The contentious and years-long battle over the fate of a harbor-seal colony inhabiting the Children's Pool beach in La Jolla has yielded an unexpected byproduct-a constitutional challenge to an obscure city law.
While pro-seal activists and beach-access proponents fight over who gets to use the beach, a lawsuit filed earlier this month asks a judge to prohibit city officials from enforcing a section of the municipal code-one of the city's guiding legal documents-regulating who can legally solicit charitable donations. The city attorney's office has filed a notice indicating it will not dispute the request.
The lawsuit stems from a Feb. 5 incident at Children's Pool. A city lifeguard cited Dorota Valli, a volunteer animal-rights activist with the Save Our Seals Coalition, for allegedly soliciting donations without a permit.
For years, volunteers from the coalition have staffed tables located on the sidewalk adjacent to Children's Pool, educating passersby about the seals, advocating for their protection and trading mugs, T-shirts and mouse pads adorned with photos of the seals for donations.
According to a statement by Bettina Rausa, another pro-seal activist who was there that day, Valli had been working at a table located on the sidewalk overlooking the beach, when two lifeguards approached her. "The lifeguards insisted that she needed a permit to be there and said that collecting donations was illegal without a permit from police," Rausa wrote. They instructed Valli to pack up her things and issued her a citation.
The following day, Bryan Pease, an attorney and co-director of the San Diego-based Animal Protection and Rescue League, filed a lawsuit on behalf of Valli and Pease's organization, claiming that a city law requiring individuals to obtain police approval before soliciting donations on city property violates the First Amendment. According to court documents filed by Pease, judges have previously found solicitation to be a protected form of free speech, and similar laws established by other cities have been ruled unconstitutional in several court cases dating back to the early 1980s.
Among other things, section 57.01.1 of San Diego's municipal code requires permit applicants to have a "good character and reputation for honesty," be a "reliable and responsible person" and "that the solicitation will not be a fraud on the public."
Pease argues that all of these requirements are unconstitutionally vague and that their interpretation is left entirely to the discretion of the police department, which is in turn given ultimate authority over who gets to exercise their right to free speech.
The local law also states that to qualify for a permit, a solicitor must act "solely by a desire to finance the charitable cause" and that the cost of the solicitation can't "exceed 25 percent of the amount raised," provisions that have previously been ruled unconstitutional because they impose unreasonable limits on the ways an individual can disseminate their message, Pease said.
Pease initially asked Superior Court Judge Joan Lewis for a temporary restraining order, which would have forced the city to cease enforcing the law while arguments were heard. Lewis denied the motion.
However, shortly after the hearing, the city attorney's office informed Pease that Valli and others could resume fundraising without fear of further charges and, last Friday, the city attorney's office filed official notice that it will not oppose Pease's request that Lewis declare the laws regulating solicitors unenforceable. Lewis will likely review that request this week.
"I'm not too shocked that they're not opposing it," said Pease. "There isn't too much that they can argue from the other side since [similar laws] have already been thoroughly held to be unconstitutional by appellate courts."
Deputy City Attorney John Riley points out that the law was established with good intentions to ensure the legitimacy of groups seeking donations, but he acknowledged that some of its requirements are overly vague and broad.
"The city's position is we are not going to enforce this," Riley said. "In terms of ruling whether or not it's unconstitutional, I will leave that to the judge.
"Certainly, when I looked at the law, I had concerns."
Apparently Riley wasn't the only one.
In 2003, the city attorney's office, then headed by Casey Gwinn, submitted a legal analysis to the City Council's Natural Resources and Culture subcommittee, opining that the laws governing public charitable solicitations "date back to the 1960s, are generally unenforceable and have not been enforced for some time."
Nor are they enforced now. A spokesman for the San Diego Police Department told CityBeat officers hadn't issued a single citation like the one given to Valli in all of 2005.
The city attorney's advice was issued at the request of then City Councilman and current City Council President Scott Peters, who, the unsigned legal opinion notes, was looking into ways "to prevent sales on city parks by individuals or organizations that are allegedly abusing their [nonprofit] status and the First Amendment, as well as giving little or no money to the causes they profess to support." Children's Pool is located in Peters' district, and he has supported joint-use of the beach by humans and seals, a scenario pro-seal activists deem untenable.
But that's not all. Documents obtained by CityBeat show that as early as 1983, the city attorney's office was aware that "our ordinance is probably constitutionally infirm" and "the code sections should not be enforced" and "a redrafting of Section 57.10 is in progress." But in a 1991 legal memo to the Parks and Recreation Department titled "Control of "Free Speech' Vendors in City Parks," a deputy city attorney wrote that a 1988 Supreme Court case "prohibits the enforcement of the permit requirement contained in 57.01."
"It certainly begs the question of why it's still on the books if it's not enforceable," said Pease, noting that "anybody who was cited in the past would possibly have an action for damages."
The conclusions drawn by the city attorney's office in the past raise questions. Specifically, how and why did a lifeguard, charged with enforcing local law at city parks and beaches, come up with such a rarely used legal device off the top of his head?
Pease and other seal supporters think beach-access proponents, who they said have repeatedly complained about their tables at the Children's Pool, may have tipped off the lifeguard.
Contacted by CityBeat last week, Alex Riley, the lifeguard who issued the citation, said he couldn't comment without permission from his superiors. His boss, Captain Rick Wurts, declined to comment specifically on the incident other than to concede that such a citation was rare. Asked whether lifeguards may have been influenced by an outside party, he said, "I have no idea if something like that happened or not. From at least my perspective, that seems fairly far-fetched.
"In general, the issues surrounding the Children's Pool are very passionate," Wurts said. "There is certainly a lot of polarization from the various perspectives up there.... It's a catch-22. No matter who you go talk to, you are in a difficult situation."
Maurice Luque, spokesperson for San Diego Fire and Rescue, which includes the lifeguard service, told CityBeat Tuesday that Riley "went online and reviewed those city ordinances in detail because he knew of the issues that were happening there in the park and he wanted to be totally versed."
Luque denied charges that the citation was selectively enforced against a specific individual. "We are perfectly satisfied that he issued that citation in a legitimate manner."Countered Pease: "It's too bad for the city it wasn't a legitimate law he was enforcing."