telephoned Gaffney to tell her where he wanted to play, and the permit was ready when he arrived to pick it up. Tr. at 48. According to Turley, Gaffney spent approximately five minutes typing the permit when he arrived. Tr. at 48. Turley further testified that prior to 1997, the time required for obtaining a permit at Midtown North was approximately five minutes, and the longest that he ever waited for an SDP was ten minutes, when the clerk was "joking and just talking to fellow employees." Tr. at 47. Turley did not testify as to the time required to obtain a permit from Midtown North during 1997. Turley's five minute estimates for both precincts do not include the time that the permit processors spent checking for conflicts at the requested location before his arrival or after his departure.
Though the 45 minute estimates provided by Gaffney and Fittipaldi appear high in light of Turley's testimony, I need not resolve this conflict. At this stage it is only necessary to conclude that the time required for processing an average SDP does not exceed 45 minutes.
III. Conclusions of Law
It is well-settled that both music and speech amplified by mechanical means are protected by the First Amendment, see Ward v. Rock Against Racism, 491 U.S. 781, 790, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989); Saia v. New York, 334 U.S. 558, 561-62, 92 L. Ed. 1574, 68 S. Ct. 1148 (1948); Carew-Reid v. Metropolitan Transportation Authority, 903 F.2d 914, 916 (2d Cir. 1990), and that the City's streets and parks are public fora. See Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). Though a state may not tax such constitutionally-protected speech, it may impose reasonable time, place, and manner regulations that are content neutral, if the restrictions are narrowly tailored to serve significant government interests and leave open alternative channels of communication. See Ward, 491 U.S. at 791; United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983). "Thus, fees that serve not as revenue taxes, but rather as means to meet the expenses incident to the administration of a regulation and to the maintenance of public order in the matter regulated are constitutionally permissible." National Awareness Found. v. Abrams, 50 F.3d 1159, 1165 (2d Cir. 1995) (citing cases). Plaintiff does not challenge the existence of the City's licensing requirement for SDPs, but rather the fee charged for obtaining that license.
A. General Principles of Fee Determination
The cost of obtaining a permit or license fee must be calculated to "meet the expense incident to the administration of the act and to the maintenance of public order in the matter licensed." Cox v. New Hampshire, 312 U.S. 569, 571, 85 L. Ed. 1049, 61 S. Ct. 762 (1941); see also Abrams, 50 F.3d at 1165. A fee in excess of the amount necessary to offset these costs is impermissible. See Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050, 1056 (2d Cir. 1983). The calculation of costs incident to a permit or licensing scheme may include both the administrative costs and the enforcement costs "necessary to ensure that the purposes of [the regulatory scheme] are served." Abrams, 50 F.3d at 1166.
B. Variable and Total Cost Measures
Plaintiff contends that a permit fee may not exceed the average variable cost of administering and enforcing the permit scheme. Plaintiff's theory is based on an analogy to private sector businesses where variable costs are those which "fluctuate with a firm's output," and fixed costs are "those which are independent of output." Northeastern Tel. Co. v. American Tel. & Tel. Co., 651 F.2d 76, 87 (2d Cir. 1981). See Plaintiff's Post-Trial Memorandum of Law, Corrected Copy ("Pl.'s Mem.") at 3-4. Turley argues that neither the salary nor the fringe benefits of the permit processors may be included in the permit cost calculation, because those persons would be employed whether or not the permit scheme existed.
In support of this contention, Plaintiff relies principally on Cox v. New Hampshire, in which the Court held that a municipality could adjust a permit fee to reflect the expense of policing the specific event for which a permit is issued. Cox merely supports the proposition that a municipality may use a sliding scale in setting its fees according to the size of the event. The Court there did not suggest that in setting a fee for either large or small events, the municipality could not consider either fixed costs in general or manpower costs in particular.
Furthermore, Plaintiff's proposed methodology is inconsistent with the approach of averaging total costs which courts have regularly followed. See, e.g., Abrams, 50 F.3d 1159 (upholding fee for professional fund-raising where fee calculations included salaries and fringe benefits of those enforcing regulatory scheme and building-related expenses); Stonewall Union v. City of Columbus, 931 F.2d 1130, 1136-37 (6th Cir. 1991) (city may use the "full cost" accounting methodology in determining the fee for parade permit); Mobile Sign, Inc. v. Town of Brookhaven, 670 F. Supp. 68, 74 (E.D.N.Y. 1987) (upholding permit fee for mobile signs where fee calculations included secretarial and office expenses and cost of supervisor's time). Accordingly, the City may consider fixed costs, including the salary and fringe benefits of those who administer and enforce the regulatory scheme.
C. Distinguishing Between "Regular" and Other SDP Applicants
Plaintiff also contends that the City should charge a different fee to "regular" applicants than to other SDP applicants. See Pl.'s Mem. at 8-9. Again citing Cox v. New Hampshire, Plaintiff argues that the City's permit fee must take account of the lower cost of processing applications for those who apply on a regular basis. Id. In Cox, the Court held:
The suggestion that a flat fee should have been charged fails to take account of the difficulty of framing a fair schedule to meet all circumstances, and we perceive no constitutional ground for denying to local governments that flexibility of adjustment of fees which in light of varying conditions would tend to conserve rather than impair the liberty sought.