Anabell's Ice Cream Corp. v. Town of Glocester

• Citation: 925 F. Supp. 920
• Decision Date: 04 April 1996
• Docket Number: No. CA 95-0265ML.,CA 95-0265ML.
• Parties: ANABELL'S ICE CREAM CORP., Louis Lopez, Juliette Lopez v. The TOWN OF GLOCESTER.
• Court: U.S. District Court — District of Rhode Island

925 F. Supp. 920

ANABELL'S ICE CREAM CORP., Louis Lopez, Juliette Lopez v. The TOWN OF GLOCESTER.

No. CA 95-0265ML.

United States District Court, D. Rhode Island.

April 4, 1996.

COPYRIGHT MATERIAL OMITTED

John W. Dineen, Providence, RI, for Plaintiffs.

William G. Brody, Providence, RI, for Defendant.

MEMORANDUM AND ORDER

LISI, District Judge.

This matter is before this court on the plaintiffs' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiffs, the Anabell's Ice Cream Corporation and its owner and operators, Juliette and Louis Lopez, seek injunctive relief precluding the enforcement of an ordinance enacted by the defendant, the Town of Glocester, as well as a declaratory judgment that the ordinance violates the First Amendment of the United States Constitution. The ordinance prohibits the use of electronic noisemaking devices by merchants. For the reasons set forth below, the plaintiffs' motion is granted.

I. SUMMARY JUDGMENT

Before addressing the legal grounds on which the plaintiffs claim they are entitled to judgment, it is incumbent upon this court to outline the familiar standards under which summary judgment motions are reviewed.

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well-established that the party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file" and any accompanying affidavits "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Once the movant has satisfied this burden, "`the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue.'" Blackie v. State of Maine, 75 F.3d 716, 721 (1st Cir.1996) (quoting National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995)); see also Equal Employment Opportunity Comm'n v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 602 (1st Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 65, 133 L.Ed.2d 27 (1995).

In this case, the plaintiffs identify two alternative grounds on which such a motion could be granted, and, therefore, have properly informed the court as to the bases for their motion. The defendant seemingly contends, however, that the plaintiffs have not met their burden with respect to identifying those portions of the pleadings demonstrating an absence of a dispute as to any material facts. The defendant apparently grounds this assertion on its contention that the plaintiffs merely "purported to adopt as true and unchallenged numerous allegations which have not been established by any evidence." Defendant's Memo, p. 2.

The defendant's contention is without merit. It is well-settled that "the burden on the moving party may be discharged by `showing'" — that is, pointing out to the district court — that there is an absence of evidence to support the "nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. at 325, 106 S.Ct. at 2554. Indeed, a summary judgment motion "may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c) is satisfied." Id. at 323, 106 S.Ct. at 2553. In submitting its statement of undisputed facts, which directs this court to the pleadings, the plaintiffs have satisfied their burden.

Under the proper analysis, the burden then shifts to the nonmoving party. It is well-settled that a nonmoving party cannot avoid summary judgment merely by promising to produce admissible evidence at trial, but rather, must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986); Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 39 (1st Cir.1993). This requires the nonmovant to "go beyond the pleadings" and direct the court to specific facts that demonstrate that there is a trialworthy issue. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553.

In the case at bar, the defendant has failed to meet its burden under these standards. The defendant has not offered this court any "evidence which would be admissible at trial to make out the requisite issue of material fact." Kelly v. United States, 924 F.2d 355, 357 (1st Cir.1991); see also Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d at 39. Instead, the defendant apparently purports to rely on its assertion that the plaintiffs have failed to sustain their burden as the moving party. Moreover, the defendant has also failed to comply with Local Rule 12.1, which requires any party opposing a motion for summary judgment to "serve and file, together with the opposing memorandum of law ... a concise statement of all material facts as to which he contends there is a genuine issue necessary to be litigated." D.R.I.Loc.R. 12.1(a)(2).

The consequences of the defendant's multiple failures are clear. Given the defendant's failure to contest the plaintiffs' statement of undisputed facts, the jurisprudence of both Rule 56 and Local Rule 12.1 provide that the movant's version of the facts may be, and is in this case, taken as true.¹ See Kelly v. United States, 924 F.2d at 358. As such, disposition of this case on summary judgment is appropriate. See id.

II. BACKGROUND

Anabell's Ice Cream Corporation ("Anabell's") is a Rhode Island Corporation. Anabell's is in the business of selling ice cream from three to four vehicles which travel throughout the towns of Burriville, Woonsocket, and Glocester, Rhode Island. As the vehicles arrive or remain at retail locations, an electronic device in the vehicles plays various musical tunes, which serve to advertise the plaintiffs' business and announce the arrival of the truck at a particular location.

The plaintiffs, defined as peddlers under the defendant's ordinances,² have been duly licensed to operate their business in the Town of Glocester for a number of years. On April 20, 1995, the defendant issued a license to the plaintiffs allowing them to operate in Glocester in 1995. Prior to the issuance of this license, the defendant enacted an amendment to its ordinances which provided that "no peddler, hawker, or other persons requiring a license under this ordinance shall attempt to sell his/her wares by means of any loudspeaker, voice amplification system or electronic noisemaking device intended to attract public attention, nor shall he/she create a nuisance situation." GLOCESTER, R.I., HAWKERS AND PEDDLERS ORDINANCE, § 6.

Plaintiffs filed suit on May 12, 1995, seeking, inter alia, declaratory and injunctive relief against the defendant on the grounds that the amended ordinance interfered with their First Amendment rights. On October 17, 1995, the plaintiffs filed an amended complaint in which they also asserted that the ordinance violated Rhode Island law.

III. DISCUSSION

The plaintiffs offer two alternative bases on which they assert an entitlement to summary judgment. First, the plaintiffs contend that the ordinance in question is preempted by state law, and therefore invalid. Second, the plaintiffs aver that the ordinance amounts to an unconstitutional restriction on their First Amendment rights. Since disposition in plaintiffs' favor on the state law claim would obviate the need of deciding the constitutional question, this court proceeds to address the preemption claim first.

A. State Law Preemption

Preemption serves as a limitation on the exercise of inherent police powers by a governmental body when the purported regulation regulates subject matter on which superior governmental authority exists. See Town of East Greenwich v. O'Neil, 617 A.2d 104, 109 (R.I.1992). In this context, the relationship between state laws and local ordinances is well-settled: "It is declared to be a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state.... It is also recognized in this jurisdiction that an ordinance inconsistent with a state law of general character and state-wide application is invalid." Wood v. Peckham, 80 R.I. 479, 98 A.2d 669, 670 (1953); see also Town of East Greenwich v. O'Neil, 617 A.2d at 109.

In this case, the plaintiffs contend that the ordinance in question is expressly preempted by § 45-6-6 of the Rhode Island General Laws. This statute provides that "no ordinance or regulation whatsoever, made by a town council, shall impose or at any time be construed to continue to impose, any penalty for the commission or omission of any act punishable as a crime, misdemeanor, or offense, by the statute law of the state." R.I.GEN.LAWS § 45-6-6. The plaintiffs direct the court's attention to two Rhode Island statutes, each of which they allege criminalizes the acts proscribed by the ordinance and which they contend serve as the requisite predicate offenses for preemption under § 45-6-6.

The plaintiffs first contend that § 11-45-1 of the Rhode Island General Laws satisfies the underlying state law requirement of § 45-6-6, thereby preempting the ordinance. This statute creates criminal liability — in the form of a misdemeanor — for individuals who engage in disorderly conduct.³ Specifically, the plaintiffs argue that subsection (a)(2) of this statute, which defines disorderly conduct to include the disturbance of another through the making of loud and...