No shirt, no shoes, no service - maybe

Businesses in Los Angeles and San Francisco face a growing problem with persistent vagrants and panhandlers who regularly loiter outside stores and solicit customers for both money and goods. Recurring instances of such behavior can be a drain on business and cause customers to move on to the next convenience store or coffee shop down the road. Businesses hesitate to address the problem, however, for fear of being slapped with a civil rights lawsuit for discriminatory business practices. So the issue becomes: What can businesses do to control the vagrant population outside of their stores without exposing themselves to potential lawsuits? One answer may lie in the Los Angeles and San Francisco municipal codes.

It is first important to know what businesses cannot do. Businesses owners are well aware that they cannot categorically ban a generalized group of people, otherwise called "arbitrary discrimination." California's Unruh Civil Rights Act makes this prohibition very clear. Cal. Civ. Code Section 51. The state Supreme Court clarified that the act encompasses all types of arbitrary discrimination even though the act only enumerates a select few (sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation). In re Cox, 3 Cal. 3d 205, 216 (1970). The prohibition applies even if it is assumed that the banned group as a whole is more likely to commit misconduct than some other group of people. Marina Point Ltd. v. Wolfson, 30 Cal. 3d 721 (1982). This means that a business cannot ban all "vagrants" or "panhandlers" on the assumption that they are more likely to disrupt business and annoy customers than other persons.

Businesses are not, however, powerless to defend themselves. The state Supreme Court has also addressed what businesses can do. In 1970, the Supreme Court affirmed that a business owner does not have to tolerate customers that "damage property, injure others, or otherwise disrupt its business." Cox, 3 Cal. 3d at 217. To protect against such customers, the business is permitted to establish "customer behavior" rules that are rationally related to the services performed and the facilities provided. And properly drafted customer behavior rules can exclude people whose behavior is violent or disruptive to the services provided. In other words, businesses can exclude certain people so long as such discrimination is justified by a legitimate business purpose.

So when is a person's behavior disruptive enough that a business can exclude him or her? Businesses can adapt customer behavior rules to address the vagrant and panhandling problem occurring in the immediate vicinity. Section 41.59(a)(1) of the Los Angeles municipal code, for example, prohibits a person from soliciting, asking or begging "in an aggressive manner in any public place." See also San Francisco Municipal Police Code Section 120-2 (finding "that aggressive solicitation for money in public and private places threatens residents' and visitors' safety, privacy and quality of life.").

In Los Angeles, "solicitation" means panhandling for money or goods, or soliciting the sale of goods or services. In the preamble to that section, the city declared that, "aggressive solicitation throughout the city has become extremely disturbing and disruptive to residents and businesses, and has contributed to the loss of access to and enjoyment of public places, but also to an enhanced sense of fear, intimidation and disorder." In other words, the city has declared that aggressive solicitation is inherently disruptive to businesses. Therefore, according to the state Supreme Court, it is a legitimate business purpose for businesses to establish proper customer behavior rules to protect against aggressive solicitation in their vicinity. A business could then place a window sign stating that it will refuse service to any person seen aggressively soliciting outside. The business can also request that any such person leave the sidewalk area immediately outside.

A policy, properly drafted, may justify and insulate the business from an Unruh Act lawsuit if the aggressive solicitation disrupts access to the business and intimidates customers. Furthermore, the Supreme Court declared the Los Angeles code provision to be "content-neutral," meaning it would be difficult to challenge its constitutionality. Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352, 379 (2000).

The business must, however, be aware that aggressive solicitation does not mean all solicitation. The U.S. Supreme Court ruled that solicitation in general is a form of free speech protected by the First Amendment. United States v. Kokinda, 497 U.S..720, 725 (1990). That being said, Los Angeles defines the term "aggressive solicitation" broadly enough that it can be interpreted to restrict many forms of solicitation, even if not all forms. Of course if on balance the language of the code section is considered too broad, then the code section itself may be subject to challenge on constitutional grounds.

The many forms of solicitation may approaching, speaking, following, asking, or begging in such a way that a reasonable person would be pressured or intimidated into giving money. It would seem that a reasonable person certainly could feel intimidated if the solicitor speaks loudly, approaches quickly or determinedly, or asks repeatedly..

This same reasoning could be applied to Los Angeles' provision prohibiting loitering in "such a manner as to annoy or molest any pedestrian thereon or so as to obstruct or reasonably interfere with the free passage of pedestrians." Los Angeles Municipal Code Sections 41.18, 41.27. The business then has a legitimate business purpose in refusing service to any person seen loitering outside in a way that interferes with access to the business.

In sum, businesses cannot put up a sign refusing service to or banning vagrants and panhandlers wholesale. They do have the right, however, to refuse service to or ban the presence of vagrants and panhandlers on a more particularized basis provided the business has observed the specific person loitering or aggressively soliciting outside the store. Business operators can diligently enforce this right. They may ask such persons to leave the business premises or the immediate vicinity. Businesses may also post window signs refusing service to persons that the employees observe engaging in the activities discussed in this article. Once it becomes common knowledge that the business adamantly enforces its rights, the business may find that persons are less likely to gather and stake out a spot at the storefront discouraging paying customers from patronizing the establishment. So the business is not powerless to address the problem. The key is a proper policy and properly worded signage.