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ORAZIO v. TOWN OF NORTH HEMPSTEAD

February 16, 1977

ANGELO F. ORAZIO, Plaintiff,
v.
TOWN OF NORTH HEMPSTEAD, MICHAEL J. TULLY, JR., SUPERVISOR: RICHARD F. ANTONOFF, COMMISSIONER OF THE BUILDING DEPARTMENT, TOWN OF NORTH HEMPSTEAD, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 Plaintiff, a successful Democratic candidate for New York State Assemblyman in the November 2, 1976 general election, challenges the constitutionality of an ordinance which prohibited him from erecting political wall signs more than six weeks before the election. For the reasons which follow, the court holds that the ordinance violates both the Equal Protection Clause and the First Amendment.

 The ordinance in question is Section 70-201 of the Code of the Town of North Hempstead ("Town") which provides in pertinent part:

 
"[Political] wall signs shall be permitted within the Town of North Hempstead in compliance with the following conditions:
 
. . .
 
C. No sign shall be erected prior to six weeks before election for which the permit was obtained."

 On September 2, 1976 plaintiff applied to the Town's Building Department for a permit to erect two political wall signs *fn1" on a building used for his campaign headquarters, located in an area designated for Business A Zoning. Although the Democratic primary was to be held on September 14, the permit was immediately denied because plaintiff was unopposed in the primary and thus was not a candidate in that election. *fn2" On the same day plaintiff sought a permit for the signs to be erected on September 21, six weeks prior to the November 2 general election. The Building Department granted this permit on September 20.

 A week after his first application was denied plaintiff filed the present action to have the ordinance declared unconstitutional and to enjoin its enforcement. *fn3" Two days later, on September 11, plaintiff erected the signs, and they remained there until the general election. On September 14 plaintiff was served with a Notice of Violation.

 The case is now before the court on defendants' motion for summary judgment, in which they urge first that the court has no jurisdiction under 28 U.S.C. § 1343(3) because the action has become moot and thus no justiciable controversy is presented. The claim of mootness rests on assertions that plaintiff put up his signs when he wished and their illegal status ended on September 21, 1976, when the permit took effect. That claim must be rejected for if, as plaintiff alleges, there is a pending prosecution involving the signs, this case is not moot. Even in the absence of a pending prosecution, the case is not moot because it falls within the category of cases involving issues which are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911); Moore v. Ogilvie, 394 U.S. 814, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969).

 In the absence of a class action, the foregoing exception to the mootness doctrine is limited to cases in which two elements are present:

 
"(1) [The] challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 349, 46 L. Ed. 2d 350 (1975).

 This case easily meets both criteria. First, the 19 days between September 2, the date of denial of plaintiff's first application, and September 21, when the second permit became effective, obviously was too brief a period in which to litigate the constitutionality of the ordinance underlying the denial. Second, plaintiff, who was a candidate in the last two elections, could be reasonably expected to run again and face the same problems with the ordinance in question. Therefore, the case is not moot.

 Defendants also contend that the complaint should be dismissed because plaintiff failed to pursue his administrative remedies. The Second Circuit, despite dicta in numerous Supreme Court decisions, has retained a rule that each action under 42 U.S.C. § 1983 must be scrutinized to determine whether the court should require ...


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