Store Entrances are Not a Public Forum

January 12, 2015

Business owners have many obligations. They have to consider their obligations to customers, to employees, to vendors, and sometimes even to law enforcement. One set of obligations that sometimes gets overlooked, however, is a business's obligations to the public at large. One such obligation may come in to play when a business is considered a public forum. So the question becomes, when is a California business obligated to allow other members of the community to do things like solicit donations at their business? A recent court decision addressed that very question.

The Court's decision was in a case called Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach. The realty group controls the Fig Garden Village shopping center, which is an outdoor shopping center with about sixty retailers. The shopping center has a policy that prohibits the solicitation of donations on shopping center property. Other forms of expressive activity, like collecting signatures for petitions, are allowed but only in a designated "public forum area." One day, back in 2013, two solicitors for Nu Creation Outreach went to the shopping center and solicited donations for their organization on sidewalk areas adjacent to store entrances within the shopping center. The next day six to eight solicitors from the organization showed up and started soliciting donations. Shopping center representatives explained the policy and asked the solicitors to leave, but they refused. The shopping center then called the police, but the police refused to arrest the solicitors without a court order.

This left the shopping center with one option to have its policy observed–going to court. It filed a complaint for declaratory relief and trespass and filed an application for a temporary restraining order (TRO) and an order to show cause (OSC) why a preliminary injunction should not be issued preventing Nu Creation and its agents from soliciting on shopping center property. The defendants were Nu Creation Outreach and Damone Daniel. The trial court granted the TRO and the OSC. After holding a hearing, the trial court issued an injunction that was a partial win for the shopping mall. It did not prohibit all solicitation on shopping center property, but it did restrict the solicitation to the designated "public forum area." Nu Creation Outreach and Damone Daniel appealed.

The Court first ruled that Nu Creation Outreach could not continue in its appeal because it was not represented by counsel. However, Daniel's appeal proceeded. The key issue in the appeal was whether the area where the solicitors were soliciting constituted a "public forum" where "speech could be limited only by reasonable time, place, and manner restrictions that are content-neutral, narrowly tailored, and leave ample alternative means of communication of the information." This is the standard already laid out by the California Supreme Court in Fashion Valley Mall, LLC v. National Labor Relations Board. The shopping mall argued that the store entrances were not a public forum because they were not designed or furnished to induce shoppers to congregate for entertainment, relaxation, or conversation. Instead they were designed only to facilitate customer access to stores. The Court agreed with this argument as the trial court's decision to do so was supported by substantial evidence. So the injunction will remain in place and solicitation will only be allowed in public forum areas, not next to store entrances.