Lawsuit Attacks Encinitas Ban on Roadside Hiring

A lawsuit filed Friday challenges the constitutionality of Encinitas’ ban on roadside hiring--a prohibition that will go into effect today in an effort to reduce the number of Latino workers lining city streets in search of day labor.

The suit filed in U.S. District Court argues that the beachside city’s ordinance is a violation of federal civil rights by restricting freedom of speech and further contends that the law is too vague and “bears no rational relation to a legitimate government objective.”

The suit was prepared by the California Rural Legal Assistance, a migrant advocacy group, and the American Civil Liberties Union.

The Encinitas City Council on May 23 voted to adopt the ordinance, which would give the San Diego County Sheriff’s Department power to cite persons who, on public property or along public streets, stop to solicit day laborers. Conviction calls for a $100 fine on the first violation, a $200 fine for the second violation within one year, and $500 for each additional violation within one year.

Unlike a section of a similar ordinance adopted by the city of Costa Mesa, which was struck down Friday by an Orange County court, the would-be laborers in Encinitas would not be cited for seeking work, according to the city law.

Claudia Smith, regional counsel for California Rural Legal Assistance, said the city’s ordinance nonetheless unfairly targets persons who are legitimately looking for work and have been stymied in finding it at established locations.

“The workers on whose behalf the suit was brought are documented workers who can’t find sufficient work through the (city’s recently established) hiring hall. They have no choice but to stand along streets and ask for work,” she said.

Two of the plaintiffs are documented aliens who “have current authorization to be employed in this country and rely heavily on being hired along Encinitas streets to provide bare necessities for themselves and their families,” the suit states.

But also among the plaintiffs are two Encinitas residents who say they occasionally hire day laborers along Encinitas streets, and who said they will now be thwarted in looking for workers.

The suit, which seeks to enjoin the city from enforcing the ordinance, is expected to be taken up in federal court next week, Smith said.

Councilwoman Gail Hano said she wasn’t at all surprised by the suit.

“We’re prepared to go to court on this,” she said. “Whether they’re prepared to take it all the way, I don’t know. If they do, I doubt whether they’ll win.”

Hano said the ordinance, similar versions of which have been contested on legal grounds in three Orange County communities, made sense because it addressed health, safety and traffic problems she said were created by the hiring practice.

“We have 52,000 people in this community that are represented by the council,” she said, “and, fortunately or unfortunately, those people come first.”

Hano said cars and trucks driven by potential employers often pull into the bicycle lanes of busy thoroughfares, blocking traffic and pedestrians and creating a hazard.

The curbside hiring ordinance was modeled after similar bans in Dana Point, Orange and Costa Mesa. But, unlike the laws in those cities--which target both workers and would-be employers--the Encinitas ordinance would apply only to employers, who would be issued a citation carrying the same weight as a traffic ticket.

As evidence, sheriff’s deputies would consider verbal exchanges and other actions such as hand gestures, city officials said.

Migrant advocates have been threatening to respond to the law since it was ratified by the City Council in May. In the past year, Costa Mesa’s ordinance has been challenged on constitutional grounds for depriving both workers and would-be employers of their First Amendment rights 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.

Another of the plaintiffs in the lawsuit against Encinitas is the Rev. Rafael Martinez, executive director of the North County Chaplaincy, another migrant advocacy group. He argued that the Encinitas law in effect allows an employer to “pick up a blue-eyed surfer type, but not if your skin is olive-colored or you’re from Mexico or Central America.”

Hano denied that claim.

“We don’t care if people are green, purple, yellow or whatever color,” she said. “The law applies to everybody.”

Migrant advocates have also claimed that the aim of city officials is to drive away the workers who line city streets in some areas by doing away with the employers.

Encinitas Fire Chief Robert LaMarsh said, however, that the law was enacted to help protect the migrant laborers, whose numbers are estimated at 800 to 1,500.

“There’s just too much opportunity for abuse, for employers to take advantage of these people because they don’t know the language or the culture,” he said.

Although the hiring ban officially takes effect this morning, sheriff’s deputies said they probably would wait a month before issuing summonses--instead giving warnings to drivers that are seen soliciting migrant workers.

Sgt. Karol Takeshta said the department is awaiting for the arrival of bilingual pamphlets that deputies planned to distribute to both workers and employers describing the new law. She said the pamphlets had not arrived as of late Friday morning.

“This Saturday is probably not going to be any different than any other day. We won’t have deputies specifically out on the streets looking for these types of transactions,” she said.

“If we get a complaint, we’ll respond and issue warnings, where in the past we would have told the caller there’s nothing we can do--call the Border Patrol. But it will probably be a while before we’re out there issuing warnings.”

Encinitas city officials say the ordinance is needed because the hiring hall on El Camino Real near the Carlsbad border is not bringing results. On a good day, city officials say, about 60% of the 125 workers using the hall find work.