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People v. Mendelson

March 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK,
v.
SUSAN C. MENDELSON, DEFENDANT.



The opinion of the court was delivered by: Andrew M. Engel, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

BACKGROUND

On August 1, 2006 the Defendant was charged with violating Town of Oyster Bay Town Code § 168-16 ("the Code") for distributing leaflets on behalf of "Jews for Jesus" in John J. Burns Park, without a permit. Following the Defendant's challenge, that section of the Code was declared unconstitutional, on its face and as applied to the Defendant; and, the charges against her were dismissed.

On or about July 3, 2007, the Commissioner of the Department of Parks of the Town of Oyster Bay issued a new set of Town of Oyster Bay Department of Parks Rules and Regulations ("Regulations") addressing, inter alia, leafleting in the town parks. These Regulations were "enacted, pursuant to the authority conferred by the Supervisor and the Code of the Town of Oyster Bay, to avoid overcrowding and overlapping activities, to preserve peace and tranquility, to prevent dangers to public health or safety, and to minimize damage to park resources and facilities, and to preserve the parks of the Town of Oyster Bay in an attractive and intact condition."

Regulations Sec. 2

The new Regulations define "Demonstration" as "a group activity including but not limited to, ... dissemination of materials, or activity involving 20 or fewer people for which specific space is requested to be reserved." "Special Event" is defined as "a group activity including, but not limited to, a performance, meeting, assembly, contest, exhibit, ceremony, parade, athletic competition, reading, or picnic involving 20 or more people, for which specific space is requested to be reserved. Special Event shall not include casual park use by visitors or tourists." Section 3(a)(1) of the Regulations provides that "No person shall hold or sponsor any special event or demonstration in Town Parks without a Permit." Section 3(f) provides, in pertinent part:

(2) No person shall engage in the distribution of printed or similarly expressive material without a permit issued by the Commissioner. Such permit shall be issued without regard to content of materials. A permit shall be issued in accordance with the provisions of these rules, and shall only be denied if the activities covered by a prior permit or permits do not reasonable allow multiple or further occupancy of the particular area or where the number of persons engaged in the sale or distribution exceeds the number that can reasonably be accommodated in the particular location applied for, or if within the preceding two years, the applicant has been granted a permit and did, on that prior occasion, knowingly violate a material term or condition of the permit, or any law, ordinance, statute or regulation relating to the use of the parks. Permits shall limit permit holders to no more than four (4) persons distributing printed matter at any given time. In order to limit the likelihood of littering by disinterested recipients of the distributed material and to minimize unwanted intrusion on the park users' quiet enjoyment of the park space, distribution of printed or similarly expressive material may occur only upon an indication of interest by the recipient, and only from a stationary table in a fixed location specified in the permit. The location(s) in which such activity shall be permitted in each park has been selected by the Commissioner after consultation with the Department of Public Safety and the Town Attorney. Maps delineating such areas in each park shall be available for public use and inspection at the Officer of the Commissioner.

(3) In all instances where persons shall engage in the distribution of any non-commercial products or materials, printed or otherwise, a maintenance deposit in the sum of one hundred fifty ($150.00) dollars shall be required to ensure the cleanup of any of the products or materials in the park. Said sum shall be returned, in whole or part, should same or any part thereof not be necessary for such cleanup after the time of the permit. Such refund shall occur within five (5) business days of the expiration of the permit.

(4) In all instances where the permittee requests a permit to distribute expressive material on the date of a scheduled concert, other performance, or special event, such distribution shall terminate no later than fifteen (15) minutes prior to the scheduled time for the commencement of the performance, and may resume fifteen (15) minutes after the conclusion of the performance (the "suspension period"). During the suspension period, all printed materials and signage must be removed from public view.

(5) Applications for permits must be received at least five days prior to the requested date for the activity which is the subject of the permit. Notwithstanding this requirement, the department will accept all applications for activities involving the expression of viewpoints on topical issues whenever submitted and process such applications as soon as it is feasible to do so, considering the magnitude of the event and the resources of the department.

Section 4(b) of the Rules and Regulations similarly provides, in pertinent part:

(1) Applications for special event permits must be received at least twenty-one days prior to the requested date for the special event.

(2) Applications for demonstration permits must be received at least five days prior to the requested date for the demonstration. Notwithstanding this requirement, the department will accept all applications for demonstrations involving the expression of viewpoints on topical issues whenever submitted and process such applications as soon as it is feasible to do so, considering the magnitude of the event and the resources of the department.

On or about June 24, 2008 the Town Board of the Town of Oyster Bay adopted a local law amending various sections of Chapter 168 the code, including a new section 168-16, previously declared unconstitutional. This newly enacted section provides:

A. Legislative Intent

(1) The Town Board and the residents of the Town of Oyster Bay revere and respect the fundamental rights, provided for by the Constitution of the United States and the Constitution of the State of New York, to free speech, assembly and expression. The Town Board further recognizes that leafleting is a respected tradition in American society, and is a method of communication that has permitted citizens to spread political, religious and commercial messages throughout American history.

(2) The Town Board recognizes that situations arise when the public health, safety and welfare, the protection of which is the paramount reason for the establishment of government, requires restrictions on the time, place and manner of such speech, assembly, expression and leafleting, without regard to the content of same. The Town Board further recognizes that it has a responsibility to protect its residents from undue interference and harassment in the exercise of their rights to private relaxation, contemplation and enjoyment of their use of Town parks and recreational facilities. Accordingly, the Town Board finds that the Town of Oyster Bay, acting thorough and by the Commissioner of the Department of Parks, has a legitimate, compelling governmental interest in being able to regulate and control the patrons of its parks and recreational facilities, and the distribution of leaflets, including the number of distributors of said leaflets. A distributor of leaflets may not endanger the safety of patrons or interfere with park activities. The Town Board also finds that such restrictions will also benefit the physical condition of the parks and recreational facilities of the Town of Oyster Bay by limiting the likelihood of littering by patrons of the parks.

(3) Accordingly, the Town Board finds that, in order to properly balance the aforesaid rights and duties, regulations must be promulgated with respect to the use ...


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