Can stand-alone retail establishments weed out petitioners seeking to gather signatures to legalize marijuana on their private property? Yes, they can(nabis)! California courts have granted injunctions against individuals gathering signatures for ballot measures on private property.

In determining whether commercial and retail establishments may restrict petition gatherers on their private property, California courts focus on whether the private property serves as the functional equivalent of a public forum. The factors courts consider are:

“the nature, purpose, and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property’s occupants.”

Utilizing these factors, California courts have consistently held that stand-alone commercial and retail establishments like grocery stores lack the characteristics of a public forum. Specifically, courts have found that entrance areas of stand-alone retail establishments do not act as public forums because they are not:

  • Meant for entertaining; and
  • They are not meant to act as plazas or courtyards where patrons can congregate.

While California case law does suggest that private commercial property that encourages the congregation of individuals – like the common areas of shopping malls – could be considered a public forum, it is important to note that these properties are different from stand-alone retail stores because commercial properties invite the public to socialize whereas stand-alone retail establishments limit the invitation to the public.

Stand-alone retail establishments have opened themselves up to the public for the sole purpose of purchasing goods not for the purpose of congregating. As a result, these establishments are not the type of public forum where property owners must yield free speech activities to. Accordingly, petition gatherers must roll on over to other joints unless they want to face an injunction and/or arrest.

This holds true even if stand-alone retail establishments have not implemented solicitation policies. However, to ensure that privacy interests are protected, the establishment should enact solicitation policies, including but not limited to, posting ‘no solicitation’ signs on their property and teaching managers how to approach the petitioners. Managers should kindly ask petitioners to vacate the property. If those efforts are futile, managers must contact the police and ask police to obtain certain information from petitioners in order to have legal recourse.

Now is the time to act because as election season draws closer, it does not appear that petitioners are going to cease and desist their activities.