Court OKs ban on day laborers soliciting work

(06-09) 17:30 PDT SAN FRANCISCO -- Cities can prohibit day laborers from soliciting work from passing drivers, a federal appeals court ruled Wednesday.

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said an ordinance in Redondo Beach (Los Angeles County) prohibiting anyone on a street or sidewalk from seeking work from motorists, and prohibiting drivers from stopping to offer a job, is a valid safety measure that does not interfere with free speech.

The ordinance does not regulate the content of a day laborer's speech, only the location, Judge Sandra Ikuta said in the majority opinion. She said workers can reach out to prospective employers "in safer and less disruptive ways," such as by handing out leaflets, speaking to pedestrians or canvassing door-to-door.

Dissenting Judge Kim Wardlaw said the law punishes constitutionally protected expression and "eliminates the only means by which day laborers can communicate their availability for employment."

The ordinance has been on hold since a federal judge blocked enforcement in 2004, after a city crackdown in which police - some posing as employers - cited about 60 would-be workers.

Dozens of California communities have similar laws, including several in the Bay Area, but federal judges have blocked every attempt at enforcement, said Thomas Saenz, chief lawyer for the Mexican American Legal Defense and Educational Fund.

He said the last local case was about seven years ago, when a judge barred Mountain View and Los Altos from implementing their ordinances, which the cities later dropped.

The ruling "provides a clear blueprint" for other cities, said Redondo Beach City Attorney Michael Webb. "They can have effective enforcement without infringing on anyone's constitutional rights."

But Saenz said such efforts would be futile, because day laborers "respond to the demand for their services" and would simply move to the next community, along with their prospective employers.

Redondo Beach modeled its law on a Phoenix ordinance that prohibited fundraisers from stopping drivers and asking for money. Like Phoenix, Redondo Beach has prohibited "acts of solicitation that risk interfering with the flow of traffic," while allowing alternate means of communication, Ikuta said.

Wardlaw, in dissent, said the Phoenix ruling was aimed at conduct that stopped traffic and would not apply to an ordinance that barred workers from standing on a sidewalk and letting drivers know they were available.

Chris Newman, legal director of the National Day Laborer Organizing Network, a plaintiff in the case, said the ordinance seeks to "criminalize day laborers' very being." He said he would ask the full appeals court for a rehearing.

The ruling can be read at links.sfgate.com/ZJVC.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page C - 7 of the San Francisco Chronicle