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NEW YORK PUB. INTEREST RESEARCH GROUP v. VILLAGE O

August 28, 1979

NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., Donald K. Ross and Fred Downey, Plaintiffs,
v.
VILLAGE OF ROSLYN ESTATES, Robert D. Zucker, as Mayor of the Village of Roslyn Estates, and Marie J. Pariante, as Village Clerk of the Village of Roslyn Estates, Defendants; NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., Donald K. Ross, and Fred Downey, Plaintiffs, v. VILLAGE OF LAWRENCE and Peter W. Overs, as Clerk-Treasurer of the Village of Lawrence, Defendants; NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., Donald K. Ross and Fred Downey, Plaintiffs, v. VILLAGE OF GARDEN CITY, James F. Cooley, as Mayor of the Village of Garden City, and Raymond J. Regan, Warren Wytzka, Daniel V. Duff, William O. Dwyer, Peter E. Gall, George A. Nagel, Jr. and Raymond Stuart, as members of the Board of Trustees of the Village of Garden City, Defendants.



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order MISHLER, Chief Judge.

I. Introduction

 The plaintiff in each of these three related cases is the New York Public Interest Research Group, Inc. ("NYPIRG"), a not-for-profit corporation organized and operating under the laws of New York State. *fn1" As its name indicates, NYPIRG is involved in a variety of matters of public concern such as consumer protection, environmental policy, and political reform. Among other activities, it prepares research reports, lobbies before various legislative bodies, and educates the public as to its programs and the issues they concern. According to its verified complaints, "NYPIRG, as part of both its fund-raising and public education activities, conducts door-to-door canvassing in numerous localities throughout the State of New York." More specifically,

 [individual] canvassers, all employees of NYPIRG, go door-to-door circulating petitions on current public policy issues, distributing consumer information, recruiting volunteers, suggesting methods by which citizens may participate in and affect public policy decisions, and collecting small monetary contributions for the growth and maintenance of the organization. Canvassers also [for a $ 15.00 membership fee] offer citizens the opportunity to become a member of NYPIRG, thereby entitling them to receive periodic newsletters and other printed material describing NYPIRG's activities and other issues of current political interest.

 Apparently as a general practice, prior to canvassing a community, NYPIRG contacts officials of that community and seeks permission to conduct the canvass. As will be discussed in greater detail below, NYPIRG sought permission to canvass the villages of Roslyn Estates, Garden City, and Lawrence from officials of those communities. In each instance permission was denied, the officials finding authority for their actions in those local ordinances of each village which governed door-to-door solicitations. In response, NYPIRG *fn2" instituted these actions against each of the villages and the responsible officials, seeking an order enjoining enforcement of the ordinances and declaring them unconstitutional on their face and as applied as being violative of the first amendment. *fn3" Simultaneously, NYPIRG moved for a preliminary injunction restraining enforcement of the ordinances pending final resolution of the actions. The defendants in each case opposed the motion, *fn4" contending that the ordinances at issue were facially constitutional and had been applied to NYPIRG in a constitutional manner. In addition, the villages of Garden City and Lawrence claimed that the plaintiff should be denied relief since the actions against them do not meet the "case or controversy" requirement of Article III of the Constitution in that they do not raise issues which are "ripe" for adjudication. Arguments on the motions were heard on July 20, 1979.

 While the ultimate issue in all three cases is identical, each case arises in a slightly different factual context. Accordingly, we shall discuss each action separately.

 II. NYPIRG v. Village of Garden City

 On August 2, 1978, Fred Downey, canvass director of NYPIRG, sent the Village Clerk of Garden City a letter requesting permission to canvass that community beginning some time between October 15, 1978 and November 15, 1978. The letter briefly explained NYPIRG's corporate status, purpose, and accomplishments. It stated that "canvassing would entail circulating petitions, soliciting small contributions, distributing information, and recruiting support (letters, calls, participation) on a variety of Legislative and Administrative actions." Enclosed with the letter were "appropriate documents verifying" the letter's statements, as well as a "list of canvassers with dates of birth, Social Security numbers, and addresses."

 On August 9, 1978, Earl P. Sandquist, the Village Administrator of Garden City, responded by a letter, which stated, in pertinent part:

 Please be advised that under Village Ordinance 6.3 solicitation on private residential property in the Village is prohibited with certain exceptions, without the consent of the occupant of the premises previously given. If you wish to make an application to solicit in the Village without going from door to door, you must comply with the application procedure provided in Village Ordinance 6.7.

 On January 4, 1979, Downey again wrote to Sandquist, once more asking permission to canvass, this time beginning on February 15, 1979 and ending on March 15 of that year. The letter restated what the purpose of the canvassing was and how it would be conducted. Again, documents establishing NYPIRG's bona fides were enclosed. In this letter, Mr. Downey also requested a "copy of any relevant solicitation ordinance or regulation." Having received no response, on January 25, Downey sent a short letter to Sandquist reiterating NYPIRG's request and advising Sandquist that if no reply were received within two weeks, "possible legal action" would be taken. Apparently, this letter crossed in the mail with one written by Sandquist on January 22 which stated: Your letter of January 4, 1979, requesting permission to conduct door-to-door canvassing in the Village of Garden City was presented to and denied by the Board of Trustees at its meeting last Thursday evening.

 This suit against Garden City, its mayor, and the members of its Board of Trustees was instituted on April 3.

 The ordinances at issue here, cited by Mr. Sandquist in his letter of August 8, 1978, are numbered 6.3 and 6.7. They hardly present paradigms of good draftsmanship; indeed, they seem inconsistent.

 Ordinance 6.7, entitled "Soliciting Donations in Public" standing alone, seems straightforward enough. Section (a) provides:

 It shall be unlawful for any person, organization, society, association, company or corporation or their agents or representatives to solicit donations of money or property or financial assistance of any kind upon the streets, in office or business buildings, by house-to-house canvass or in public places in the Village without a license issued pursuant to this ordinance. (emphasis added).

 According to section (b) of ordinance 6.7, an application for a license to solicit funds is to be made in writing to the Mayor and contain:

 (1) Name, address and purpose of the cause for which permission to solicit is sought.

 (2) Names and addresses of the officers and directors of the organization, firm, society, association, company or corporation.

 (3) Time for which permission is sought and localities and places of solicitation.

 (4) Whether or not any commissions, fees, wages or emoluments are to be expended in connection with such solicitation.

 (5) Such other information as the Board of Trustees may require to determine the bona fide status of the applicant and whether the purpose of such solicitation is in the best interests of the Village and the public.

 Pursuant to section (c) of the ordinance, the Mayor, after receiving the application, will present it to the Board of Trustees which will conduct an investigation of the applicant and the purpose and scope of the proposed canvassing. The Mayor or his designee will then issue the license if, after the investigation, the Board "is satisfied that the purpose of the solicitation is in the best interests of the Village and the public ...." (emphasis added). Section (d) goes on to state that the Board "may place reasonable restrictions on the granting of any such license to include, but not be limited to the hours of solicitation, the number of persons soliciting, the locality of such solicitation and the period for which such license is granted."

 It would thus appear from the terms of 6.7 that were NYPIRG to have been issued a license, it would have been able to canvass door-to-door. This interpretation, however, would only be viable were the provisions of ordinance 6.3 to be ignored. This ordinance, entitled "Soliciting on Private Residential Property" provides, in section (a), that

 [no] person shall enter upon any private residential property in the Village of Garden City for the purpose of vending, peddling or soliciting an order for any merchandise, device, book, periodical or printed matter whatsoever; nor for the purpose of soliciting alms or a subscription or a contribution to any church, charitable or public institution; nor for the purpose of distributing any handbill, pamphlet, tract, notice, advertising matter or other like matter; nor for the purpose of selling or ...


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