Pennsylvania Public Interest v. York Tp.

• Decision Date: 15 August 1983
• Docket Number: Civ. A. No. 83-0859.
• Citation: 569 F. Supp. 1398
• Parties: PENNSYLVANIA PUBLIC INTEREST COALITION, Plaintiff, v. YORK TOWNSHIP, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

569 F. Supp. 1398

PENNSYLVANIA PUBLIC INTEREST COALITION, Plaintiff, v. YORK TOWNSHIP, Defendant.

Civ. A. No. 83-0859.

United States District Court, M.D. Pennsylvania.

August 15, 1983.

David Rudovsky, David Kairys, Kairys, Rudovsky & Maguigan, Philadelphia, Pa., for plaintiff.

Raymond L. Hovis, Stock & Leader, York, Pa., for defendant.

MEMORANDUM

CALDWELL, District Judge.

This lawsuit has been brought by the Pennsylvania Public Interest Coalition (PENN-PIC) to determine the constitutionality of York Township's ordinance # 75-5. That ordinance, enacted in 1975 and apparently unchallenged until now, provides for the licensing of persons, firms or corporations engaged in the "transient retail business" in the township.¹ The ordinance goes on to impose various regulations on the transient retail business:

(a) There shall be no calls made from within the Township by telephone or by physical presence upon a premises except Monday through Saturday between the hours of 9:00 a.m. and 6:00 p.m., prevailing time.

(b) Any person calling by appearing upon a premises shall carry a license upon his person and shall exhibit such license, upon request, to all police officers, Township officials, or citizens occupying said premises.

(c) There shall be no business transacted which shall concern any goods, wares, or merchandise other than those specified in the application for license or which shall consist of fraud, cheating, or material misrepresentation.

(d) Physical presence upon a premises prominently posted with a "No Soliciting," "No Salesmen," "No Trespassing," "No Vendors," or similar sign shall be prohibited.

(e) Physical presence upon a premises for a period exceeding five (5) minutes after being asked to leave by anyone in possession thereof shall be prohibited.

Ordinance 75-5, § 5.

In addition, the following categories of solicitation are exempted from the ordinance:

(a) Farmers selling their own produce.

(b) The sale of goods, wares, and merchandise, donated by the owners thereof, the proceeds whereof are to be applied to any charitable or philanthropic purpose.

(c) Any manufacturer or producer in the sale of bread and bakery, products, meat and meat products, or milk and milk products.

(d) Any persons taking orders for merchandise, by sample, from dealers, or merchants or individuals or companies who pay a license or mercantile tax at their chief places of business.

(e) Insurance companies or their agents, or insurance brokers, authorized to transact business under the insurance laws of the Commonwealth of Pennsylvania.

Ordinance 75-5, § 8. The ordinance also contains a severability clause.

In November of 1982, PENN-PIC's canvass director in the Harrisburg area, W. Bradley Jones, sent a letter to York Township officials informing them of the group's intention to canvass the township as part of a community outreach and fundraising project. The letter stated that the canvass would be conducted Monday through Friday, 3:30 p.m. to 9:00 p.m. Mr. Jones was informed of the 6:00 p.m. curfew on solicitation, and was unable to obtain a waiver of the ordinance from township officials. This lawsuit followed requesting preliminary and permanent injunctive relief from the ordinance.

A hearing on the preliminary injunction was held on July 20, 1983, at which time both parties presented testimony. The issues have been thoroughly briefed, and the parties have indicated that the case is in a posture for final decision, subject to further consideration of the damage issue if appropriate.

PENN-PIC is a state wide coalition of unions, church and community groups and senior citizen organizations. Its function in the words of Mr. Jones is to "work on basic economic issues affecting consumers, legislation to stop plant closings, keep jobs in the state, closing corporate loopholes in the tax structure, stopping toxic waste dumping, keeping down utility rates, reforming the Public Utility Commission." (N.T. 5). PENN-PIC is registered in the Commonwealth as a charitable organization and is permitted to solicit funds on that basis. One of PENN-PIC's principal means of soliciting funds is through canvassing. This method is used because the organization lacks the financial resources for media or direct mail campaigns. Additionally, the canvassers have the opportunity to educate people to and involve them in PENN-PIC's concerns. (N.T. 7). The evening hours are selected for canvassing activities because, in the experience of the canvassers, people are most likely home from work and are most receptive to canvassing efforts at that time.² Mr. Jones testified to his belief that adherence to the time limitations imposed by the York ordinance would result in a loss of $3,000—$4,000 in contributions in the York Township. (N.T. 19). If similar ordinances were enacted and followed throughout the Commonwealth, the effect on PENN-PIC, according to Mr. Jones, would be "drastic." (N.T. 19). Apart from the time limitations imposed by the York ordinance, PENN-PIC staff have generally been willing to accommodate themselves to a variety of requirements. They have, for example, provided towns with lists of canvassers, have complied with regulations requiring them to carry photo identification and permits, and have even agreed to be fingerprinted. (N.T. 10).

It is unquestioned that the right to solicit and canvass is protected by the First Amendment. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). It is also undisputed that the right to canvass and solicit does not exist unconditionally, and that these activities are subject to reasonable, narrowly drawn regulations for public safety and the prevention of undue annoyance. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976).³ In Martin v. Struthers, supra, the Court noted the scope of concerns which may prompt regulatory ordinances:

Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit.

319 U.S. at 144, 63 S.Ct. at 864, 87 L.Ed. at 1317. Despite the above sentiments, the Court expressed a sensitivity to the important interests protected by the First Amendment:

While door to door distributors of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion .... Door to door distribution of circulars is essential to the poorly financed causes of little people.

319 U.S. at 145-146, 63 S.Ct. at 864-865, 87 L.Ed. at 1318-1319. The Court appreciated that an analysis of the validity of any ordinance restricting free speech involves a careful weighing of all circumstances and an appraisal of the substantiality of the reasons for the regulation. Id. at 144, 63 S.Ct. at 863, 87 L.Ed. at 1317 quoting Schneider v. Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155, 164 (1939).

Because the ordinance in question impinges on the exercise of free speech, it is presumptively unconstitutional. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1, 5-6 (1971). York Township must show that the ordinance is drawn narrowly and specifically to relate to legitimate public interests and that it does not unduly intrude upon the rights of free speech. Hynes v. Mayor of Oradell, 425 U.S. 610, 616, 620, 96 S.Ct. 1755, 1758, 1760, 48 L.Ed.2d 243, 251, 253 (1976); Citizens for a Better Environment v. Village of Olympia, 511 F.Supp. 104, 106 (N.D.Ill.1980).

Defendant has cited the recent Supreme Court case of Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), as a principal authority for the constitutionality of its ordinance. Also cited is the subsequent case of Association of Community Organizations for Reform Now (ACORN) v. City of Frontenac, 541 F.Supp. 765 (E.D.Mo. 1982) in which a district court upheld the validity of an ordinance similar to the one before us. We do not agree that Heffron requires us to approve the York ordinance, nor do we agree with the ACORN decision, which we are not required to follow. In Heffron, the Court analyzed Minnesota State Fair rule 6.05 which required all persons desiring to sell, exhibit or distribute materials during the annual State Fair to do so only from fixed locations (i.e. licensed stalls). The International Society for Krishna Consciousness, Inc., (ISKCON) sought to enjoin the enforcement of the rule, arguing that it interfered with its practice of Sanskirtan, a religious ritual which requires its members to go into public places to distribute or sell religious literature and solicit donations for the Krishna religion. The Supreme Court upheld the validity of the rule, finding that it was not based on the content of the speech in issue and that it was tailored to address a significant state interest maintaining order and avoiding congestion at the fair. Specifically, the Court examined the conditions at the fair, the great numbers of people who congregate in a comparatively restricted area, and concluded that "The flow of the crowd and demands of safety are more pressing in the context of the Fair. As such, any comparisons to public streets are necessarily inexact." 452 U.S. at 651, 101 S.Ct. at 2566, 69 L.Ed. at 309. Given this unique setting, the Court found that the restriction was justified in preventing the serious disorder which would result in its...