Know Your Rights in Regulating Solicitation in Your Community
By Kathryn Roberts, Esq.
Community Associations Institute – Georgia Chapter
First Quarter Magazine 2019
Solicitors. What immediately comes to mind when you hear that term? Probably some version of a door-to-door salesman with a rehearsed speech to convince you to buy everything from magazine subscriptions, tupperware sets, and kitchen knives, to a new roof. Of course, you also may think of religious groups handing out pamphlets or political candidates canvassing for your vote, which are also commonly lumped together under the general term of soliciting.
Quite often, in the community association context the term “solicitation” holds a negative connotation and is viewed as a nuisance. Occasionally, concerns with solicitation can extend beyond those of just nuisance when solicitors have ulterior motives, such as the intent to perpetuate fraud or, use of their alleged solicitation as a cover for canvassing homes to commit a crime.
A few years ago, an association governing a community in Cherokee County raised concerns over a handyman who was soliciting his services to the residents in the community. This community is not gated but has private streets. This particular handyman was known to perform subpar work, failed to pay subcontractors on numerous occasions and sometimes even failed to complete a job after being paid. Since the jobs performed were usually small, these harmed individuals decided it wasn’t worth the time or money to pursue him. So, on he went, continuing his efforts to convince homeowners and residents to retain his services. Naturally, the Board asked, “What can we do? Can we ban him from the community? What are our options as an Association?”
There are four categories of regulation that pertain to solicitation in the community association context: (1) Federal/Constitutional laws; (2) State statutes; (3) local rules in the form of city or county ordinances; and (4) the association’s governing documents. Generally, the extent to which an association can regulate or ban solicitation altogether must be carefully weighed against the First Amendment rights of free speech. Federal law recognizes this notion and does not regulate or limit solicitation, but States are permitted to regulate solicitation to the extent such laws do not violate the First Amendment.
At a State level, Georgia only regulates charitable solicitation. Specifically, under the Georgia Charitable Solicitations Act of 1988, “solicitation” is defined as “the request or acceptance directly or indirectly of money, credit, property, financial assistance or any other thing of value to be used for any charitable purpose.” The State requires registration of paid solicitors, but specifically exempts many types of soliciting including that of political parties, benevolent, patriotic and social organizations. However, at a local level, cities and counties can adopt ordinances that are more restrictive in regulating solicitation, but there are still questions as to the extent certain religious or political solicitation can be regulated. And finally, an association’s governing documents can regulate solicitation and possibly ban such conduct, but there are certain limitations there as well.
As an example of the local ordinances regulating solicitation, Cherokee County and the City of Acworth regulate commercial and charitable solicitation, specifically requiring door-to-door salespersons of goods or merchandise, or persons raising funds or seeking donations for religious or charitable organizations to register and obtain a permit, and comply with certain time and location restraints for soliciting. And importantly, these ordinances specifically state that if a “No Solicitation” sign is posted on private property, no soliciting shall be made. Had our association with the handyman put up a “No Solicitation” sign on the private common property (which included the streets), our handyman my have been in violation of the ordinance, and the Association could have gotten the relevant code enforcement officers involved to address the issue.
While local ordinances may not provide a sufficient source of enforcement against solicitors, there are still some available remedies. Case law in Georgia supports the right of private property owners to establish rules and regulations regarding solicitation, and the rights of owners of private property (including associations and individual lot/unit owners) to restrict all or any types of solicitation or canvassing activities on that property. So, the association and/or its owners may be able to pursue a court order to address the conduct of the solicitor, and especially so if there is an underlying issue of fraud or criminal intent.
From a practical perspective, most communities do not want to have to go to court. So, attempting to deter solicitors is generally the preferred approach. Towards that end, an association rule regulating or prohibiting soliciting in a community is generally the first step, but is only going to apply and be enforceable against the associations’ members and residents, not necessarily third-party solicitors. With that said, when a community has private roads like the community described above, there is an argument the association can adopt a rule banning all solicitation in the community and then erect a “No Solicitation” sign, or version thereof, at the community’s entrance to put third parties on notice and deter solicitors from entering the community and engaging individual property owners. Enforcement may still be limited, and for those communities with public streets, solicitation is much harder to control from the association’s perspective. But, individual property owners still have the right to prohibit solicitation on their own property and post signs to that effect, if the community’s covenants permit signage of that nature.
Ultimately, many communities will have some legal remedies to help regulate and possibly ban solicitation that is causing a nuisance or appears fraudulent in nature. But, before implementing any rule or pursuing enforcement measures towards that end, it’s good practice to consult an attorney to advise you on the laws as they pertain to your community given the variable nature of this issue.