The opinion of the court was delivered by: LECHNER
This case concerns the validity, under the First Amendment to the United States Constitution, of a city ordinance which requires a permit for any event at which fifty or more people are expected to attend, and at which admission is charged or a contribution is solicited. The New Jersey Freedom Organization and the New Brunswick Coalition Against Police Brutality (collectively, the "Plaintiffs") bring this action against the City of New Brunswick ("New Brunswick"), James Cahill individually and as Mayor of the City of New Brunswick (the "Mayor"), the City Council of New Brunswick (the "City Council"), and Michael Beltranena individually and as the Chief of Police of the City of New Brunswick ("Beltranena") (collectively, the "Defendants").
This action was commenced on 5 February 1997 with the filing of a three-count complaint (the "Complaint"). The first count ("Count One") and second count ("Count Two") alleged violations of the First and Fourteenth Amendments to the United States Constitution (the "Constitution"). The third count ("Count Three") alleged violations of the New Jersey Constitution (the "New Jersey Constitution"). Plaintiffs filed a motion for summary judgment (the "Plaintiffs' Motion for Summary Judgment"), and Defendants filed a cross-motion for summary judgment (the "Defendants' Motion for Summary Judgment").
For the reasons set forth below, the Plaintiffs' Motion for Summary Judgment is granted and the Defendants' Motion for Summary Judgment is denied.
On 2 October 1996, the City Council adopted Ordinance No. 0-0996-4 (the "Party Permit Ordinance"). See Plaintiffs' Brief at 2. On 7 October 1996, the Party Permit Ordinance was signed by the Mayor of New Brunswick. See Defendants' Brief at 1. On 22 October 1996, the Party Permit Ordinance became effective. See id.
1. The Party Permit Ordinance
The purpose and intent of the Party Permit Ordinance are described in Section II:
1. The noise, congregations, etc. frequently associated with parties, festivals or other similar events whereby large gatherings of people assemble often lead to fighting, boisterous behavior, and other disturbances which otherwise adversely affect the quality of life in [New Brunswick] neighborhoods and
2. The establishment of a party permit system imposed on the organizers of such large gatherings under certain circumstances may provide a mechanism by which the above described problems may be abated and would generally promote the public health, safety, and welfare of the residents of [New Brunswick].
Party Permit Ordinance, § II, attached to Fogel Decl., Exhibit A.
Section III specifies which organizations are affected by the Party Permit Ordinance:
No person, corporation, partnership or other similar entity engaged planning [sic], sponsoring or otherwise organizing a party, a festival, or other similar event ... involving an anticipated gathering of fifty (50) or more persons for which an admission charge is collected or during which event a contribution is collected or solicited for any purpose, shall hold any event without first applying for a ... "party permit" and obtaining the party permit from the City Clerk.
Party Permit Ordinance, § III(a).
In order to obtain a permit, the applicant must file a party permit application (the "Party Permit Application") at least seven business days prior to the event, see Party Permit Ordinance § III(b), and provide the following information:
(1) The date, time and duration of the planned event;
(2) The name, address and telephone number of the applicant and/or person or entity responsible for planning, sponsoring, or otherwise organizing the event;
(3) The specific location of the anticipated event;
(4) The name and address of the owner of the premises and the telephone number at which such owner can be contacted and the written consent of the owner if other than the applicant; and
(5) The maximum number of persons anticipated to attend such event.
Within forty-eight hours of receipt of the Party Permit Application, the Party Permit Ordinance directs the City Clerk to "notify the Police Department for the purposes of verifying the information contained in the [Party Permit] Application and the Division of Inspections for the purposes of verifying that the proposed event is a permitted use under the Zoning Ordinance and that any structure where the event is to be held is adequate under existing codes for the intended use." Party Permit Ordinance, § III(c).
The Police Department and the Division of Inspections are required to "notify the City Clerk in writing within three (3) days of ... approval or disapproval of [the Party Permit Application]." See Party Permit Ordinance, § III(d). If either the Police Department or the Division of Inspections disapproves the Party Permit Application, it must furnish the disapproval in writing to the City Clerk. See id. The Clerk must then notify the applicant that the Party Permit Application has been denied and the basis for the denial. See id., § III(f). Such disapproval is final under the Party Permit Ordinance. See Plaintiffs' Brief at 3.
If a Party Permit Application is approved by the Police Department and the Division of Inspections, the City Clerk issues a party permit, setting forth the date, beginning and ending time of the event, the premises on which the event is to be conducted, the maximum number of persons allowed, and the name of the applicant. See Party Permit Ordinance, § III(e). Upon issuance, New Brunswick must furnish a copy of the permit to the New Brunswick Police Department. See id., § III(e).
An applicant must pay twenty dollars to process the Party permit Application with the exception that "no fee [is] required from a bona fide non-profit organization having its principal place of business in [New Brunswick]." Party Permit Ordinance, § III(g).
The person or entity to whom a party permit is issued, and the owner or tenant of the premises on which such event is conducted are "jointly and severally responsible for the maintenance of good order and decorum on the premises during all hours that such event takes place." Party Permit Ordinance, § III(h). In addition, the Party Permit Ordinance provides "such responsible entity shall not permit any overly loud or boisterous conduct on such premises nor permit vehicles on streets in the area of such premises. All such persons shall obey the reasonable orders of any member of the police or fire departments of [New Brunswick] in order to maintain the public health, safety, and welfare." Id., § III(h).
The Party Permit Ordinance further provides that any person or entity violating any of its terms and regulations shall be fined not less than one hundred and fifty dollars, and not more than one thousand dollars, or be imprisoned for a period not to exceed ten days. See Party Permit Ordinance, § III(i).
The Police Department is apparently permitted to set "special conditions" when a permit is accepted, although no provision for such conditions appears in the Party Permit Ordinance. See Plaintiffs' Brief at 5 (citing Party Permit No. 14 ("Party Permit 14"), issued 13 March 1997, attached to Fogel Decl. at Exhibit B). Below the City Clerk's signature, Party Permit No. 14 reads: "Special Conditions: Per Director Michael Beltranena, New Brunswick Police Department 2 [two] extra duty police officers - 2030 - 0300 hours - to be paid for in advance of event." See Party Permit No. 14.
4. Plaintiffs' Scheduled Events
Plaintiffs are two non-profit organizations which argue their efforts to raise money and solicit contributions are directly affected by the Party Permit Ordinance. See Plaintiffs' Brief at 1. Plaintiffs planned a rally for 16 April 1997 at Rutgers University, where more than fifty people were expected to attend and where they expected to solicit contributions (the "16 April 1997 Event"). See id. at 5. By letter, dated 19 March 1997 (the "19 March 1997 Letter"), Plaintiffs' counsel advised Defendants' counsel of the planned event and that Plaintiffs' would be seeking a preliminary injunction against the Party Permit Ordinance in order to hold the 16 April 1997 Event without applying for a permit. See id. ; 19 March 1997 Letter, attached to Fogel Decl. at Exhibit C.
On 2 April 1997, the City Council approved a set of written "Guidelines" for the administration of the Party Permit Ordinance (the "Guidelines"). See Guidelines, attached to Fogel Decl. at Exhibit D. The Guidelines state the purpose of the Party Permit Ordinance "is to provide advance notice of otherwise unexpected events by large groups of people. It is not to raise money, restrict people's activities or 'spy' on people who associate together." See id. The Guidelines state that the Party Permit Ordinance does not apply to: (1) groups of less than fifty; (2) events for which no charge is made or contribution solicited; (3) regularly scheduled activities by an entity conducting a licensed business at a single location owned or leased by the entity, such as restaurants and bars; (4) special events by an entity in support of its regular business or activity at a single location owned or leased by the entity, such as a school play or sports event; (5) purely religious or educational events even though admission fee collection or other charge is made, such as church services; or (6) events to be conducted on premises owned and operated by Rutgers University. See id.
As a result of the implementation of the Guidelines, a permit was not required for the 16 April 1997 Event. Plaintiffs, therefore, did not seek a party permit, nor did they seek a preliminary injunction. See Plaintiffs' Brief at 5.
A. Summary Judgment Standard
Plaintiffs and Defendants agree summary judgment is appropriate to resolve the present dispute. To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1250 (3d Cir. 1992). The present task is to determine whether genuine issues of material fact exist and whether Defendants are entitled to judgment as a matter of law. A district court may not resolve factual disputes in a motion for summary judgment. Linan-Faye Constr. Co. v. Housing Auth., 49 F.3d 915, 926-27 (3d Cir. 1995)("at the summary judgment stage, 'the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial'")(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Desvi, Inc. v. Continental Ins. Co., 27 V.I. 408, 968 F.2d 307, 308 (3d Cir. 1992) ("threshold inquiry is whether there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party'")(citations omitted).
In considering a motion for summary judgment, all evidence submitted must be viewed in a light most favorable to the party opposing the motion. Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir. 1996); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Williams v. New Castle County, 970 F.2d 1260, 1265 (1992); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 & n.2 (3d Cir. 1983)(the court must resolve "all inferences, doubts and issues of credibility ... against the moving party"), cert. dismissed, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984).
However, "the mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252; Matsushita, 475 U.S. at 586 (nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts"); Gomez v. Allegheny Health Serv., Inc., 71 F.3d 1079, 1085 (3d Cir. 1995), cert. denied, 518 U.S. 1005, 116 S. Ct. 2524, 135 L. Ed. 2d 1049 (1996); accord Siegel Transfer, Inc. v. Carrier Express, Inc. et al., 54 F.3d 1125, 1130-31 (3d Cir. 1995); Nevets C.M., Inc. v. Nissho Iwai Am. Corp., 726 F. Supp. 525, 534 (D.N.J. 1989), aff'd without op'n, 899 F.2d 1218 (3d Cir. 1990).
"The nonmoving party creates a genuine issue of material fact if [he or she] provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer v. Quaker State Oil Refining Co., 72 F.3d 326, 330 (3d Cir. 1995) (citations omitted). If the nonmovant fails to make a sufficient showing regarding an essential element of his or her case upon which he or she will bear the ultimate burden of proof at trial, all other facts are necessarily immaterial and summary judgment must be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 91 L. Ed. 2d 265, 106 S. Ct. 2548; Brewer, 72 F.3d at 330; Siegel, 54 F.3d at 1130-31; see also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993) ("summary judgment is appropriate where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant").
B. Time, Place or Manner Restrictions
It is not disputed Plaintiffs' activities are constitutionally protected. Solicitation of charitable contributions and dissemination of literature are forms of speech protected by the First Amendment. See, e.g., International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 677, 120 L. Ed. 2d 541, 112 S. Ct. 2701 (1992); Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 789, 101 L. Ed. 2d 669, 108 S. Ct. 2667 (1988) ("solicitation of charitable contributions is protected speech"); Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985) ("charitable solicitation has been recognized by this Court as a form of protected speech"); Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981) ("the oral and written dissemination of the Krishna's religious views and doctrines is protected by the First Amendment"); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980) (charitable solicitations "involve a variety of speech interests ... that are within the protection of the First Amendment"); United States v. Bjerke, 796 F.2d 643, 646-47 (3d Cir. 1986).
Local and state governments often seek to impose time, place or manner restrictions on speech by the use of licensing schemes, but an administrator's "net of control must not be cast too broadly." Niemotko v. Maryland, 340 U.S. 268, 282, 95 L. Ed. 267, 71 S. Ct. 325 (1951) (concurring); see also Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 559, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975) (there are only a few "narrowly defined exceptions to the prohibition against prior restraints").
"Generally, speakers need not obtain a license to speak. However, that rule is not absolute. For example, States may impose valid time, place or manner restrictions." Riley v. Nat'l Fed'n of Blind of N.C., 487 U.S. at 802 (citing Cox v. New Hampshire, 312 U.S. 569, 85 L. Ed. 1049, 61 S. Ct. 762 (1941); see R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 386, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992); Tacynec v. City of Philadelphia, 687 F.2d 793, 797 (1982), cert. denied, 459 U.S. 1172, 74 L. Ed. 2d 1016, 103 S. Ct. 819 (1983). Even when a government may impose valid time, place or manner restrictions, these restrictions must (1) be "justified without reference to the content of the regulated speech," (2) be "narrowly tailored to serve a significant governmental interest," and (3) "leave open ample alternative channels for communication of the information."
Ward v. Rock Against Racism, 491 U.S. 781 at 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 105 L. Ed. 2d 661, 109 S. Ct. 2746); see United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 ...