Paulsen v. Gotbaum

Decision Date29 December 1992
Docket NumberNo. 36,D,36
Citation982 F.2d 825
PartiesMitch PAULSEN, Appellant, v. Betsy GOTBAUM, in her official capacity as Commissioner of the New York City Department of Parks and Recreation; DEPARTMENT OF PARKS AND RECREATION OF THE CITY OF NEW YORK, Appellees. ocket 92-7317.
CourtU.S. Court of Appeals — Second Circuit

Kevin J. McGill, New York City (Clifton, Budd & DeMaria on the brief), for appellant.

Elizabeth I. Freedman, New York City (O. Peter Sherwood, Corp. Counsel, and Francis F. Caputo on the brief), for appellees.

Before: TIMBERS, VAN GRAAFEILAND, and McLAUGHLIN, Circuit Judges.

TIMBERS, Circuit Judge:

Appellant Mitch Paulsen appeals from a partial summary judgment entered in the Southern District of New York, John S. Martin, Jr., District Judge, denying a motion for a permanent injunction against certain rules of the Department of Parks and Recreation of the City of New York (Parks Department).

On appeal, appellant contends that the rules the Parks Department has established in conjunction with the permit necessary to hold a "special event" in a New York City park violate his First Amendment rights.

We reject appellant's claim. We hold that the rules are valid time, place, and manner restrictions. We affirm the partial summary judgment in favor of the Parks Department.

I.

We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

Appellant is the founder and operator of Mitch Paulsen Outreaches, a New York based Christian evangelical organization. He applied to the Parks Department for a special events permit to hold a musical religious worship event in the bandshell at Forest Park, Queens, on September 23 and September 29, 1990.

The Parks Department has promulgated The Rules of the New York City Department of Parks and Recreation (rules) pursuant to § 533(a) of Chapter 21 of the New York City Charter and in compliance with the notice of publication and filing requirements of the New York City Charter, Chapter 45. The Parks Department also has long standing practices which complement the rules. The rules, published by the Parks Department in a Rules Handbook, require that one who wishes to stage a "special event", which includes any "contest, exhibit, public entertainment, parade, parade review, athletic contest, dramatic reading, storytelling, poetry reading or picnic," or "any public meeting or assembly ... ceremony ... speech ... address or oration when more than twenty (20) persons may reasonably be expected to be in attendance" in the parks is required to obtain a permit. Rules, Art. IV, § 25(a) & (b). The permit application form sets forth additional requirements for an application fee, the posting of a clean-up bond if the applicant wants to distribute pamphlets (which is refunded if not used), and, at the Commissioner's discretion, liability insurance.

The Commissioner of the Parks Department may deny a permit only upon limited grounds. A permit may be denied only if: (1) the location is not suitable because of environmental conditions or landscaping concerns; (2) the location is a specialized area such as a pool, a zoo, or a skating rink, in which the event, because of its nature or duration, cannot be accommodated reasonably; (3) the date and time have been allotted previously; or (4) within the preceding four years the applicant has been granted a permit and knowingly has violated a material term or condition of the permit, or of any other law, ordinance, statute or regulation regulating the use of parks.

A permit application should be filed at least twenty-one days before the requested date of the event. The Parks Department must notify the applicant of its decision within thirty days of the event, if the application was filed more than sixty days before the event. If the application was filed less than sixty days before the requested date, the applicant must be notified as soon as practically possible. If the Parks Department denies a permit, the applicant must be notified of the ground for denial.

If an applicant obtains a permit, there are other rules governing the conduct of the special event. These rules include prohibitions against solicitations and non-stationary leafletting, and a requirement of a clean-up bond. There also is a legend on the permit which requires specific approval by the Commissioner before the permittee may distribute pamphlets, solicit funds, or make any speech.

On August 8, 1990, appellant applied for a special events permit to stage a musical religious worship event for his organization at Forest Park, Queens. He expected between 100 and 200 people to attend the event on September 22, 1990, with a raindate of September 23, 1990. He paid the $25 application fee. He refused, however, to post a clean-up bond. The Parks Department issued to him a permit for this date (with the raindate), which explicitly prohibited leafletting (because he had not posted a clean-up bond) and also prohibited soliciting without permission from the Parks Department.

When appellant arrived at the bandshell on the scheduled date, he discovered that another group was using the bandshell. This occurred because of an administrative error. Indeed, the other group had received a permit to use the bandshell before appellant received his. The Parks Department voided appellant's permit.

Appellant commenced this action, alleging violations of his First and Fourteenth Amendment rights arising from the voidance of his permit because of the scheduling conflict. After a hearing, the Parks Department issued appellant a second permit for October 13, 1990. Pursuant to a stipulation, the Department waived the clean-up bond and permitted appellant to solicit donations from a stationary table and actively to distribute pamphlets. The event took place without incident.

In February 1991, Paulsen applied for a third permit for dates during the summer of 1991 at the Prospect Park bandshell in Brooklyn. He was told that all of the dates he requested previously had been booked, and that his application and filing fee were being returned to him. In April 1991, appellant went to the Brooklyn office of the Parks Department to pick up his rejected application and fee. He was told that they already had been mailed to him. While at the office, he discovered that one of the requested dates in fact was available. Appellant was told, however, that he would have to file another application and submit another fee since the last ones already had been returned to him. Appellant then brought on by order to show cause a motion in the instant action seeking injunctive relief against the Parks Department for refusal to grant him a permit. He claimed that the Parks Department had failed to process his application in a timely manner and maintained an unconstitutional permitting scheme.

Before a hearing was held, appellant refiled his application and resubmitted the fee. The Parks Department granted him the requested permit. Since the permit had been granted, a hearing was not held. In July 1991, appellant amended his complaint in the instant action to include the claims that were set forth in his last order to show cause, alleging that the requirement of the clean-up bond for the distribution of literature and the requirement that literature be distributed from a stationary table constituted an impermissible and unconstitutional burden on free speech.

The Parks Department moved for summary judgment, claiming that the rules governing special events constituted a reasonable time, place, and manner restraint on First Amendment activity, and that the rules, as applied to appellant in connection with his September 23, 1990 permit, did not violate his constitutional rights. Appellant cross-moved for summary judgment.

On February 25, 1992, the court entered an injunction permanently enjoining the Parks Department from enforcing the rules which require the Commissioner's approval for soliciting or leafletting at a special event, and from enforcing the discretionary requirement of liability insurance for some special events. The court granted partial summary judgment in favor of the Parks Department. It denied appellant's claim that the distribution rules, the solicitation rules, the application deadlines, and the fees should be enjoined, holding that they were all reasonable restraints and were constitutional. Appellant appeals from the partial summary judgment. The Parks Department does not appeal from the injunction against it.

II.
(A) Summary Judgment was Properly Granted

Summary judgment is appropriate in cases where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In the instant case, neither party disputes the existence or application of the rules being challenged. As for the application of the law, we use the same standard as applied by the district court and review the record de novo. Viacom Intern. Inc. v. Icahn, 946 F.2d 998, 1000 (2 Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1244, 117 L.Ed.2d 477 (1992); Bryant v. Maffucci, 923 F.2d 979, 982 (2 Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

(B) Constitutionality of the Distribution and Solicitation Rules

As recently as last term, the Supreme Court reiterated its position on the regulation of speech in a public forum. The Court held that:

"[E]xpressive activity, even in a quintessential public forum, may interfere with other important activities for which the property is used. Accordingly, the Court has held that the government may regulate the time, place, and manner of expressive activity, so long as such restrictions are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication."

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