New York Youth Club v. Town of Harrison
New York Youth Club v. Town of Harrison
Opinion of the Court
OPINION AND ORDER
Before the Court are the Motion for Summary ' Judgment of Plaintiffs New York Youth Club (“NYYC”), Miguel B. and Kelv'ónte C. (collectively “Plaintiffs”), (Doc. 30), and the Cross-Motion for Summary Judgment of Defendants Town of Harrison, Village of Harrison (together, “the Town”), Supervisor of the Town of Harrison and Mayor of the Village of Harrison Ron Belmont, Member's of the Town Board of the Town of Harrison Fred Scili-ano, Steve Malfitano, Marlane Amelio and Joseph Camella, and the Office of the Town Clerk of the Town of Harrison (collectively “Defendant^”), (Doc. 26). For the following reasons both' motions are GRANTED IN PART and DENIED IN PART, in that the claims against the office of the Town Clerk and the individual Defendants other than Belmont are dismissed, and the statute at issue is unconstitutional.'
I. Background
The following facts, which are based on the parties’ Local Rule 56.1 statements and supporting materials, are undisputed unless noted.
(a.) New York Youth Club
Plaintiff NYYC is a nonprofit 501(c)(3) organization that recruits “at-risk” teens from “very ..challenging environments” to become members. (Ps’ 56.1 . Response ¶¶ 24-25; Marinelli Aff. EIx. M, at 7-8, 30.)
(b.) Chapter 183
In 1934, the Town passed an ordinance, codified as Chapter 183 of the Town’s Code, regulating door-to-door solicitation by establishing^ a permitting. scheme for individuals wishing to solicit or peddle. (Ps’ 56.1 Response ¶ l.)
§ 183-4. Application requirements.
B. All applicants for a permit pursuant to Chapter 183 ... shall submit to fingerprinting and shall be subject to a review of their criminal history record by the Chiéf of Police of the Town — All fingerprints and any applicable fees must be submitted in the form and manner as prescribed by [the New York State] Division of Criminal Justice Services (“DCJS”). Any decision regarding a prospective applicant’s fitness for a permit based upon a conviction contained in the criminal history background information obtained from the DCJS must be made upon consideration of New York State Correction' Law §§ 701 through 7Q3-b and . §§ 751. through 753.
C. A person whose criminal history record background check reveals a conviction for any criminal offense . ■.. shall be disqualified from receiving a permit to solicit or peddle within the Town. The Harrison Chief of Police will make the determination of the applicant’s fitness to receive the applied for permit;
§ 183-5. Permit required; exemptions; restrictions.
A. It shall be unlawful "for any person to engage in the act of peddling or soliciting in this Town without first obtaining a valid permit therefor.
§ 183-9. Permit fees.
C. All applicants are required to pay all fingerprinting • and processing fees - as prescribed by -the Division of Criminal Justice Services of New York State.
(See Ps’ 56.1 Response ¶ 7; Marinelli Aff. Ex. E.)
The cost of fingerprinting and the concomitant criminal history check is' approximately $87.00. (Ps’ 56.1 Response ¶22.) Permits granted under Chapter 183 expire after one year, at which point, if the individual wishes to continue to solicit or peddle in the Town, the permit must be renewed, and the cost of the fingerprint check paid again. (See Marinelli Aff. Ex. E, at 183:9.) Chapter 183 was also amended to add a “Do Not Knock Registry,” which allows, a property owner to designate his or her address as prohibited for soliciting and peddling purposes. (See id, 183:11; Ps’ 56.1 Response ¶ 6.)
Chapter 183, as it stands today, was enacted with the stated purpose of
affording] a just protection from peddlers and • solicitors to merchants who maintain local business establishments ...by regulating door-to-door solicitation by licensed sales agents; establishing a Do Not Knock Registry; and pror mulgating reasonable time and manner restrictions on door-to-door solicitation, including, enforcement of the Do Not Knock Registry, and by providing additional revenues and to protect the citizens of the Town against crime and by preserving the private property, peace and comfort of the occupants of private residences in the town. ,
(Marinelli Aff. Ex. E, at 183:2.)
The impetus for the challenged. Amendments apparently came about sometime
Additionally, Mayor Belmont discussed proposed amendments to Chapter 183 with a Town Attorney responsible for drafting legislation after it became apparent during his 2011 mayoral campaign that “people were concerned about peddlers and people knocking on their doors.” (Marinelli Aff.-Ex. I, at 5, 10, 12-14.) Mayor Belmont understood the concern to be that citizens “didn’t feel that people should be' able to knock On their door at any time and solicit,” but people did not have specific objections to the types or classes of people knocking on their doors, (id. 11), or express concerns that door-to-door solicitors had criminal backgrounds, (id. 14, 21). Mayor Belmont never had a discussion with anyone from the Town public safety office or Town police department:regarding solicitors or peddlers. (Id. 21.)
Since the enactment. of .Chapter 183’s fingerprinting requirement in 2012, neither the individually named Plaintiffs nor other non-plaintiff NYYC members have solicited in the Town, allegedly due to the prohibitively high cost of the requisite fingerprinting. (Jackson Aff. ¶¶ 18-21, 29.)
Plaintiffs filed their Complaint in this action on Oct. 9, 2012, and a Second Amended Complaint (“SAC”), (Doc. 19), on October 30, 2013, alleging that Chapter 183’s fingerprinting requirement abridges their ■ rights guaranteed under the First Amendment because, among other-things, it: (1) imposes an 'unconstitutional financial burden,1 (Ps’ -Mem.. 8);¡ (2) fails to leave open other opportunities to engage in First Amendment-protected activity, (id. at 10); (3) invades Plaintiffs’ privacy, (id. at 11); and (4), in any event, is not reasonably related, to an important governmental purpose, (id. at 11). Specifically, Plaintiffs allege that the ordinance has prohibited them from “performing] the fundraising and advocacy in the Town and Village of Harrison that they performed prior to the passage of the Ordinance, because of the threat of the Defendants to enforce it.” (SAC ¶ 53.) Accordingly, Plaintiffs seek, declaratory and injunctive relief with respect
II. Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he dispute about a material fact is ’genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material”- if it “might affect the outcome of the suit under the governing law .... Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. The movant bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” and, if satisfied, the burden then shifts to the non-movant to present “evidence sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there' must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and he “may not rely on conclu-sory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory' answers, or other materials ....” Fed. R. Civ. P. 56(c)(1). Where an affidavit is used to support or oppose the motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that “a party fails ... to properly address another party’s assertion of fact as required by Rule 56(c), the court may,” among other things, “consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(2), (3).
III. Constitutionality of Chapter 183 of the Town’s Code
“[T]he government may impose reasonable restrictions on the time, place, or manner, of ... speech” that is protected under the First Amendment, as long as the restrictions “are justified without reference to the content of the regulated speech, ... are narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (internal quotation marks omit
Although preventing crime and “preserving the private property [and] peace” of municipal residents, (Marinelli Aff. Ex. E at 183:2), have been found to be significant government interests, see, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 163, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (crime prevention is legitimate interest that can justify door-to-door soliciting regulations); Ward, 491 U.S. at 796, 109 S.Ct. 2746 (municipalities have significant interest in protecting “the well-being, tranquility, and privacy of the home”) (internal quotation marks omitted); Jobe v. City of Catlettsburg, 409 F.3d 261, 268 (6th Cir. 2005) (individuals’ desire to have their private property left alone constituted significant government interest); N.J. Citizen Action v. Edison Twp., 797 F.2d 1250, 1265 (3d Cir. 1986) (deterring crime is an “indisputably substantial” interest in context of regulating solicitation), here the Town has failed to set forth sufficient documentary or testimonial evidence to show that its interests in crime-prevention and/or the tranquility of private property are actually served by or justify the fingerprinting requirements in Chapter 183. Rather, Defendants have provided generalizations about Town residents’ concern with permissible -hours of solicitation, (Marinelli Aff. Ex. I, at 10-11; Ex. R); pointed to meeting minutes from a public Town Board hearing that offer no insight as to why fingerprint background checks are necessary, (id. Ex. R);
Further, Defendants-have offered nothing to show that any meaningful or significant research regarding fingerprinting ordinances was conducted prior to the commencement of this suit. Indeed, Defendants fail'to identify concerns actually voiced or recognized prior to the enactment of the Amendments that would evince a basis for a fingerprinting requirement. In other words, while the fingerprinting requirement would identify solicitors or peddlers with criminal records, in
In sum, the Town has not carried its burden. It has simply not shown either the existence of a significant government interest justifying the provision or how the provision addresses the concerns that actually existed. That is, the Town has not established a factual basis for concluding that it reasonably believed that criminals were engaging in door-to-door solicitation, that a problem with criminal-solicitors ever existed in the past, or that residents possessed a real concern that criminals were engaging in door-to-door solicitation. Although this Court can imagine a fingerprinting requirement like the one in Chapter 183 potentially being justifiable in other circumstances, the Defendants in this case have not shown any connection between a legitimate, significant government interest and the restriction imposed by the fingerprinting requirement that justifies the infringement on speech it causes. In addressing, the legitimate concerns of its citizens, the Town painted with too broad a brush and enacted an ordinance that was not narrowly tailored to serve those interests. Accordingly, I find Chapter 183 unconstitutional to the extent that it requires individuals wishing to solicit or peddle door-to-door to submit to, and pay for, fingerprinting checks. In the absence of genuine disputes of material fact regarding the constitutionality of Chapter 183, Plaintiffs’ motion for declaratory and in-junctive relief with respect to Chapter 183’s fingerprinting requirement is granted, and Defendants’ motion'to dismiss the complaint in its entirety is denied.
IV. Defendants as Proper Parties
A. Members of the Town Board and Mayor Belmont
Defendants argue that the complaint should be dismissed as against the individual Members of the Town Board and May- or Belmont because they are entitled to legislative immunity, (Ds’ Mem. 19), and that in any event, to the extent those Defendants are being sued in their official capacities, they are not proper parties as the Town is the real party in interest, (id. 20-21).
Plaintiffs do not squarely address Defendants’ legislative immunity argument, but “acknowledge that they cannot seek damages against the- individual defendants,” and assert that the Mayor and Town Board members are proper defendants because Plaintiffs seek only declaratory and injunctive relief as to them. (See Ps’ Mem. in Opp., at 11.) It is evident, then, from Plaintiffs’ clarification as to the type of relief sought, that they wish to proceed against Defendants in their official capacities only. ■ “[OJfficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). It follows that when a plaintiff prevails in an official-capacity suit, it must look to the municipality as the real party in interest.
Notwithstanding the foregoing, government officials may. be sued in their official capacities for prospective declaratory or injunctive relief. See Glass v. Coughlin, No. 91-CV-193, 1991 WL 102619, at *2 (S.D.N.Y. May 29, 1991). To succeed on
B. Office of the Town Clerk
Defendants also argue, correctly; that the Office of the'Town Clerk cannot be sued because it is an administrative arm of a municipality and, under New York law, does not have a'legal 'identity separate -and apart- from the municipality. See Robischung-Walsh v. Nassau Cty. Police Dep’t, 699 F.Supp.2d 563, 565 (E.D.N.Y. 2010); see also Smith v. Westchester Cty., 769 F.Supp.2d 448, 454 n. 1 (S.D.N.Y. 2011) (“[W]here both the municipality and the municipal agency have been named as defendants, courts have dismissed the claims against the agency.”) (collecting cases). Accordingly, the claims against the Town Clerk are dismissed. - '
V. Plaintiffs’ Standing
Defendants argue that Plaintiffs Miguel B. and Kelvonte C. fail to establish that they have standing because: (1) both fail to identify a particularized injury; (2) neither is a minor nor-an “at-risk” youth; and (3) both “had no knowledge of this action” and “had never read the Complaint.” (Ds’ Mem. 23.)
Article III, Section 2 of.the U.S. Constitution restricts federal court jurisdiction to “Cases” and “Controver7 sies.” U.S. Const. art. III, § 2; Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 381 (2d Cir. 2000). “Constitutional standing is the .threshold question in every federal case,, determining the power of the court to entertain the suit.” Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 184 (2d Cir. 2001) (internal quotation marks omitted). To establish standing within the meaning of Article III,
first, the plaintiffs “must have suffered an injury in fact — an invasion of a legally- protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Second, “there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly'..: trace[able] to the challenged action of the-defendant; and not ... the result [of] the independent action of some third party hot before the court.” Third, “it must be -likely, as opposed to merely- speculative, that the injury will, be redressed by a favorable decision.” Moreover, the “party invoking .federal jurisdiction bears-the.burden of establishing these elements.”.
Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 175 (2d Cir. 2006) (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
The Town in' fact enforces Chapter 183 against individuals who solicit door-to-door without permits. (See Marinelli Aff. Ex. H.) Plaintiffs Kelvonte and Miguel, and non-plaintiff NYYC members, solicited door-to-door in the Town every eight to twelve weeks prior to the passage of Chapter 183’s fingerprinting requirement. (Marinelli Aff. Ex. K, at 41-42; Ex. L, at 32; Ex. N, at 22-23.) Since the enactment of the fingerprinting requirement, however, no NYYC members, including the individual Plaintiffs, have solicited in the Town. (Jackson Aff. in Support, ¶ 29.) “A litigant who suffers an ongoing injury resulting from [a]' statute’s chilling effect on his desire to exercise his First Amendment rights does have standing to sue.” Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1229 (10th Cir. 2005) (internal quotation marks omitted) (holding plaintiffs demonstrated injury-in-fact where failure to submit to' fingerprinting and refusal to pay fee would necessarily lead to denial of door-to-door soliciting license). If Plaintiffs Kelvonte and Miguel were to attempt to solicit, once again, in the Town, they would be subject to the effects and harms of Chapter 183’s constitutionally infirm fingerprinting provision. The ordinance, in effect, forces them to choose between foregoing door-to-door solicitation in the Town altogether, in violation of their First Amendment rights, or soliciting in the Town in violation of the law. Plaintiffs’ decision to stop engaging in protected speech in the Town constitutes harm sufficient to satisfy Article Ill’s injury-in-fact requirement.
Second, Defendants argue that the individual Plaintiffs lack standing because they “had no knowledge of this action, [and] had never read the Complaint .... ” (Ds’ Mem. 23; Ps’ 56.1 Response ¶ 42.) While the Court finds this fact disturbing, Defendants again fail to cite authority or otherwise explain why this deprives Plaintiffs of standing.
Nevertheless, this argument raises questions regarding Plaintiffs’ counsel’s professional and ethical obligations to both the Court and their clients. If, as Miguel and Kelvonte testified, and as their reply affidavits seem to confirm, counsel filed the complaint without consulting them, then it is entirely unclear how counsel could have met their obligations under Federal Rule of Civil Procedure 11(b) or New York Rule of Professional Conduct 1.4. Plaintiffs’ counsel are directed to write the Court, within 14 days of the date of this Order, to explain the circumstances of counsel’s filing this lawsuit on behalf of Miguel and Kelvonte, including the degree of consultation with them.
VI. Conclusion
For the foregoing reasons, Defendants’ Cross-Motion for Summary Judgment is GRANTED IN PART, in that the claims against the individual Defendants, other than Belmont, and the Office of the Town Clerk are dismissed, and otherwise DENIED, and .Plaintiffs’Motion for Summary Judgment is GRANTED as to the remaining Defendants in that the statute at issue is unconstitutional, and DENIED as to the dismissed Defendants. The Clerk of Court is respectfully directed to terminate the pending motions. (Docs. 26, 30.) The parties are directed to confer and submit, no later than December 22, .2015, a proposed Order enjoining the enforcement of § 183-4(B) of the Town of Harrison Code. The parties are further directed to appear before this Court on January 21, 2016 at 2:00 p.m. to discuss the determination of the damages and attorneys’ fees to which Plaintiffs may be entitled.
SO ORDERED.
. Defendants failed to comply with Section 2.C.Í of my Individual Practices, which requires the opposing party to “reproduce each entry in the moving party’s Rule 56.1 Statement, and set out the opposing party’s response directly beneath it.” Rather than reproducing each entry with its corresponding response, Defendants reproduced all entries together and then all responses together, defeating the purpose of the rule. .And this failure occurred after my chambers- had to prompt both parties to re-file their Rule 56.1 oppositions in compliance with my rules. Defendants also interposed argumentative, if not frivolous, responses. For example, Defendants objected to ¶ 14 — “Violation of the Ordinance ... carries a fine and/or imprisonment” — on . the grounds “that it is incomplete and a misrepresentation of the facts,” and then quoted the statute ("A violation of this chapter is subject to a fine of not less than $500 and/or imprisonment for not more than 15 days, or both ...”), which (contrary to Defendants’ position) shows the accuracy of ¶ 14, and added unnecessary, irrelevant and argumentative matters. (Doc. 54 at 7.) Plaintiffs did not do much better, dismissing as "argument and opinion and ...- not a statement of undisputed fact” several statements that plainly are
. “Ps’ Mem.” refers to Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment. (Doc,,36.)
. “Ds’ Mem.” refers to Memorandum of Law in Support of Defendants’ Motion, .for Sum- • mary Judgment. (Doc. 29.) . '
. “Ps! 56.1 Response” refers to Plaintiffs’ Response to Defendants’ Rule 56.1 Statement in Opposition to Motion and. in.,Support of Cross-Motion. (Doc. 53.) "Marinelli Aff,” refers to Affidavit of Support by Frances Dapice Marinelli. (Doc. 27.)
. The tase caption spells the Plaintiff's name, "Kebonte,” but
. Chapter-183-2 defines “Peddling” as "[t]he .. vending or the hawking, or offering for sale
. "Jackson Aff.” refers to the Affidavit in Support by Nathan Jackson. (Doc. 35.)
. The parties seem to agree that- Chapter 183 is a content-neutral time, place and- manner restriction subject to the aforementioned standard, which amounts to intermediate scruti- ■ 'ny. (Plaintiffs' Memorandum in Opposition to Defendants' Cross-Motion for Summary Judgment and in Reply and Further Support of their Motion for Summary Judgment ("Ps’ Mem. in Opp.”), 3-4; see Defendants' Reply Memorandum of Law ("Ds' Rep.”), (Doc. 44), at 9.) See, e.g., Ohio Citizen Action v. City of Mentor-On-The-Lake, 272 F.Supp.2d 671, 679 (N.D.Ohio 2003) ("Regulations which limit the time, place, and manner of speech, and which are not content based, are analyzed under intermediate scrutiny but with an additional requirement that they leave open ample alternative channels for communication of information.”). Although the Court has - a printed copy of Plaintiffs’ Memorandum in Opposition, it appears Plaintiffs failed to electronically file that document, in violation of the Court's Electronic Cáse Filing Rules and Instructions, Section 1.1. Plaintiffs are directr ,ed to file their Memorandum in Opposition immediately. ' .
The parties have not suggested that Plaintiffs’ activities in the Town might constitute commercial" speech subject to a different constitutional test. This may be due to the fact that Plaintiffs seem to be bringing a facial challenge to the fingerprinting requirement (in that they argue that the problem is the ordinance itself, not how it is being applied to them specifically), and on its face, the ordinance applies to solicitation of both charitable contributions and commercial transactions. .-The former may be subject to a higher level of constitutional protection than the latter, see id., at 680, but even if this were a challenge to a restriction ón purely commercial speech, the fingerprinting requirement would still fail the test set out in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 564, 100 S.Ct. 2343, 65 L.Ed2d 341 (1980), for regulations of commercial speech. This is so because, for the same reasons (de-tailed below) that it fails the Ward test, the regulation does not directly advance the substantial state interest said to have justified its enactment.
. Frank Allegretti, a Town Attorney responsible for proposing and drafting legislation, (Marinelli Aff. Ex. J, at 8-9; Ex. I, at 8), testified that while "a lot” of resident complaints regarding door-to-door solicitation were received by the Town police department and Clerk’s office, he did not recall a Town Board meeting in which someone "stepfped] up ... and sa[id], ’I have an issue [with solicitors].” (Id. Ex. J, at 17-18.) Moreover, Allegretti testified that the citizen complaints consisted of complaints • about "solicitors throughout the municipality that were soliciting without permits or supervision,” (id. 21-22), and - "being very 'aggressive with our homeowners,” (id. 17; Ps’ 56,1 Response ¶ 10). He did not report concerns regarding individuals'with criminal records or solicitors committing crimes;
. While Defendants may have considered the no-knock ordinances of other municipalities prior to the enactment of the Amendments, it appears that the only research regarding ordinances , with fingerprint. requirements was conducted after, the initiation of the present lawsuit. (Marinelli Aff. Ex. J, at 30-32.)
. Indeed, after a review of the resident complaints received by Town police ' regarding door-to-door solicitations, it appears the only violation of law associated with solicitation was solicitation without a permit; (See, e.g., Affirmation in Support by James Druker ("Druker Aff.”), (Doc. 33), Ex. E, at 2007-000007, 2007-000014, 2007-000021.) That is, in the period leading up to the enactment of the Amendments, when Town police responded to complaints regarding door-to-door solicitors, the only laws actually enforced were laws regulating door-to-door solicitation. (See Ds’ 56.1 Response ¶21.) Moreover, in many of the calls to which Town police responded, background checks were conducted, and police were able to identify whether solicitors had criminal histories or outstanding warrants. (See, e.g., Druker Aff. Ex. E, at 2007-39; Ex. G 2009-6; Ex. H, at 2010-40-41, 2010-55-56.) While Town Attorney Allegretti testified that fingeiprinting is "[t]he only accurate way of getting a criminal history " background check,” (Marinelli Aff. Ex. J, at 44), there is no indication that the Town experienced any problem with solicitors misidentifying themselves, or had any other reason to regard background checks without a fingerprinting component, which were conducted prior to the enactment of the Amendments, as inadequate.
. In light of this disposition it is unnecessary to reach Plaintiffs’ other arguments regarding the unconstitutionality of the Amendments.
. Plaintiffs acknowledge, with respect to their demand for damages, that “the proper party to answer in damages is the Town.” (Ps’ Mem. in Opp., at 11.)
. If Plaintiffs were seeking relief from these Defendants, in their individual capacities, I would indeed find that they are entitled to absolute immunity for enacting Chapter 183.
. In addition to being á voting member of the Town Board, (Marinelli Aff. Ex. I, at 9), Belmont is "responsible for the citizens, as well as the employees of the entire [Tjown/1 (id. at 8).
. Defendants further argue that NYYC lacks standing "since the teen members of. the [NYYC] do not have standing,” (Ds’ Rep. at 15.) An organization may sue on behalf of its members, if "[(!)] its members would have standing to sue in their own right, [ (2) ] the interests at stake are germane to the .organization’s purpose, and [(3)] neither the claim asserted nor the relief requested requires individual members’ participation in the lawsuit.”
Reference
- Full Case Name
- NEW YORK YOUTH CLUB, Miguel B. and Kebonte C. v. TOWN OF HARRISON, Village of Harrison, Ron Belmont, as Supervisor of the Town of Harrison and Mayor of the Village of Harrison, Fred Sciliano, Steve Malfitano, Marlane Amelio and Joseph Cannella, as Members of the Town Board of the Town of Harrison, and Office of the Town Clerk of the Town of Harrison
- Cited By
- 1 case
- Status
- Published