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Every person in the City and County of San Francisco ("City") has a fundamental right to privacy protected not only by the United States Constitution, but also explicitly guaranteed in Article I, Section 1 of the California Constitution. This right to privacy includes the right to access all legal health care services, including reproductive health care services.
Maintaining access to reproductive health care services is a matter of critical importance not only to individuals, but also to the health, safety, and welfare of all residents of the City. Efforts to harass, obstruct, or otherwise interfere with individuals seeking reproductive health care services may deter, delay, and even prevent individuals from obtaining necessary reproductive health care services. These efforts, which often include forcing patients to run a gauntlet of demonstrators near the entrances, exits, and driveways of reproductive health care facilities, or to confront intimidating demonstrators stationed at or near those entrances, exits, and driveways, also disrupt the ability of staff at reproductive health care facilities to devote their full efforts to providing health care services and divert valuable facility resources away from patients. Pedestrians, including patients and employees seeking to receive or provide health care, are often blocked or slowed on sidewalks adjacent to reproductive health care facilities by numerous signs lined up in the public right of way, and patients in facility waiting rooms are subjected to loud music and shouting directed inside the facility by demonstrators outside the door. These factors, including difficulty entering and exiting the facility as well as loud noise once inside the facility, can lead to increased patient stress that may affect the efficacy and complication rate of the medical care sought within. Actions that result in such obstruction, delay, and deterrence of patients, and diversion of reproductive health care facilities' staff and resources, undermine the City's interest in maintaining the public health, safety, and welfare, and in preserving its residents' constitutional right to privacy.
Standing on equal footing with the right to access health care services, including reproductive health care services, are the free speech and assembly rights of those who would gather and speak on matters of public concern. Under this Article, the Board of Supervisors previously attempted to balance these rights by prohibiting harassment, within 100 feet of an exterior wall of a health care facility, of individuals entering, exiting, or seeking services at a health care facility, with harassment defined as "knowingly approach[ing] another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person." After that prohibition proved ineffective, the Article was amended to crate a "buffer zone" that prohibited individuals from remaining within 25 feet of a reproductive health care facility, with certain exceptions. The "buffer zone" was helpful in preventing harassment, delay, and deterrence of patients seeking vital health care services, and in particular reproductive health care services, and adequately prevented distraction and diversion of health care providers from their core mission of providing services in a safe and supportive environment. But in the wake of the United States Supreme Court decision in McCullen v. Coakley (2014) 573 U.S. ____ the validity of such buffer zones has been called into question. In light of the McCullen decision, with the enactment of Ordinance No. 230-14 this Article is again amended to balance the right to speak and engage in sidewalk counseling near reproductive health care clinics with the right to access constitutionally protected health care without fear of physical harm, harassment, or delay.
The Board of Supervisors hereby finds that Article 43 is necessary to promote the full exercise of the right to privacy by patients seeking vital reproductive health care services and is also necessary to maintain public health, safety, and welfare within the City. The Board of Supervisors further finds that this Article strikes a lawful and appropriate accommodation between the right to privacy and to access reproductive health care services and the needs of public health, safety, and welfare, on the one hand, and the rights of free speech and assembly, on the other.
Article 43 applies only to reproductive health care facilities, not health care facilities generally. In addition. Article 43 does not apply to licensed hospitals or to reproductive health care facilities owned or operated by licensed hospitals. This scope ensures the Article is narrowly tailored to address the significant governmental interests it serves, and leaves other health care facilities and locations available for speech. Individuals attempting to access reproductive health care facilities to obtain reproductive health care services have been subjected to harassing or intimidating activity from extremely close proximity, tending to hamper, delay or deter their access to those facilities and services and thus subverting their legal rights to seek and obtain legal health care services. The Board finds that reproductive health care facilities that are not part of a licensed hospital, and not owned or operated by a licensed hospital, are more vulnerable to such subversion of their patients' rights on account of the layout and design of their facilities and parking areas as well as their staff resources and deployment. Further, reproductive health care facilities not affiliated with hospitals commonly possess fewer resources for providing adequate security and safety to individuals seeking access to reproductive health care services. Thus, Article 43 provides narrowly tailored, content-neutral restrictions where they are most necessary to further the significant government interests the Article serves.
The Board finds that the modest scope of the prohibition on following and harassing individuals, impeding access, and making excessive noise in close proximity to reproductive health care facilities is necessary to ensure that patients may gain safe and unimpeded access to reproductive health care services, while allowing speakers to effectively communicate their messages to their intended audience. This prohibition applies equally to all, regardless of the content of their speech.
The Board further finds that intimidating behavior, including excessively loud demonstration activity, as well as following and harassing patients, staff, and other individuals around the entrances, exits and driveways of reproductive health care facilities can impede pedestrian and vehicle traffic and create safety hazards on the sidewalks and roadways, and that the limitations this Article imposes on aggressive and intimidating behavior will help promote safe and effective pedestrian and vehicle traffic flow around reproductive health care facilities.
The Board further finds that loud, harassing, and intimidating activities – independent of the content of those activities – conducted around the entrances, exits and driveways of reproductive health care facilities can adversely affect the physical and emotional health and well-being of patients seeking services at a reproductive health care facility. Noise control is particularly important around medical facilities during surgery and recovery periods. As has been noted by the Supreme Court, noise produced by protesters that can be heard within a clinic, may cause stress in the patients; this includes loud, disruptive noise heard during patient intake, surgical procedures and while recuperating in the recovery rooms. The Board finds that this Article will provide a protective space for patients and thereby help avoid those adverse health consequences.
The Board finds that this Article imposes content-neutral time, place, and manner restrictions on speech and assembly, which are narrowly tailored to serve significant government interests and leave ample alternative channels of communication.
This Article is not intended to create any limited, designated or general public fora. Rather it is intended to protect those who seek access to reproductive health care from conduct that violates their rights.
For purposes of this Article:
"Amplified sound" means a sound augmented by any electronic or other means that increases the sound level or volume beyond that of a conversational speaking voice.
"Follow" means to physically pursue an individual once that individual has indicated verbally or non-verbally he or she does not wish to be approached or engage in conversation.
"Gathering" means two or more individuals.
"Harass" means to engage in a course of conduct directed at a specific person or persons that alarms, seriously distresses, torments, or terrorizes the person. Harassment does not include, among other things, quiet, consensual conversation conducted from a stationary position. Harassment includes, but is not limited to:
(a) Approaching within eight feet of a person if that person indicates he or she does not want to be approached, except as necessary to enter or exit the reproductive health care facility;
(b) Following a person if that conduct is intended or is likely to cause a reasonable person to fear bodily harm to oneself or to another, or damage to or loss of property;
(c) Shouting at a person within 25 feet of the entrance of a reproductive health care facility;
(d) Intentionally touching or causing physical contact with a person without that person's consent;
(e) Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means, including, but not limited to (1) intentionally causing a pedestrian to take evasive action to avoid physical contact and/or (2) placing signs on the sidewalk such that the flow of pedestrian traffic is restricted. This subsection (e) shall not prohibit individuals from holding or wearing signs while using the sidewalk; or
(f) Using violent or threatening gestures toward a person.
"Impede" means to obstruct, block, detain, or render passage impossible, unsafe, or difficult.
"Law Enforcement Official" means a member of a law enforcement agency, including but not limited to a member of a municipal, metropolitan or state police department, sheriffs, or deputy sheriffs.
"Person" refers to any individual, firm, partnership, joint venture, company, corporation, association, social club, fraternal organization, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit except the United States of America, the State of California, and any political subdivision of either.
"Public Safety Official " means a member of a law enforcement agency, fire department, or other state, federal, or municipal employee charged with protection of public health or safety.
"Reproductive health care facility" refers to a clinic licensed under Chapter 1 (commencing with Section 1200) of Division 2 of the California Health and Safety Code, or any other facility or business that provides reproductive health care services, exclusively or in addition to other health care services. Reproductive health care facility does not include a licensed hospital or a clinic or other facility owned or operated by a licensed hospital.
"Reproductive health care services" refers to all medical, surgical, counseling, referral, and informational services related to the human reproductive system.
"Shout" refers to any audible activity not electronically amplified originating from an individual that is beyond that of a conversational speaking voice, including vocalizations that are audible from more than 15 feet away, as well as vocalizations intended to carry from the street or public sidewalk to the inside of a reproductive health care facility.
(a) Prohibition. It shall be unlawful to:
(1) Follow or harass any person within 25 feet of the entrance of a reproductive health care facility; provided, however, that subsection (a)(1) shall not apply unless marking and notice of the boundary zone have been provided as follows: The 25-foot boundary is measured and marked by the Department of Public Works ("DPW") and a notice prepared by DPW is posted conspicuously near the 25-foot boundary. A reproductive health care facility that wants its 25-foot boundary marked and a notice posted shall submit a written request to DPW. DPW shall measure and mark the 25-foot boundary within 14 days of the request;
(2) Impede access to the door of a reproductive health care facility; or
(3) Shout, or cause to be produced any amplified sound beyond the volume of a conversational speaking voice, including use of a loudspeaker, bullhorn, or electronic audio instrument or device that produces or reproduces amplified sound, on any public street or sidewalk within 50 feet of the property line of a property housing a reproductive health care facility; provided, however, that this subsection (a)(3) shall not apply to the following:
(A) Vehicles in compliance with or exempted tram California Vehicle Code section 27007;
(B) Use of a car horn or other warning device as permitted by California Vehicle Code sections 27000 to 27006; and
(C) Law enforcement or public safety officials acting in the scope of their employment, to the extent necessary to attend to public health/safety issues.
(b) Business Hours. Section 4303(a) applies during a reproductive health care facility's posted business hours and up to one hour before the posted business hours.
(c) Marking and Written Notice. The DPW Director or designee shall prepare signs to provide to reproductive health care facilities, upon request, for posting. The signs shall provide notice regarding the prohibitions under this Article. The DPW Director or designee may adopt rules and regulations after a public hearing to set standards for marking and posting a notice at a reproductive health care facility, as specified in Section 4303(a).
(d) Other Laws. Nothing in this Article shall preclude the enforcement of other state, federal, or municipal laws inside or outside of the 25-foot boundary, including but not limited to those related to sidewalk obstruction, aggressive pursuit, or excessive noise.
(a) Criminal Enforcement. Any person who violates Section 4303 of this Article 43 shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by incarceration in the County Jail, fine, or both. Upon a first conviction for violation of Section 4303, the person shall be incarcerated in the County Jail for up to three months, or fined up to $500, or both. Upon a subsequent conviction for violation of Section 4303, the person shall be incarcerated in the County Jail for up to six months, or fined up to $1000, or both.
(b) Civil Enforcement. An aggrieved person may enforce the provisions of this Article 43 by means of a civil action. An aggrieved person includes any reproductive health care facility that is the site of a violation of this Article. Any person who violates any of the provisions of this Article or who aids in the violation of this Article shall be liable to the aggrieved person for special and general damages, but in no case less than $1000 plus attorneys' fees and the costs of the action. In addition, punitive damages may be awarded in a proper case.
(c) Dispersal Order. A law enforcement official may order the immediate dispersal of a gathering that continues to violate Section 4303 after a verbal warning. A dispersal order issued pursuant to this subsection (c) shall include the following statements: (1) the gathering has substantially impeded access to or departure from the reproductive health care facility; (2) each member of the gathering shall, under the penalty of arrest and prosecution, immediately disperse and cease to stand or be located within at least 25 feet of an entrance or a driveway to the reproductive health care facility; and (3) the order shall remain in place for eight hours or until the close of business of the reproductive health facility, whichever is earlier. This subsection (c) shall apply during the business hours of a reproductive health care facility and up to one hour before the posted business hours.
(d) Other Enforcement. Nothing in this Article 43 shall preclude any person from seeking any other remedies, penalties or procedures provided by law.
In undertaking the adoption and enforcement of this Article, the City and County is undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
(Added by Ord. 226-93, App. 7/16/93)
In adopting this Article, the Board of Supervisors recognizes both the fundamental constitutional right to assemble peaceably and to demonstrate on matters of public concern, as well as the right to seek and obtain health care. This legislation promotes the full exercise of these rights and strikes an appropriate accommodation between them.
It is not the intention of the Board of Supervisors to interfere with the right to protest, including the right to protest conditions of employment. Rather it is the intention of the Board of Supervisors to impose reasonable time, place and manner restrictions on all protests, to protect the right to seek and obtain health care. This Article does not prohibit conduct by a party to a labor dispute in furtherance of labor or management objectives in that dispute.
(Added by Ord. 226-93, App. 7/16/93; amended by Ord. 230-14 , File No. 141002, App. 11/14/2014, Eff. 12/14/2014)
If any part or provision of this Article, or the application thereof to any person or circumstance, is held invalid, the remainder of this Article, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Article are severable.
(Added by Ord. 226-93, App. 7/16/93)