Aptive Environmental, LLC v. Town of Castle Rock, 051520 FED10, 18-1166

Docket Nº:18-1166
Opinion Judge:HOLMES, Circuit Judge.
Party Name:APTIVE ENVIRONMENTAL, LLC, Plaintiff-Appellee, v. TOWN OF CASTLE ROCK, COLORADO, Defendant-Appellant. INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; COLORADO MUNICIPAL LEAGUE, Amici Curiae.
Attorney:Brian J. Connolly, (J. Thomas Macdonald with him on the briefs), Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, Colorado, for Defendant-Appellant. Jeremy A. Fielding, Lynn Pinker Cox & Hurst, LLP, Dallas, Texas (David S. Coale, Jonathan D. Kelley and Paulette C. Miniter, Lynn Pinker Co...
Judge Panel:Before HARTZ, HOLMES, and CARSON, Circuit Judges. HARTZ, J., Circuit Judge, concurring
Case Date:May 15, 2020
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

APTIVE ENVIRONMENTAL, LLC, Plaintiff-Appellee,

v.

TOWN OF CASTLE ROCK, COLORADO, Defendant-Appellant.

INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; COLORADO MUNICIPAL LEAGUE, Amici Curiae.

No. 18-1166

United States Court of Appeals, Tenth Circuit

May 15, 2020

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-01545-MSK-MJW)

Brian J. Connolly, (J. Thomas Macdonald with him on the briefs), Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, Colorado, for Defendant-Appellant.

Jeremy A. Fielding, Lynn Pinker Cox & Hurst, LLP, Dallas, Texas (David S. Coale, Jonathan D. Kelley and Paulette C. Miniter, Lynn Pinker Cox & Hurst, LLP, Dallas Texas; and Steven J. Perfrement, Bryan Cave Leighton Paisner LLP, Denver Colorado, with him on the brief), for Plaintiff-Appellee.

Laura K. Wendell and Susan L. Trevarthen, Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Florida, filed an amicus curiae brief on behalf of International Municipal Lawyers Association supporting Defendant-Appellant.

Todd G. Messenger, Fairfield and Woods, P.C., Denver, Colorado, filed an amicus curiae brief on behalf of The Colorado Municipal League supporting Defendant-Appellant.

Before HARTZ, HOLMES, and CARSON, Circuit Judges.

HOLMES, Circuit Judge.

The Town of Castle Rock, Colorado ("Castle Rock" or "Town") enacted a 7:00 p.m. curfew on commercial door-to-door solicitation (the "Curfew"). Aptive Environmental, LLC ("Aptive") sells pest-control services through door-to-door solicitation and encourages its salespeople to go door-to-door until dusk during the traditional business week. When Aptive came to Castle Rock in 2017, it struggled to sell its services as successfully as it had in other nearby markets. Blaming the Curfew, Aptive sued Castle Rock for violating its First Amendment rights and sought an injunction against the Curfew's enforcement. After a bench trial, the district court permanently enjoined Castle Rock from enforcing the Curfew. Castle Rock appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's judgment, concluding that Castle Rock has failed to demonstrate that the Curfew advances its substantial interests in a direct and material way. In the following discussion, we summarize the relevant factual and procedural background, assure ourselves that Aptive has standing to challenge the Curfew, and explain why Castle Rock has failed to carry its burden of demonstrating that its Curfew is constitutional.

I

A

On appeal, Aptive's dispute with Castle Rock is based solely on Castle Rock's decision to enact the Curfew on commercial door-to-door solicitation. Below, we discuss the purported impetus for the Curfew, the specific provisions of Castle Rock's laws that established the Curfew, and the Curfew's impact on Aptive.

1

Prior to 2008, Castle Rock did not have a curfew on door-to-door solicitation. However, in 2007, a door-to-door solicitor approached a member of Castle Rock's elected town council while the council member was working in his garage. The council member was startled by the interaction, and, at subsequent town council meetings, he suggested that Castle Rock enact further restrictions on door-to-door solicitation. At these meetings, the town council decided to specifically target commercial door-to-door solicitation because Castle Rock's attorney had explained that regulation of noncommercial speech would raise constitutional concerns. Meeting notes similarly reflect that council members discussed the "fact that even if sales could be limited, religious and other groups who went door to door to educate and inform citizens were protected by the First Amendment." Aplt.'s App., Vol. V, at A1321 (Town Council Study Session Notes, dated Aug. 21, 2007).

With the focus on commercial door-to-door solicitors, Castle Rock considered a monograph on door-to-door solicitation prepared by the Colorado Municipal League, which summarized various ordinances existing elsewhere. Id., Vol. VI, at A1354-71 (Mem. re: Residential Door-to-Door Solicitation). Castle Rock's attorney also talked to other municipalities about ordinances that they had enacted. Based on this research, Castle Rock's attorney recommended adding a curfew barring commercial door-to-door solicitation from 7:00 p.m. to 9:00 a.m. because, in his view, such an ordinance "provide[d] a reasonable balance for residents and [commercial] solicitors." Id. at A1378-79 (Agenda Mem., dated Mar. 25, 2008).

The town council and Castle Rock employees discussed the purported need for such an ordinance with the Town's police chief. The police chief reported that the police had received eight "reports" concerning door-to-door solicitation and twenty to thirty more informal solicitation "complaints," some of which involved door-to-door solicitation, so far that year. Id., Vol. V, at A1313 (Email re: Proposed Memo on Door-to-Door Solicitation, dated Aug. 15, 2007). He noted that several citizens reported feeling "harassed" or "intimidated" by solicitors. Id. Castle Rock's clerk circulated a memorandum that similarly stated "the Police Department often receives calls from citizens concerned about various salespersons wondering [sic] about their neighborhoods." Id. at A1305 (Agenda Mem., dated Aug. 21, 2007). And, more specifically, the clerk noted that the Town had received one complaint about an individual soliciting at 9:45 p.m. Id. at A1327 (Agenda Mem., dated Oct. 23, 2007).

Finally, in addition to this discussion with Castle Rock's attorney and the police department, a former council member and a former mayor later testified that the ordinance-including the Curfew-was enacted in response to citizens' privacy and safety concerns. As to privacy, the former town council member testified that, before the ordinance's enactment, he had discussed the ordinance with his neighbors and that they had agreed that 7:00 p.m. was "a reasonable time" for a curfew. Id. at A1081-82 (Trial Test. of Mitch Dulleck, dated Feb. 20, 2018). Some neighbors told him that they had negative experiences with "aggressive" solicitors. Id. at A1084. Other council members had similar conversations with constituents. And as for public safety, the former mayor of Castle Rock testified that "when [the] Council was considering the Curfew, there 'probably was [sic] some thoughts' that 'reasonable people would think that people walking around their neighborhood or up to their home could potentially be somebody that might create a crime in the town.'" Id., Vol. II, at A234 (Joint Stipulation as to Facts, filed Jan. 10, 2018). The former council member echoed these concerns, stating that he "definitely" thought that it "could be a possibility" that individuals posing as door-to-door solicitors were engaging in criminal activity. Id., Vol. V, at A1085-86.

Nevertheless, the former council member said that he was unaware of any crimes that had been committed by commercial solicitors. And the former mayor testified that to the best of his recollection . . . prior to passing the . . . Ordinance there was no discussion or analysis by the Town Council of (a) crime in Castle Rock; (b) solicitation-related crime in Castle Rock; (c) crime committed by commercial solicitors in Castle Rock; (d) crime committed by commercial solicitors in Castle Rock after 7:00 p.m.; or (e) how a 7:00 p.m. curfew would protect public safety and privacy.

Id., Vol. II, at A228; see also id. at A228-29 (the former mayor noting that "there was no discussion by the Town Council of specifically how a 7:00 p.m. curfew that applied only to for-profit commercial solicitors would protect public safety and privacy").

2

The Castle Rock town council enacted an ordinance to address their concerns regarding commercial door-to-door solicitation on April 8, 2008 (the "2008 ordinance"). The 2008 ordinance included certain prefatory clauses stating that the ordinance was being enacted to protect Castle Rock's citizens' privacy and public safety. As to the latter, the prefatory clauses specifically stated that a significant percentage of criminal activity involved trespass, that individuals posed as door-to-door solicitors to commit crimes, that crime often occurs at night, and that unregulated door-to-door solicitation posed a risk to citizens. But, other than the anecdotal information summarized above, the town council did not have evidentiary support for these prefatory statements.[1]

The 2008 ordinance required commercial solicitors to register with the town clerk, pay a fee, and follow various requirements, including-as most relevant here-the Curfew. Specifically, commercial solicitors were not to "[e]nter upon any private property within the Town after seven o'clock P.M. (7:00 P.M.) and before nine o'clock A.M. (9:00 A.M.)." Id., Vol. VI, at A1450-51 (Ordinance No. 2008-15, dated Apr. 8, 2008). The 2008 ordinance also made it unlawful for any business entity to "instruct, direct, command, order, organize, or otherwise arrange for any person to engage in solicitation" in violation of the ordinance's provisions. Id. at A1451. The 2008 ordinance also included a criminal penalty: those violating it would "be punished by a fine of not more than one thousand dollars ($1, 000.00) or by imprisonment not to exceed one (1) year, or by both such fine and imprisonment." Id. at A1452.

The 2008 ordinance expressly exempted noncommercial solicitors from its registration requirements and the Curfew. Individuals falling into the classification of noncommercial solicitors included those who engage in door-to-door solicitation "for the primary purpose of": [a]ttempting to enlist support for or against a particular religion, philosophy, ideology, political party, issue...

To continue reading

FREE SIGN UP