The California New Business Bureau has prevailed in its nine-month challenge of San Bernardino County’s anti-solicitation ordinance.
That ordinance – Ordinance 4282 – added Chapter 30 to Division 1 of Title 4 of the San Bernardino County Code to prohibit solicitation to market or advertise products, services, or property by any person, association, group or other entity on county property.
The ordinance was framed with the California New Business Bureau in mind. The company has offices in Norwalk in Los Angeles County, Santa Ana in Orange County and San Bernardino in San Bernardino County, and offers a full line of services to start-up and existing businesses with regard to filing for corporation or partnership status, permits, licenses, establishing trademarks, registering and other applications with regard to operating a business. A major line of service at the company’s San Bernardino location, which is located across the parking lot from the county’s Hall of Records, is assisting those applying for fictitious business names in the county recorder’s office.
Because of the California New Business Bureau’s proximity to the Hall of Records and its practice of stationing its employees near the county facility and approaching those going into or coming out of the county clerk/recorder’s office, which is located on the ground floor of Hall of Records, it was seen as an interloper by many newspapers in the county. Bonafide newspapers derive a major portion of their income through the publishing of legal notices, such as those for fictitious business names, which are registered at the county clerk’s office. Some newspapers, such as the Sentinel coordinated with the California New Business Bureau to publish those notices. Other newspapers did not.
As a consequence of complaints from some of the newspapers, the county passed Ordinance 4282. In September the county began enforcing the ordinance. Four California New Business Bureau employees were cited for being in violation of the ordinance and were hit with fines. In some cases, those fines totaled several thousand dollars.
California New Business Bureau owners Eleazar Duque and his son Steven retained the services of Pasadena-based attorney Oscar Acosta. Acosta filed an action in San Bernardino Superior Court in which he challenged the ordinance on freedom of speech, freedom of assembly and tortious interference grounds.
This week, the matter came before Judge David Cohn who found the ordinance unconstitutional.
“Judge Cohn’s ruling was quite narrow in scope,” Acosta told the Sentinel. “This was a straightforward question of whether the ordinance passed by the board of supervisors was constitutional or not. After hearing from both sides, he issued his ruling. There was no vacillation. He said the law is unconstitutional, which we maintained all along. The issue was clear. This is commercial speech and that is protected. He said the ordinance was overly broad and impermissibly vague. He ordered that the fines be vacated.”
Acosta said there is a parallel case that has yet to be adjudicated relating to action the district attorney’s office took against the employees that were cited. He said he anticipated that “those cases will be set aside. The district attorney’s office’s action related to the same course of conduct that was at issue in Judge Cohn’s ruling. The district attorney’s action has to be predicated on a valid law and the law here is unconstitutional.”
Acosta said “They could appeal but I would expect both parties will adhere to the ruling.”
Emilio Mendoza, who manages California New Business Bureau’s San Bernardino office three days a week, told the Sentinel, “The fight out here with the County of San Bernardino was vicious. They used all the tools they had to destroy our company, the DA, PD, and sheriff. The PD and sheriff were always respectful toward us. When they got code enforcement involved, their last attempt to destroy us was almost successful. They began to compile tickets on the company in the thousands of dollars. Thank God the judge said what we knew all along, which is that the ordinance was unconstitutional.”