The Huntington Beach City Council members narrowly voted to ban anonymous code enforcement reports on businesses, despite pushback from the American Civil Liberties Union.
The proposal — which passed with a 4-3 vote — will end any anonymous code enforcement complaints for businesses located in commercial zones. The ordinance still needs a second procedural vote, expected to happen at the council’s next meeting on Feb. 7.
Mayor Tony Strickland said the proposed ordinance is meant to end false anonymous complaints on businesses without any actual code violations.
The change will not apply to businesses that operate in residential neighborhoods.
The ACLU called out Surf City in a Tuesday letter, saying the ordinance is unconstitutional and code enforcement officers should consider the merit of complaints so it doesn’t “burden the constitutional rights of anyone to make an anonymous complaint.”
The idea was first brought to the agenda last month by Strickland, who said that a barrage of complaints with no actual merit can harass business owners operating in the city.
While council members cast the initial vote to ban anonymous complaints without saying much on Tuesday, they had a more in-depth discussion at the December meeting.
“Business owner after business owner — particularly restaurants — kept telling me that all of a sudden anonymous complaints come in,” Strickland said at the Dec. 20 council meeting. “Folks from city staff came in, looked for violations, and really quite frankly it was really frustrating to hear these business owners who are just trying to do business in the city.”
Civil rights groups criticized the proposal ahead of that December meeting in a letter signed by Peter Eliasburg, chief counsel for the ACLU and First Amendment Coalition’s Legal Director, David Loy.
“An ordinance barring anonymous complaints would raise serious constitutional concerns about the right to petition and the right to anonymous speech, both of which are protected by the First Amendment to the Constitution,” reads the Dec. 19 letter.
At last month’s meeting, Councilmember Casey McKeon said the city has received complaints from business owners alleging the city has “weaponized” code enforcement against them, resulting in multiple reports of code violations that do not exist.
The item also received support from councilmembers Gracey Van Der Mark and Pat Burns.
Other council members worried that the change might negatively impact residents’ ability to send in complaints about businesses without fear of retaliation.
Councilmembers Rhonda Bolton, Dan Kalmick and Natalie Moser voted against the item.
Moser mentioned that this change might “chill the free speech” of Huntington Beach residents.
“I do think changing this procedure would discourage people from calling out hazardous or unsafe conditions and I don’t think that benefits the greater community,” councilmember Moser said at the December meeting.
The change has received some public pushback from some residents along with the civil rights group.
“Forcing public disclosure of the complainant will force many residents, employees and other businesses to remain silent and suffer from ongoing code violations of a nearby business,” Dan Jamieson, a Huntington Beach resident, wrote in a public comment on the item.
Another public speaker at Tuesday’s meeting claimed that banning anonymous complaints would be a “poorly thought out solution to the problem.”
A letter from the ACLU of Southern California argues against the item, claiming that the ordinance would violate the First Amendment rights to free speech and anonymous speech.
“Law enforcement and other government agencies routinely rely on anonymous tips as the basis to initiate investigations of potential crimes and other legal violations,” the Jan. 17 reads. “The need to rely on anonymous complaints as a basis to initiate investigations is particularly great where an agency is leanly staffed and relies on complaints to perform its enforcement obligations.”
During the December meeting, City Attorney Michael Gates said he reviewed the ACLU’s concerns and found nothing wrong with the proposal.
“There were no statutes or cases that stood for the fact that the city of Huntington Beach could not do this,” Gates said.
Gates also said preventing anonymous complaints will be helpful for cases that go to court since anonymous reporting may not be admissible as evidence.
Strickland also said any resident coming forward with a report should be able to identify themselves and provide their name along with the complaint — something he said is required by the Sixth Amendment.
“I believe that if there are egregious violations, then people should put their names being those egregious violations and we need to move away from anonymous tips that do nothing but harass our small businesses that are just trying to do business,” Strickland said at last month’s meeting.
The ACLU said differently.
“…the fact that the code officer may have initiated his or her investigation in response to an anonymous complaint raises no due process or other constitutional concerns,” reads the letter.
The letter ends with a warning that the city may face legal action if they move forward with the ban on anonymous tips.
“We urge the Council to reject the ordinance because it raises significant constitutional concerns and may subject the city to legal action.”
Angelina Hicks is a Voice of OC Reporting Fellow. Contact her at ahicks@voiceofoc.org or on Twitter @angelinahicks13.
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