Encinitas City Council Bans Curbside Hiring of Migrants

The Encinitas City Council voted 4 to 1 Wednesday night to enact a ban on curbside hiring to combat the presence of hundreds of migrant workers who regularly solicit daily work there, despite warnings that a similar ordinance has been contested on constitutional grounds.

“It’s certainly time for the council to adopt this ordinance,” said Councilwoman Margery Gaines, an outspoken critic of the migrant presence in the seaside North County community. “We really have no other option at this point in time.”

However, Councilwoman Anne Omstead said she is worried that the city will spend too much time and effort defending its new law in court because it potentially violates the First Amendment rights of both migrant workers and those seeking to hire them from city street corners.

“I have very serious problems voting for a law that abrogates human rights,” she said. “I won’t vote for it.”

In recent weeks, city officials say they have been under increasing pressure to pass some type of law to control the hundreds of migrants from Mexico and Central America who congregate daily on city streets to solicit work, often within sight of City Hall.

June Bello, an Encinitas resident, said that one morning she counted more than 200 migrants soliciting work at several city corners, while at the same time, only 38 documented laborers found work at the city’s hiring hall. “If the (U.S. Immigration and Naturalization Service) is too busy to enforce sanctions against undocumented workers, the ban would permit local authorities to enforce the rules,” she said.

In recent weeks, Encinitas has gone public with its struggle to incorporate its migrant population--estimated at 800 to 1,500 workers. Two weeks ago, city officials declared a local state of emergency, claiming that federal officials must do more to preclude migrants from crossing the international border.

Officials also called for congressional hearings in North County on migrant labor. Critics say the emergency declaration is largely rhetorical, since the state has said there are no available funds to assist the city.

On Wednesday night, Councilman Rick Shea said city officials were disappointed that Sacramento had merely sent them a brief notice to redeclare a state of emergency every 14 days. “Apparently the calvary is not coming,” he told the overflow crowd. “We need this ordinance as a way to take matters in our own hands.”

The consideration of the curbside hiring ban also comes six months after the city opened a hiring hall for legally documented migrant workers along a rural stretch of El Camino Real, a site tucked well away from the downtown business area where most undocumented workers still gather to solicit work.

Officials then said they would wait to see if the hiring hall relieved the presence of workers on city streets. Some council members have since expressed dissatisfaction with the results.

On a good day, city officials say, about 60% of the 125 workers using the hall find employment.

The curbside hiring ordinance was modeled after similar bans in three Orange County cities--Dana Point, Orange and Costa Mesa--according to a city staff report.

But, unlike ordinances in those cities--which target both workers and employers--Encinitas’ ordinance would apply to employers, who could be issued a citation carrying the same weight as a traffic ticket.

As evidence, officers would consider verbal exchanges and other actions such as hand gestures, according to a council report prepared by the city attorney.

Federal laws prohibit the hiring of undocumented aliens. The proposed city ordinance would make it illegal to hire even documented workers from either public streets or designated private areas.

“The focus of the ordinance is to stop the market by driving off the supply,” said sheriff’s Capt. R. J. Apostolos, whose squad of 25 deputies would enforce the ban. “Hopefully, the demand will then move along with it.”

But the law could encounter trouble. An attorney for a North County migrant rights group said Wednesday that any curbside hiring ban will be examined for a potential lawsuit on constitutional grounds.

“We, along with the (American Civil Liberties Union), would go over it with a fine-tooth comb,” said Claudia Smith, counsel for California Rural Legal Assistance.

In the past year, a similar law in Costa Mesa has been challenged on constitutional grounds for depriving both workers and would-be employers of their First Amendment right to free speech.

That city is defending three lawsuits--in federal, Superior and Municipal courts--filed by the ACLU and several parties who were convicted of trying to hire day laborers.

“My only advice for Encinitas is be prepared to defend your ordinance,” said Costa Mesa City Atty. Tom Kathe. “I would anticipate that any curbside hiring ordinance would be subject to constitutional challenges. That’s the climate today.

“We expect our ordinance to be upheld. But it’s a crapshoot out there, because this is certainly a legal area in flux.”

Rebecca Jurado, a staff attorney for the ACLU in Southern California, said Costa Mesa police have arrested migrants and would-be employers merely for the intention making a business transaction.

“It’s unconstitutional because it’s vague and over-broad,” she said of Costa Mesa’s ordinance. “It includes things like a person standing in a park too long looking at passing cars.

“Even if an officer hears an exchange--people offering or accepting work--it’s still not lawful to arrest them. That’s saying it’s against the law to talk about employment in certain areas of the city. That’s a violation to the right of free speech.”

Apostolos said he doesn’t find the proposed ban in Encinitas excessive because officers would have to witness a hiring attempt before moving in.

“The City Council is trying to be responsive to the citizens,” he said. “We’ve tried everything else before going to this level of enforcement, such as the job center, educational flyers and city cleanups.

“Frankly, we haven’t seen a whole lot of change. What else can we do?”