Wednesday, March 19, 2003
Page 1
Court of Appeal Rules:
No Constitutional Right to Circulate Petitions in Front of Store
By KENNETH OFGANG, Staff Writer/Appellate Courts
The liberty of speech guaranteed by the California Constitution does not entitle persons seeking petition signatures to gather them outside the entrances of a grocery store located in a small shopping center, the Third District Court of Appeal ruled yesterday.
The justices affirmed an injunction barring solicitation of petition signatures in front of the Albertson’s store in Fowler Center, a 14-acre property located between Grass Valley and Nevada City in Nevada County. They rejected the defendants’ claim that the store’s size and location made it the equivalent of a public forum under Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899.
“In view of the physical layout of Fowler Center, the restrictions on the types of businesses that may open in the center, and the absence of any common areas that would invite the public to meet, congregate, or engage in other activities typical of a public forum, we conclude that Albertson’s location in Fowler Center does not impress the walkways of Albertson’s store with the character of a traditional public forum,” Presiding Justice Arthur Scotland said.
Fowler Center, Scotland explained, consists of seven parcels. Two of the parcels contain the “anchor” stores, Albertson’s and a hardware store, while the other five contain 10 retail stores, five restaurants or food shops, and five service businesses.
The Albertson’s parcel consists of about three and one-half acres for the grocery store, the walkway, and a portion of a large parking lot. There is about 35,000 square feet of sales space and about 10,000 square feet of space in the back rooms.
‘Modest Store’
Scotland cited Trader Joe’s Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425, which held that the walkway in front of a stand-alone store with about 11,000 square feet of space, which did not have public gathering areas on its premises, was not a public forum. A “modest retail store” of that type differs from the 65-store Pruneyard Shopping Center, which was more of a community gathering place, the court held.
The totality of the circumstances, Scotland said, compels the conclusion that the Albertson’s store “is not the functional equivalent of a traditional public forum.” It lacks a restaurant or an area for patrons to sit and eat, has no theater or entertainment, and is not open to, and does not attract, members of the public who have any purpose other than buying groceries, the presiding justice explained.
Nor, he went on to say, does Albertson’s presence in Fowler Center make it a public forum.
No Public Forum
“There are no enclosed walkways, plazas, courtyards, picnic areas, gardens, or other areas that might invite the public to congregate at Fowler Center,” Scotland wrote. And he noted that the property owners had entered into restrictive covenants to bar the types of businesses, such as bars, entertainment centers, and recreational and educational facilities, that might give the center the characteristics of a public forum.
Justice Fred Morrison concurred in the opinion, while Justice Richard Sims III concurred separately but was critical of Scotland’s reasoning.
Barring signature gatherers from such locations as Albertson’s, Sims said, will unduly burden the initiative process.
“It is anomalous to declare that a shopping center may constitute a public forum and then to exclude from that domain the sidewalks in the vicinity of the anchor business where most people go—the supermarket,” Sims wrote. He said that he would affirm the injunction solely on the ground that the defendants “failed to carry their burden of proving that Albertson’s had replaced the downtown business districts of Nevada City and Grass Valley as a public forum.”
Scotland responded that Pruneyard should be interpreted narrowly, bearing in mind the burden that the designation of a retail facility as a public forum places on the property owner, who “may be†compelled to associate with, and to assist, those who are disseminating†ideas with which the property owners vehemently disagree,” and to bear the costs of litigation if it has a dispute with those who disagree over its attempts to enforce what it considers reasonable time, place, and manner regulations.
Attorneys on appeal were Dorothy S. Landsberg and Robin Leslie Stewart of Sacramento’s Kronick, Moskovitz, Tiedemann & Girard for Albertson’s and Dale L. Gronemeier of Pasadena’s Gronemeier & Associates for the defendants.
The case is Albertson’s, Inc. v. Young, 03 S.O.S. 1401.
Copyright 2003, Metropolitan News Company