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August 18, 1999


The opinion of the court was delivered by: Kahn, District Judge.


I. Introduction

On April 25, 1996, Defendant Town of Woodstock ("Defendant" or "the Town") passed Local Law # 1 of 1996 (the "Vending Law"), which prohibited commercial activities anywhere in the Town without a license and absolutely prohibited commercial activities on the Village Green. The Vending Law, however, provided an exemption for, inter alios, political candidates and political parties. In August 1996, Plaintiff Dovid Krafchow ("Krafchow") was charged with and convicted of violating the Vending Law. The summons issued against Krafchow alleged that while on the Village Green, he charged a fee for the service of reading Tarot cards and for the sale of posters. Krafchow now brings this action pursuant to 42 U.S.C. § 1983 (1994) claiming that the Vending Law was unconstitutional and effected a violation of his First Amendment rights to free speech and freedom of religion. Presently before this Court are cross-motions for summary judgment.

II. Background

Krafchow is a fifty-four-year-old Vietnam veteran who began studying the Torah at the age of twenty-six (26). Between 1980 and 1990, Krafchow lived in Israel where he studied the "more mystical side of the Torah." Upon his return to the United States, he worked for a publishing company for a little over one year. With the exception of reading Tarot cards, Krafchow has been unemployed since that time.

Krafchow claims that he became inspired to read Tarot cards in the early 1990's when, while browsing through a book store in New York City, he noticed a particular book that related Tarot cards to the Kabala, the combined wisdom of ancient Jewish mysticists. Krafchow claims that he "started to do [readings] just as a hobby," but then "had this idea that [he] could use it really as an art form." He spent some time performing the readings at various locations in New York City and then in or around the summer of 1994, moved up to Woodstock, New York.

During that summer, and indeed during the summers of 1995 and 1996 as well, Krafchow performed his Tarot readings in the Town and on the Village Green with at least the tacit approval of the Town Board. That is, there was some initial objection to his activities from Tracy Kellogg ("Kellogg"), a member of the Town Board,*fn1 but with the advice of counsel, the Town Board permitted Krafchow to remain. The understanding between Kellogg and Krafchow was that he could continue to perform his services and to collect money for both the readings and his merchandise provided the money was received in the form of donations and not as a charge or a fee. In August 1996, however, the relationship between the parties soured.

On August 25, 1996, Krafchow was given a summons to appear in Town Court for allegedly violating the Town's Vending Law by engaging in commercial activity on the Village Green. Section 2 of the Vending Law prohibited vending on the Village Green:

  Notwithstanding anything to the contrary contained in
  this local law, no vending shall be allowed on the
  property known as the Village Green or the property
  transferred to the Town of Woodstock by the deed
  recorded in the Ulster County Clerk's Office in Deed
  Book 1741, at page 189, being the parcel of land on
  which the Woodstock Chamber of Commerce booth now

Varley Aff.Ex. A, L.L. # 1/96 § 2. The law defined a "vendor" as "[a]ny person, . . . who on public property sells or barters or offers for sale or barter or carries or displays for sale or barter any goods, wares, merchandise or services." Id. § 1. According to the Vending Law's preamble, the law's purpose was to control pedestrian and vehicular traffic through the Town, particularly the area in and around the Village Green:

  It is the intent of the Town of Woodstock to assure
  vending on public property in the Town is conducted
  in a safe and peaceful manner without undue
  inconvenience to Town residents. . . . It is hereby
  found that to protect both vehicular and pedestrian
  traffic, particularly in the Center of Town, vending
  on public property shall be conducted only from those
  locations designated by the Town Board, and each
  vendor shall be assigned a specific space, as
  available, in the designated locations for the term
  of the license.

Id. Particularly pertinent for the instant motions is the fact that section 3 of the Vending Law set forth the following exemptions:

  (1) Any person acting pursuant to statute or court
  (2) Candidates for elective or party offices, or
  persons acting in behalf of any such candidates or
  for a political party;
  (3) Persons vending from private property pursuant to
  the Town of Woodstock Zoning Law, including yard or
  garage sales;

(4) Persons vending from door-to-door.

Id. at § 3. One found guilty of violating the Vending Law could have been fined up to two-hundred-and-fifty dollars ($250.00) for each day that a violation occurred. Id. § 16(A). In addition, if the alleged violator did not remove his or her merchandise and belongings immediately upon receipt of a summons, he or she faced the possibility that his or her merchandise and belongings could be confiscated by the Town Police. Id. § 16(B).

Because Krafchow did not fall within any of the above exemptions and there was some question as to the legality of his activities, the Town's police department decided to investigate.*fn2 As part of that investigation, Officer James DiMele ("DiMele") approached Krafchow in plain clothes and asked him to perform a card reading. During the reading, DiMele alleges that an individual or individuals asked to take Krafchow's photo. According to Officer DiMele, Krafchow responded that he sold posters of himself for five dollars ($5.00).*fn3 At the conclusion of DiMele's reading, he asked Krafchow how much it would cost. Krafchow responded that people generally gave between ten-to-twenty dollars ($10.00-20.00). DiMele paid Krafchow twenty dollars ($20.00) and then offered to purchase one of Krafchow's posters. Noting DiMele's generosity, Krafchow stated that DiMele could have the poster for free.

As a result of the foregoing, Krafchow was tried and convicted in Woodstock Town Court of violating the Vending Law. The Vending Law was repealed on April 8, 1997, and over the course of its brief existence, Krafchow was the only individual prosecuted thereunder.

Krafchow contends that the Vending Law was an invalid time, place, or manner restriction of protected activity and, thus, effected a violation of his First Amendment rights to speech and to religion. Both parties move for summary judgment as to liability.

III. Discussion

Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). A genuine issue is an issue that, if resolved in favor of the non-moving party, would permit a jury to return a verdict for that party. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

When the moving party has met the burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. At that point, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby Inc., 477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment motion, evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-249, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the non-moving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994) (citations omitted). The instant case is reviewed with the foregoing standards in mind.

The First Amendment, made applicable to the states by the Fourteenth Amendment, provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]; or abridging the freedom of speech. . . ." U.S. CONST. amend. I. "The First Amendment literally forbids the abridgment only of `speech,' but [the Supreme Court has] long recognized that its protection does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). In that vein, the Second Circuit noted that First Amendment protections have been extended to entertainment, film, theater, music, peaceful marches, sit-ins, and parades. See Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996). See also Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) ("[O]ur cases have never suggested that expression about philosophical, social, artistic, economic, literary or ethical matters . . . is not entitled to full First Amendment protection") (footnote omitted). Moreover, relative to both freedom of religion and freedom of speech, First Amendment "protection is [not] lost because the . . . materials sought to be distributed are sold rather than given away or because contributions or gifts are solicited in the course of propagating the faith." Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (citations omitted); see also Riley v. National Fed'n of Blind of North Carolina, 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) ("It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak."); Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) ("[T]he mere fact that the religious literature is `sold' by itinerant preachers rather than `donated' does not transform evangelism into a commercial enterprise. . . .").

In the instant action, Krafchow claims that both the Tarot card readings and the sale of his posters were protected activities. Relative to the card readings, Krafchow asseverates that the Tarot cards are "rife with symbolism." Pl.'s Mem. at 3. He contends that he interprets the symbolism of the cards based on his knowledge of the Kabala and the Torah. See Krafchow Dep. at 15 (Q. "When you use the Tarot cards, whatever you do with them, it is based on your own interpretations of the Torah?" A. "That's right."). According to Krafchow, the symbols on the face of the cards are connected to the Jewish faith because the cards were developed at the time of Alexander the Great when teaching, including teaching about the Torah, was banned. In order to continue teaching without being punished, the Jewish people developed the cards as a means of conveying principles of their faith while giving the appearance of mere entertainment.

Defendant, on the other hand, contends that the Vending Law is solely a regulation of commercial activity and, therefore, has First Amendment implications relative to one's speech only if the commercial activity so regulated is inseparably intertwined with a particularized message. Defendant also claims that Krafchow's posters are self-promotional and are not connected with the pronouncement of any religious, political, or philosophical message and thus warrant no protection. Furthermore, Defendant claims that the law does ...

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