Judge strikes out code restricting nonprofit seal group’s fund-raising
It’s permissible for seal advocates and other non-profit groups to run educational booths and accept donations at the Children’s Pool and other public parks.
Superior Court Judge Joan Lewis recently nullified a citation issued by a lifeguard to a volunteer seal advocate at Casa Beach charged with illegally accepting donations at a booth on the sidewalk above Children’s Pool. In her decision, the judge also invalidated a municipal code regulating solicitations by nonprofit or charitable groups in public areas.
"(The code was) unconstitutional on its face. ...” said Judge Lewis. “The danger of censorship and arbitrary suppression inherent in the employment of such imprecise standards is so great that the voiding of these regulations is required even in the absence of proof of actual discrimination.”
Deputy City Attorney John Riley said an injunction prevented the city from enforcing the municipal code with non-profit groups soliciting donations. “This one particular plaintiff had alleged the code was vague, ambiguous and otherwise overly broad, and the city agrees.”
Riley said the original intent of the municipal code was to help prevent fraudulent solicitation.
“This particular code section is unenforceable,” he said.
The incident occurred Feb. 5 when Dorota Valli, a volunteer with the advocacy group La Jolla Friends of the Seals, set up two tables along with three student volunteers. The group was approached by two lifeguards who asked if they had a police permit.
“They treated me very aggressively, like a criminal,” said Valli. “They warned me that if I didn’t leave, they’d call the police and I’d be cited. I said, ‘I’ll wait for the police.’ We’ve never had a problem with police. I started packing up and after about five minutes they cited me. They told me I was too late.”
Valli said her group is asking for donations to cover the cost of hiring a night watchman to ensure seals are not harassed. In return for donations, she said passers-by are issued gifts like T-shirts, coffee mugs or refrigerator magnets, depending on the size of the donation.
Kent Trego, a La Jolla marine biologist who’s been a critic of seal habitation at Children’s Pool, doubts the sincerity of the fund-raising efforts.
“I think the people that are selling T-shirts there are more concerned about making a buck than animal welfare,” he said.
Bryan Pease of the Animal Protection and Rescue League successfully challenged the municipal code on behalf of Valli. He wasn’t sure how to characterize the ruling.
“In a way, it’s a very important victory,” he said. “But in a way, it’s surprising it even came up at all. The ordinance really hasn’t been enforced for a long time.”
Pease said money raised by La Jolla Friends of Seals has been used to extend the security guard’s services to include weekdays as well as weekends.
“There are no lifeguards there at that time if anybody goes out to harass the seals,” he said. “The seals sleep onshore at night, use that area to rest and oxygenate and also give birth.”
The harbor seals’ pupping season lasts through March.
“It’s really a crucial time right now,” Pease said, “because people who go down there and disturb them will stampede them into the water, and the young pups could get separated from the mothers. Sometimes they don’t end up getting reunited, which means the pup starves.”
Patrick Lee Hoard is a co-founder of La Jolla Friends of Seals. He believes soliciting funds for the cause is not the correct approach.
“The main activity of the group should be to educate and inspire people,” he said.
“The commercial aspect of selling T-shirts and other things draws energy away from educating and inspiring.”
Valli said the educational and fund-raising efforts have been well received by most at Children’s Pool.
“People appreciate what we do,” she said, “and thank us for our presence.”
In a related matter, City Attorney Mike Aguirre announced the city of San Diego will appeal a previous judicial ruling requiring sand dredging at Children’s Pool attempting to flush out the pool, which has been polluted from seal waste and return it to join use by seals and humans.
The City Council voted 7-1, with City Councilman Scott Peters casting the sole dissenting vote. Peters has been attempting to fulfill a campaign pledge to restore the beach for swimming.
Last August, a judge ruled in favor of attorney Paul Kennerson, who argued that allowing Children’s Pool to be taken over by seals violates the terms of the 1931 trust transferring ownership of the pool from the state to the city. The city is also appealing the judge’s award of nearly $500,000 in legal fees to Kennerson, who has also appealed that award, seeking a higher reimbursement figure for his legal services.