Law and disorder
Chico car-sale ordinance, declared unconstitutional, is still on the books
If you’re like many Chicoans, you believe it’s illegal to park your car on the street with a “for sale” sign in the window. You remember that a number of years ago the City Council passed an ordinance against it.
Guess what: That ordinance was invalidated as unconstitutional five years ago. And yet if you look at the Chico Municipal Code, it’s still there, leaving Chico residents with a mistaken impression of the law.
A decade ago so many people were selling their cars on the streets that in some places—along East Avenue in particular—they were lined up for blocks at a stretch. So in November 1996 the City Council passed code section 10.20.180, which reads: “No person shall park a vehicle on a street or within 75 feet of a street for the purpose of displaying such vehicle for sale except where the vehicle is parked on property … containing a dwelling unit used by the vehicle’s owner as a residence.”
The law was well publicized and strictly enforced, even to the extent of tagging cars parked on the street in front of their owners’ residences.
Chico did not act alone.
“A number of other jurisdictions [cities] have tried to stop their streets from being used as car lots,” explained David Frank, Chico city attorney.
Then, on July 18, 2001, a Chico businessman complained that he had been cited for parking a vehicle displaying a for sale sign on a city street in front of his business, according to a Sept. 20, 2001, memo from Frank to the city Internal Affairs Committee. The businessman questioned the validity of the ordinance and wanted his citations canceled. Frank assigned the ordinance to Lori Barker, Chico assistant city attorney, for analysis.
Based on her study of challenges to similar revoked ordinances in Berkeley and Los Angeles, Barker concluded that the code section would likely be held invalid if tested in court. The city’s legal interest in protecting street aesthetics through the code was not strong enough to overcome commercial free-speech rights guaranteed by the First Amendment. In fact, Barker noted, signs other than “for sale” were OK but could be even more distracting.
Referring to Barker’s analysis, Frank recommended to the Internal Affairs Committee (then composed of council members Steve Bertagna, Maureen Kirk and the late Coleen Jarvis) that it in turn recommend to the full City Council that it cancel the parking tickets in question and suspend further enforcement of code section 10.20.180 “until it is either repealed or replaced by some other scheme that will survive constitutional analysis.”
Minutes from the committee meeting of Oct. 9, 2001, show that City Manager Tom Lando said the council didn’t have the authority to cancel traffic tickets, but the situation could be handled administratively. The rest of Frank’s recommendation went forward as written. The council did stop enforcement but didn’t repeal the code section or replace it with “some other scheme” that might survive a court test. No publicity followed this action.
According to the city clerk’s office, minutes of the Nov. 18, 1996, City Council meeting during which the law in question went on the books show that the council transferred in large part the authority for traffic matters to the Internal Affairs Committee and gathered new, amended, and existing traffic code sections, including 10.20.180, under umbrella ordinance 2119.
Asked if the city attorney’s office looks critically at proposed city code sections such as 10.20.180 with the idea of flagging them for the council as containing potential legal problems, Barker replied, “Of course we do.” She said she did not recall working with the code section in question. Shouldn’t this one have been flagged, especially with an attorney (Rick Keene, now an assemblyman) on the council? “You’re asking me to validate an opinion, and I’m not going to go there,” Barker responded.
Asked if the city attorney’s office ever goes through the city code with the idea of pruning it, Barker replied:
“Yes, from time to time, but we don’t get there often enough or thoroughly enough. Everybody is busy. You know there are probably things in there we would all look at and say, ‘Gee, maybe we should change this or get rid of that.’ I think that’s true of any code, especially one as big as ours.”
Advertising, which is as old as newspapers and magazines, enjoyed no constitutional free-speech protection until 42 years ago. Up to that time, government at all levels concerned itself only with controlling advertising abuses such as advertising an illegal activity or claims that were false or seriously misleading.
Most advertising enjoyed wide latitude. For example, an ad for a used car might describe it as being in “great shape” when it looked anything but great. Courts have considered such minor descriptive transgressions as “mere puffery” that is common to advertising.
Then, in 1960, a full-page paid “message ad” ran in the New York Times. Headlined “Heed Their Rising Voices,” the solid print ad solicited both financial and moral support for the civil-rights movement then raging in the South and in the process made some critical statements about police control tactics used against black people in Montgomery, Ala. One of the three Montgomery city commissioners, a man named L. B. Sullivan, took offense at some of the statements and brought a libel suit.
The resulting landmark case for libel law (New York Times v. Sullivan) reached the U.S. Supreme Court, which ruled against Sullivan in 1964. The court also held that although the ad consisted entirely of paid matter, it carried information crucial to the free flow of ideas regarding a vital public issue. Going further, the court said that a message offering an item or service for sale for a profit was in essence no different than soliciting money for a cause.