HomeMy WebLinkAboutOrdinance No. 18617is
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AN ORDINANCE CONCERNING DEFENSE TO TRESPASS~r'.j:~~~ ~~~
AI~~ENDING SECTION 4.E05 OF THE EUGENE CODE, ~ -
19 7 l ; AND DECLARING AN E~'IERGENCY .
THE CI1Y OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1. Subsection tl} of Section 4.805 of the Eugene
Code, 1971, is hereby amended by adding the following definitions
thereto:
Shopping center mall. An enclosed area of
greater than 10,000 square feet of gross floor
area for pedestrian use which serves as common
access in whole or in part. for more than five
commercial businesses.
Free speech area. An area in a shopping
center mall of 1~ of the gross floor area of the
shopping center mall, designated for the public
dissemination of non-commercial information and
for which reasonable rules governing priority of
use have been posted in such an area by the person
in lawful charge of the shopping center mall.
Non~cor~~mercial information. Information which
does not advocate or solicit the purchase or sale
of goods or services.
Section 2. Anew subsection ~4} is added to Section 4.805
of the Eugene Code, 1971, to read and provide:
4..805 Trespassing on Premises,
~4} It shall be a defense to any prosecution
under this section that at the time the person com-
mitted the trespass that he or she:
~a} was in a shopping center mall; and,
fib} such shopping center:
1, had designated a free speech area
and such person was in the free speech area
and obeying posted regulations governing
priority of use; or,
2, no such free speech area had been
so designated; and,
Ordinance - 1
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~c~ such person was disseminating or
attempting to disseminate non-commercial
information without mechanical amplification
of his or her voice.
Section__3. That the provisions contained herein concern the
public welfare and safety and therefore, an emergency is hereby
declared to exist, and this~~rdinance shall become effective
immediately upon its passage by the City Council and approval by
the Mayor.
Passed by the City Council this
5th day of May 19 8 ~
City Recorder
Approved by the Mayor this
day of
1980
Mayor
Ordinance -- Z,
v~'ro
Before the City Council
of the City of Eugene
In re: The Adoption ~
of ordinance No. lg~l] } LEGISLATIVE FINDINGS
Based on its own investigation, the staff reports, and the
testimony and evidence received regarding Ordinance No. ,
the City Council adopts the fallowing findings and conclusions:
1. The population trend of the City in the past has been of
increasing population growth in outlying urban areas.
These populated areas have increasingly relied on large
shopping centers for much of their commercial needs. Shop-
ping centers which are large function as an equivalent
factually to general public business districts such as the
downtown mall.
2. These large shopping centers are typically in large enclaves
of private parking lots. In cases such as Valley River Cen-
ter and Oakway Mall there is no public property adjacent to
the mall area and the retail businesses. There are few
effective ways for consumers protesting shoddy or overpriced
merchandise, workers challenging substandard working condi-
tions, minority groups who.. seek nondiscriminatory hiring
practices, or others seeking to communicate political non-
commercial ideas about trade in particular goods or services
to communicate those ideas to their targeted audience if
contact between these groups is effectively barred.
3. Much of the communication .has to do with the very purposes
and uses to which these shopping centers exist-~~-ideas about
selling practices, working conditions, or hiring policies
that are unique to the particular shopping center.
4. Downtown businesses adjacent to public property do not
suffer from this immunity. They are subject to peaceful
commentary or picketing purely by reason of their location.
5. Shopping centers of the type covered by this ordinance invite
the public to use the mall areas for conversation and dis-
play activities which are not incident to the commercial
purposes of the shopping center. There have been, for example,
at Valley River Center a number of exhibitions, display.,: and
information booths from merchants or groups not leasing space
in the center. Thus, not only the size and history of use
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of such a center gives it the same function as the downtown
public business district but the activities conducted in
the mall of such centers by special request or design of
the mall managers contribute to such a parallel function.
~. Substantial public monies for city services extension and
favorable zoning have contributed to the efficacy of shop-
ping center malls. In a sense these centers could not exist
without this public investment which is of the size that
city government and shopping centers are in a sense a --
partnership. And with that partnership came obligations
on the part of the owners of such shopping centers to behave,
in some ways, like governments--to allow an amount of free
speech to occur without unreasonable. restraints.
7. The City has various law enforcement priorities. This ordi-
nance de-emphasizes, as part of the City's prosecutorial
discretion, the prosecution of certain types of crimes. In
light of declining governmental revenues and the need to
focus police resources into serious crimes, it is appropriate
to decriminalize certain behavior such as the non-offensive
conduct here sanctioned.
S. In light of these reasons, the governmental partnership and
physical distance from public lands has occurred only in
the larger shopping centers of greater than 10,x04 square
feet in mall areas. The Centre Court and Atrium facilities
are close to public lands and have smaller mall areas of
4,500 and 6,50Q square feet respectively. The larger the
mall area the more the shopping center takes on the attri-
butes of a general public business district.
~. There are. mechanisms for the dissemination of commercial
speech which are adequate and available. Generally commercial
ideas are targeted to the public-~at--large and not a specific
audience, e.g., the users of a particular product or customers
of a particular store. There is no identifiable need for such
commercial activity at these shopping centers. General
rights to use public lands or other media for the dissemina-
tion of commercial speech are sufficient.
10. on the other hand, the alternatives for noncommercial speech
targeted to consumers or shoppers at a particular store at
these large shopping centers are not viable. Leafleting
at .the parking entrances might be unsafe, inconvenience
those beyond the target audience, and result in substantial
littering problems. Use of the general media by such no,n=:::-~~
commercial speech advocates is expensive and unavailable to
those without substantial financial resources.
11. The operation of this ordinance will not reduce the value
of commercial activity at these shopping center malls. If
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free speech areas are set up, it is solely at~the option
of the shopping center manager. There is reason to suggest
that such free speech areas will increase the commercial
success of mall businesses hand the value of commercial
leases to the shopping center owners by keeping shoppers
in the mall for longer periods thus increasing the chance
of further shopping and purchases. There has been no
demonstration in the record here that such free speech
areas which confine to a specific area this type of activity
will impair pedestrian traffic or discourage shopper atten-
dance. There are presently many demonstrations, displays,
and exhibits which use these mall areas. These activities
which are voluntarily assumed by the mall owners do not hurt
sales, impede traffic, or lower the value of such shopping
centers. No evidence has been presented which distinguishes
the effects of free speech areas from the effects of the
displays and exhibits and shows.
12. we are not limiting the right of a private property owner
to exclude persons from his or her property. But if prop-
erty has been opened as a place of public accommodation
a choice has been made which is revocable nat to exclude
the public. Having made that choice it is appropriate for
government to say as part of its ability to regulate commerce
that such a person cannot selectively invite and exclude
blacks, Jews and other discreet groups. This ordinance
forbids another type of discrimination--a discrimination
based purely on the content of speech. If shopping centers
voluntarily allow the public and certain conduct and speech.
in their mall areas as they have done here, they open them-
selves up to allowing all reasonable speech which does not
impede their businesses.
l3. The City has prosecuted trespasses in the past based on speech
conduct in shopping center malls.. The passage of this ordi-
nance will save the City the police and judicial costs of
this type of prosecution. The City is not regulating property
but dealing with City fiscal expenditures and saying only
that certain conduct will not be a municipal crime.
DATED this day of May, 1984.
Mayor
City Recorder
Findings ~- 3.
Mr. Charles Henry
City Manager
City Ha 11
Eugene, Qr, q?~0~
May ~ z, ~ qSa y ~~ _
.; . ~~ _ -a
Dear Mr. Henry,
I am returning CB 1 S&'I'~, an ordinance concerning defense t o
trespass, amending ~ect~.an x,545 of the Eugene Cede, 1q~~, and
declaring an emergency unsigned and vetoing the action of
appra~ral by the Eugene City Council. of Monday May 5, 1g$4,
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