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August 29, 1990


The opinion of the court was delivered by: Spatt, District Judge.


At issue in the plaintiff's application for a preliminary injunction is whether the defendants' denial of the plaintiff's request to distribute noncommercial religious pamphlets in a limited area of Jones Beach State Park comports with the First Amendment to the United States Constitution. The Court concludes that the defendants' action in denying a limited permit to the plaintiff is constitutionally impermissible. Accordingly, plaintiff's application for a preliminary injunction is granted to the extent set forth below.


Plaintiff is the director of "Mitch Paulsen Outreaches," a "spiritual outreach program" which lists a Post Office Box in Baldwin, New York as its address. By Application dated August 2, 1990 plaintiff sought an "Area/Facility Use Permit" from the New York State Office of Parks, Recreation and Historic Preservation (the "State Office of Parks" or the "SOP") to distribute "noncommercial literature with a Christian message" on September 1, 1990 at the "mosaic area and adjacent sidewalks" at Jones Beach State Park. In his moving papers, the plaintiff defines the "mosaic area" at Jones Beach as "the area where the sidewalk from parking field 4 and parking field 5 converge and channel the pedestrian traffic to the boardwalk area." (See also Paulsen Aff., Exh. A [map of Jones Beach, indicating the "mosaic area" with the symbol "*"]).

In response to Application Question 10, "please indicate specific destination requested," the plaintiff wrote as follows:

  "Mosaic area as indicated above. Alternate
  location: Any non-obscure board walk area, at
  Jones Beach. As a last choice any remote Jones
  Beach Location is OK." (emphasis in original)

The Application also stated that a total of three people would distribute literature and that "[w]e will not detain people, but simply extend an arm with leaflet and say `it's free.'" (Id.)

The State Office of Parks denied plaintiff's Application in a letter dated August 10, 1990, which in relevant part stated as follows:

    "This letter will confirm our telephone
  conversation during which I denied your request to
  hand out non-commercial religious literature at
  the mosaic area of Jones Beach State Park on
  September 1, 1990.
    . . . permits are not available during holidays
  and holiday weekends. We limit the issuance of
  many permits due to limited park resources.
    Typically, on holidays or holiday weekends
  during the summer season, attendance may reach
  capacity. Our operations, maintenance, police and
  first aid resources are strained to provide
  necessary service to our patrons. We try not to
  schedule any special activities which would
  further burden our resources or require additional
  supervision or monitoring. It is for this reason
  we chose to limit special activities where
  possible. Our purpose is not to infringe on your
  Constitutional rights of free speech.
    Non-holiday weekends and weekdays are available
  for the activity you propose. We have been
  consistent in limiting activities and have
  cancelled events to insure that park resources are
  not overburdened. I indicated to you during our
  telephone conversation that other dates might be
  acceptable to you such as September 8, 1990, which
  is the following Saturday, or if you had another
  date that you wished . . . and I would determine
  if that was available. You indicated to me that
  you are booked at other locations throughout the
  tri-county region, and that was the only available
  date you could make."

By reason of an Order issued on August 21, 1990, defendants were directed to show cause "why a preliminary injunction should not be issued preventing defendants from refusing to grant plaintiff a permit to use the Mosaic area or any other area at Jones beach State Park . . . September 1 and other holiday weekends until the trial and decision of this action. . . ."*fn1

The Court held a hearing on August 24, 1990. At the hearing only one witness testified, Mr. John Norbeck, the Director of Operations at Jones Beach State Park. Mr. Norbeck testified that SOP has a "policy" of not issuing any area/facility use permits on "holiday" weekends — that is, Memorial Day, July 4 and Labor Day weekends — to insure that at these "peak" times sufficient employees are available to meet the needs of the increased number of visitors to Jones Beach. Mr. Norbeck stated that many of SOP's Jones Beach employees return to college prior to Labor Day weekend and that only 40% of its employees are available to work. Since the "stationary positions" — watchmen, toll collectors, and first aid personnel, for example — must operate at normal levels, according to Mr. Norbeck SOP must substantially reduce the number of "maintenance" and "supervisory" personnel at Jones Beach over the Labor Day weekend.

As to the plaintiff's Application, Mr. Norbeck testified that were the plaintiff's Application granted, SOP would have to assign three employees to "monitor" the plaintiff's activities. Significantly, the only reasons articulated by Mr. Norbeck as to why SOP would need to monitor the plaintiff and two associates with three employees, however, was to insure that the plaintiff was abiding by State policies and to explain the plaintiff's presence to other park patrons. Specifically, Mr. Norbeck testified as follows:

  "What happens is when our staff goes a lot of
  people — while we do have to monitor the
  activities whether its Mr. Paulsen or anybody else
  who applies for a permit, has to make sure that
  they are abiding by the location and the procedures
  of the policy. Also, we have people that are
  assigned badges when they check in and quite a few
  people are spent explaining why these policies are
  in existence to our park patrons."

Mr. Norbeck also testified that the plaintiff's proposed activity would not affect garbage collection. The Court notes that the literature at issue is a four-fold pamphlet, 2 and 3/4 inches wide, 8 and 1/4 inches high, and unfolds to a size of 12 inches wide and 8 and 1/4 inches high. In fact, the plaintiff was granted a permit to distribute leaflets on the Saturday prior to Labor Day in 1989 — September 2, 1989 — and, according to the plaintiff, "peacefully distributed leaflets on the mosaic and the boardwalk areas without any disruptions[,] [w]e picked up ...

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