Pacific Frontier v. Pleasant Grove City
| Citation | 414 F.3d 1221 |
| Decision Date | 12 July 2005 |
| Docket Number | No. 04-4010.,No. 04-4018.,04-4010.,04-4018. |
| Parties | PACIFIC FRONTIER, a Nevada corporation; J & L Distributing, a Nevada corporation; Redwood Division Pro Club 100%, a California corporation; Eric Desmond; Steven Mantz; William Walsh; Jasmine Jaramillo; Lisa Walker; Amber Dalton; Travis McBride, Plaintiffs-Appellees/Cross-Appellants, v. PLEASANT GROVE CITY, a municipal corporation; Jim Danklef, in his official capacity as Mayor of Pleasant Grove City; Tom Paul, in his official capacity as Police Chief of Pleasant Grove City; Frank Mills, in his official capacity as Pleasant Grove City Manager; Jeff Wilson; Carol Harmer; Keith Cory; Darold McDade; Mark Atwood, in their official capacities as members of the Pleasant Grove City Council; Ernesto Ferron, Defendants-Appellants/Cross-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Peter Stirba, (Gary R. Guelker with him on the briefs), Stirba & Associates, Salt Lake City, UT, for the Defendants-Appellants/Cross-Appellees.
Craig L. Taylor, (Charles R. Ahlstrom with him on the briefs), Craig L. Taylor, P.C., Kaysville, UT, for the Plaintiffs-Appellees/Cross-Appellants.
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Burdened by the City of Pleasant Grove's ordinance establishing a solicitors licensing procedure, plaintiffs — individuals and entities engaged in selling Kirby vacuum cleaners through door-to-door solicitations — sued under 42 U.S.C. § 1983 claiming that the licensing ordinance violated their First Amendment commercial speech rights. The case proceeded to a preliminary injunction hearing, following which the district court found that, in addition to satisfying the other factors of the preliminary injunction test, plaintiffs have a substantial likelihood of showing that two provisions of the ordinance requiring solicitors to provide their fingerprints and post a $1,000 bond violate their commercial speech rights. We review the grant of such preliminary injunctions for abuse of discretion and conclude on the record before us that the district court did not abuse its discretion. We therefore AFFIRM the grant of injunctive relief.
To "protect the local citizenship against crime and to preserve the private property, peace, and comfort of the occupants of the private residents [sic] in the city," Pleasant Grove enacted Chapter 5.48 of the Pleasant Grove City Code ("Ordinance"), which requires individuals to obtain a license before engaging in door-to-door solicitation. When applying for a license, solicitors must provide Pleasant Grove with, inter alia, the following: (1) proof of age, address, and a "legally recognized form of identification;" (2) two photographs of the applicant; (3) a set of fingerprints taken by the Department of Public Safety; (4) a $20 fee to cover the cost of processing the registration; (5) a $1,000 bond to be returned ninety days after "the solicitor informs the City that the [sic] or she has terminated solicitations within the City, unless the City has good cause to believe that legal action has been or may be brought against the solicitor related to the solicitation activities of the solicitor;" (6) a $100 annual fee; and (7) "such information as the police department shall reasonably require." In addition, Pleasant Grove requires solicitors to submit to a background check before obtaining a license.
Pacific Frontier, Inc. is a distributor of Kirby vacuum cleaners. It engages independent contractor dealers who perform door-to-door solicitations and in-home demonstrations of Kirby vacuums. Because it considered the costs of complying with the Ordinance's licensing requirements to be "prohibitive," Pacific Frontier declined to apply for a license in Pleasant Grove.1 Its independent dealers nonetheless proceeded to engage in door-to-door solicitations in Pleasant Grove. Pleasant Grove police arrested eight such dealers for soliciting without a license.
Seven of those who were arrested ("individual plaintiffs") joined three corporations — Pacific Frontier, J & L Distributing, Inc., and Redwood Division Pro Club 100%, Inc. — in filing a complaint in federal district court asserting that the Ordinance violated their First Amendment right to free speech and burdened interstate commerce. The plaintiffs sought, inter alia, a permanent injunction against further enforcement of the Ordinance, a declaratory judgment that the Ordinance is unconstitutional, and compensatory and special damages. In response, Pleasant Grove filed a motion to dismiss arguing that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), required federal abstention due to the pending criminal actions against the individual plaintiffs. To avoid dismissal of their federal complaint, and their claims for relief under § 1983, the individual plaintiffs pled no contest to the criminal charges and agreed to pay the resulting fines under protest.
After deciding that Pleasant Grove's dismissal motion was moot, the district court proceeded to hear arguments on the plaintiffs' motion for a preliminary injunction. Plaintiffs did not challenge most of Pleasant Grove's licensing procedure, electing to seek an injunction against only three provisions: the Ordinance's annual fee, bond, and fingerprinting requirements. At the hearing, Captain Cody Cullimore of the Pleasant Grove City Police Department testified to prior crimes committed by door-to-door salespeople. Specifically, he related that the department had received complaints of thefts occurring when solicitors were performing demonstrations inside homes, one complaint of a solicitor committing sexual assault, and reports of residential burglaries after solicitors had canvassed a particular neighborhood. Additionally, Cullimore testified that solicitors had defrauded citizens by taking money for products and not delivering the goods. On cross-examination, he acknowledged that police involvement with solicitors, when compared to police responses to other businesses, was "minimal." In eleven years, the police department received 160 complaints relating to door-to-door solicitation. By contrast, in a ten month period in 1997, the department received over 2,000 complaints on "issues impacting business." Moreover, nearly half of the 160 calls about solicitors involved complaints that solicitors were operating without a license. Cullimore also admitted that there were no instances in which the fingerprints disclosed that a solicitor should not receive a license, and that the fingerprints had never been used to investigate or prosecute a crime.
City Attorney Christine Peterson, author of the Ordinance, explained that the fingerprint requirement deterred solicitors from committing crime. In support of the bond requirement, she testified that She acknowledged that no citizen has ever made a claim on the bond. Moreover, plaintiffs presented unrefuted evidence that Pleasant Grove has no procedure in place through which an aggrieved citizen can assert a claim on the bond.
On consideration of the evidence and arguments, the district court enjoined Pleasant Grove from enforcing the bond and fingerprint requirements of the Ordinance. The court based its decision on the Ordinance's impact on commercial speech and did not rule on plaintiffs' Commerce Clause argument. Because Pleasant Grove acknowledged and amended its misinterpretation of the Ordinance, the district court concluded that "[t]he $100 fee licensing requirement is no longer at issue here." Pleasant Grove appealed, arguing that the district court abused its discretion in enjoining enforcement of the bond and fingerprint provisions. Plaintiffs cross-appealed, asserting that the district court should have enjoined the Ordinance's annual fee requirement and should have ruled on the Commerce Clause argument.
Before turning to the merits of the court's ruling, we must address Pleasant Grove's argument that plaintiffs lack standing to contest the Ordinance's constitutionality.2 Pleasant Grove contends that because plaintiffs challenged the Ordinance without first applying for a license, they lack standing to advance their First Amendment arguments. We decline to hold that solicitors must first apply for and be denied a license before challenging a licensing ordinance's constitutionality.
In Association of Community Organizations for Reform Now, ("ACORN") v. Golden, 744 F.2d 739 (10th Cir.1984), we heard a challenge to a municipal ordinance requiring activists to obtain an exemption prior to engaging in door-to-door canvassing. The City of Golden argued that "ACORN should be required to apply for and be denied an exemption before bringing a facial challenge to the ordinance." Id. at 744. We held that "[a]pplying for and being denied a license or an exemption is not a condition precedent to bringing a facial challenge to an unconstitutional law." Id. Further, we concluded that Id. The Supreme Court has also heard First Amendment challenges to door-to-door canvassing permit requirements where the plaintiffs did not apply for a permit. Watchtower Bible and Tract Soc'y of N.Y. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002). We conclude that our decision in ACORN should extend to cases involving commercial speech.3
Although failure to apply for a license does not serve as a barrier to the...
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