Westfall v. Board of Com'rs of Clayton Cty.

• Decision Date: 26 September 1979
• Docket Number: Civ. A. No. C78-1458A.
• Citation: 477 F. Supp. 862
• Parties: Chris WESTFALL, Individually and on behalf of the members of the Holy Spirit Association for the Unification of World Christianity v. BOARD OF COMMISSIONERS OF CLAYTON COUNTY, and Lillian Castleberry, Director, Business License Department, Clayton County.
• Court: U.S. District Court — Northern District of Georgia

477 F. Supp. 862

Chris WESTFALL, Individually and on behalf of the members of the Holy Spirit Association for the Unification of World Christianity v. BOARD OF COMMISSIONERS OF CLAYTON COUNTY, and Lillian Castleberry, Director, Business License Department, Clayton County.

Civ. A. No. C78-1458A.

United States District Court, N. D. Georgia, Atlanta Division.

March 30, 1979.

On Motion for Partial Reconsideration September 26, 1979.

COPYRIGHT MATERIAL OMITTED

Andrew H. Marshall and J. Hue Henry, Athens, Ga., Barry A. Fisher Law Offices, Barry A. Fisher, Larry J. Roberts, David Grosz, Los Angeles, Cal., for plaintiff.

John R. McCannon, George E. Glaze and Kirby A. Glaze, of Glaze, McNally & Glaze, Jonesboro, Ga., for defendants.

ORDER

NEWELL EDENFIELD, District Judge.

This civil rights action is before the court on cross-motions for summary judgment and on plaintiff's motion for an interim award of attorney's fees.

1. Plaintiff, a member of the Holy Spirit Association for the Unification of World Christianity, brings this action on behalf of himself and other members of the church¹ in order to obtain religious solicitation privileges in Clayton County. The case began on August 28, 1978, when plaintiff filed his complaint attacking certain licensing provisions of the county's Code of Ordinances as violative of the first amendment when applied to him and to others of his organization. A request for a temporary restraining order was not ruled on at that time, as defendants, apparently recognizing that their then-existing law was constitutionally defective as applied, requested a period of approximately a week in which to draft and enact a replacement. The Code of Ordinances was thereafter amended on September 5, 1978, by addition of Resolution No. 78-37, which provides for the issuance of permits for religious and charitable solicitation and governs the conduct of such solicitors. A permit and identification cards were apparently subsequently issued to members of plaintiff's church.

Plaintiff now attacks certain provisions of the new ordinance which provide that

Soliciting or canvassing upon the public streets, areas or parks or calling from house to house in the County shall be subject to the following regulations:

1. All soliciting or canvassing upon the public streets, areas or parks or calling from house to house in the County shall only occur between the hours of 9:00 a. m. and 6:00 p. m.

2. The number of solicitors or canvassers or callers from house to house in the County for any single firm, corporation or organization shall not exceed twenty-five (25) in number.

3. Immediately prior to any solicitation of funds within the County, each solicitor, canvasser or caller shall present his or her identity card, issued by the Business License Department, to each person solicited and request each person solicited to read such identity card. Each solicitor, canvasser, or caller must inform each person solicited in clear language of the nature and purpose of the solicitation and the name and home or national office or headquarters of the firm, corporation or organization represented. Further, each solicitor, canvasser or caller must inform each person solicited as to any minimum donation required for the acceptance of any merchandise, wares, goods or similar items given by each solicitor, canvasser or caller prior to such acceptance by each person solicited.

In general, these requirements are said to be overly broad and burdensome in light of the governmental purposes which they serve.

The applicable law is more easily stated than applied. All parties agree that plaintiff's first amendment solicitation activity is subject to such reasonable "time, place and manner" regulations as may be "necessary to further significant governmental interests". Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); Cox v. New Hampshire, 312 U.S. 569, 575-76, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Permissible regulation, however, must not be broader than is needed to protect such interests; rather, "the breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) (footnote omitted). Further, the regulation must be narrowly drawn so as to apprise those regulated of their duties under the law; it must not be unduly vague. See, e. g., Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976).

The Supreme Court has consistently recognized that a local government may properly regulate soliciting and canvassing of the sort at issue here "to protect its citizens from crime and undue annoyance". Hynes, supra, at 616, 96 S.Ct. at 1759. As stated by Mr. Justice Black in Martin v. Struthers, 319 U.S. 141, 144, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943) (footnotes omitted),

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. . . . In addition, burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later. Crime prevention may thus be the purpose of regulatory ordinances.

Plaintiff does not take issue with these justifications for defendants' ordinance; their whole argument instead focuses upon whether the various portions of the county's regulatory effort go beyond what is necessary to vindicate its legitimate objectives.

The court finds no fault with defendants' limitation of solicitation to the hours from nine in the morning to six in the evening. Plaintiff's suggestion that this choice prevents members of the church from gaining access to many households altogether, as the hours coincide with the working hours of many individuals, ignores the fact that weekend solicitation is perfectly permissible. Furthermore, public solicitation of those individuals who are away from their homes is open to plaintiff and his fellow solicitors during the entire week. The hours chosen thus appear to the court to be a permissible accommodation of plaintiff's right to solicit and the county's interest in preserving the peaceful enjoyment of the home for its citizens. As for prevention of crime, plaintiff recognizes that darkness facilitates the commission of such; this appears to the court to be indisputably true, both in public and private places. While it is clear that the hours chosen by defendants do not precisely coincide with the daylight hours and as a result at certain times of the year prevent solicitation not conducted under cover of darkness, it would also appear to be clear that use of language barring solicitation during the "hours of darkness" or "after sunset" would import into defendants' ordinance the very vagueness which formed a basis for plaintiff's attack on defendants' prior law. Any choice of numbers will bear some appearance of arbitrariness by its very nature, but, if they choose to legislate in this area, defendants must choose some hours in order to warn plaintiff of his obligations. Their present choice appears to the court to be within the area of a reasonable time regulation for the prevention of crime, as it provides warning and opens most of the day to plaintiff for his activities, while barring him from solicitation during the time when criminals could most easily masquerade as solicitors.

As previously quoted, the second portion of the ordinance which is now under attack provides that the "number of solicitors . . for any single . . . organization shall not exceed twenty-five (25) in number." Plaintiff takes the position that, pursuant to this provision,

25 residential solicitors must be identified and receive identity cards, and that thereafter, no additional persons may solicit on behalf of such organization. Contrary to defendants' assertion, this provision does not regulate the total number of persons who are soliciting at any one time. Instead, its effect is that no more than 25 persons may register to solicit on behalf of one organization, regardless of the number actually engaged in the solicitation activity.

Plaintiff's Brief, at 13. Plaintiff does not object to use of the number 25 per se. He is instead concerned that, due to sickness or absence from the county, his church at certain times will not have a full 25 persons operating in the county and, under this provision, will not be able to substitute individuals to make up the full number for the ninety-day period of any one permit. Thus, assuming that the county has a legitimate interest in controlling the total number of solicitors for various organizations which operate within its boundaries, plaintiff appears to suggest that no purpose is served by not permitting it to substitute solicitors so as to constantly operate at full strength.

Defendants justify their number limitation by pointing to a need for the ability to identify solicitors so as to prevent fraud upon the public. In addition, as just indicated, the number is described as an attempt to control the total number of solicitors operating within the county, without regard to the particular organization represented. As for their particular ordinance, defendants appear to take issue with plaintiff's description of the limitation's effect. They assert that they have interpreted it to mean "25 at one time and enforced such accordingly." Defendants' Responsive Brief, at 2.

Reasonable limitations as to number are not improper in and of themselves. See Wolin v. Port of New York Authority, 392 F.2d 83, 94 (2d...