Costa Mesa Dayworker Exclusions Thrown Out : Lawsuit: It is held unconstitutional to ban people with an ‘intent’ to solicit work from certain city areas.

An Orange County Superior Court commissioner Friday ruled unconstitutional a portion of a Costa Mesa ordinance that prohibits dayworkers from going to certain areas of the city with the “intent” to solicit work.

Ruling on a lawsuit filed by the American Civil Liberties Union, Commissioner Ronald L. Bauer found that the provision is “overly broad and vague and impinges on expression of speech.”

In September, Costa Mesa identified three areas that draw the heaviest concentrations of dayworkers and prohibited anyone’s being within 300 feet of those sites with the “intent” to solicit employment from the occupant of a motor vehicle.

This addition to the city’s existing anti-solicitation ordinance also empowered police to arrest people based on “circumstantial evidence.” The measure did not define circumstantial evidence, but in practice police have arrested people in the targeted areas because they were known to have solicited work in the past. Previously, police had to catch a dayworker in the act of solicitation.

The ACLU sued the city to stop enforcement of the provision, arguing that it is vague and violates freedoms of speech and assembly guaranteed under the First Amendment.

ACLU attorney Rebecca Jurado hailed the ruling as a clear message that cities may not use the pretext of regulating traffic to exclude dayworkers from parks and other areas where they congregate.

“The statute, in effect, created zones where a particular thought is impermissible... ,” Jurado argued in court Friday. “Under the ordinance, a person could stand at the edge of their property and talk to a person in a vehicle about getting a job and be subject” to arrest.

Jurado further noted that a person did not even have to be talking about a job to face arrest.

Michelle Vadon-Rivera, a private Los Angeles attorney who represented the city, argued that the ordinance did not intrude on anyone’s constitutional protections and that the city was within its rights to take “legitimate means” to enforce traffic laws.

“There is no other way for the city of Costa Mesa to deal with this problem; we have gone through all of the steps,” she said.

However, Bauer called the provision “ill designed.” In court, he questioned whether the statute would apply to a person who goes to Sacramento to get a job but “foments that thought in Lions Park,” one of the areas targeted by the provision.

“When I first read the statute, my first thought was that there is no relationship as to where the (intent to solicit) occurred,” Bauer told Vadon-Rivera.

Vadon-Rivera said she did not know whether the city planned to appeal the ruling and declined further comment.

City Atty. Thomas Kathe, said that he had ordered the intent provision suspended immediately and that the city would not try to prosecute arrests made under the provision, pending a “ruling from a higher court, if the city appeals.”

According to Costa Mesa police statistics, 96 arrests have been made under the intent provision of the anti-solicitation ordinance, which also bars curbside solicitation and prohibits employers from hiring workers off the street.

Costa Mesa is believed to be the only Southland city with an ordinance that bars people from public places if they intend to solicit work, but other cities--including Orange and Encinitas--have considered similar measures.

Councilman Orville Amburgey proposed the intent provision, arguing that stronger measures are needed to control traffic problems caused by dayworkers. The council voted for the measure, 3 to 2, with Councilwomen Mary Hornbuckle and Sandra L. Genis dissenting.

The areas targeted under the measure are Lions Park, 18th Street and Harbor Boulevard and Santa Avenue and East 20th Street.

“I can’t say that I’m going to shed any tears,” Genis said when told of the court decision. “When we went to vote on that, I said, ‘We can’t do this, it’s unconstitutional,’ and as far I’m concerned it interfered with freedom of assembly and freedom of speech. I didn’t think it was legal, and I also didn’t think it was moral, either.”

Other council members could not be reached for comment Friday.

The ACLU’s Jurado and other opponents of the measure had argued that the impact of the ordinance had fallen heavily on Latinos, who constitute the vast majority of dayworkers in the city.

“I see this as a vindication that cities cannot abridge rights based on ethnicity, which seems to be happening increasingly in the county of Orange,” Jurado said.

Mary Anne Perez contributed to this report.