Moore v. City of Asheville, Nc

• Decision Date: 13 November 2003
• Docket Number: No. CIV. 1:03CV218.,CIV. 1:03CV218.
• Citation: 290 F.Supp.2d 664
• Parties: Carroll MOORE, Plaintiff, v. CITY OF ASHEVILLE, NORTH CAROLINA; James L. Westbrook, Jr., in his official capacity as the City Manager of Asheville, North Carolina; and Asheville Police Department, Defendants.
• Court: U.S. District Court — Western District of North Carolina

290 F.Supp.2d 664

Carroll MOORE, Plaintiff, v. CITY OF ASHEVILLE, NORTH CAROLINA; James L. Westbrook, Jr., in his official capacity as the City Manager of Asheville, North Carolina; and Asheville Police Department, Defendants.

No. CIV. 1:03CV218.

United States District Court, W.D. North Carolina, Asheville Division.

November 13, 2003.

Robert M. Schmidt, Laurinberg, NC, Mathew D. Staver, Erik W. Stanley, Rena Lindevaldsen, Liberty Counsel, Longwood, FL, for Plaintiff.

Curtis W. Euler, McGuire, Wood & Bissette, P. A., Sharon Tracey Barrett, Patla, Straus, Robinson & Moore, Asheville, NC, for Defendants.

MEMORANDUM OF OPINION

THORNBURG, District Judge.

THIS MATTER is before the Court on the Plaintiff's motions for declaratory judgment, preliminary injunctive relief, and waiver of posting security to obtain a preliminary injunction, filed on August 28, 2003, and the Defendants' Motion to dismiss, filed October 6, 2003. Responses have been filed, and the matters are ready for resolution.

I. STATEMENT OF FACTS

Plaintiff Carroll Moore, a carpenter who resides in Tuckasegee, North Carolina, has regularly engaged in street preaching for the past seven years. Verified Complaint for Declaratory Judgment, Preliminary and Permanent Injunctive Relief and Damages ("Complaint"), ¶¶ 9, 14, 17. Plaintiff describes his "street preaching" as "[sharing] his faith by verbal means with those he meets on the street, sidewalks and other public right-of-ways." Id., ¶ 16.

On the afternoon of March 29, 2003, Plaintiff began preaching near Pritchard Park, in downtown Asheville, North Carolina, on a public right-of-way. Id., ¶ 28. At that time, a permitted event was taking place in Pritchard Park. Id., ¶ 30. A police officer told Plaintiff that he would have to move to the other side of the street to continue his preaching. Id., ¶ 31. Plaintiff did so, and although he claims he was not selling any type of merchandise and was not soliciting donations, he was later cited for "street vending or peddling" in violation of § 10-84 of the Asheville City Code of Ordinances ("Code"). Id., ¶¶ 32, 33, 35; Exhibit I, attached to Complaint. Plaintiff was fined $50, which he paid. Id., ¶ 36.

On the afternoon of April 19, 2003, Plaintiff again began preaching at the City County Plaza in downtown Asheville. Id., ¶ 37. A permitted event was taking place in front of City Hall. Id., ¶ 39. An Asheville police officer cited Plaintiff for using a "drum, loudspeaker or other instrument or device for the purpose of attracting attention by creation of noise to any performance, show, or sale or display of merchandise" in violation of Code § 10-84. Id., ¶ 40; Exhibit J, attached to Complaint. Plaintiff contends that he was not using a drum, loudspeaker, or any other instrument or device. Id., ¶ 42. The fine assessed was $100. Id., ¶ 41. Before paying the fine, Plaintiff appealed the citation to the Noise Ordinance Appeals Board, which upheld the citation. Id., ¶¶ 44-45. Thereafter, Plaintiff paid the $100 fine. Id., ¶ 46.

Plaintiff contends several Code provisions are unconstitutional on their face and/or as applied. The first is § 16-4 ("Public Speaking Ordinance"), which provided that

No person shall deliver a sermon, lecture, address, or discourse or give any public demonstration, exhibition or entertainment nor shall any person ... advertise any entertainment, show, or public sale ... on the streets, alleys, sidewalks, public squares or any public grounds of the city, without having first obtained the written permission of the city manager. Such permission may at any time be revoked by the city manager if in his opinion the good morals and order of the city so demand.

Exhibit A, attached to Complaint. Plaintiff was not charged under this ordinance, and the City of Asheville repealed the Public Speaking Ordinance on October 14, 2003. Defendants' Supplemental Memo In Support of Motion to Dismiss, filed October 17, 2003.

Plaintiff further contends that §§ 16-113 and 16-116 ("Picketing Ordinances") are unconstitutional, although he was not cited under these ordinances. Section 16-113 defines "picketing" as "the stationing of any person by standing, lying, walking, sitting, kneeling, bending or in any other similar manner at a particular place so as to persuade, or otherwise influence another person's actions or conduct, or to apprise the public of an opinion or message." Exhibit B, attached to Complaint. Section 16-116 provides that picketing is allowed provided that it is "conducted only on sidewalks or other city-owned areas normally used or reserved for pedestrian movement," that "[p]icketers ... observe the right of non-picketers to utilize the public rights-of-way," and that "[p]icketers shall walk in single file and not abreast." Exhibit C, attached to Complaint. It also states that "[p]icketers are encouraged to provide notice to the chief of police of intent to picket." Id. Finally, it provides that when "the free passage of any street or other public area in the city shall be obstructed by picketers" or "by a crowd," the "persons picketing" or the "persons composing such crowd" "shall disperse or move along when directed to do so by a police officer." Id. However, "[n]othing in this section shall prohibit any person from reconvening after dispersing so long as free passage of any street or other public area is not obstructed." Id.

Finally, Plaintiff claims that §§ 10-83-10-85 ("Noise Ordinances") are unconstitutional as applied to him. Section 10-83 provides that "[e]xcept as allowed in this article, no person shall willfully engage in any activity on any premises or public area in the city, which activity produces or constitutes a noise disturbance on occupied neighboring premises or public area." Exhibit D, attached to Complaint. More specifically, § 10-84 bans, among other things, "[s]treet vending or peddling" and "[t]he use of any drum, loudspeaker or other instrument or device for the purpose of attracting attention by creation of noise to any performance, show, or sale or display of merchandise." Exhibit F, attached to Complaint. However, § 10-85 specifies that "[u]namplified noncommercial speeches made from a fixed location in non-residentially zoned areas" do not violate § 10-83. Exhibit G, attached to Complaint.

Section 10-86 provides for a Noise Ordinance Appeals Board ("Appeals Board") to which a person charged under the Noise Ordinances may appeal. Section 10-86 also provides that a decision of the Appeals Board may be appealed to the City Manager. Under North Carolina General Statutes § 1-269, an individual is entitled to request the superior court to grant certiorari and review a decision of the city manager pertaining to violations of the Noise Ordinances. See Russ v. Bd. of Educ. of Brunswick County, 232 N.C. 128, 130, 59 S.E.2d 589, 591 (1950).

II. PROCEDURAL HISTORY

As stated above, Plaintiff filed his complaint, along with motions for declaratory judgment, preliminary injunctive relief, and waiver of posting security to obtain preliminary injunctive relief on August 28, 2003. The Defendants moved to dismiss under the Younger abstention doctrine and Federal Rule of Civil Procedure 12(b) on October 6, 2003.

III. DISCUSSION

A. Motion to dismiss

1. The Noise Ordinances.

Defendants claim that the doctrine adopted in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), mandates that this Court abstain from hearing Plaintiff's claims regarding the Noise Ordinances. Under Younger, a federal court must not interfere with a state proceeding by awarding injunctive or declaratory relief where the proceeding is ongoing, implicates important state interests, and provides an adequate opportunity for the plaintiff to litigate his federal claims. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Martin Marietta Corp. v. Maryland Comm. on Human Relations, 38 F.3d 1392, 1396 (4th Cir.1994).

Plaintiff argues there is no ongoing state proceeding because he did not appeal his initial citation and has ceased pursuing the appeal of his second citation. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss the Complaint, filed October 23, 2003, at 3. Plaintiff's argument raises the issue of whether the mere availability of a remedy at the state level, even if a plaintiff is not pursuing it, constitutes an ongoing state proceeding for the purpose of Younger. Although other circuits may hold otherwise, see Thomas v. Texas State Bd. of Medical Examiners, 807 F.2d 453 (5th Cir.1987); cf. also Peachlum v. City of York, Pennsylvania, 333 F.3d 429 (3rd Cir.2003), a district court in the Fourth Circuit has clearly held that the availability of a remedy at the state level does constitute an ongoing state proceeding. Phillips v. Virginia Bd. of Medicine, 749 F.Supp. 715, 724-30 (E.D.Va.1990). This is the position most consistent with the Supreme Court's interpretation of Younger. The Supreme Court has acknowledged that its precedent "suggests, perhaps, that an administrative proceeding to which Younger applies cannot be challenged in federal court even after the administrative action has become final" if the federal plaintiff still has remedies in the state courts. New Orleans Public Serv., Inc., v. Council of the City of New Orleans, 491 U.S. 350, 370 n. 4, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). Although the Court in New Orleans Public Service stated that such a suggestion came in dicta and did not constitute binding precedent, two justices believed that the previous "suggestion" was, in fact, binding precedent. Id., at 374, 109 S.Ct. 2506 (Rehnquist, C.J., concurring); Id., at 374-75, 109 S.Ct. 2506 (Blackmun, J., concurring). Since Supreme Court precedent so "suggests" and since a court in this Circuit has so held, this Court holds that an available state remedy, even if the federal plaintiff does not pursue it, is an ongoing state...