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TOBACK v. BRATTON

October 25, 1995

JACK TOBACK, BRENDA MILLINER, SOLOMON MILLINER, Plaintiffs, against WILLIAM BRATTON, in his official capacity as POLICE COMMISSIONER OF THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, AND THE CITY OF NEW YORK, Defendant.


The opinion of the court was delivered by: KNAPP

 WHITMAN KNAPP, SENIOR D.J.

 In this case, plaintiffs, street evangelists, are seeking a declaratory judgment and a permanent injunction invalidating Section 10-108 of New York City's administrative code ("Section 10-108") that requires them to pay $ 29.00 per day for sound amplification permits. Defendants now move for summary judgment. For the reasons that follow, defendants' motion is denied.

 BACKGROUND

 Section 10-108 of the Administrative Code of the City of New York, entitled Regulation of Sound Devices or Apparatus, provides, in pertinent part:

 
(i) Exceptions. The provisions of this Section shall not apply to the use or operation of any sound device or apparatus by any church or synagogue on or within its own premises in connection with the religious rites or ceremonies of such church or synagogue. *fn1"

 Plaintiff Toback ("Toback") is a street evangelist who has preached on the streets of New York City for the last eight years. He uses a portable sound system in connection with his sidewalk outreaches, and preaches only on Mondays and Tuesdays. Regardless of the number of days covered by any of the numerous permits which have been issued to Toback, it takes defendants anywhere from 10 minutes, according to plaintiff, to one hour, according to defendants, to process his application. The cost to Toback for this ranges between $ 232.00 for an eight day permit and $ 290.00 for a ten day permit.

 Plaintiffs Brenda and Solomon Milliner ("the Milliners") have been street preachers for many years. Unlike Toback, until the last week of February, 1995, they had never been required to obtain a permit for the use of their amplifier. At that time, they were advised that they needed to obtain a permit in order to continue using their amplifier. Since the Milliners used their amplifier five days a week, the cost of a permit at $ 29.00 a day was beyond their reach. What they previously had been doing free of charge would now cost them about $ 7,000 per year.

 We issued a temporary restraining order as to plaintiff Toback on March 13, 1995. In April, the complaint was amended to add the Milliners, and the temporary restraining order was extended to include them in May. Under these orders, plaintiffs are allowed to pay a monthly fee of $ 29.00 for all days covered by their permits until there should be a final disposition of this matter.

 DISCUSSION

 Defendants argue that summary judgment as a matter of law is appropriate for two reasons. First, they argue that Section 10-108 does not violate the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, which grants a statutory "claim or defense to persons whose religious exercise is substantially burdened by government." 42 U.S.C. § 2000bb(b)(2). In order for the RFRA to apply, a particular citizen must show that a sincerely held religious belief or practice has been substantially burdened by governmental action. Once the citizen has established that such a burden exists, it is the responsibility of the government to show that its action furthers a compelling interest in the least restrictive way. 42 U.S.C. § 2000bb-1(b). See Campos v. Coughlin (S.D.N.Y. 1994) 854 F. Supp. 194.

 The defendants argue that the RFRA does not apply to this case because the compelling interest test set out in the statute does not require exemptions from a generally applicable law that is neutral on religion. Rather, it applies only where a system of individual exemptions already exists. In such a case, the government "may not refuse to extend that system to cases of 'religious hardship' without compelling reason." Employment Division v. Smith (1990) 494 U.S. 872, 884, 108 L. Ed. 2d 876, 110 S. Ct. 1595. In this case, defendants argue that Section 10-108 is a law generally applicable to anyone who wants to use a sound amplifier, and is neutral on religion. As such, the compelling interest test codified in the RFRA does not apply to Section 10-108.


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