[HISTORY: Adopted by the Mayor and Council of the City of Española 11-8-2022 by Ord. No. 2022-04. Amendments noted where applicable.]
The Governing Body makes the following findings:
A. 
The roadways within the City are intended and designed for the primary purpose of safely facilitating vehicular movement.
B. 
Certain features within or adjacent to the roadways, such as medians and other traffic control features are designed and intended for the primary purpose of facilitating vehicular movement and may secondarily facilitate safe pedestrian movement.
C. 
Sidewalks and other pedestrian walkways within the right-of-way and adjacent to the roadway serve the dual purposes of protecting pedestrians from traffic and of facilitating pedestrian movements and other constitutionally protected activities, including the expression of free speech.
D. 
Some forms of solicitation and pedestrian activities have the effect of creating an unsafe or threatening environment to both vehicles and pedestrians.
E. 
The City has a significant governmental interest in facilitating the safe flow of vehicular and pedestrian traffic.
F. 
The state municipal code, NMSA (1978), § 3-49-1, which authorizes a municipality to regulate streets, sidewalks, curbs and gutters, and public grounds, specifically authorizes a municipality to:
(1) 
Regulate their use and use of structures under them;
(2) 
Provide for and regulate crosswalks, curbs and gutters;
(3) 
Regulate and prohibit their use for signs, signposts, awnings, awning posts, telegraph poles, horse troughs, posting handbills and advertisements;
(4) 
Regulate and prohibit the exhibition or carrying of banners, placards, advertisements or handbills in the streets or upon the sidewalks;
(5) 
Regulate traffic and sales upon streets, sidewalks and public places.
G. 
The provisions of NMSA (1978), § 3-49-1 that authorize restrictions on speech represent the legislature's implicit recognition that not all streets, sidewalks, curbs and gutters, and public grounds are suitable as traditional public forums and that municipalities may impose reasonable time, place and manner restrictions on speech in such places according to the municipality's determination of the type of public or nonpublic forum involved.
H. 
The United States Court of Appeals for the Tenth Circuit, in the case of Evans v. Sandy City, 944 F.3d 847 (2019), held that a City may impose reasonable time, place and manner restrictions on speech without reference to content if narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of information.
I. 
The Governing Body finds that the regulations and prohibitions on solicitation contained herein are narrowly tailored in that they are limited by reasonable spatial specifications related to vehicle-pedestrian safety and by time limitations, allowing ample alternative channels for communication immediately outside the restricted areas and during all daylight hours and within all traditional public forums.
The purpose of this chapter is to identify areas where solicitation may impair the safe flow of vehicles and pedestrians and to place reasonable time, place and manner restrictions on solicitation activities in furtherance of the government's significant public safety interests while leaving open ample alternative channels for the communication of information and other protected activities.
The ordinance applies to all public roadway, rights-of-way and parking lots within the city, and pursuant to the provisions of NMSA (1978), § 3-49-1O, also applies to any private property for which the owner has provided written consent. The ordinance does not apply to solicitation or other activities in places other than those specified herein, although other ordinances and regulations may apply to such activities and places.
AGGRESSIVE SOLICITATION
Is solicitation in which the solicitor:
A. 
Comes closer than three feet to the person solicited unless and until the person solicited indicates that he or she wishes to make a donation or purchase or otherwise communicate;
B. 
Touches the solicited person without the consent of that person;
C. 
Blocks or otherwise impedes the movement of any person;
D. 
Blocks or otherwise impedes the entrance to any structure or vehicle;
E. 
Continues to solicit from or follows behind, ahead or alongside a person after that person has declined the solicitation by words or actions;
F. 
Threatens a person by word or gesture or otherwise uses abusive language directed at the solicited person;
G. 
Makes any statement, gesture or communication that would cause a reasonable person to be placed in fear for his or her safety.
MEDIAN
Means any area within a traveled roadway, including a bordering curb, that is elevated or otherwise physically separated from traffic lanes or turning lanes and that is intended to create a physical separation between lanes of traffic, regardless of direction.
PEDESTRIAN WAY
Means any sidewalk, path, trail or other area intended for use by pedestrians.
PUBLIC ROADWAY
Means any publicly owned street, road, highway or other traveled route intended for vehicular traffic.
RIGHT-OF-WAY (R.O.W.)
Is the entirety of the publicly owned roadway, including the traveled surface, sidewalks, trails, medians and other adjoining spaces separating the traveled roadway from adjoining properties. Right-of-way also refers to the entirety of any private parking lot or roadway for which the property owner has provided written consent for traffic regulation.
SOLICIT and SOLICITATION
Means, without reference to content, the request by a pedestrian through words, signs or actions for donations of money or other items of value, appeals for support of persons, policies or projects, and offers of sale of products or services. Any person who engages in such activity is a solicitor regardless of the identity of the person or organization. Solicitation does not include activities for which a business license or registration is required and which is conducted in the manner and according to the regulations applicable to such a permit. Solicitation also does not apply to messages attached to or contained within vehicles, such as signs, bumper stickers, flags, etc.
SOLICITOR
Is any person who engages in solicitation, and includes occupants of vehicles who respond to solicitation requests.
For purposes of this chapter, the Governing Body designates the following areas as public forums. These designations shall not apply to any public spaces in the City not specifically listed herein.
A. 
Traditional public forum. Any pedestrian area within a right-of-way that is not otherwise designated as a limited public forum or a nonpublic forum is a traditional public forum.
B. 
Limited public forum.
(1) 
Within right-of-way. Limited Public Forums include all paved medians greater than 36 inches in width, all paved pedestrian walkways immediately adjacent to traffic or turning lanes and less than 36 inches in width including any curbs, and all paved or unpaved pedestrian walkways immediately adjacent to traffic or turning lanes and greater than 36 inches in width, including any curbs.
(2) 
Within public or private parking lots. Limited Public Forums include all pedestrian walkways not within vehicular aisles or parking spaces.
C. 
Nonpublic forum.
(1) 
Within right-of-way. Nonpublic forums include all traffic lanes, turn lanes and on-street parking spaces within a roadway, all medians that are either unpaved or less than 36 inches in width, and all unpaved pedestrian walkways within a right-of-way immediately adjacent to traffic lanes, turning lanes or on-street parking spaces and less than 36 inches in width, including any curbs.
(2) 
Within public or private parking lots. Nonpublic forums include all vehicular aisles and parking spaces.
A. 
Traditional public forum. Solicitation is allowed in all traditional public forums, provided, that aggressive solicitation is prohibited and provided further than any activity which requires a business license or registration or special permit shall comply with the regulations applicable thereto.
B. 
Limited public forum. Solicitation is allowed in all limited public forums, provided that the following activities are prohibited:
(1) 
Aggressive solicitation; or
(2) 
Solicitation occurring between the period from one-half hour after sunset to one-half hour before sunrise.
C. 
Nonpublic forum. Solicitation is prohibited in nonpublic forums.
D. 
Aggressive solicitation. Aggressive solicitation is prohibited in the City at all times and in all locations.
E. 
Occupants of vehicles. Any occupant of a vehicle who offers money or other item of value to a solicitor who is in violation of the time, place or manner restrictions specified herein shall be guilty of an offense.
Violations of the provisions of this chapter are punishable according to the general penalty provisions of this code, provided that an officer may issue a verbal or written warning in lieu of a citation. The specification of offenses herein shall not be construed as limiting the prosecution of other offenses specified in this code.