Monday, March 4, 2002
Court of Appeal Upholds Costco’s Limits on Signature Gatherers
By KENNETH OFGANG, Staff Writer/Appellate Courts
The company that operates the Costco chain of warehouse stores has the right to impose strict limits on those who gather petition signatures or engage in other forms of expressive activity on its premises, the Fourth District Court of Appeal has ruled.
Costco Companies, Inc. may bar all such activity on the 34 busiest shopping days of the year and may bar any single individual or group from engaging in such activity on more than five days of a 30-day period, at any location where it shares a parking lot with another business, Justice Patricia Benke wrote Thursday for Div. One.
The retailer may also bar all such activities at its stand-alone stores, the justice said.
The ruling is the latest in a series of face-offs between California retailers and the “bounty hunters” who are paid between 25 cents and $2 for each signature they gather on initiative and referendum petitions. Bounties are sometimes also paid for registering voters.
At issue in the case decided Thursday, and in several others that have been litigated around the state, is the scope of Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899. That ruling held that the “liberty of speech” clause of California’s Constitution is broader than the First Amendment and protects expressive activities on private property if the premises are the equivalent of a traditional public forum.
The decision has led to a large volume of activity on shopping center and other retail premises, both by volunteer activists and paid signature-gatherers. “Big Box” stores such as Costco’s have become particularly inviting targets because all patrons must use a single entrance and exit.
The increasing volume of such activity, and complaints by patrons who either disagree with the petitioners’ politics or are offended by their pushiness, have been cited by retailers as justification for restrictive policies such as that which Costco implemented four years ago.
In addition to the requirements ruled on by the Court of Appeal, Costco bars use of its facilities by the same individual or group on consecutive weekends, limits petition activities to designated areas, and requires that three days’ notice of any such activity be given in writing.
Thursday’s ruling came in a suit filed by Costco against Don, Cecilia, and Charity Gallant after the three became involved in confrontations with employees at two Costco stores in the San Diego area. Costco sought declaratory and injunctive relief, while the Gallants cross-complained for similar relief as well as damages for a battery they claimed occurred during one of the incidents.
The case was tried before San Diego Superior Court Judge William Pate, who upheld all of Costco’s restrictions except the high-volume-days and 5/30 rules. He found for the plaintiffs on the battery claim and awarded $2,500 in damages.
On appeal, Costco asked the court to uphold the remaining restrictions. The Gallants cross-appealed, challenging only that portion of the ruling that upheld Costco’s right to ban all expressive activity at stand-alone stores.
Benke, writing for the Court of Appeal, said that recent California Supreme Court decisions require that expressive rights be balanced against the interests of private property owners. Costco, she said, had proven “that expressive activity at its stores has imposed upon it considerable expenses, administrative burdens and risks which directly impaired the commercial purposes of the stores” and that its restrictions were narrowly tailored to deal with the problems.
Attorneys on appeal were David F. McDowell and Roya P. Cohen of Morrison & Foerster for Costco and Peter D. Lepiscopo and Dale L. Gronemeier for the Gallants.
The case is Costco Companies, Inc. v. Gallant; 02 S.O.S 1131.
Copyright 2002, Metropolitan News Company