631 F.3d 1 (1st Cir. 2011), 10-1209, URI Student Senate v. Town of Narragansett

Docket Nº:10-1209.
Citation:631 F.3d 1
Opinion Judge:SELYA, Circuit Judge.
Party Name:URI STUDENT SENATE et al., Plaintiffs, Appellants, v. TOWN OF NARRAGANSETT et al., Defendants, Appellees.
Attorney:H. Jefferson Melish, for appellants. Marc DeSisto, with whom Mark A. McSally, Town Solicitor, Kelly, Kelleher, Reilly & Simpson, and DeSisto Law were on brief, for appellees.
Judge Panel:Before LYNCH, Chief Judge, SELYA and THOMPSON, Circuit Judges.
Case Date:January 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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631 F.3d 1 (1st Cir. 2011)

URI STUDENT SENATE et al., Plaintiffs, Appellants,


TOWN OF NARRAGANSETT et al., Defendants, Appellees.

No. 10-1209.

United States Court of Appeals, First Circuit.

January 5, 2011

         Heard Oct. 7, 2010.

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         H. Jefferson Melish, for appellants.

          Marc DeSisto, with whom Mark A. McSally, Town Solicitor, Kelly, Kelleher,

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Reilly & Simpson, and DeSisto Law were on brief, for appellees.

          Before LYNCH, Chief Judge, SELYA and THOMPSON, Circuit Judges.

          SELYA, Circuit Judge.

         The town of Narragansett (the Town), a sleepy seaside community in southern Rhode Island, boasts some of the most beautiful beaches on the eastern seaboard. Each summer, the Town experiences a substantial influx of seasonal residents. Each fall, the Town empties out, leaving a large number of dwellings unoccupied. The Town's proximity to the University of Rhode Island (URI) makes these dwellings attractive for student housing.

         This thriving rental market among college students has proven to be both a blessing and a curse. On the one hand, the clamor for student housing is an economic boon to property owners willing to rent their dwellings. On the other hand, the sheer mass of exuberant young people and their predilections have proven to be a threat to the quality of life in a quiet enclave.

         In an effort to balance these competing concerns, the Town adopted a novel ordinance authorizing local police officers to post a bright orange sticker at the front entrance of any residence found to have hosted an " unruly gathering." The ordinance has had its detractors, and this case was brought as a multifaceted challenge to it. The challengers complain that the ordinance is both preempted by state law and unconstitutional on its face.

         The district court, in a thoughtful and comprehensive rescript, rejected these plaints. See URI Student Senate v. Town of Narragansett, 707 F.Supp.2d 282 (D.R.I.2010). After careful consideration, we find that the Town's unorthodox solution to the problems caused by unruly gatherings does not, on its face, offend either state law or the United States Constitution. Accordingly, we affirm.

         I. BACKGROUND

         We first recount the circumstances surrounding the adoption of the ordinance and summarize its terms. We then limn the travel of the case.

         A. The Ordinance.

         The Narragansett Town Council initially adopted an " unruly gatherings" ordinance in 2005. It amended that ordinance in 2007. The amended version (the Ordinance), codified at chapter 46, article II, of the Town's Code of Ordinances, remains in force. We refer throughout to that version, which is reprinted in the appendix.

         Section 46-31 of the Ordinance empowers local police officers to intervene at and disperse gatherings that are sparking " a substantial disturbance." The police may only do so, however, when the disturbance involves " a violation of law." Subsection (a) provides an illustrative list of instances of unlawful conduct that might constitute such a violation (e.g., excessive noise, obstruction of public streets, illegal parking, public drunkenness or urination, service of alcohol to minors).

          Once the police have abated and dispersed an unruly gathering, subsection 46-32(a) authorizes them to prominently post a notice on the premises. This notice takes the form of a bright orange ten-by-fourteen-inch sticker, which is affixed on or near the front entrance of the building.1

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The sticker contains an explicit message. It admonishes that, should police intervention be required in response to another violation at the same address during the same posting period, various parties (e.g., the owners and residents of the premises, the sponsors of the unruly gathering, and any guests who cause a nuisance) will be held jointly and severally liable. Landlords are informed by mail of both the posting and the violation that led to it.

         The Ordinance makes explicit allowance for certain defenses to prosecution for a subsequent violation. For example, under subsection 46-34(a)(5), a showing that only uninvited participants engaged in the proscribed conduct serves as a defense for innocent landlords, tenants, or event sponsors. To assert this defense, a landlord, tenant, or sponsor must show that she took " all steps reasonably necessary to exclude" the responsible individuals. As to landlords, such exclusionary actions include " actively attempting" to evict boisterous tenants.

         The posting periods prescribed by subsection 46-32(a) correspond with the economic realities of the seasonal housing cycle. If a building is posted between the beginning of September and the end of May, the sticker must remain in place until May 31. If a building is posted between the beginning of June and the end of August, the sticker must remain in place until August 31.

         Under subsection 46-32(b), landlords and tenants are jointly responsible for maintaining the notice in place. If a landlord or tenant removes the sticker, abets its removal, or tampers with it during the posting period, she is subject to a fine.

         Section 46-35 delineates the penalties associated with infractions at previously posted dwellings. Under subsection (a), the first post-posting intervention during a given posting period incurs a $300 fine; the second, a $400 fine; and any further intervention, a $500 fine. Under subsection (b), violators may be required to perform community service or, for repeat offenders, community service is mandatory.

         The Town routinely compiles statistics relating to its enforcement of the Ordinance. Its roster of offending dwellings includes all addresses at which police officers have intervened to abate and disperse unruly gatherings. It also maintains a list that features data relating to Ordinance violations committed by URI students.

         B. Travel of the Case.

         In May of 2008, the appellants challenged the Ordinance in a Rhode Island court. The defendants removed the case to the district court in pursuance of federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441.

          The lead plaintiff-appellant is the URI Student Senate, which claims to represent the interests of URI students generally. The remaining plaintiffs, also appellants here, can be sorted into three categories. The first group comprises individual URI students who reside in Narragansett and have felt the sting of the Ordinance. These appellants claim, among other things, that they have been subjected to university disciplinary procedures as a result of violating the Ordinance.2 The second

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group consists of URI students whose rented abodes have been posted with orange stickers. These appellants claim that they were evicted from their homes and referred to the URI Student Life Office as a result. The last group comprises landlords who have had their rental properties posted. These appellants claim that they have been unable to re-rent their properties and, consequently, have lost rental income. The defendants, appellees here, are the Town and a galaxy of municipal officials. For ease in exposition, we refer to the Town as if it were the sole defendant.

         The complaint is cast mostly, but not entirely, as a series of constitutional challenges. The exception is a preemption claim positing that the Ordinance is preempted by a state statute. The constitutional claims allege variously that the Ordinance (i) violates substantive due process, (ii) is unconstitutionally vague, (iii) is overbroad, (iv) offends the requirements of procedural due process, and (v) deprives the appellants of equal protection of the law.

         In due season, the parties cross-moved for summary judgment on stipulated facts. The district court denied the appellants' motion and granted the cross-motion. URI Student Senate, 707 F.Supp.2d at 304. The court expressed concern about the absence of any pre-posting opportunity to challenge the orange stickers, id. at 296, 302, but nonetheless upheld the Ordinance. This timely appeal ensued.

         II. ANALYSIS

         We begin our analysis with the preemption claim and then move to the constitutional claims. Before undertaking this exegesis, we pause to memorialize the standard of review.

         We review an appeal from the entry of summary judgment de novo. Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir.2005). In so doing, we take the facts and all reasonable inferences therefrom in the light most hospitable to the nonmoving party. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir.2010). " We will affirm only if the record reveals ‘ no genuine issue as to any material fact’ and ‘ the movant is entitled to judgment as a matter of law.’ " Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir.2008) (quoting Fed.R.Civ.P. 56(c)(2)).

         A. Preemption.

          The appellants assert that the Ordinance is preempted by the Rhode Island Residential Landlord and Tenant Act (L & T Act), R.I. Gen. Laws §§ 34-18-1 to 34-18-57. As its title implies, the L & T Act speaks to the rights and obligations of landlords and tenants within Rhode Island. See id. §§ 34-18-2, 34-18-7. In advocating preemption, the appellants rely on section 34-18-36, which gives most tenants the right to cure any material breach of a rental agreement prior to eviction.3

          Under Rhode Island law, a municipal ordinance may be preempted by a state statutory scheme either if the ordinance conflicts with the statutory scheme or if it...

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