Church members can be permanently barred from soliciting donations outside a stand-alone grocery store, under a recent court of appeal ruling (Ralphs Grocery Company v. Missionary Church of the Disciples of Christ (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., April 25, 2012). The court found that the rulings which allow unions to pass out literature outside a store advocating the boycott of the store do not apply to solicitation of donations, and the rulings which compel shopping malls to allow solicitation do not apply to a single retail store.
Ralphs Grocery Company (“Ralphs”) sued the Missionary Church of the Disciples of Christ (“Church”) for trespassing when two of Church’s members began to solicit contributions in front of its El Segundo store. The store is located in a stand-alone building that has a private sidewalk/apron that runs between the front of the store and a fire lane that borders the customer parking lot. Ralphs claims that Church members set out a stand with a bucket directly in front of the store’s entrance/exit doors in the fire lane, solicited customers entering and leaving Ralphs’ store for donations, obstructed the fire lane, and moved a sign that belongs to Ralphs. The Church members refused to comply when Ralphs asked them to stop soliciting donations.
Ralphs has “uniform rules for expressive conduct” which require that individuals who wish to engage in expressive activity must place themselves 20 feet from a store’s entrance. The Church members made no attempt to contact Ralphs before they began soliciting donations or to comply with Ralphs’ rules. After the store manager gave a Church member a copy of Ralphs’ rules for expressive conduct, the member immediately threw the rules in the trash. The Church asserted that it has the right to solicit outside the store because the store is on a busy street with other commercial enterprises, shares a parking lot with other businesses, and is located in a development with a covered plaza and a walkway area.
The trial court issued a permanent injunction that precluded the Church from using the interior of the Ralphs store and the area within 20 feet from the store entrance, from obstructing the entrance and exit doors, shopping cart carrels and fire lane access, and from harassing Ralphs customers. The injunction also prohibits Church members from soliciting donations from Ralphs customers, placing a receptacle for donations, distributing pamphlets or papers, or moving or obstructing any of Ralphs’ signs, products, or barriers.
The Church asserted that its members had a right to solicit donations on Ralphs’ property based on the 1969 California Supreme Court decision of In re Lane, which upheld the right of a union official to pass out pamphlets in front of a store urging customers to boycott the store. The court held that Lane does not provide the Church the unfettered right to use the area in front of the Ralphs store to solicit donations, but allows Ralphs to reasonably regulate expressive activity on its property. The Lane decision “weighed private property rights against the right of expression at issue and found the balance tipped in favor of the person seeking to engage in free speech because that speech had a ‘direct relation’ to the business on whose property it was being undertaken.” The court found that there was no such relationship between Ralphs’ El Segundo location and the Church’s expressive conduct, and therefore the Lane decision does not support Church’s solicitation activities.
The court further held that Church failed to show that the El Segundo store or the sidewalk/apron in front of the store is a public forum within the meaning of the California Supreme Court’s Robins v. Pruneyard Shopping Center decision. The Pruneyard case involved a large shopping mall’s prohibition against expressive activity that was not directly related to the commercial purpose of the mall. The Pruneyard Court held that “the California Constitution protect[s] speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” The Supreme Court made it clear, however, that it’s holding is not applicable to every commercial property.
Neither Pruneyard nor the cases that have since interpreted it have ever suggested “that there is a bright line rule requiring every retail establishment located in a ‘shopping center’ to allow members of the public to engage in expressive activity on its premises.” Instead, a court must “balance the competing interests of the property owner and of the society with respect to the particular property or type of property at issue to determine whether there is a state constitutional right to engage in the challenged activity.” The court found Ralphs offered evidence that it did not create a public forum on its sidewalk/apron because the store was located in a free-standing building near only a handful of other retailers, its invitation to the public was limited, there was no plaza, walkway or courtyard at the store, and Ralphs did not encourage customers to linger or be in the sidewalk/apron area for any reason other than to shop at the store.
Even if Church could establish that the area was a public forum, Pruneyard allows a store to place reasonable time, place, and manner restrictions on expressive activity. The court found “[t]he record below made clear the Church members’ disdain for any attempt to limit their activities or subject them to appropriate regulation.” The court found Church members failed to establish they were deprived of a right to engage in a reasonable use of the property for expressive purposes.
While the court found in favor of Ralphs, it noted that it was not resolving the issue of whether the area in front of a mid-size commercial establishment such as a retail grocery store can ever be considered a public forum, because the issue of whether the parking area and walkway in front of a different Ralphs grocery store constitutes a public forum is currently before the Supreme Court.
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Jon E. Goetz | 805.786.4302