Update: Signature Gatherers and Solicitors

March 2020

California Grocer, Issue 1

As we head into another election cycle, several CGA members have asked about their rights with respect to unwanted signature gatherers and other solicitors.

We’ve heard many stories about belligerent signature gatherers who insist they’re exercising their constitutional rights; and about local law enforcement agencies that are unaware of the recent Supreme Court rulings in favor of grocers on this subject.

About forty years ago, the California Supreme Court ruled that speech and petitioning, if “reasonably exercised,” in areas outside privately-owned shopping centers is constitutionally protected.

In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910 (“Pruneyard”), high school students disseminated information in a courtyard inside the Pruneyard Center, which was approximately 21 acres in total and contained 65 shops, 10 restaurants, and a theater.

According to the Court, these students had a constitutional right to be present on Pruneyard Shopping Center’s private property because the shopping center was essentially a place for citizens to socialize and congregate – in constitutional terms, it was a “public forum.”

Not all private shopping centers are a public forum, however. Indeed, the Pruneyard Court cautioned that signature gatherers and solicitors do not have “free rein” to express themselves at private shopping centers. So the main question becomes: when is a store considered not a “public forum”?

Whether a private shopping center is a “public forum” largely depends on the nature and characteristics of each individual store or shopping center. A shopping center’s common areas, those which generally have seating and other amenities producing an environment that encourages shoppers to stop, relax, linger, gather, and chat is more likely to be viewed as a “public forum.”

But when a storefront is not designed to promote gathering and relaxing, such as the entrance area or the apron, the store is less likely to be viewed as a “public forum.”

The California Supreme Court recently highlighted the “public forum” analysis in Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083 (“UFCW”).

Union members gathered directly in front of a Foods Co. store to picket, and apparently to dissuade shoppers from entering the store. Unlike Pruneyard, the Court decided that the area immediately outside Foods Co.’s customer entrances and exits, at least as typically configured and furnished, is not a traditional “public forum.” The union activity interfered with normal business operations more than it would have in the less heavily trafficked common areas of a public forum.

Ultimately, it was determined that the area directly outside Foods Co. did not encourage activities such as meeting friends, congregating, or lingering. Similarly, in Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106 and Van v. Target Corp. (2007) 155 Cal.App.4th 1375, the stores also successfully argued that their storefronts were not a public forum for expressive activity because the premises of each store was not designed to draw crowds like a traditional “public forum.”

As a first step to removing unwanted trespassers, stores should first evaluate their premises to determine if it is indeed a “public forum.”

Some factors to consider: are there seats, restaurants, walkways or common areas that encourage the public to gather like in Pruneyard? Or, are the premises simply intended for shoppers to enter and exit the stores or for customers to view a store’s merchandise and advertising displays similar to the Ralphs v. UFCW case?

This analysis is highly factual, but the bottom line is: if the area encourages members of the public to meet friends, eat, rest, congregate or be entertained, the more likely it will be viewed as a “public forum” for signature gatherers and solicitors to exercise their freedom of speech.

After conducting the “public forum” analysis, another consideration is whether the signature gatherers and solicitors are engaged in union activities. In the UFCW case, the California Supreme Court ruled that while union members did not have a constitutional right to be at Foods Co.’s entrance area and apron, the union members might have a statutory right to be present under the Moscone Act and Labor Code section 1138.1. Stores should thus also consider whether the signature gatherers and solicitors are engaging in union activities before seeking to evict them.

If the premises is not a “public forum” and there are no union activities involved, then stores may ask the trespassers to vacate the premises. As a practical matter, stores should review their leases to make sure they have authority and control over the apron and parking lot.

Many store leases place responsibility for maintenance and control of these spaces on the tenant grocer while some leases reserve this authority to the landlord. In the latter case, the store may need to ask the landlord for assistance in removing the unwanted trespassers.

If the signature gatherers and solicitors do not leave the premises, the store has options, including: The store may seek help from the local authorities, explaining that the store’s premises are not considered a “public forum.”

We encourage store operators to meet in advance of a trespassing issue with the local police chief or sheriff to discuss their understanding of the law in this area, and their willingness to assist in the removal of trespassers.

CGA may be able to assist with the educational effort if your local law enforcement agency exhibits a lack of understanding of the law on solicitors and signature gatherers in front of stores.

Another option available to retailers is to sue for trespass and seek an injunction to prevent the trespassers from entering the store’s private property.

When a store seeks injunctive relief against the trespassers, it would not be surprising if the trespassers filed an anti-SLAPP motion to strike the store’s complaint. An anti-SLAPP motion is a special motion designed to dismiss claims interfering with protected speech.

This is exactly what happened in Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245. In this case, Food-4-Less and Ralphs filed a lawsuit to enjoin trespassing signature gatherers from operating in front of their stores. The trespassers filed an anti-SLAPP motion, contending that that their signature gathering was a constitutionally protected activity.

The Court of Appeal agreed with Ralphs that the signature gathering was not a protected activity because the stores were open to the public to buy goods, not to offer their property as a traditional “public forum.”

The main takeaway is that signature gatherers and solicitors do not have free rein to use store property as a public forum. First, stores must evaluate whether their premises are a “public forum.” If not a “public forum,” then second, determine whether the solicitors are engaging in union activities that may give them special statutory permission to be present.

And finally, if the store is not a “public forum” and there are no union activities involved, stores should know that there are remedies available to remove unwanted, trespassing signature gatherers and solicitors from their premises.

Editor’s Note: Dale Stern is a partner and Wiemond Wu is an associate at Downey Brand LLP in Sacramento. Dale has served as outside general counsel to CGA for 30 years.

This article appeared in California Grocer, Issue 1 (2020) and is republished with permission. © California Grocers Association.