, because there is no such problem with the presentation of the constitutional issues through a motion for judgment of acquittal, and defendant made the same arguments below and here in connection with the ruling on that motion as well as the other rulings that he assigns as error. We turn to the merits.

Defendant relies on City of Hillsboro v. Purcell, 306 Or 547, 761 P2d 510 (1988), and contends that the limitation on the types of goods for which street vending may be licensed allows the criminal ordinance to be applied against protected expression. Therefore, he asserts, the ordinance is overbroad and violates Article I, section 8.

At issue in Purcell was the constitutionality of a city ordinance that forbade and criminalized door-to-door solicitation for the purpose of selling goods, wares or merchandise. The court held that the ordinance was overbroad under Article I, section 8. It explained:

“Although facially valid, the ordinance focuses on one type of entry — for the purpose of selling merchandise. Selling is a form of communicative behavior that includes speech and may involve goods that are protected expression. Because speech is implicated, we must examine the ordinance for overbreadth.

“The parties debate the activities the ordinance prohibits. The city argues that the ordinance prohibits only solicitation by commercial enterprises and exempts the same activities if carried out by community, religious, charitable or political entities. The minutes of the city council meeting at which the ordinance was adopted do not show any distinction or exception for solicitations for these purposes or for sales of books, magazines, or newspapers. Councillors were told, and the council’s legislative ‘findings’ preceding the prohibitory language of the ordinance reflect, only that the ordinance was designed primarily to control fraud by unscrupulous and unethical solicitors.

“The ordinance is overbroad, not because it regulates solicitation for one purpose differently from another, but because it prohibits all solicitation for any purpose at any time. The ordinance as written is broad enough to preclude any person or group from approaching a door in a residential neighborhood to solicit financial support for any purpose through the sale of merchandise. This is far more than a regulation limited to and contained by the consequences the law seeks to prevent.” 306 Or at 555-56. (Footnotes omitted.)

We conclude that the same is true here.

For a number of reasons, we disagree with the dissent’s and the city’s attempts to distinguish Purcell. The overbreadth issue in Purcell and the one here are not rendered materially different by the fact that the Hillsboro ordinance prohibited all door-to-door solicitations, while the ordinance in this case allows the sidewalk sale of four types of merchandise. The critical fact is not that the Eugene ordinance allows some sales, but that it does not allow the sale of defendant’s books. It therefore reaches protected expression in essentially the same way that the Hillsboro ordinance did. Like that ordinance, this legislation is not “contained by the consequences” that it seeks to prevent. The very fact that it allows some sales, while prohibiting defendant’s, demonstrates that it reaches his expression, without applying the same prohibition to other sales that are equally offensive to the city’s regulatory objective of assuring that the streets and sidewalks are available for their principal purposes.

The city and the dissent appear to posit that the city may regulate the sidewalk sales of different commodities differently, because the ordinance regulates effects of speech rather than speech itself. It is true, as a general proposition, that regulation of effects of speech is permissible under Article I, section 8. However, as both the majority and the specially concurring opinion in Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993), make clear, legislative regulations of the effects of speech “must, expressly or by clear implication, identify a substantial harm that the law seeks to ameliorate,” 315 Or at 384 (Graber, J., specially concurring), and “must proscribe those effects by * * * a law that identifies and focuses on those effects.” 315 Or at 379.

It may be that the city’s legislation identifies a harmful effect, but nothing in it addresses or iinplies why the sale of joke books gives rise to that effect in any way that the sale of balloons does not. Accordingly, the city’s prohibition does not proscribe or focus on an effect; it proscribes the sale of particular commodities, including joke books, but allows the sale of others. The dissent is correct in its premise that different activities may be regulated differently under Article I, section 8. This ordinance, however, does not do so; rather, it regulates different exercises of the same commercial and communicative activity differently, on the basis of what is sold and communicated. That content-based regulation is what Article I, section 8, prohibits above all else. See, e.g., Moser v. Frohnmayer, supra. It cannot be relied on by the city to save its ordinance as one that merely regulates the effects of speech.

For the same reason, the dissent does not succeed in demonstrating that the ordinance is a legitimate time, place and manner regulation. We said in Ackerley Communications, Inc. v. Mult. Co., 72 Or App 617, 624, 696 P2d 1140 (1985), rev dismissed 303 Or 165, 734 P2d 885 (1987):

“A content-based distinction in the way different kinds of constitutionally equal speech are regulated cannot be salvaged by the fact that the regulation restricts only the time, place and manner of engaging in the expression that has been selected for regulation.”

In Moser v. Frohnmayer, supra, as we read it, the principal disagreement between the majority and the special concurrence was over that precise question. The majority took the position that we had earlier taken in Ackerley, and the special concurrence expressed the opposite view.² We are required to follow the holding of the majority.

We hold that the Eugene ordinance violates Article I, section 8. It is unnecessary to reach defendant’s other arguments.³

Reversed on both appeals.

1 We attach no significance to that fact because, as a matter of law, he was ineligible for a license for the very reason that he maintains makes the ordinance unconstitutional.

4 “4 Defendant’s counsel stated during defendant’s trial that she wished to introduce evidence that defendant had not been able to obtain a license. The trial court on its own motion questioned the relevance of that evidence and ruled that it would not be admitted. Defendant has not assigned that ruling as an error for appeal.”

2 Although the basis for our decision makes it unnecessary for us to reach any issues under the First Amendment, the United States Supreme Court’s recent decision in City of Cincinnati v. Discovery Network, Inc., 507 US_, 113 S Ct 1505, 123 L Ed 2d 99 (1993), is nevertheless of interest. There, the city imposed regulations that had the effect of banning newsracks that dispensed commercial publications, while allowing newsracks through which non-commercial publications were disseminated. In holding that the regulation violated the First Amendment, the Court rejected several of the city’s arguments that were similar to ones made by the city here. It said:

“The city argues that there is a close fit between its ban on newsracks dispensing ‘commercial handbills’ and its interest in safety and esthetics because every decrease in the number of such dispensing devices necessarily effects an increase in safety and an improvement in the attractiveness of the cityscape. In the city’s view, the prohibition is thus entirely related to its legitimate interests in safety and esthetics.

“We accept the validity of the city’s proposition, but consider it an insufficient justification for the discrimination against respondents’ use of newsracks that are no more harmful than the permitted newsracks, and have only a minimal impact on the overall number of newsracks on the city’s sidewalks. The major premise supporting the city’s argument is the proposition that commercial speech has only a low value. Based on that premise, the city contends that the fact that assertedly more valuable publications are allowed to use newsracks does not undermine its judgment that its esthetic and safety interests are stronger than the interest in allowing commercial speakers to have similar access to the reading public.

“We cannot agree. In our view, the city’s argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech.

<<* * * * *

“The city has asserted an interest in esthetics, but respondent publishers’ newsracks are no greater an eyesore than the newsracks permitted to remain on Cincinnati’s sidewalks. Each newsrack, whether containing ‘newspapers’ or ‘commercial handbills,’ is equally unattractive. * * * As we have explained, the city’s primary concern, as argued to us, is with the aggregate number of newsracks on its streets. On that score, however, all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault. In fact, the newspapers are arguably the greater culprit because of their superior number.

((*♦***

“The Court has held that government may impose reasonable restrictions on the time, place or manner of engaging in protected speech provided that they are adequately justified ‘ “without reference to the content of the regulated speech.” ’ * * * The city contends that its regulation of newsracks qualifies as such a restriction because the interests in safety and esthetics that it serves are entirely unrelated to the content of respondents’ publications. Thus, the argument goes, the justification for the regulation is content-neutral.

“The argument is unpersuasive because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech.

“* * * We agree with the city that its desire to limit the total number of newsracks is ‘justified’ by its interest in safety and esthetics. The city has not, however, limited the number of newsracks; it has limited (to zero) the number of newsracks distributing commercial publications. As we have explained, there is no justification for that particular regulation other than the city’s naked assertion that commercial speech has ‘low value.’ It is the absence of a neutral justification for its selective ban on newsracks that prevents the city from defending its newsrack policy as content-neutral.

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“In sum, the city’s newsrack policy is neither content-neutral nor, as demonstrated in Part III, supra, ‘narrowly tailored.’ Thus, regardless of whether or not it leaves open ample alternative channels of communication, it cannot be justified as a legitimate time, place, or manner restriction on protected speech.” 507 US at_, 123 L Ed 2d at 109-17. (Emphasis in original; citations omitted.)

The dissent quotes Purcell as stating that “governments can regulate [commercial speech] to a greater degree and for different purposes than other protected speech.” 306 Or at 553. That statement was a summary of First Amendment jurisprudence, not an interpretation of Article I, section 8, and the substance of what it said about federal law may not survive City of Cincinnati.

3 The court also said in Purcell:

“The city impermissibly has prohibited all persons from approaching people in their homes at any time to sell merchandise. We do not suggest that the city could not place reasonable limitations on door-to-door solicitations. The city may yet choose to regulate, rather than totally proscribe, door-to-door solicitations. It has not yet done so.” 306 Or at 556. (Footnote omitted.)

Similar possibilities are present here.