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December 1, 1993

ORIN LEHMAN, In His Official Capacity As Commissioner of The New York State Office of Parks, Recreation and Historic Preservation, And THE NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, Defendants.


The opinion of the court was delivered by: ARTHUR D. SPATT

SPATT, District Judge.

 Say the word "beach" to most Americans and they will conjure images of cool breezes beneath a piercing sun, swimmers diving under breaking waves, ships bobbing on the horizon line, and evening strolls along a boardwalk under an azure sky. "Beaches" have been the subject of plaintive poems, raucous records, and comedic as well as melancholic motion pictures.

 So far as the defendants in this case are concerned, it is this visualization of the "beach experience" which lies at the heart of the controversy now before the Court. The plaintiff wishes to distribute his noncommercial religious literature at Jones Beach State Park, perhaps the most utilized beach area on all of Long Island. The defendants contend that the plaintiff's activities should be restricted, to allow the citizens of Long Island to "attend the beach and commune with nature and relieve the stress and concerns of day to day life," without such disruption.

 The plaintiff moves for partial summary judgment on his First Amendment claims, and the Court must weigh, among other issues, the competing interests presented by both sides.


 A. Jurisdiction and Parties

 The Complaint asserts jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343(a)(3) and (4) (civil rights), § 2201 (declaratory judgment) and 42 U.S.C. § 1983 (civil action for deprivation of rights).

 The plaintiff Mitch Paulsen is the founder and principal of Mitch Paulsen Outreaches, a Christian Evangelical organization operating in the New York metropolitan area, which lists a Post Office Box in Baldwin, New York as its address.

 The defendant Orin Lehman was the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, who is sued in his official capacity. The Commissioner or his designees are authorized to issue permits to the public for special events or activities in state parks.

 The defendant New York State Office of Parks, Recreation and Historic Preservation ("State Office of Parks" or "SOP") is a division or department of the Executive Branch of the State of New York, having its principal place of business in Albany, New York, and a regional office at Belmont Lake State Park in Babylon, New York.

 B. History of the Litigation

 This lawsuit has progressed in several stages. The Court has, in fact, rendered two prior decisions, the first in August, 1990, and the second in March, 1991 (see Paulsen v. Lehman, 745 F. Supp. 858 [E.D.N.Y. 1990]; Paulsen v. Lehman, CV 90-2942 [E.D.N.Y. March 25, 1991]). In light of these two previous determinations, familiarity with which is presumed, the Court will recite only those facts essential to the motion for partial summary judgment now before the Court.

 The plaintiff filed a Complaint on August 21, 1990, in which he alleged that the defendants violated his right to freedom of expression, free exercise of religion, and equal protection of law, in violation of 42 U.S.C. § 1983. Simultaneous with the filing of the Complaint, the plaintiff also submitted an Order To Show Cause in which the plaintiff sought a preliminary injunction preventing the defendants from refusing to grant him a permit to use the "mosaic" area or any other area at Jones Beach State Park to distribute noncommercial pamphlets containing a religious message on the Labor Day weekend, September 1, 1990, and other holiday weekends until the determination of this action.

 Following a hearing on August 24, 1990, the Court issued a Memorandum and Order granting the plaintiff's application for a preliminary injunction, to a limited extent, solely on the basis of his First Amendment claims as alleged in the first cause of action. The Court stated as follows:

At this time, the Court makes no determination as to the constitutionality of the defendants' policy not to issue any area/facility use permits on all holiday weekends or the merits of plaintiff's other causes of action" ( Paulsen v. Lehman, 745 F. Supp. at pp. 865-66).

 In their Answer, the defendants raised two affirmative defenses: (1) that they at no time acted in contravention of the plaintiff's constitutional rights; and (2) the Complaint fails to state a claim upon which relief can be granted.

 Subsequently, the defendants filed a motion to dismiss the Complaint under Fed. R. Civ. P. 12(b) on the ground that the plaintiff's claims were moot. The defendants also moved to stay their obligation respond to the request for production of certain documents pursuant to the provisions of Rule 26. In turn, the plaintiff moved to file a Supplemental Complaint pursuant to Rule 15(d) and to compel the defendants to produce the requested documents under the provisions of Rule 37.

 In its March 25, 1991 Memorandum and Order, the Court denied the defendants' motion for judgment on the pleadings, finding that the Complaint alleged specific facts involving the defendants in support of all three causes of action, and therefore stated claims for which relief could be granted under 42 U.S.C. § 1983. The Court also granted the plaintiff leave to file a Supplemental Complaint, holding that (1) the new allegations concerned facts occuring subsequent to the original claim which were sufficiently related to warrant joint consideration and that (2) the defendants had not shown any cognizable prejudice based upon the Supplemental Complaint. The motions for a protective order and to compel the production of documents were referred to a United States Magistrate Judge.

 The Supplemental Complaint alleged that subsequent to the Court's entry of a preliminary injunction in August, 1990, the defendants promulgated a new policy with respect to the issuance of permits. The, plaintiff also alleged that on December 21, 1990, he wrote to the defendants and asked that he be permitted to continue to "peacefully distribute noncommercial, religious literature whenever and wherever Jones Beach is open to the public without the necessity of having to apply for a permit." The plaintiff characterized this process as "burdensome and unnecessary." He further alleged that the defendants did not respond to this correspondence. The new pleading also contained a "Supplemental Claim for Relief" -- entitled "Freedom of Speech and Press."


 The plaintiff moves for partial summary judgment, pursuant to Fed. R. Civ. P. 56, granting the following relief: (1) summary judgment on the First Amendment claims as asserted in the first cause of action in the original Complaint as well as in the Supplemental Complaint; (2) the issuance of a permanent injunction against the defendants enjoining them from imposing any unlawful restraints on the exercise of free speech at Jones Beach State Park; and (3) a declaratory judgment that the defendants' scheme for the licensing of speech and press activities constitutes an unconstitutional prior restraint.

 During oral argument of this motion, both sides agreed that there were no material issues of fact to be resolved, but rather questions of law to be adjudicated. The defendants also stated in their responding papers that no genuine issue exists as to any material fact (Defendant's Brief in Opposition, at p. 6). The Court now turns to the issues and arguments presented by counsel for both parties.

 In his Rule 3(g) statement, the plaintiff asserts that during the Summer of 1989, the practices at Jones Beach were regulated by a document entitled "Policy Regarding Area/Facility Use Permits and Park Facilities." In particular, this policy stated the following:

"1. Permits are available only when the park and facility requested is scheduled to be opened to the general public.
2. Permits are not available when otherwise previously reserved, on holidays and holiday weekends, or when other special events are scheduled in the Region which limits necessary park staffing capability.

 * * *

4. Applications must be in writing and must be postmarked or hand delivered twenty days prior to first use date and must be accompanied by a legal size, stamped, self-addressed envelope.

 * * *

7. The permittee may use only the facility or area which it has been assigned in the permit. Any question as to location extent of such facility or area must be resolved by the Park Manager" (emphasis supplied).

 Subsequently, in December, 1990, a revised policy was implemented. The prior document remained substantially intact, with three exceptions: (1) rather than a complete ban of permits on weekends, the provision was changed to state that the issuance of permits on "holidays and holiday weekends" would now be "limited"; (2) a footnote was added indicating that beginning in 1992, applications for permits had to be received not less than 20 days nor more than 90 days prior to the proposed use; and (3) permittees must sign in at the Park Information Office not less than two hours before commencement of the permit activity.

 Concurrent with the introduction of the "Area/Facility Use" policy, SOP produced a four-page booklet, with the front page containing the actual permit application and the subsequent pages consisting of regulations concerning use of the permit. In June, 1990, the plaintiff telephoned James Dolce, Legal Coordinator of the Long Island State Park Region, at the defendants' offices in Babylon, and requested permission on behalf of a church group to distribute noncommercial, religious literature at the "Mosaic" area in the Central Mall of Jones Beach for a limited period over the July 4, 1990 weekend. Dolce responded by letter dated June 28, 1990 that the "policy" prohibited the issuance of such a permit.

 Paulsen's subsequent formal application on August 2, 1990 to George Gorman, Director of Recreation Services for the Long Island Region of the Parks Department, to distribute literature on the upcoming Labor Day weekend was also denied. At that time, this Court issued the preliminary injunction previously discussed.

 Thereafter, on January 25, 1991, the plaintiff submitted an application asking that he be issued a single permit to distribute his non-commercial religious leaflets "wherever the public is permitted" and "anytime the park is open to the public" (Rule 3(g) Statement, Exhibit H). Director Gorman responded in a February 12, 1991 letter outlining his reasons why the plaintiff's request was not feasible -- including his concerns about litter, the avoidance of double booking of a particular area, and the perception of some park patrons that leaf letting activity is an intrusion -- and adding that there was now a five date maximum per permit, rather than the previous requirement of one date per permit.

 In an answer to Gorman dated. March 7, 1991, the plaintiff stated the following:

"in my request, you of course understand that when I said 'where ever the public is permitted', that means general public on sidewalks, boardwalks, pedestrian corridors and congregating places, etc. You must also know, that this is a common sense request. I mean, while we may wish to leaflet the concert goers on their way to the large amphitheater, we don't want to mill about inside. . . . Through numerous phone calls last summer you made it quite clear that you have determined the sand part of the beach not to be 1st amendment territory. We are contending [sic] that. Therefore, even though there may be an occasion to pass out leaflets on the sand (such as the greekfest), we are willing to forego passing out leaflets on sand unless or until there is a declaration from the court that your 'policy' and permit procedures are unconstitutional" (Rule 3(g) Statement, Exhibit J).

 In that same letter, the plaintiff asked how many applications to pass out leaflets at Jones Beach he could submit at one time, and how often he could submit them. Director Gorman sent 25 "Area/Facility Use Permit" applications and asked that the plaintiff submit a maximum of five (5) requests per application.

 When the plaintiff received the 125 permit applications, he again wrote to Gorman on April 2, 1991, asking that he be issued a single permit to distribute literature at Jones Beach. The plaintiff made this request based upon information he had obtained through the logs of park activity that a single, year-long "Park Use" permit had been issued previously to a folk dancing group, allowing them to engage in activities in and around the Central Mall area throughout the off-season period at Jones Beach.

 After further correspondence and negotiation, the plaintiff was issued monthly permits to distribute literature at Jones Beach, covering the period from June through December, 1991. Each of the permits contained attachments of "special conditions" with which the plaintiff Paulsen was expected to comply.

 On August 14, 1991, a New York State Park Policeman issued a summons to Paulsen for distributing leaflets at Jones Beach without having a permit on his person. The summons cited him for the offense of "advertising" without a permit on his person in violation of 9 N.Y.C.R.R. § 376.1. Apparently, the initial permit issued to Paulsen for August, 1991 failed to include the vicinity of the Jones Beach Theatre as a permissible area for Paulsen to distribute leaflets. A revised permit including the entrance area to the theater was issued. The summons against Paulsen was subsequently withdrawn.

 Again on October 2, 1991, Paulsen wrote to Gorman requesting that he be issued a single permit allowing him to distribute literature on "any and all pedestrian corridors at Jones Beach State Park that are open to the general public including but not limited to sidewalks and boardwalks." Gorman denied the request by letter dated October 4, 1991 as "contrary to our policy for this type of activity." According to Exhibit "X" attached to the plaintiff's Rule 3(g) Statement, the folk dancing group which performed in the off-season had been issued an annual single "Park Use" permit, at least from 1986 to 1990. On September 14, 1990, the Regional Permit Office at Jones Beach sent this group a letter advising them that an error had been made in issuing them another "Park Use" permit and that they would now be required to obtain an "Area/Facility Use" permit (Plaintiff's Rule 3(g) Statement, Exhibit Y).

 In addition, the plaintiff asserts that for June and July, 1991, the Parks Department issued two monthly permits to a group of Jones Beach lifeguards allowing them to circulate a petition. The June permit simply noted the location as "Jones Beach State Park." The July permit limited the location to "Central Main Walkway Near Mosaic Area and Boardwalk Around Flag Pole."

 According to the plaintiff, Jones Beach is either a traditional public forum or a forum suitable for peaceful leafletting. Therefore, he concludes that

"(a) the defendants' published regulations banning unlicensed billing and oral expression violate the freedoms of speech and the press; or
(b) the defendants' failure to promulgate objective and narrowly drawn standards governing the issuance of permits for expressive activity at Jones Beach, thereby leaving such decisions to the unfettered discretion of lower level officials, constitutes an illegal prior restraint" (Plaintiff's Memorandum of Law, at p. 2).

 Paulsen challenges the facial constitutionality of a statewide scheme subjecting the most fundamental forms of speech and expressive activity to a licensing regulation.

 With respect to Jones Beach State Park, the plaintiff states that there are a variety of permits in use, including the following:

1. Photography Permits -- for commercial and amateur photography or filming;
2. Park Use Permits -- covering a wide range of recreational activities such as nature studies, hiking, fishing, kite-flying, and "star gazing";
3. Special Use Permits -- for unusual, large-scale activities such as military exercises;
4. Group Use Permits -- for sizeable groups arriving for an outing where arrangements must be made to set aside a portion of the facility; and
5. Area/Facility Use Permits -- required for individuals seeking to engage in "First Amendment" activities, such as leafletting or oral expression (Plaintiff's Memorandum of Law at pp. 4-5).

 Of all the permits which apply to individual activities, only the "Area/Facility Use" permit has a formal policy and application procedure. This permitting scheme, the plaintiff contends, is unconstitutional as a prior restraint on First Amendment activity.

 The defendants oppose the partial summary judgment motion on the grounds that the plaintiff is not entitled to relief because the time, place, and manner regulations and policy are reasonable. The defendants further urge the Court to dismiss both the original and Supplemental Complaint.

 In his affidavit in opposition to the summary judgment motion, James Dolce, Legal Coordinator of the Long Island State Park Region describes the functions, powers and duties of the SOP, as follows:

"5. . . . a) operates and maintains such facilities; b) provide[s] for the health, safety and welfare of the public using facilities under its jurisdictions; c) adopt[s], amend[s] or rescind[s] such rules, regulations and orders as may be necessary or convenient for the performance or exercise of the functions, powers and duties of the office . . .
6. The State defendants have authority over the twelve (12) park regions to which the State is divided. New York Parks, Recreation and Historic Preservation Law ("PRHPL" §§ 1.03(4), (6); 7.01, 7.03. Each region is authorized to adopt policies, rules and regulations applicable to its park region subject to the general policies formulated by the Commissioner. PRHPL § 7.11(2)."

 The defendants note that since April, 1991 and through 1992, the plaintiff Paulsen has been issued a monthly permit to distribute non-commercial literature at Jones Beach from 9 a.m. to sunset in the areas designated by SOP. Counsel states that these designated areas include a significant portion of the sites requested by the plaintiff for his distribution.

 According to the defendants, SOP received telephone complaints from park patrons pertaining to "near physical confrontations" between them and Mr. Paulsen during his time at Jones Beach, which led to the inclusion of a special condition on his permit that his activity had to be conducted in a peaceable manner (Dolce Affidavit, P 43). The defendants also state that no literature distribution is allowed in the Jones Beach parking lots because of the safety risks associated with moving vehicles and pedestrians getting in and out of their cars.

 The defendants contend that the plaintiff seeks a "judicial mandate to do whatever he desires at any time and place, without restraint or the necessity of a permit, whenever Jones Beach is open to the public, under the guise of freedom of the press, speech and religion" (Defendants' Memorandum of Law, at p. 5). Asserting that the original action is now moot, the defendants maintain that the plaintiff cannot establish that he is entitled to the relief he seeks in the Supplemental Complaint.

 Significantly, the defendants argue that Jones Beach is a nonpublic forum, or public property which is not by tradition or designation a forum for public communication. As a nonpublic forum, the area of Jones Beach presents no guaranteed right of access for free expression. In particular, counsel states that Jones Beach "is not a public park as are City Hall, Washington Square, and Union Square Parks in New York City; this facility is not the village green in a city and urban environment where citizens commonly gather to create a forum to discuss and discourse upon current events" (id., at p. 12). According to the defendants, the facility is

"located in a geographical area which permits only limited regulated access to preserve the area. No individual has an unfettered right to complete access to all of Jones Beach facilities. . . . A significant number of Jones Beach activities require either a permit, fee, ticket or assigned position to allow participation. . . . Simply stated, a government facility termed as a park carries no automatic legal designation as a traditional public forum" (id., at pp. 12-13).

 Should the Court find that Jones Beach is not a nonpublic forum, the defendants assert that it should be classified as a limited public forum. Although the defendants concede that the pedestrian walkways might be designated a public forum, they contend that areas such as the roadways, athletic fields, fishing areas, and parking lots are not suitable for the distribution of literature because of safety considerations. Likewise the defendants argue that tradition and custom make the beach area unsuitable for distribution of leaflets, as are public access areas such as the entrances to park offices, restaurants, restrooms, theater, and first aid areas.

 Finally, the defendants argue that if the Court declares Jones Beach a public forum, the facility should have a mixed-use designation similar to or analogous to that recognized by the Supreme Court in International Society for Krishna Consciousness, Inc. v. Lee, U.S. , 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992). In doing so, the Court could then treat certain areas within Jones Beach as a nonpublic forum in view of the use, activities, and historical perspective associated with the area.

 With regard to the permit requirement, the defendants state that they have adopted 9 N.Y.C.R.R. §§ 372.1 and 376.1 under the auspices of the PRHPL § 3.09(8) to protect the public health, welfare and safety. Accordingly, these provisions do not prohibit the distribution of noncommercial literature, but rather require only that such activity be conducted with a permit. The defendants assert that the requirements for a permit are unrelated to content and are solely concerned with the supervision of access to pedestrian areas within the park. Without the permit requirement,

". . . Jones Beach and the State defendants would be subject to hosting multiple demonstrations, parades, distributors of literature, and speeches simultaneously at different sites in the facility, including the beach area, theater, playing fields, and roadways, by advocate groups or individuals as a) pro-choice and pro-life (abortion issue); b) born-again Christians and atheists (religion); and c) white supremacists and minorities/religious groups (equality), without even the minimal authority to separate the respective groups to different and limited locations."

 In reply, the plaintiff states that the defendants mischaracterize the plaintiff's position on the forum status of Jones Beach. Specifically, counsel notes that "the uncontroverted record before this Court shows Paulsen's requests to the Parks Department have solely sought to distribute his non-commercial, religious literature on the pedestrian thoroughfares of Jones Beach during the time it is open to the public" (Plaintiff's Reply Brief, at p. 4) (emphasis supplied). The plaintiff therefore argues that when defining the nature of the forum at issue, courts must focus on the access actually ...

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