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INDO-AMERICAN CULTURAL SOC'Y, INC. v. TOWNSHIP OF

July 9, 1996

INDO-AMERICAN CULTURAL SOCIETY, INC., PLAINTIFF,
v.
TOWNSHIP OF EDISON, NEW JERSEY, ET ALS., DEFENDANTS.



The opinion of the court was delivered by: LIFLAND

 LIFLAND, District Judge

 This case concerns the ability of defendants, the Township of Edison, New Jersey, et als., to require the Indo-American Cultural Society, Inc. to comply with a local permitting ordinance for public entertainments. The Indo-American Cultural Society asserts that the ordinance, on its face and as applied, violates its right to free expression under the First Amendment of the United States Constitution and under Article I, Section 6 of the New Jersey Constitution. The Court enjoined enforcement of certain provisions of the public entertainment ordinance in September 1995. Plaintiff now moves for partial summary judgment.

 For the reasons set forth below, the Court will grant partial summary judgment for plaintiff.

 Background

 Plaintiff, Indo-American Cultural Society, Inc., is a non-profit corporation formed under the laws of the state of New Jersey. Its purpose is to promote Indian religious and cultural heritage in the United States and in the State of New Jersey. It sponsors the autumn Indian religious festival, known as Navratri, in Edison, New Jersey and has done so annually since 1990. The festival has attracted large crowds.

 In 1992, the festival was first held outdoors, on the grounds of the Raritan Center Expo Hall. 65,000 people attended over the course of nine evenings. Plaintiff staffed the event with over one-hundred security guards, as well as parking attendants and other health and safety personnel. The Public Entertainment Ordinance, Township of Edison Ordinance No. 670-92 (the "Ordinance"), was enacted shortly thereafter.

 In 1993, plaintiff was instructed that is was required to comply with the Ordinance in order to hold its Navratri event. In both 1993 and 1994, plaintiff made applications under the Ordinance, which were approved as submitted.

 The record reflects that in both 1993 and 1994, the Edison police received noise complaints from two neighborhoods located approximately 8,500 feet from the Navratri site: Clara Barton and the Heights of Edison. The record reflects that in 1994, none of the complaints were communicated to plaintiff. In 1993, investigation demonstrated that the noise of the festival could not be heard over the noise generated by traffic on the New Jersey Turnpike, which divides the Raritan complex from the residential area from which the complaint was received.

 This case was instituted in relation to plaintiff's application for Navratri '95. As in 1993 and 1994, in 1995 plaintiff complied with the requirements of the Public Entertainment Ordinance. The Ordinance establishes that any group sponsoring a public event at which (1) admission is charged, § 24A-2A, and (2) 1,000 or more people are expected to attend at one time, § 24A-1, must obtain a special permit from the Township Council. § 24A-2A. To obtain a permit, the applicant must submit a detailed application (including a sizable bond), § 24A-3A, as well as a $ 1,000 filing fee. § 24A-3B. The Ordinance provides that "the fee may be waived by resolution of the "Council" for bona fide nonprofit service organizations." § 24A-3B. No further criteria for waiver of the fee are provided.

 The Township Council is required to hold a public hearing on the application within 30 days of filing, and the applicant must provide at least ten days' notice of the hearing to all property owners within 200 feet of the site of the gathering. § 24A-3C. Section 24A-3C directs that "the Township Council may issue a permit upon such terms and conditions as it deems necessary and proper to ensure the public health, safety and welfare. If the Council rejects the application, it shall set forth in writing the reason for the rejection." No more detailed criteria for acceptance or rejection are stated, and no appeal procedure is established by the Ordinance.

 A public hearing was held on plaintiff's application on July 12, 1995, roughly three months after plaintiff submitted it. In response to the application, the Township of Edison Municipal Council passed Resolution 412-0795 (the "Resolution"). The Resolution placed a number of restrictions on the conduct of the festival. In particular,

 
(1) Sections F and G restricted the days and hours of operation of the festival to Fridays and Saturdays between the hours of 8 P.M. and 2 A.M.;
 
(2) Sections B through E required reimbursement for sound level monitoring, fire inspection, police protection, and first aid provided by Township officials; Section D placed discretion to determine the number of police officers required in the Township Chief of Police; Section H waived the $ 1,000 application fee but required that the fee be placed in an escrow account until all personnel fees were paid to the Township; and
 
(3) Section A provided that noise levels in the areas surrounding the festival could not exceed ambient noise levels measured by both parties in those areas thirty days before the festival began. In turn, Section I established a stepwise ...

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