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CENTRAL AM. REFUGEE v. CITY OF GLEN COVE

December 13, 1990

CENTRAL AMERICAN REFUGEE CENTER-CARECEN (N.Y.), ANTONIO DIAZ, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
CITY OF GLEN COVE, DONALD P. DE RIGGI, MAYOR OF THE CITY OF GLEN COVE, TIMOTHY EDWARDS, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE CITY OF GLEN COVE AND JOHN DOE, DEFENDANTS.



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

MEMORANDUM OF DECISION AND ORDER

The Central American Refugee Center ("Carecen"), a not for profit organization, and Antonio Diaz as representative of a class, move for an order to preliminarily enjoin the defendants from enforcing an ordinance "Relating to Solicitation of Employment" and from harassing members of the class who seek employment (the "ordinance"). The ordinance, a copy of which is appended, was adopted on March 13, 1990.

The complaint alleges the class to consist of "all Hispanic persons living or working in the Glen Cove area who have in the past been harassed by defendants or may be harassed in the future or who have been or will be deterred from speaking about employment in public places." (¶ 3). It further alleges that since the adoption of the ordinance "the Mayor and members of the Glen Cove police force have engaged in a pattern of harassment of persons of Hispanic descent" (¶ 20) and that the pattern of harassment has discouraged members of the class from seeking employment at "a `shaping point' located in front of Carmen's Deli on Cedar Swamp Road in Glen Cove." (¶¶ 16 & 21). The claims allege violations of the First Amendment ("abridging the freedom of speech") and the Fourteenth Amendment ("the equal protection of laws").*fn1

The court held an evidentiary hearing. Based on the conceded or undisputed facts contained in the affidavits in support and opposition to the motion, and the evidence offered at the evidentiary hearing, the court finds:

Carmen's Deli is located on Cedar Swamp Road at the corner of Second Street in the City of Glen Cove. Cedar Swamp Road is one of two main highways leading into and out of the City of Glen Cove. Cedar Swamp Road has four moving lanes for traffic — two in each direction. In addition, it has a lane for parking cars at varying times for varying periods of time (in part of the parking lane, no parking is permitted at any time). Carmen's Deli has a private parking lot about 30 feet wide (along Second Street) and about 100 feet wide (along Cedar Swamp Road). No parking is permitted for a distance of about 40 feet to the corner of Second Street; unlimited parking is permitted in the remaining 60 feet along Cedar Swamp Road.

From 1985, aliens both lawful and undocumented gathered at Carmen's Deli from about 6:00 a.m. to 7:00 a.m. awaiting offers from employers in the landscaping, construction, restaurant businesses and similar industries for employment by the day. By about 9:00 a.m., the hiring procedure was completed. The individuals seeking employment were Hispanic from Central America. By 1988, the group seeking daily employment at Carmen's Deli numbered approximately 30 to 40 people. On some days during the hiring season, which generally ran from April to November (with the summer months the most productive), the number in the group exceeded 100.

The Mayor and Chief of Police received complaints from residents, businesses and the pastor of the Greek Catholic Church on the manner in which the employment procedure was conducted. The complaints included the danger to persons in motor vehicles resulting from employers stopping in the moving lane to negotiate or offer jobs to prospective employees, and the danger to school children crossing Cedar Swamp Road on their way to school.

The City Council of the City of Glen Cove conducted public hearings and thereupon adopted the ordinance made the subject of this litigation.*fn2

In enforcing the ordinance, Glen Cove police surveilled the area and cited truckers for parking in no-parking areas and stopping in moving lanes to offer employment to the members of the group gathered at Carmen's Deli in violation of the ordinance. (See Affidavit of Police Officer Schlee dated June 1990). Mayor De Riggi contacted the Immigration and Naturalization Service ("INS"). INS officers on occasion stopped Hispanics in the area and asked for identification. These activities discouraged non-documented aliens from gathering at Carmen's Deli in search of jobs.

DISCUSSION

The test for granting preliminary injunctive relief requires "a showing of (a) irreparable harm and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).

Though the burden for making a showing for granting injunctive relief is on the moving party, the City of Glen Cove bears the burden of justifying the restriction on the First Amendment right against the abridgement of "the freedom of speech." National Advertising Co. v. Town of Babylon, 900 F.2d 551, 555 (2d Cir.) (citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 2882 n. 20, 77 L.Ed.2d 469 (1983)), cert. denied, ___ U.S. ___, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990); Acorn v. City of Phoenix, 798 F.2d 1260, 1263 (9th Cir. 1986).

The First Amendment Claim

The legislative purpose of the ordinance is clearly stated in the preamble as eliminating the "safety hazard" caused by motorists who "stop in traffic and by the solicitors who stand in the street on the driver's side of parked cars while accosting or talking with the driver" for the "purpose of obtaining employment by approaching potential employers who drive to those sites in motor vehicles." See National Advertising Co., 900 F.2d at 555-56.

The solicitation of employment and discussions between members of the alleged class and potential employers is speech as distinguished from conduct, though it does involve elements of "non-speech." See United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) (Burning of draft card claimed as "symbolic speech"; "We cannot accept the view that an apparently limitless variety of conduct can be labelled `speech' whenever the person engaging in the conduct intends thereby to express an idea"). Young v. New York City Transit Auth., 903 F.2d 146, 153 (2d Cir.) (Begging ...


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