Boe v. Colello

• Decision Date: 03 September 1977
• Docket Number: No. 77 Civil 3967.,77 Civil 3967.
• Citation: 438 F. Supp. 145
• Parties: B. BOE, C. Coe, J. Joe, Ralph Palladino, John Duffy, Marie Schall, Allan Wernick and Jose Soto, Plaintiffs, v. Joseph COLELLO, Edmund Nelke, John J. Fox, Jr., Irvin Bernstein, Raymond F. Delo, and Ronald Lee, Defendants.
• Court: U.S. District Court — Southern District of New York

438 F. Supp. 145

B. BOE, C. Coe, J. Joe, Ralph Palladino, John Duffy, Marie Schall, Allan Wernick and Jose Soto, Plaintiffs, v. Joseph COLELLO, Edmund Nelke, John J. Fox, Jr., Irvin Bernstein, Raymond F. Delo, and Ronald Lee, Defendants.

No. 77 Civil 3967.

United States District Court, S. D. New York.

September 3, 1977.

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Gladstein, Reif & Siegel, Brooklyn, N. Y., for plaintiffs; James Reif, Brooklyn, N. Y., of counsel.

John J. Fox, Town Atty., Town of Orangetown, Orangeburg, N. Y., for defendants Joseph Colello, Edmund Nelke, John J. Fox, Jr., Irvin Bernstein, and Raymond F. Delo; John J. Fox, Orangeburg, of counsel.

Lexow & Jenkins, Suffern, N. Y., for defendant Ronald Lee; Alfred E. Froh, Suffern, N. Y., of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Plaintiffs, alleging claims under the Civil Rights Act¹ bring this action for declaratory and injunctive relief. They seek a judgment: (1) voiding Article 18 of the Orangetown Township Code, the "Hawking and Peddling Ordinance," insofar as it requires plaintiffs to obtain a license for the sale or distribution of The Call/El Clarin ("The Call") on the public streets;² (2) enjoining the defendants permanently from hereafter interfering with plaintiffs' sale or distribution of the paper without first complying with Article 18;³ and (3) enjoining pending prosecutions against three plaintiffs charged with violation of Article 18.⁴

Section 18-4 of the Article provides: "The merchandising of any goods, wares, commodities or services within the Town of Orangetown without first having obtained a license therefor from the Clerk of the Town is hereby prohibited unless such merchandising is at the personal request of the person solicited."⁵ An applicant for a license is required to submit a written application which among other matters requires him to set forth the number of arrests or convictions for crimes and the nature thereof. He is also required to have his fingerprints taken by the Police Department of Orangetown and to deliver his photograph, which together with his fingerprints, are to remain on file in the Orangetown Police Headquarters.⁶

If the Town Clerk is "reasonably satisfied with the applicant's qualifications, he shall issue a license, the annual fee for which is $3.00, specifying the particular business authorized and the location where it may be conducted.⁷ In the event of the denial of a license to an applicant by the Town Clerk or the refusal of the Chief of Police to countersign a license, the applicant may, within thirty (30) days, request a hearing or review before the Town Board to be held at the next regularly scheduled meeting of the Town Board following the filing of the application for review.⁸

If the Town Board decides that the refusal of the Town Clerk or the Chief of Police was arbitrary or otherwise in error, it "may" grant the license; if the Board decides the action of the Town Clerk or the Chief of Police was not arbitrary or was justified under the circumstances, it "shall" refuse the license. The Board's decision is to be rendered in writing within forty-five (45) days after the hearing.⁹ The time estimate from the filing of an application which has been refused to the expiration of the forty-five day period for the rendering of the Board's decision is from eight to ten weeks.

The Call, which one witness described as a "revolutionary newspaper" is issued weekly and centers about recent and current world, national and local events with emphasis on the working class problems in the United States and throughout the world. A copy sells for 25 cents.

The plaintiffs are in two categories: five have sold and seek to continue to sell The Call (distributor plaintiffs); three are employees of Chromalloy American Corporation ("Chromalloy") who allege they have purchased and read The Call in the past and desire to continue to do so. The defendants are the Town Supervisor, the Chief of Police, the Town Clerk, the Attorney and Deputy Attorney of the Town of Orangetown ("Orangetown officials"); also named as a defendant is the Administrative Director of Chromalloy.¹⁰

Over the past few months, the paper was sold, and in some instances given away free, by the distributor plaintiffs — none of whom had obtained licenses under Article 18 — to Chromalloy employees on the public road adjacent to the Chromalloy plants upon a change of regular work shifts shortly before or after 3:00 p. m. Employees entering or leaving the plant did so by automobile and the plaintiff distributors sold or gave The Call to employees when a car which was hailed, stopped momentarily on the public area outside the Chromalloy plant.

Events had their inception on or about May 20, 1977 when distributor plaintiffs were selling The Call as above described. Chromalloy officials objected to plaintiffs' activities, the reasons for which are disputed.

On June 3, 1977, when plaintiffs again sold The Call, the company officials renewed their objections; this time, however, they called in the Orangetown police, who told the distributor plaintiffs that they could not sell the papers without a license, and if they did, they would be arrested. When one of them continued to sell, two policemen grabbed her but no arrests were made.

On June 10th, a distributor plaintiff was arrested and handcuffed by local police, who stated that the arrest was made at the behest of company officials; however, on this occasion the arrestee was released without charges being lodged against him after he had signed a release.

On June 17th, three distributor plaintiffs again sold The Call to Chromalloy workers at the usual location as they were leaving or entering the plant. Plaintiffs allege that they were surveilled by Chromalloy personnel who hid behind bushes and that other company officials attempted to direct employees from the company premises in a way which prevented them from purchasing the paper.

On July 1st, the first arrests occurred. Three plaintiffs who sold The Call were charged with selling the paper without a license in violation of Section 18-4 of the Township Code. The arresting officers told the plaintiffs they could distribute the papers free of charge but if sales were made, licenses had to be obtained. The plaintiffs were also informed that if they returned the next week and sold the paper without having obtained a license, they would be arrested. Upon arraignment in the Orangetown Justice Court, the trial of the arrested distributor plaintiffs was first set for October 19th and later changed to October 21, 1977, almost four months after their arrests.

The following week on July 8th when two of the plaintiffs sold the paper, they were again arrested and charged with violations of Article 18. The trial on these charges is also scheduled for October 21st. On this occasion the police officers directed Chromalloy workers not to stop or talk with The Call distributors and one officer stated the police intended to arrest them every week if they sold The Call unless a license was obtained.

A final incident took place on July 27th when a distributor was arrested and charged with yet another violation of Article 18. Her trial in the Orangetown Justice Court was also set for October 21st.

One plaintiff was arrested on three separate occasions; another twice; and the third only once. The non-arrested plaintiff distributors also have been advised that attempts to sell the paper without first obtaining a license will bring about their arrests for violation of the ordinance.¹¹

Defendant Ronald Lee, the Chromalloy Administrative Director, disputes plaintiffs' claims as to his alleged actions. It is desirable to dispose of the case against him before reaching the basic issues posed by the respective claims of the plaintiffs and Orangetown officials. Lee swears that after plaintiff distributors had been warned to stay off Chromalloy's property, they transferred their selling activities to the public town road leading into the Chromalloy parking lot; that their activities resulted in traffic jams in the parking lot as employees were leaving or entering and a number of employees complained; that in the interest of preserving harmony among the employees, and alleviating the traffic problems, he complained on several occasions to the police; that at no time did he make any complaint about the plaintiffs selling The Call as such; that his complaints were solely to the effect on traffic which the method of selling produced; and that the decision to arrest the distributor plaintiffs for violation of the township's Hawking and Peddling Ordinance rather than for obstruction of traffic had been made solely by the Orangetown police. While the plaintiffs dispute this and charge that Lee acted in concert with the police and town officials in allegedly violating their constitutional rights, I find that plaintiffs have failed to sustain their burden of proof as to the defendant Lee and accordingly the complaint is dismissed as to him upon the merits.¹²

In view of the undeniable fact that all the arrests and the threatened arrests are based upon violations of Section 18-4, the testimony as to traffic conditions during the course of the sale of the newspaper is irrelevant to the issue presented with respect to the plaintiffs' claims against the remaining defendants, the Orangetown officials, which we now address. These defendants do not take issue with the substantive allegations of the complaint and supporting affidavits but urge they are entitled to dismissal of the action as a matter of law.

The essence of the plaintiffs' charge is that Section 18-4 as applied to them by the Orangetown defendants violates their rights of freedom of press and speech secured by the First and the Fourteenth Amendments of the Federal Constitution — in sum, that it denies to the distributor plaintiffs their right to sell The Call and correlatively denies to the other plaintiffs their...