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NEW YORK COMMUNITY ACTION NETWORK v. TOWN OF HEMPS

October 18, 1984

NEW YORK COMMUNITY ACTION NETWORK, INC., PAUL HILL, ADRIENNE ESPOSITO and JEFFREY D. FULLMER, Plaintiffs, against TOWN OF HEMPSTEAD and DANIEL M. FISHER, JR., as Clerk of the Town of Hempstead, Defendants.


The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

SIFTON, District Judge.

 This action, brought by a citizens' canvassing organization under 42 U.S.C. § 1983, alleges violations of the first, fifth and fourteenth amendments of the Constitution of the United States by the Town of Hempstead in its enactment of an anti-solicitation ordinance, Chapter 118 of the Code of the Town of Hempstead. The compalint also alleges a violation of Article 1 of the New York Constitution. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1443.

 This matter first came before the Court on plaintiffs' motion for a preliminary injunction barring the enforcement of Chapter 118 of the Code of the Town of Hempstead, pursuant to Rule 65 of the Federal Rules of Civil Procedure. In particular, plaintiffs asked this Court to enjoin application of § 118-11 so that they might continue to canvas and solicit in the Town of Hempstead between the hours of 7:00 and 9:00 p.m.

 Pursuant to agreement of the parties, trial of the action on the merits before the undersigned sitting without a jury was consolidated with the hearing on plaintiffs' application as permitted by Rule 65(a)(2) of the Federal Rules of Civil Procedure. Based on the evidence presented at the hearing, including, pursuant to agreement of the parties, the undisputed facts contained in each side's affidavits, the undistputed facts contained in each side's affidavits on the application for preliminary relief.What follows sets forth the findings of fact and conclusions of law on whch that determination is based as required by Rules 65 and 52(a) of the Federal Rules of Civil Procedure.

 Plaintiff, New York Community Action Network, Inc. ("NYCAN"), is a not-for-profit corporation organized under the laws of the State of New York and accorded exempt status under § 501(c)(4) of the Internal Revenue Code. Its stated purpose, as specified in its by-laws, is "to increase the power of low and moderate income people through collective action in a democratic non-violent manner." Its activities include lobbying in state and local legislative bodies, community organizing, preparation of research reports, and distribution of literature. Since 1983 NYCAN has grown to a membership of 17,000. Each member receives a bi-monthly newsletter. Plaintiffs Esposito and Fullmer are NYCAN canvassers. Plaintiff Hill is their supervisor.

 The primary vehicle by which NYCAN performs its activities including fund raising is through door-to-door canvassing. NYCAN uses canvassing to distribute literature, to collect signatures for petitions, to disseminate its views, and to raise funds.

 NYCAN's canvassers are paid employees who must follow the NYCAN Canvassing Policy Handbook. Almost all canvassing is done between 4:00 and 9:00 p.m. As a result of its canvassing, NYCAN raised approximately $962,000 in 1983. This is the bulk of the source of its operating funds, since the total amount raised from non-canvassing sources was $72,000.

 The Town of Hempstead is located in Nassau County and has a population of approximately 760,000 people. This is slightly more than one-half of the population of Nassau County and one-third of the population of the combined Nassau and Suffolk counties. NYCAN considers the residents of Hempstead an important target group because two of its principal issues in 1983 were clean-up efforts of a toxic waste dump site near Hempstead and opposition to the rate increases sought by the Long Island Lighting Company.

 The Town of Hempstead has allowed another public interest canvassing organization, the New York Public Interest Research Group ("NYPIRG") to be exempted from the challenged ordinance. Pursuant to a June 1980 written agreement signed by the Hempstead Town Clerk and the NYPIRG Canvass Director, NYPIRG is allowed to canvas until 9:00 p.m. In accordance with that agreement, NYPIRG provides the Town of Hempstead with the names and addresses of its canvassers and requires all its canvassers to carry suitable identification. NYPIRG now regularly canvasses in Hempstead. NYCAN is willing to enter into a similar agreement and provide the Nassau County police with notice as to the areas in which its canvassers will operate on a given night.

 This dispute grew out of the following events. In March, 1984, one NYCAN canvasser was threatened with arrest by a Nassau County police officer. In April 1984, another NYCAN canvasser was arrested while canvassing in the evening. *fn1" As a result of these incidents, NYCAN suspended its canvassing in Hempstead and on April 12, 1984, held a meeting with Town Attorney W. Kenneth Chave. Representing NYCAN were its Executive Director and Canvassing Director. After that meeting negotiations went forward to attempt to allow the canvassing to continue. The initial intention behind the negotiations was to enter into an agreement similar to the one between NYPIRG and Hempstead.On July 6, 1984, Deputy Town Attorney Daniel P. McCarthy advised NYCAN that the Town Board would consider adopting an agreement at their meeting on July 24, 1984, to allow NYCAN to canvass until 9:00. On July 25, 1984, Mr. McCarthy informed NYCAN's attorney that the Town Board had considered the proposed agreeemnt but decided not to adopt it. NYCAN has not resumed canvassing in Hempstead.

 Section 118-11 of the Town Code makes it unlawful to canvass "after one-half hour before sunset or 7:00 p.m. prevailing time, whichever is earlier." *fn2" Other pertinent provisions of the ordinance include § 118-2(A), making it unlawful to canvas without a license, and § 118-4(C), which provides the Town Clerk discretion to grant a license upon determining that the applicant is a "fit and proper person." Section 118-8 creates certain exemptions discussed more at length below, and § 118-11(A) makes it unlawful to canvass without first obtaining "the express invitation or permission" of the resident. Each violation of the ordinance is punishable by a fine of $250 and/or imprisonment for a period of 15 days.

 It is beyond question that door-to-door canvassing of the sort here at issue, notwithstanding the fact that the canvassers solicit funds, is protected by the first amendment. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980). Indeed, previously in this Court, three towns in Nassau County were enjoined from enforcing ordinances that prohibited door-to-door canvassing because they wre found to be unconstitutional. New York Public Interest Research Group ("NYPIRG") v. Village of Roslyn, 498 F. Supp. 922 (E.D.N.Y. 1979). Justice Black, writing for the Court in Martin v. Struthers, 319 U.S. 141, 87 L. Ed. 1313, 63 S. Ct. 862 (1943), described the importance of the activities that plaintiffs seek to conduct:

 "[A]s every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door to door ...


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