About Regulation of Peddlers and Solicitors - Court Decisions
General
Municipal ordinances which prohibit solicitors, peddlers, and itinerant merchants from calling on private residences for the purpose of peddling or soliciting without the request or the invitation of the occupant are sometimes referred to as "Green River" ordinances (from the case of Town of Green River, Wyoming v. Fuller Brush Co., 65 F.2d 112 (10th Cir. 1933)). "Green River" ordinances entirely prohibit and declare the practice of uninvited house-to-house canvassing to be a nuisance and misdemeanor punishable by fine and imprisonment (Rhyne, The Law of Local Government Operations, pp 495-496). Such ordinances have been upheld in the past by the United States Supreme Court. These types of ordinances have been ruled unconstitutional when they prohibit religious or noncommercial door-to-door solicitation. The U.S. Supreme Court on June 17, 2002 by a vote of 8-1, invalidated a Stratton, Ohio ordinance that required canvassers to register and obtain a permit from the mayor's office before going door-to-door promoting any cause (Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton). The Court held that the ordinance violated the First Amendment as it applied to religious proselytizing, anonymous political speech, and the distribution of handbills. See MRSC Web Page, U.S. Supreme Court Says No Permit Required to Solicit for Religious Reasons.
Other decisions include Breard v. Alexandria, 341 U.S. 622, 95 L.Ed 1233, 71 S.Ct. 920 (1951). The Breard decision was decided at a time when "commercial speech" was thought to be outside the protection of the First Amendment. More recent Supreme Court Decisions question the analysis of the Breard case and suggest that a complete ban on door-to-door solicitation would be found unconstitutional today. See also McQuillin, Municipal Corporations, §24.378 (3rd Ed.).
Even though the 1951 United States Supreme Court decision has not been expressly overruled, more recent cases suggest that a total prohibition of door-to-door solicitation would be unconstitutional and unenforceable. In Project 80's Inc. v. City of Pocatello, 942 F.2d 635 (9th Cir. 1991), a city ordinance prohibiting door-to-door solicitation unless the homeowner places a "solicitors welcome" sign on the house was ruled an unconstitutional infringement of free commercial speech. The court concluded that the ordinance did not provide the least restrictive alternative available to accomplish the legitimate governmental interests of protecting residential privacy and preventing crime. The Federal Court decision invalidating the Cities of Pocatello and Idaho Falls' ordinances was the second time the Court had invalidated the ordinances. The 1991 decision was the result of a remand order by the United States Supreme Court of the earlier 1988 decision in Project 80's Inc. v. City of Pocatello, 876 F.2d 711 (9th Cir. 1991), vacated and remanded, City of Idaho Falls v. Project 80's Inc., 493 U.S. 1013, 110 S.Ct. 709, 107 L.Ed.2d 730 (1990). Similar decisions have been reached by the Ohio Court of Appeals in City of Tiffin v. Boor, 109 Ohio App. 3d 337, 672 NE2d 200 (Ohio Ap. 1996), the Oregon Supreme Court in City of Hillsboro v. Purcell, 306 Or 547, 761 P.2d 510 (Ore., 1988) and an Illinois Federal District Court in Green v. Village of Schaumburg, 676 F.Supp. 870 (ND Ill., 1988).
Washington
While there are no reported Washington court decisions on the validity of "Green River" ordinances, on November 3, 2000 U.S. District Court Judge John C. Coughenour issued an order (Peace Action Coalition v. City of Medina (
253 KB), Case No. C00-1811C) enjoining the city of Medina from enforcing its regulations that require all solicitors and peddlers to register with the local police department and submit to a criminal records check. In the words of the court, "the relevant portions of the Medina Municipal Code constitute an improper prior restraint on speech protected by the First Amendment, and are impermissibly overbroad and vague, chilling constitutionally protected speech." See MRSC Web Page, Federal Court Strikes Down Medina Ordinance Regulating Door-to-Door Solicitation.
The 1951 Supreme Court Breard case upholding such ordinances was recently cited in the case of Singleton v. Jackson, 85 Wn.App. 835 (1997) (holding that a door-to-door solicitor at a private residence was a licensee rather than a trespasser or invitee for purposes of premises liability if the front entry may be easily reached and there are no posted signs indicating strangers are not welcome). The validity of local ordinances banning door-to-door sales, however, was not addressed. A decision to totally prohibit door-to-door solicitation may not be defensible and should be carefully reviewed with the attorney.
Other types of regulations of door-to-door solicitation such as licensing, registration and identification requirements have survived constitutional challenges and been upheld by the courts as appropriate regulations. For example, the City of Pasco's ordinance on licensing and regulation of itinerant vendors was upheld by the Federal Court in Hispanic Taco Vendors of Washington v. City of Pasco, 994 F.2d 676 (9th Cir. 1993). In drafting provisions for peddlers' and hawkers' licenses, the city should review the provisions of chapter 36.71 RCW, especially RCW 36.71.090 restricting the ability of cities and counties to prohibit sales or require licenses for sales of farm produce. In addition, RCW 73.04.050 and .060 restrict local regulation of certain veterans. The enclosed samples contain examples of the necessary exemptions.
In the area of regulation of charitable solicitations, the city should refer to the provisions of chapter 19.09 RCW on charitable solicitations. It is recommended that other constitutional issues raised by the regulation of canvassing and solicitation involving religious activities should be discussed with legal counsel.