Clatterbuck v. City of Charlottesville

• Decision Date: 18 January 2012
• Docket Number: Civil Action No. 3:11–CV–00043.
• Court: U.S. District Court — Western District of Virginia
• Parties: Albert CLATTERBUCK, et al., Plaintiffs, v. CITY OF CHARLOTTESVILLE, Defendant.

841 F.Supp.2d 943

Albert CLATTERBUCK, et al., Plaintiffs,

v.CITY OF CHARLOTTESVILLE, Defendant.

Civil Action No. 3:11–CV–00043.

United States District Court,

W.D. Virginia,

Charlottesville Division.

Jan. 18, 2012.

Jeffrey Edward Fogel, Jeffrey E. Fogel Law Office, Steven David Rosenfield, Rosenfield & Wayland, Charlottesville, VA, Rebecca Kim Glenberg, Thomas Okuda Fitzpatrick, ACLU of Virginia, Richmond, VA, for Plaintiffs.

Richard Hustis Milnor, Taylor Zunka Milnor & Carter Ltd., Charlottesville, VA, for Defendant.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

Described in the complaint as “impecunious and reliant to a certain extent on begging” for sustenance, Plaintiffs ¹ filed this civil rights action alleging violations of their rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiffs complain that the City of Charlottesville (the “City”) has “adopted and enforced” an ordinance that “restricts the right to solicit on the downtown mall and criminalizes conduct in violation of the ordinance.” Plaintiffs object to the ordinance's prohibitions against soliciting (or, as Plaintiffs describe it, “begging”) “[f]rom or to any person seated within an outdoor café area, during the hours of operation of such outdoor café,” “[f]rom or to any person who is conducting business at any vendor table or cart,” or “[o]n the Downtown Mall within fifty (50) feet (in any direction) of 2nd Street West and 4th Street East, when those streets are open to vehicular traffic.” Charlottesville City Code (1990), § 28–31(a)(5), (6), & (9) (as amended Aug. 16, 2010).

Plaintiffs seek declaratory and injunctive relief, compensatory and nominal damages, and an award of costs and attorneys' fees. The City moved to dismiss, arguing that Plaintiffs lack standing because they “fail to allege a plausible claim of ‘injury in fact,’ ” and arguing further that Plaintiffs have failed to state a claim upon which relief can be granted. The matter has been fully briefed and supplemented, and the parties' arguments have been heard. As discussed herein, I find that Plaintiffs have standing to bring this action, but I will grant the City's motion to dismiss for failure to state a claim upon which relief can be granted.

I.

Plaintiffs challenge the following provisions of the Charlottesville City Code:

Sec. 28–31.—Soliciting.

(a) It shall be unlawful for any person to solicit money or other things of value, or to solicit the sale of goods or services:

* * *

(5) From or to any person seated within an outdoor café area, during the hours of operation of such outdoor café;

(6) From or to any person who is conducting business at any vendor table or cart;

* * *

(9) On the Downtown Mall within fifty (50) feet (in any direction) of 2nd Street West and 4th Street East, when those streets are open to vehicular traffic.²

(b) For the purposes of this section the following words and phrases shall have the meanings ascribed to them below, unless a different meaning is plainly required by the context:

* * *

Solicit means to request an immediate donation of money or other thing of value from another person, regardless of the solicitor's purpose or intended use of the money or other thing of value. A solicitation may take the form of, without limitation, the spoken, written or printed word, or by other means of communication (for example: an outstretched hand, an extended cup or hat, etc.).

(c) Any person violating the provisions of this section shall be guilty of a class 3 misdemeanor.

Plaintiffs' first “cause of action” alleges that the ordinance is “not content neutral and advances “no compelling interest.” Asserting that “[t]he conduct” they “have engaged in and seek to continue is expressive activity protected by the First Amendment to the United States Constitution,” and that the City “adopted all or part of the cited sections in order to restrict the rights of the impoverished to solicit funds for their own well-being,” Plaintiffs maintain that, while the ordinance “criminalizes” the “solicitation of money or things of value or the sale of goods and services,” it does not criminalize “all other forms of speech, including all other forms of solicitation.” Plaintiffs allege that this distinction is “based on the content of the communication.” They further assert that the City “does not have a compelling interest in limiting the First Amendment rights of the impoverished to solicit funds for their own well-being” and that “[t]he ordinance violates the First and Fourteenth Amendments to the United States Constitution.”

Plaintiffs' second “cause of action” challenges on vagueness grounds the ordinance's prohibitions against soliciting “[f]rom or to any person seated within an outdoor café area, during the hours of operation of such outdoor café” and “[f]rom or to any person who is conducting business at any vendor table or cart.” Plaintiffs maintain that subsections (a)(5) and (6) are “so vague as to require that those subject to its restrictions guess at its meaning” and, because of this alleged vagueness, these subsections “give [ ] virtually unlimited discretion to law enforcement in enforcing the ordinance,” thus “render[ing] [the ordinance] in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”

Plaintiffs' third “cause of action” alleges that the “[o]rdinance does not serve a significant interest and is not narrowly tailored.” Describing the “Downtown Mall in the City of Charlottesville” as “a traditional public forum,” Plaintiffs state that the challenged subsections of the ordinance “violate the First and Fourteenth Amendments” because, even “[i]f construed as content neutral,” they “do not serve a significant interest of the city and, in any event, are not narrowly tailored to serve the asserted interest.”

Under each “cause of action,” Plaintiffs assert that they “have and will continue to suffer ... damages to their right to communicate to the general public,” and Plaintiffs seek, inter alia, a declaration that the ordinance is “unconstitutional in violation of the First and Fourteenth Amendment to the United States Constitution on its face and as applied to the plaintiffs.”

II.

There is no question that “[s]olicitation constitutes protected expression under the First Amendment.” Comite de Jornaleros v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir.2011) ( en banc ) (citing Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677–78, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992); United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 788–89, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)). The parties point out that the Supreme Court of the United States has not specifically ruled that “begging” is speech protected by the First Amendment; however, assuming it is necessary to distinguish the concept of “begging” apart from “soliciting” (which is, after all, the act restricted by the ordinance at issue here), it seems readily apparent that the “begging” delimited by Charlottesville's solicitation ordinance is protected speech. The Court has ruled that seeking donations is protected speech, see Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (charitable solicitations “involve a variety of speech interests ... that are within the protection of the First Amendment”), and several circuit courts of appeals have determined that begging stands on the same ground, see, e.g., Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir.2000) (“Neither the parties to this appeal nor any authorities found by this Court suggest that we should distinguish between restrictions on organized charities and individuals for the purposes of understanding the First Amendment guarantees.”); Loper v. N.Y.C. Police Dept., 999 F.2d 699, 704 (2d Cir.1993) (“We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed.”).

III.

As previously mentioned, the City argues that Plaintiffs “fail to allege a plausible claim of ‘injury in fact’ ” and therefore lack standing under Article III of the United States Constitution.³ The City asserts that “none of the plaintiffs has alleged that they have been charged or convicted of a violation of any of these subsections,” adding that, although Plaintiffs allege that they regularly beg “within view” of the restaurants and cafés on the Mall, “[t]he Complaint does not allege that any of the plaintiffs beg ... from persons seated within an outdoor cafe, from any person who is conducting business at any vendor table or cart on the Downtown Mall, or in the restricted vehicle crossover locations.” In the City's view, “Plaintiffs do not allege that they solicit in any of the restricted areas and, therefore, do not allege sufficient ‘injury in fact’ to support standing.”

I disagree. Plaintiffs sufficiently allege that they have formerly solicited and wish to solicit in the future from passers-by and customers of the restaurants and other businesses on the Mall, and that their acts of solicitation are inhibited by the ordinance. There is no requirement that one must violate a law in order to have standing to challenge the constitutionality of that law. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (“In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (“We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by...