Lopez v. Town of Cave Creek, Az, CV 08-566-PHX-ROS.

• Decision Date: 02 June 2008
• Docket Number: No. CV 08-566-PHX-ROS.,CV 08-566-PHX-ROS.
• Citation: 559 F.Supp.2d 1030
• Parties: Hector LOPEZ, et al., Plaintiffs, v. TOWN OF CAVE CREEK, ARIZONA, et al., Defendants.
• Court: U.S. District Court — District of Arizona

559 F.Supp.2d 1030

Hector LOPEZ, et al., Plaintiffs, v. TOWN OF CAVE CREEK, ARIZONA, et al., Defendants.

No. CV 08-566-PHX-ROS.

United States District Court, D. Arizona.

June 2, 2008.

Kristina Michelle Campbell, Cynthia Valenzuela, MALDEF, Los Angeles, CA, Monica M. Ramirez, Cecillia D. Wang, ACLU, San Francisco, CA, Daniel Joseph Pochoda, ACLU, Phoenix, AZ, for Plaintiffs.

Scot L. Claus, Mariscal Weeks McIntyre & Friedlander, P.A., Phoenix, AZ, for Defendants.

ORDER; FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROSLYN O. SILVER, District Judge.

Before the Court is Plaintiffs' Motion for a Preliminary Injunction. For the reasons stated herein, this motion will be granted.

BACKGROUND

On September 24, 2007, the Town of Cave Creek, Arizona (the "Town") adopted Section 72.17(C) of the Town Code, which went into effect on October 24, 2007. Section 72.17(C) makes it unlawful for "[any] person [ ] to stand on or adjacent to a street or highway and solicit, or attempt to solicit, employment, business or contributions from the occupant of any vehicle" (the "Ordinance"). A violation of the Ordinance constitutes a civil traffic offense, which can result in a civil penalty not to exceed $250. Town Code § 10.99(B).

Plaintiffs are day laborers who have obtained and desire to continue to obtain employment in ways prohibited by the Ordinance. Plaintiffs claim that the Ordinance violates their First and Fourteenth Amendment rights to free speech and seek to enjoin its enforcement.

STANDARD OF REVIEW

The Ninth Circuit has set forth two approaches for evaluating a request for a preliminary injunction: traditional and alternative. The Freecycle Network, Inc. v. Oey, 505 F.3d 898 (9th Cir.2007). Under the traditional approach, Plaintiffs must demonstrate: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury; (3) the balance of hardships tips in their favor; and (4) advancement of the public interest. Center for Biological Diversity v. Rey, No. 07-16892, 2008 WL 2051072, at *1 (9th Cir. May 14, 2008). The alternative test requires Plaintiffs to demonstrate: (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips sharply in his favor. "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum." In re Excel Innovations, Inc., 502 F.3d 1086, 1093 (9th Cir.2007).

ANALYSIS

I. Plaintiffs Have Demonstrated Probable Success on the Merits.

"It is beyond dispute that solicitation is a form of expression entitled to the same constitutional protections as traditional speech," ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir.2006) ("ACLU II"), and that streets and sidewalks are traditional public forums, Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) ("[W] have repeatedly referred to public streets as the archetype of a traditional public forum.") (collecting cases); ACLU v. City of Las Vegas, 333 F.3d 1092, 1099 (9th Cir.2003) ("ACLU I").

Because the Ordinance does not ban solicitation speech altogether, it is analyzed as a time, place, and manner regulation. The appropriate level of scrutiny, therefore, depends whether the Ordinance is content-based. If the Ordinance is content-based, it is presumptively unconstitutional, and must satisfy strict scrutiny, i.e. be the least restrictive means to further a compelling interest. Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1023-24 (9th Cir.2008); ACLU II, 466 F.3d at 792. If, on the other hand, the Ordinance is content-neutral, it must it must be narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Long Beach, 522 F.3d at 1022-23; ACLU II, 466 F.3d at 792. "The failure to satisfy any single prong of [the latter test] invalidates that requirement." ACLU II, 466 F.3d at 792 (quoting Grossman v. City of Portland, 33 F.3d 1200, 1205 (9th Cir.1994)).

A. The Ordinance Is Unconstitutional Because It Is Contentr-Based and Fails Strict Scrutiny.

"[A] solicitation ordinance is content-based if either the main purpose in enacting it was to suppress or exalt speech of a certain content, or it differentiates based on the content of speech on its face." ACLU II, 466 F.3d at 793; see also Long Beach, 522 F.3d at 1022-23 (quoting the same). Plaintiffs do not argue that the Town enacted the Ordinance because of its disagreement with the message solicitation-speech conveys. Rather, Plaintiffs assert that the Ordinance is content-based because it bans only certain types of solicitation speech. The Court agrees with Plaintiffs.

In ACLU II, the Ninth Circuit found that a city ordinance banning solicitation "for the purpose of obtaining money, charity business or patronage, or gift or items of value for oneself or another person or organization" in particular areas of Las Vegas, Nevada was an impermissible content-based regulation. 466 F.3d at 796. The court agreed with the district court that "the ordinance was enacted with the purpose of controlling the secondary effects of solicitation, rather than the content of the soliciting requests themselves." Id. at 793.

The court nonetheless found that the regulation was content-based because, on its face, speech containing certain language was permissible, while other language was not. Id. at 794. "Under the city's [solicitation] policy, whether any particular [communication] falls within the ban is determined by the content of the [communication]. Thus, by any commonsense understanding of the term, the ban in this case is `content based.'" 466 F.3d at 796 (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)) (alterations in original).

Similarly, in this case, the Ordinance differentiates based on the content of speech on its face. It prohibits solicitation speech, but not political, religious, artistic, or other categories of speech. It also prohibits solicitation on the topics of "employment, business or contributions," while allowing solicitation of votes or ballot signatures. And, "[i]n order to enforce the regulation, an official `must necessarily examine the content of the message that is conveyed.'" ACLU II, 466 F.3d at 794 (quoting Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)); see also Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1155 (9th Cir.2003) "(A rule is defined as a content-based restriction on speech when the regulating party must examine the speech to determine if it is acceptable.").¹

Defendants nonetheless maintain that the Ordinance is content-neutral because a similar regulation was held content-neutral by the Ninth Circuit in ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir.1986). In ACORN, the court considered a Phoenix, Arizona ordinance stating: "No person shall stand on a street or highway and solicit, or attempt to solicit, employment, business or contributions from the occupants of any vehicle." Id. at 1262. The Plaintiffs sought to enjoin enforcement of the ordinance against their practice of "tagging," which is stepping into the street and approaching an automobile when it is stopped at a red traffic light to solicit money. Id. The court's content-neutral analysis in its entirety was:

On its face, the Phoenix ordinance does not single out any group or the content of any speech. The ordinance applies evenhandedly to every organization or individual, regardless of viewpoint, which would desire to solicit contributions, business, or employment from the occupants of vehicles traveling on Phoenix streets. Any argument that this ordinance was passed to suppress the particular political views expressed by ACORN is contradicted by the parties' own stipulation in the pretrial order that the ordinance was adopted to promote the city's interest in "public peace, health and safety." The ordinance thus is "content-neutral."

Id. at 1267 (citations omitted).

Setting aside the argument that the court conflated viewpoint and content-based analyses, ACORN is distinguishable. First, the ordinance at issue in ACORN was "aimed narrowly at the disruptive nature of fund solicitation from the occupants of vehicles," which the ACORN court found "goes beyond pure speech." 798 F.2d at 1268, 1269. As the court recognized, in-hand solicitation differs from pure speech because "successful solicitation requires the individual to respond by searching for currency and passing it along to the solicitor. Even after the solicitor has departed, the driver must secure any change returned, replace a wallet or close a purse, and then return proper attention to the full responsibilities of a motor vehicle driver." Id. at 1268.

Second, the Ninth Circuit has subsequently characterized the regulation at issue in ACORN as one banning the act of solicitation, not the words of solicitation. ACLU II, 466 F.3d at 794 ("Although courts have held that bans on the act of solicitation are content-neutral, we have not found any case holding that a regulation that separates out words of solicitation for differential treatment is content-neutral") (emphases in original) (citing ACORN and noting that it "[held] that a ban on in-hand solicitation from automobiles, that does not cover distribution of literature requesting contributions, is content neutral").

Unlike the regulation at issue in ACORN, the Ordinance is not...