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