Thursday, September 28, 2023
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California Mall’s Ban on Solicitation Upheld

FRESNO, Calif. (CN) - A group that runs food pantries and youth centers in California's most economically challenged and crime-ridden cities cannot solicit donations from shoppers going in and out of stores in a shopping mall, a state appeals court ruled Tuesday.

Donahue Schriber Realty Group, which owns the Fig Garden Village shopping center in Fresno, sued Nu Creation Outreach and its program director after the group refused to stop soliciting for donations at the storefronts of several of the mall's 60 retailers.

In 2013, a trial court ruled that Nu Creation - which had been registered as a nonprofit but is currently listed as "suspended" on the California Department of Justice website - could not stand outside stores to solicit donations. The court did not bar the group from the property entirely, however, and restricted their solicitation to the mall's designated public forum area.

Nu Creation and program director Damone Daniel appealed the injunction to the Fifth Appellate District, arguing that the mall's owners had allowed other groups to conduct fundraisers in the same areas where they had set up shop. The group also claimed that since there were benches and seating areas where they were collecting donations, they were in a "public forum" that allowed for free-speech activities.

But after noting procedural problems with the appeal - Daniel represented the Nu Creation corporation in pro per and is not an attorney, and failed to make his declarations under penalty of perjury as required - the three-judge appellate panel concluded the trial court made the right call in barring the group's fundraising activities at storefronts.

"Even if we were to consider the unsupported factual assertions made by Daniel, we would reach the same conclusion," Judge Brad Hill wrote for the panel. "We find no error in the trial court's conclusion that the sidewalk and apron areas in which the solicitors conducted their solicitation activities were not public forum areas in which plaintiff was obliged to permit members of the community to exercise their liberty of speech rights under the California Constitution."

The appeals court also accepted the mall owners' contention that allowing solicitation at storefronts would irreparably damage its reputation with shoppers.

"One declaration plaintiff submitted stated it was familiar with customer shopping habits, and customers choose to shop at a particular location based on custom and habit; when customers change their shopping habits to avoid disruptions, they often do not return to the original location," Hill wrote. "The declarant opined that 'a shopping center's success depends on customer goodwill and a desire to return to the same location out of habit and loyalty. The disruptive solicitation activity of Nu Creation solicitors harms the shopping center's relationship with its tenants and customers and erodes customer goodwill.' Thus, substantial evidence supports the trial court's conclusion that plaintiff adequately demonstrated a potential loss of customer goodwill."

Daniel has already filed a petition for review with the California Supreme Court, although a hearing date has not yet been set.

The appeals court's ruling comes four years after mega-retailer Target successfully lobbied to bar Nu Creation from fundraising in front of its store in Bakersfield, Calif.

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