Administrative
Report
M.1., File # 23-5707 Meeting Date: 3/21/2023
To: MAYOR AND CITY COUNCIL
From: MICHAEL W. WEBB, CITY ATTORNEY
TITLE
DISCUSSION AND POSSIBLE ACTION TO CURTAIL THE PARKING OF VEHICLES FOR SALE ON
MAJOR ROADWAYS
EXECUTIVE SUMMARY
Councilmember Emdee made a motion to direct staff to return with a discussion item on how to deter for sale cars on major roadways such as Manhattan Beach Blvd. and Inglewood Ave. The motion carried unanimously. This report outlines the types of regulations that other cities have imposed as well as potential legal issues with the adoption of such an ordinance.
BACKGROUND
Previously, the Council directed staff to bring back a discussion item regarding parking vehicles on public streets with for sale signs. The Council, in its limited discussion of the potential agenda item, stated that it was a big problem and showed interest in a potential regulation to address it.
Councilmember Lowenstein joined Councilmember Emdee in noting particularly that there are “tons of for sale cars” on Inglewood Avenue in particular. Councilmember Emdee specifically asked for an item that will “discuss what our options would be” to curtail the prevalence of vehicles parked for sale on Inglewood Avenue and Manhattan Beach Blvd. In subsequent discussions with Councilmember Emdee, she noted that the other side of Inglewood Avenue does not have a problem with vehicles being parked for sale on the Lawndale side of the street. This is because Lawndale Municipal Code Chapter 10.60 SIGNS ON VEHICLES, disallows on-street parking of vehicles on “Commercial Streets” as defined by the Lawndale City Council in Section 10.60.010(A). That ordinance is attached to this staff report for reference.
The problem largely dissipated during the pandemic perhaps because of the relative scarcity of used cars for sale. Recently, Councilmember Emdee reported that the problem shows signs of reappearing.
The City Council should consider, when making this decision, that there are Appeals and District court opinions deeming similar ordinances unconstitutional on First Amendment grounds, as a prior restraint on speech. In 2007 the Sixth Circuit Court of Appeals held that the provision of the Glendale Traffic Code which disallowed parked cars to display “for sale” signs was an unconstitutional restraint on commercial speech. In the case of Pagan v. Fruchey, Mr. Pagan was advised by a Glendale Police Officer to remove a “for sale” sign from his vehicle lest he be cited for violation of Section
76.06. Mr. Pagan removed the sign but then sued the City of Glendale alleging that certain
M.1., File # 23-5707 Meeting Date: 3/21/2023
76.06. Mr. Pagan removed the sign but then sued the City of Glendale alleging that certain provisions of the Ordinance were unconstitutional, and ultimately the Sixth Circuit agreed with him.
The court specifically mentioned that Glendale failed to sufficiently articulate the governmental purpose(s) of the Ordinance and that it was not a content-neutral time place and manner restriction.
However, the dissent in the Pagan v. Fruchey decision attached, as a four-page appendix, a list of other cities that have “Ordinances Forbidding the Placement of Car for Sale in the Public Streets.” There are two (2) District Court cases addressing this issue. In 2015 in McLean v. City of Alexandria, the US District Court for the Eastern District of Virginia dealt with this issue and found that the ordinance did not survive an intermediate scrutiny review. The ordinance was deemed an unconstitutional restriction on commercial speech as it was not shown to directly and materially advance the City’s regulatory interests and it was not sufficiently narrowly tailored. However, because these cases were decided in the Sixth Circuit and Virginia, respectively, it is only persuasive precedence, which means that it is not law in the state of California and therefore not binding on our Council.
Finally, in 2000, the Central District Court of California decided Burkow v. City of Los Angeles, upholding an injunction on the enforcement of Los Angeles Municipal Code (“LAMC”) Section 80.75.
LAMC § 80.75 read:
(a) No person shall display for the purpose of sale or rent or shall rent, advertise or offer for sale or rent, or sell or rent any bicycle or any vehicle which is subject to registration under the California Vehicle Code from or upon any public or private property which is not the place of business of a bicycle retailer or a duly licensed vehicle dealer.
(b) The provisions of Subsection (a) hereof shall not apply to the registered owner of a vehicle or bicycle when displaying advertising, offering, selling or renting such vehicle or bicycle upon property of which he is the owner, lessee or lawful occupant, nor when displaying, advertising or offering such vehicle or bicycle for sale or rent while in the act of driving such vehicle or riding such bicycle.
Although the court found that the City of Los Angeles “proffered at least two substantial governmental interests - safety and aesthetics - to justify LAMC § 80.75, the Court is unwilling to accept similar ‘speculation or conjecture’ on how this ordinance ‘directly advances the governmental interest asserted.’” Pursuant to this decision, LAMC § 80.75 was repealed. All three (3) cases are attached for reference.
With these concerns in mind, Jillian Martins, when she was with our office, submitted a public records act request to the City of Lawndale regarding their ordinance, it’s enforcement and whether they had encountered any legal challenges. The response to the request indicated that Lawndale had issued approximately 100 citations since their ordinance was first enacted in 2008, and that three (3) people who were issued such citations fought them in court. In each of the three (3) cases, the superior court upheld the ordinance. In her discussion with one of their city attorneys, he expressed confidence in the enforceability of the ordinance, based largely on fact that the ordinance withstood three challenges at the superior court level. However, this does not necessarily mean that if challenged in federal court, the courts would uphold the ordinance. Also, of note, after the repeal of their ordinance, the
M.1., File # 23-5707 Meeting Date: 3/21/2023
court, the courts would uphold the ordinance. Also, of note, after the repeal of their ordinance, the City of Los Angeles considered the adoption of a similar ordinance to Lawndale’s Ord. 1017-08. The report stated “The City of Lawndale recently passed an ordinance (Ordinance No. 1017-08) that addresses the problem of sales of vehicles on City streets without the First Amendment freedom of speech issues that led to repeal of LAMC 80.75.” This report and the since adopted current prohibition on vehicles sales on certain public roads are also attached for reference.
Should the Council vote to direct staff to draft such an ordinance, it should keep in mind the lessons of these cases; that the law must be narrowly tailored and supported by significant evidence of the reason that the ordinance was adopted and how the ordinance will specifically address the purpose of the ordinance. It must be a content-neutral time, place and manner restriction to survive a potential challenge.
COORDINATION
The City Attorney’s Office prepared this report.
FISCAL IMPACT
None.
ATTACHMENTS
· Lawndale Ordinance Chapter 10.60 Signs on Vehicles
· Pagan v. Fruchey 492 F. 3d 766, (6th Cir.), 2007
· McLean v. City of Alexandria 106 F. Supp. 3d 736, (U.S. Dist.), 2015 · Burkow v. City of Los Angeles 119 F. Supp. 2d 1076 (U.S. Dist.), 2000 · City of Los Angeles Public Works Committee Correspondence dated February 25, 2009
· City of Los Angeles Inter-Departmental Correspondence Council File: 08-2939 Sale of Cars on City Streets (January 2, 2009)
· Los Angeles Municipal Code Sec. 87.55