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LCN ENTERPRISES, INC. v. CITY OF ASBURY PARK

March 14, 2002

LCN ENTERPRISES, INC., D/B/A FAST LANE BIKER, PAMELA MAZALATIS, MARK RUZICKA AND WALLAVE DYKEMAN, PLAINTIFFS,
V.
CITY OF ASBURY PARK, MAYOR KENNETH (BUTCH) SAUNDERS, CHARLES ROUSE, AND POLICE CAPTAIN THOMAS MCDONALD, DEFENDANTS. CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, V. LCN ENTERPRISES, INC., D/B/A FAST LANE BIKER, DEFENDANT.



The opinion of the court was delivered by: Mary L. Cooper, United States District Judge.

MEMORANDUM OPINION

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff LCN Enterprises Inc. is a publisher of magazines engaged in business in Monmouth County, New Jersey, where the City of Asbury Park is located. LCN does business under the name "Fast Lane Biker," and publishes a magazine of the same name. In September, 2001, LCN entered into an agreement permitting LCN to rent Convention Hall in Asbury Park to conduct the event on March 16-17, 2002 ("rental agreement"). As of February 14, 2002, the City accepted a $2,800 payment from LCN pursuant to the rental agreement.*fn1
The upcoming event has been widely advertised by both the City and LCN. Eight Harley-Davidson dealerships have become sponsors, and LCN has accepted fees from vendors and others who have paid to participate in various portions of the event. LCN has also obtained a $2 million insurance policy naming the City as additional insured, as required under the rental agreement. The hours of operation are scheduled for 11:00 a.m. to 6:00 p.m. on both Saturday, March 16 and Sunday, March 17.
On or about March 1, 2002, LCN was notified by the City that it was seeking to cancel the event and rescind the rental agreement, based upon information received by the City and other law enforcement officials that there was a likelihood of violence among rival motorcycle clubs, specifically the Pagans, the Hells Angels, and the Breed. LCN did not agree to rescind, and at the City Council meeting on March 6, 2002, the City directed its attorney to seek judicial approval to cancel the event.
The City filed a verified complaint in the Superior Court of New Jersey, Chancery Division, seeking a preliminary injunction preventing LCN from conducting the event. That complaint was filed and served upon LCN on March 8, 2002, and LCN removed it to this Court on March 11, 2002. (Notice of Removal in Civ. No. 02-1049.) On that same date, LCN and others ("the LCN parties") filed in this Court an original action against the City and certain of its officials, (collectively referred to as the "City") seeking various relief including an injunction prohibiting the City from cancelling the event. (Complaint, Civ. No. 02-1048.) We commenced hearing oral argument on the injunctive issues on March 12, and conducted an evidentiary hearing on an expedited basis on March 13. Consolidation of the two cases was ordered on March 12 by consent of the parties.

PRELIMINARY FINDINGS OF FACT AND CONCLUSIONS OF LAW

This Court has original jurisdiction of the claims asserted by the LCN parties under the First and Fourteenth Amendments to the Constitution of the United States pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331 and 1343(a)(3). For purposes of this injunctive stage of the proceedings, we will also assume that the Court has supplemental jurisdiction over the related state law claims of any party pursuant to 28 U.S.C. § 1367(a).
Injunctive relief is an "extraordinary remedy, which should be granted only in limited circumstances." Frank's GMC Truck Ctr., Inc. v. General Motors Corp, 847 F.2d 100, 102 (3d Cir. 1988) (citing United States v. City of Philadelphia, 644 F.2d 187, 191 n. 1 (3d Cir. 1980)). Under well-established law governing the granting of preliminary injunctive relief, the Court must consider whether: (1) the party seeking a preliminary injunction has shown a reasonable probability of success on the merits; (2) the party will be irreparably injured by the denial of the relief; (3) granting preliminary relief will result in even greater harm to the nonmoving party; and (4) granting the preliminary relief will be in the public interest. See, e.g., ACLU v. Reno, 217 F.3d 162, 172 (3d Cir. 2000); ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir. 1996) (en banc) (citations and quotation omitted). When relevant, a Court must also consider possible harm to interested third parties. See, e.g., Oburn v. Shapp, 521 F.2d 142, 152 (3d Cir. 1975). "The injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief." AT & T Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994).
I. Reasonable Probability of Success on the Merits
Under the standard for preliminary injunctive relief, the party seeking a preliminary injunction must demonstrate a "reasonable probability of eventual success in the litigation." Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982). In evaluating whether a moving party has satisfied this first part of the preliminary injunction standard, it must be remembered that "[i]t is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits." Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975).
The procedural posture of these consolidated cases is such that the parties on both sides of this controversy are moving for preliminary injunctive relief: the City filed first, seeking judicial authorization to rescind the rental agreement and cancel the event; and the LCN parties filed next, seeking to enjoin the City from cancelling. Technically, then, each moving party may have the burden to establish its right to the injunction it seeks. However, as the Court views the present injunctive dispute, the paramount issues concern whether the LCN parties will suffer the deprivation of their First Amendment free speech rights or their Fourteenth Amendment due process rights, as pleaded in Count One of their Complaint, if the City proceeds with its plan to cancel the event. Therefore, we will focus primarily upon the constitutional issues thus raised by the LCN parties and will regard them as the moving party for purposes of this discussion.

Description of the Facility and the Planned Event

Convention Hall ("the Hall") is a large oceanfront structure with limited street access. There are approximately five establishments holding liquor licenses within walking distance, and the rest of the area consists of two municipal parks, some light commercial uses along the adjacent Ocean Avenue, and the rest residential. (McDon.) The Hall has a large ground floor, with an adjoining theater area that is not part of the rental agreement. The Hall also has a large second floor in the form of a spectators balcony, which is accessible by several stairways but is closed to visitors due to inoperable elevators. There is a main entrance in the front of the Hall, and there are numerous fire exit doors on all sides of the building. (P-2 to -9; D-2 and -3.)
The fire code capacity of the Hall is 3,590 people. The City has long been a place for motorcycle enthusiasts to attend outdoor events in large numbers, and none of those have erupted in violence. (Clark, McD., Maz.) There have been other organized events in the City, both in and out of the Hall, and those have been free of violence as well. But the City has endured violence in some crowd settings, particularly during an annual influx of visitors called Greekfest. The City officials, including fire and police, therefore have considerable experience dealing with security issues involving large gatherings. (McD.)
Plaintiff Pamela Mazalatis is an Asbury Park resident who is the president and sole shareholder of LCN, which has published a free advertising magazine named Fast Lane Biker for one year. The magazine distributes 10,000 copies monthly, ten months a year, throughout central New Jersey. The publisher of the magazine is listed as "Frank Dracman." Ms. Mazalatis explains that is a pen name for plaintiff Mark Ruzicka. Mr. Ruzicka owns an exotic dancing establishment in Long Branch, and works with Ms. Mazalatis in the preparation and promotion of the magazine. (Clark, Maz.) Mr. Ruzicka is a member of the Breed Motorcycle Club. (Maz.) The upcoming event, named "Fast Lane Biker All American Cycle Jam," is organized by LCN and promoted by the magazine. (D-4.) It is LCN's first event.
An event such as this is commonly referred to as a cycle show or "swap meet." (Clark.) Planned features of this event include exhibition of motorcycles with judging of best in each class; vendor sales of new cycle parts, clothing and accessories, and displays of services such as custom painting; band music and refreshments; and a "Miss Cycle Jam Bikini Contest." (D-4, center pg.; Maz.) No advance ticket sales have been offered, so there is no count of expected participants. However, based on conversations with an organizer of other such events, Ms. Mazalatis hopes that at least 1,000 guests will attend each day, in addition to the vendors, competitors, sponsors, bands, etc. She states that LCN has advertised the event widely in print, radio and web media so as to attract a large turnout.
LCN has accepted registration fees of $100 each from 51 vendors; $25 each from 40 cycle show entrants; and sponsorship fees of $250 each from eight Harley-Davidson dealerships in New Jersey. Those renting a booth for the event include a New Jersey attorney, Jerry Friedman, Esq. His certification states that his practice includes representing motorcycle riding clubs and that at his booth he plans to distribute materials and talk to patrons on legislative and policy issues of interest to motorcycle riding groups and enthusiasts. Mr. Friedman certifies ...

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