stated that this option, rarely utilized, was used to recover out-of-pocket disbursements. Without additional information regarding the state's ability to recover enforcement costs in its enforcement actions against professional solicitors, we cannot assess how the availability of cost recovery procedures impacts the propriety of the $ 80 fee.
At present, the factual record does not enable us to reach any conclusion as a matter of law. We thus deny both summary judgment motions on the 1st Amendment claim.
On the equal protection claim, plaintiff contends that New York's fee distinction between professional solicitors working for professional fundraisers who must register and pay the mandatory $ 80 fee and employees of charitable organizations soliciting contributions who do not is an unconstitutional distinction. In plaintiffs' view, the identity of the fundraiser's employer should not serve as a basis for a registration fee.
Defendants respond that employees of charitable organizations raising contributions in-house are not similarly situated to professional solicitors justifying identical treatment under the Equal Protection Clause. The thrust of defendants' argument is that charitable organizations themselves are already required by New York law to register with the state and they maintain the duty to directly supervise their own in-house solicitors. Unlike these in-house personnel, defendants stress that no charity has any responsibility to oversee or monitor the activities of professional solicitors and fundraisers. That job is only performed through Article 7-A of New York's Executive Law. Plaintiffs correctly note that when expressive conduct protected by the 1st Amendment is regulated, the regulation must serve a substantial government interest. See Police Department of Chicago v. Mosley, 408 U.S. 92, 99, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972). New York's interest in protecting the general public by regulating fundraisers otherwise unaccountable seems beyond dispute.
We disagree with plaintiffs that New York's law discriminates on the basis on speech content. Any and all professional solicitors not working in-house for a charitable organization are charged the $ 80 fee, whatever their viewpoint. Similarly, every charitable organization must register with the state and comply with even more comprehensive state regulations including the payment of registration and filing fees (which can reach upwards to $ 1500 a year on New York's sliding scale for larger charities). See N.Y. Exec. Law § 172 and EPTL § 8-1.4. Content of speech play no role in any of this. And indeed, the state ultimately charges fees to all charitable entities.
Plaintiff have also offered no evidence supporting the notion that smaller charities are unable to conduct their own fundraising or comply with Article 7-A's requirements. They do argue that in the event a telephone solicitor is unable to afford the $ 80 registration fee, his or her voice in the arena of public support is effectively silenced. We disagree. Even assuming a professional solicitor could not afford the fee, nothing stops a charity from making its solicitations without employing professional fundraisers, so long as they pay their phone bills.
While plaintiffs raise the specter of professional fundraisers unable to afford the $ 80 fee, they admit that the present record offers absolutely no evidence that plaintiffs are financially unable to pay the fee. Def. Brief at 20. Since a case of a professional solicitor unable to afford the fee is not before this court, we offer no opinion on that matter.
In short, New York's regulation of all charitable fundraisers and organizations appears quite comprehensive and prudent, devised to protect the public from unsupervised fundraising activities. Its system appears tailored to serve the particular government interests in regulating both charitable organizations and independent professional fundraisers. For all the foregoing reasons, plaintiffs' summary judgment motion is denied in all respects and defendants' motion for summary judgment is granted with respect to plaintiff's equal protection claim and denied with respect to plaintiff's 1st Amendment claim. Since discovery is completed, the case will be set down on the trial calendar.
Dated: White Plains, New York.
February 9, 1993.
GERARD L. GOETTEL
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