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No Soliciting…At Least Once in a While
by Ron Davis

Costco Companies, Inc. has won a major victory in its efforts to control soliciting at its stores located within California shopping centers. The scene of the victory is San Diego, where Costco has encountered numerous problems with disruptive signature gatherers. As a result, Costco has imposed certain rules for soliciting at its shopping center locations. The rules prohibit all expressive activity on the 34 busiest days of the year. In addition, the rules also prevent any individual or organization from using Costco property for soliciting on more than five days within any 30-day period.

Opposing these rules are "professional" signature gatherers. They're paid for each signature they collect and they claim that the Costco rules deny them the right to free expression. Moreover, they point out, California's courts have previously decided that large regional shopping centers had replaced central business districts as the favored forum for public congregation and that owners are therefore legally barred from prohibiting free expression on their property.

At Costco stores in San Diego, however, customers had complained about harassment by solicitors. In a few instances, solicitors with conflicting views had clashed and their aggressive behavior had frightened some Costco customers. In addition, solicitors had actually physically attacked Costco employees who were attempting to enforce company policy with regard to soliciting. Some employees and signature gatherers asked Costco to provide protection for them. Those incidents raised liability concerns for Costco, leading to additional concerns that the problem was posing a threat to profitability.

A California appellate court, ruling in favor of Costco, explained, "The problem described by Costco clearly establishes that the expressive activities carried on by petition gatherers and others interfered with Costco's business operations. Costco suffered damage to its reputation among its customers, loss of time and morale among its employees and direct interference with conduct of its business on those occasions when conflict arose between petition gatherers and those opposed to their views. The conflicts also exposed Costco to the risks of liability to its customers, employees and petition gatherers themselves. Given these circumstances, Costco has the right to impose regulations designed to protect its ability to conduct its business operations ... In adopting its prohibition on expressive activities during its 34 highest volume days, Costco was acting well within its power to consider all the groups who would have access to all of its stores and its experience with all of those groups." (Costco Companies, Inc., v. Gallant, 117 Cal.Rptr. 2d 344 [Cal.App. 4 Dist. 2002])

Decision: March 2002
Published May 2002



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