Cities4life, Inc. v. City of Charlotte
Cities4life, Inc. v. City of Charlotte
Opinion of the Court
THIS MATTER is before the Court on the Motion to Dismiss (Doc. No. 11) filed jointly by the Defendants. The Plaintiffs have responded, and Defendants have filed a reply. This matter is now ripe for adjudication. For the following reasons, Defendants' Motion is granted in part, denied in part.
I. BACKGROUND
A. Factual Background
Plaintiffs Cities4Life, Inc., Daniel Parks, and Patrick Courtney (collectively, "Plaintiffs") brought this civil rights action against: the City of Charlotte; Marcus D. Jones in his official capacity as City Manager of Charlotte ("Jones"); the City of Charlotte Department of Housing and Neighborhood Services ("HNS"); the City of Charlotte Division of Code Enforcement ("DCE"); Ben Krise, individually and in his official capacity as City of Charlotte Code Enforcement Division Manager ("Krise"); Mandy Edwards, individually and in her official capacity as a City of Charlotte Code Enforcement Inspector ("Edwards"); Mark Fowler, individually and in his official capacity as a City of Charlotte Code Enforcement Inspector ("Fowler"); Kimberly Sauer, individually and in her official capacity as a City of Charlotte N & BS Area Supervisor ("Sauer"); and Jane Does 1-5 and John Doe 1, individually and in their official capacities as City of Charlotte employees ("Does") (collectively, "Defendants").
The factual allegations contained in the Complaint are presumed to be true at this stage of the litigation, and thus the Court relies on them for purposes of resolving this motion alone. According to the Complaint, Plaintiff Cities4Life, Inc. ("Cities4Life") is a "faith-based organization that seeks to engage, strengthen, and support local churches and Christians to proclaim, protect, and provide life for unborn babies in each city across the United States where abortion exists." (Compl., ¶ 17). Plaintiff Daniel Parks ("Parks") is the Executive Director of Cities4Life, and *625Plaintiff Patrick Courtney ("Courtney") is a Missionary for Help Pregnancy Center in Monroe, North Carolina. (Compl., ¶¶ 20, 21).
Cities4Life regularly assembles volunteers and counselors outside of abortion facilities in order to "preach[ ] the Gospel and speak[ ] the Truth" to women contemplating an abortion. (Compl., ¶¶ 48-49). Specifically, Cities4Life volunteers hand out information to women going into abortion clinics about "the alternatives to abortion and the means by which they can obtain tangible help in their difficult situation" and pray for "specific immediate needs they encounter in front of abortion centers." (Compl., ¶ 50). As a part of this work, Cities4Life employs the use of signs and placards that are large enough to be seen by individuals entering abortion facilities. (Compl., ¶ 51).
The Charlotte City Code regulates signs within public rights-of-way and on public property. Specifically, the Code provides, in relevant part:
(a) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign within 11 feet of the edge of any pavement of any roadway or alley.
(b) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign within any public rights-of-way.
(c) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign upon any post, pole, tree, tree stake or guard, shrub, or fire hydrant.
(d) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign upon anything else within 11 feet of the edge of the public rights-of-way, upon any bridge or overpass within the city limits, or upon other public property including, but not limited to, traffic medians.
(e) Exceptions. This section shall not apply to the following signs:
1. Signs regulating traffic.
2. Signs required to be posted by law.
3. Warning signs and no trespassing signs.
4. Signs indicating bus stops, taxi stands and similar transportation facilities.
5. Signs not exceeding four square feet in area giving information concerning the location or use of accessory off-street parking facilities or loading and unloading facilities.
6. Signs established by governmental agencies.
7. Signs permitted by the state board of transportation along state-mandated streets. Proof of permission must be shown upon request.
8. Nothing in this section shall apply to the painting of house numbers on curbs done with the prior approval of the engineering department.
9. Nothing in this section shall apply to the installation of a plaque, plate, statue, or monument on public property with the approval of the city council.
10. Nothing in this section shall apply to the removal of an illegally placed sign which is in violation of this section.
11. A violation of any provision of this section shall not constitute an infraction or misdemeanor punishable under G.S. 14-4.
*626(f) Responsible person. The responsible person for any signs in violation of subsection (a) through (d) is defined as follows:
1. In the case of a sign advertising a service, product, dwelling, or event, the responsible person shall be deemed the person hosting or organizing the event or the person attaching, placing, painting, writing, stamping, or pasting any sign. Violation of this section shall subject the responsible person to a civil penalty of $100.00 per sign.
Charlotte, N.C., Code § 10-141 (June 6, 2018).
On June 29, 2017, Parks led a team of Cities4Life volunteers to hand out information on public property near an abortion clinic called A Preferred Women's Health Center of Charlotte ("Preferred Women's Health"). Defendants Krise and Fowler arrived and confiscated and subsequently destroyed a canopy belonging to Cities4Life. The canopy was not blocking any right of way, and it was not affixed permanently or semi-permanently.
On July 5, 2017, Parks and Cities4Life again engaged in their activities near Preferred Women's Health and three officials from the DCE arrived and began issuing citations for violation of City Code § 10-212. Parks received two citations on this date for allegedly violating City Code § 10-212, both of which were signed by Defendant Edwards. Defendant Sauer explained that one citation was being issued because "a placard was resting on an individual's shoes without her feet actually being inside her shoes." (Compl., ¶ 86). The officials also seized and destroyed the placards used by Cities4Life.
On July 11, 2017, Parks and Cities4Life again engaged in their activities near Preferred Women's Health. Officials from the DCE arrived, seized two placards that were leaning against a vehicle, and subsequently destroyed them. When a volunteer sat on a sign, the officials declined to take it, stating that because it was no longer being "displayed," there was no violation of any ordinance. (Compl., ¶ 91).
Similar seizures and destruction of placards belonging to individuals associated with Cities4Life occurred on August 8, 2017, and August 18, 2017. And on September 16, 2017, both pro-life and pro-choice groups marched in the vicinity of Preferred Women's Health carrying flyers and signs. City officials arrived and issued citations to individuals affiliated with the pro-life protesters, but not to pro-choice protesters.
On November 5, 2017, Parks was issued two additional citations by members of the DCE, including Defendant Krise, while displaying signs on public property in the vicinity of Preferred Women's Health.
Additionally, in the summer of 2017, Courtney spent time "peacefully praying, preaching, and further exercising his First Amendment rights on public property" near Preferred Women's Health. He brought a sign with him, and he held it upright with his hands while the bottom of the sign rested on the ground. Three officials *627from the DCE arrived and approached Courtney. Courtney then put his sign on the ground and sat on it "to protect his property from the city officials." (Compl., ¶ 110). The DCE members demanded that he turn over his sign, and he refused to do so. The officials then left. Courtney alleges that this "threat to take his property" has made him "fear he will lose his ability to exercise his First Amendment rights and that the city will confiscate his property." (Compl., ¶ 115).
B. Procedural Background
As stated above, Parks received two citations for violating § 10-141 on July 5, 2017 and two additional citations for violating § 10-141 on October 5, 2017, each carrying a $100 fine. On August 4, 2017, Parks requested an appeal of the first pair of citations issued to him and reimbursement for the cost of the destroyed placards on behalf of Cities4Life. On October 4, 2017, the City of Charlotte reimbursed the cost of the destroyed property to Parks without admitting any wrongdoing. On November 9, 2017, Parks again requested an appeal of the July 5 citations as well as an appeal of new citations that had been issued to him on October 5, 2017. Shortly thereafter, on December 11, 2017, the City of Charlotte rescinded the July 5 citations and granted Parks' request for an appeal of his October 5 citations subject to his compliance with the ordinance appeal provisions, including a bond payment.
In the meantime, however, Plaintiffs filed their Complaint in this matter on November 11, 2017. The Complaint alleges that Defendants, through their enforcement of § 10-141, violated the First Amendment of the Constitution; the Due Process and Equal Protection Clauses of the Fourteenth Amendment; Article I, Section 1 of the North Carolina Constitution ; Article I, Section 14 of the North Carolina Constitution ; and Article I, Section 19 of the North Carolina Constitution. Specifically, Plaintiffs claim that they have "a present and future desire and intention to engage in lawful First Amendment activity" but "fear being cited by Defendants." (Compl., 25).
Defendants now move to dismiss Plaintiff's claims for lack of subject matter jurisdiction. Defendants claim that the claims of Parks and Cities4Life are not ripe because Parks has invoked an appeal of his citations in an administrative hearing, even though he has not yet pursued this appeal by filing the requisite bond payments. Defendants further argue that Courtney lacks standing in this case and that the claims of Parks and Cities4Life should be dismissed under the Younger abstention doctrine.
II. STANDARD OF REVIEW
Federal courts have limited jurisdiction, possessing "only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am. ,
III. DISCUSSION
A. Ripeness: Parks and Cities4Life
Defendants first argue that the claims raised by Parks and Cities4Life are not ripe because the City of Charlotte has not yet made a "final decision" whether the activities of Parks and Cities4Life violated § 10-141.
Generally, a court assessing ripeness must "balance the fitness of the issues for judicial decision with the hardship of the parties of withholding court consideration. A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties." Doe v. Va. Dep't of State Police ,
Defendants argue that Parks and Cities4Life have no ripe claim because Parks could still post the requisite bond and proceed with an administrative appeal with the City of Charlotte. In such appeal, Parks could raise the same constitutional arguments in opposition to enforcing § 10-141 against him as he does in this matter. According to the Defendants, this makes any injury suffered by Parks and Cities4Life "wholly speculative."
While Defendants are correct in noting that Parks has the opportunity to appeal his two remaining citations to a city administrative body, Defendants' arguments are clearly foreclosed by the Fourth Circuit's decisions in Cooksey ,
In Cooksey , the plaintiff had created a website to share his experiences and advice in coping with Diabetes, as well as a fee-based "Life-Coaching" service for individualized advice and moral support.
Here, Parks and Cities4Life allege that they have been actually subjected to *629enforcement proceedings by the City of Charlotte and the DCE on multiple occasions under the authority of § 10-141: (1) Defendants seized and destroyed a canopy from Cities4Life on June 29, 2017; (2) Defendants issued two citations to Parks on July 5, 2017, and seized and destroyed placards belonging to Cities4Life; (3) Defendants seized and destroyed two placards belonging to Cities4Life on July 11, 2017; and (4) Defendants issued two more citations to Parks on November 5, 2017. And their Complaint clearly alleges that as a result of Defendants' conduct, their "speech and message are effectively suppressed and silenced." (Compl., 24). Thus, their as-applied challenges to § 10-141 are clearly ripe under the analysis of Cooksey ,
The facial challenges to § 10-141 raised by Parks and Cities4Life are even more evidently ripe. A facial challenge to a regulation that "has the force of law" and carries criminal or civil penalties is generally a "purely legal" question that does not require further factual development. See Va. Soc. for Human Life ,
B. Standing and Ripeness: Courtney
Defendants also argue that Plaintiff Courtney lacks standing in this matter.
Generally, a plaintiff seeking to establish standing must show that (1) he has suffered an injury in fact, (2) that there is a causal relationship between the injury and the conduct complained of, and (3) that it is likely that the injury will be redressed by a favorable decision. Cooksey ,
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns ,
Courtney's claims are also ripe for the same reasons. He has sufficiently alleged a past injury through the deprivation of his freedom of speech by the DCE officials.
*630C. Younger Abstention: Parks and Cities4Life
Defendants next argue that this Court must abstain from resolving the claims of Parks and Cities4Life in this matter under the doctrine of Younger abstention. See Younger v. Harris ,
The Supreme Court in Younger held that, pursuant to "Our Federalism" and a "proper respect for state functions," federal courts should not enjoin pending criminal proceedings in state courts "except under extraordinary circumstances, where the danger of irreparable loss is both great and immediate."
The primary test for a court in this context is to determine whether the relevant state proceeding is "quasi-criminal" in nature. Id. at 81,
The Court finds that abstention clearly does not apply to Cities4Life's claims. The citations at issue were only directed to Parks-not to Cities4Life as an organization. Further, while Cities4Life did join Parks in his notice of appeal to the City of Charlotte, Cities4Life merely requested reimbursement for the value of destroyed placards and signs. Nothing about Cities4Life's request for reimbursement is "quasi-criminal" in nature. Rather, it was initiated by Cities4Life and risked no sanction or filing of charges.
Further, the City of Charlotte granted this request and reimbursed $565.00 for the destroyed property. (See Doc. No. 11-1, *631Exh. 5). Defendants have not shown that Cities4Life has subsequently requested any further reimbursement. Thus, even if Defendants were correct that Cities4Life's request for reimbursement created a state proceeding within the scope of Younger abstention, it is clear that such proceeding is no longer ongoing in light of the fact that Cities4Life obtained their reimbursement on or about October 4, 2017-more than a month before Cities4Life filed the instant suit. Thus, its prior (and fulfilled) request for reimbursement is in no way a state civil proceeding akin to criminal prosecution that warrants abstention.
Next, the Court finds that Parks' notice of appeal of his citations also does not rise to the level of a quasi-criminal proceeding to which Younger abstention must be applied. A fundamental element of a quasi-criminal proceeding is that it must be judicial in nature. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans ,
Additionally, the Court notes that the purposes of abstention pursuant to Younger would not be served in this matter. First, even if the appeals process was a judicial forum warranting abstention with respect to Parks' as-applied claims, the as-applied claims of Cities4Life and Courtney could not be addressed in that forum. Thus, even if the Court required Parks to pursue a final administrative ruling, Cities4Life and Courtney's claims would continue which would create parallel state and federal proceedings. This result directly defies the goals of Younger .
Further, Plaintiffs have shown that facial challenges to the constitutionality of § 10-141 could be not be adequately addressed in that forum. Rather, as Plaintiffs have pointed out, it is settled North Carolina law that "[w]here an aggrieved party challenges the constitutionality of a regulation or statute, administrative remedies are deemed to be inadequate and exhaustion thereof is not required."
*632Shell Island Homeowners Ass'n, Inc. v. Tomlinson ,
Accordingly, the Court finds that Younger abstention is not warranted.
D. Liability of HNS and DCE
Finally, Defendants argue that all claims must be dismissed against Defendants HNS and DCE.
It is clear that HNS and DCE are divisions of the City of Charlotte that lack the capacity to be sued, and that, as City divisions, they would be bound by any ruling made with respect to the City of Charlotte. See Lineberger v. Newton Police Dep't , 5:14-cv-137-RLV-DCK,
Accordingly, the Court will dismiss all claims against HNS and DCE.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss (Doc. No. 11) is GRANTED IN PART, DENIED IN PART. All claims with respect to Defendants Department of Housing and Neighborhood Services (HNS) and City of Charlotte Division of Code Enforcement (DCE) are DISMISSED. The clerk of court is directed to terminated Defendants HNS and DCE from this case.
SO ORDERED.
At the time the Complaint was filed, this provision was listed as § 10-212. See Charlotte, N.C., Code § 10-212 (August 31, 2016), available at: https://library.municode.com/nc/charlotte/codes/code_of_ordinances/264937?nodeId=PTIICOOR_CH10HESA_ARTIISOWASE_DIV6MAPRLICO_S10-212SIWIPURI-WPUPR. Thus, the Complaint and briefs of both parties refer to the code provision as § 10-212. However, the city code was amended, and the provision is now listed as § 10-141. It appears to the Court that the language supporting the suit remains unchanged. Further, neither party has argued that the amendments moot the dispute. Accordingly, the Court will refer to the provision at issue as § 10-141 to reflect the code provision as it currently exists.
This procedure has been amended and is now codified as Charlotte, N.C., Code § 10-104. However, because the older version (§ 10-66) contained the procedures applicable at the time Parks brought this suit, the Court relies on § 10-66 to evaluate whether the relevant proceedings were "ongoing" and "quasi-criminal" in nature. See Fed. Express Corp. v. Tenn. Pub. Serv. Comm'n ,
Reference
- Full Case Name
- CITIES4LIFE, INC., a/k/a Cities4Life Charlotte Daniel Parks and Patrick Courtney v. CITY OF CHARLOTTE
- Status
- Published