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
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.
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 ...