ASS'N OF COMMUNITY ORG. v. City of Frontenac

• Decision Date: 24 June 1982
• Docket Number: No. 81-681 C (2).,81-681 C (2).
• Citation: 541 F. Supp. 765
• Parties: ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, etc., et al., Plaintiffs, v. CITY OF FRONTENAC, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

541 F. Supp. 765

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, etc., et al., Plaintiffs, v. CITY OF FRONTENAC, et al., Defendants.

No. 81-681 C (2).

United States District Court, E. D. Missouri, E. D.

June 24, 1982.

John D. Lynn, Chackes & Hoare, St. Louis, Mo., for plaintiffs.

George E. Helfers, St. Louis, Mo., for defendants.

MEMORANDUM

NANGLE, District Judge.

Plaintiffs brought this action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 1343 and 2201 et seq. Plaintiffs instituted this suit after defendants enacted a municipal ordinance, which prevented plaintiffs' canvassers from engaging in door-to-door solicitation during the evening hours. Plaintiffs allege that Frontenac Ordinance No. 638, Section 6, which prohibits solicitations altogether on Sundays and legal holidays and allows solicitations only "between the hours of 9:00 a. m. and 6:00 p. m. on all other days,"¹ is in violation of 42 U.S.C. § 1983 and their constitutional rights as guaranteed by the First and Fourteenth Amendments. In this action, plaintiffs request this court to enter a declaratory judgment finding the Frontenac ordinance unconstitutional as applied to their activities, and on its face. In addition, the plaintiffs seek an injunction restraining the defendants from enforcing this ordinance.

This case was tried to this Court sitting without a jury. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence and the stipulations of the parties, and being fully advised in the premises, hereby makes the following Findings of Fact and Conclusions of Law, as required by Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

1. Plaintiff Association of Community Organizations for Reform Now, a/k/a ACORN hereinafter "ACORN" is a nonprofit corporation lawfully operating in Missouri. The Missouri Secretary of State registered ACORN as a "Foreign Not-For-Profit Corporation" on January 11, 1977.

2. ACORN'S purpose, as stated in its charter, is "to advance the interests of low and moderate income people as citizens of the U.S. and their respective communities and states, in every area of their interest and concern." ACORN has a full time staff in the City of St. Louis. Forty-five members of its staff are canvassers who engage in door-to-door canvassing.

3. Defendant City of Frontenac is a municipality existing under the laws of the State of Missouri. The other defendants in this action are the Mayor, Chief of Police, and Aldermen of the City of Frontenac.

4. On July 10, 1974, the Board of Aldermen of the City of Frontenac enacted a Code of Ordinances, which included Chapter 7, Article 1, Section 7-6. The section provided that "it shall be unlawful for any canvasser to engage in the business of peddling within the city between the hours of one-half hour before sunset and 9:00 a. m. the following morning, or at any time on Sundays, except by specific appointment with or invitation from the prospective customer." This ordinance remained in effect until March 10, 1981.

5. The Frontenac ordinance further provided that persons who failed to comply with the time limitations embodied in Chapter 7, Article 1, Section 7-6 were guilty of a misdemeanor and upon conviction were subject to a fine not greater than $500.00, or imprisonment for no longer than 90 days, or both.

6. Mary Colwell is the official in the City of Frontenac with the authority to handle requests and to grant permits to individuals or groups who wish to canvass, solicit or peddle in the City of Frontenac.

7. On January 27, 1981, while Chapter 7, Article 1, Section 7-6 was still in effect, four Acorn canvassers delivered to Ms. Colwell at Frontenac City Hall individual record checks from the St. Louis County Police Department showing that none of them had a police record. After leaving City Hall, the canvassers drove to a subdivision of the City of Frontenac and began door-to-door canvassing at about 4:30 p. m. The canvassers had failed to obtain a permit from City Hall prior to canvassing residents of the City of Frontenac, nor had the City Clerk approved such canvassing without a permit.

8. The four ACORN canvassers continued to canvass until approximately 7:00 p. m., which was after sunset on January 27, 1981. In response to two different citizen complaints, police officers of the City of Frontenac stopped the canvassers on a public street. One citizen contacted the police about a "suspicious auto" and another resident complained about unknown persons knocking at her door. After the ACORN canvassers identified themselves, the Frontenac Police Officers ordered these four canvassers to cease their activities and leave the area both because they were not carrying a permit,² and because they were canvassing in violation of the City Ordinance which limited canvassing to the hours of 9:00 a. m. to one-half hour before sunset.

9. Subsequently, Ms. Allison the Canvass Director of ACORN talked with David Blazer, Chief of Police of the City of Frontenac who informed her that the City Ordinance, restricting canvassing to the hours of 9:00 a. m. to one-half hour before sunset, applied to and would be enforced against ACORN'S canvassers.

10. As a result of these actions by the officials of the City of Frontenac, ACORN and its members indefinitely suspended their canvassing efforts in the City of Frontenac.

11. Subsequent to the events of January 27, 1982, the Board of Aldermen of the City of Frontenac on March 10, 1981 duly enacted Ordinance No. 638, entitled "An Ordinance Pertaining to and Regulating Charitable Solicitors, Peddlers, Canvassers, Solicitors, and Transient Vendors Within the City of Frontenac, Missouri and Providing Penalties for Violations." This ordinance repealed Chapter 7 of the Code of Ordinances of the City of Frontenac and presently is in effect.

12. Section 6 of Ordinance No. 638 of the City of Frontenac provides that "no person shall solicit except between the hours of 9:00 a. m. and 6:00 p. m. on each day and no solicitation shall be done on Sundays, or legal holidays."

13. Section 10 of Ordinance No. 638 of the City of Frontenac provides that any person in violation of the ordinance or any part thereof "shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not in excess of $500.00."

14. ACORN and its members presently wish to engage in door-to-door canvassing in the City of Frontenac after 6:00 p. m. and until 9:00 p. m. However, ACORN has ceased canvassing during these hours because of the restrictions placed upon their activities by Section 6 of Ordinance No. 638.

15. Ordinance No. 638 clearly applies to the canvassing activities of ACORN and therefore directly affects and prohibits ACORN from canvassing by personal contact in the City of Frontenac between the hours of 6:00 p. m. and 9:00 a. m. on Saturdays and weekdays and altogether precludes canvassing on Sundays and legal holidays.

16. Defendants have advised plaintiffs that ACORN canvassers may secure a permit for the purpose of canvassing in the City of Frontenac. However, defendants have further warned ACORN that Section 6 of Ordinance No. 638 will be enforced against those canvassers who insist upon canvassing during the hours prohibited by Section 6 of Ordinance No. 638.

17. The City of Frontenac enacted this ordinance restricting canvassing in order to give its residents a feeling of security and privacy in their homes and to lessen the possibilities of burglary and other crimes. The City of Frontenac does not provide its citizens with street lights which increases the chances of burglary. In addition, a number of communities surrounding Frontenac have enacted similar legislation and Frontenac was anxious to have uniformity in this type of ordinance.

CONCLUSIONS OF LAW

This Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1343 and 2201, et seq. Plaintiffs claim that they are entitled to declaratory and injunctive relief on the ground that the Frontenac ordinance prohibiting solicitation on Sundays and legal holidays and "between the hours of 9:00 a. m. and 6:00 p. m. on all other days", is on its face, and as applied to the plaintiffs' canvassing activities, violative of the due process clause of the Fourteenth Amendment and the First Amendment guarantees of freedom of speech, assembly, and the right to petition. Therefore, the question of law presented by this case is whether Section 6 of the Frontenac Ordinance No. 638 is a permissible time, place, and manner regulation. However, before addressing the constitutional issue, it is necessary to dispose of certain preliminary questions raised by the defendants, who contend that the plaintiffs do not have standing to raise a constitutional challenge to the ordinance and that the case is not ripe for adjudication.

The Supreme Court recently held in Valley Forge Christian College v. Americans United for Separation of Church and State, ___ U.S. ___, ___, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) that

"Article III requires the party who invokes the court's authority to `show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and that the injury `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision,'. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450."

In addition, the Court reasoned that beyond the requirements imposed by the constitution, the federal judiciary has adhered to a number of principles that relate to the question of standing. Therefore, the Supreme Court requires a plaintiff to assert his own legal rights and interests and not to rest a claim for relief on the legal rights of third parties. Warth v....