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NEW JERSEY ENVIRONMENTAL FEDERATION v. WAYNE TOWNSHIP

March 16, 2004.

NEW JERSEY ENVIRONMENTAL FEDERATION, a not-for-profit corporation, Plaintiff
v.
WAYNE TOWNSHIP, a Municipal corporation, Defendant



The opinion of the court was delivered by: WILLIAM BASSLER, District Judge

OPINION

Plaintiff New Jersey Environmental Federation ("NJEF" or "Plaintiff") moves for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant Wayne Township ("Wayne" or "Defendant") opposes the motion. Plaintiff also Page 2 moves to amend the Complaint, pursuant to Fed.R.Civ.P. 15(d), to include in any calculation of damages the period of time since the date Plaintiff filed the Complaint.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b).

  For the reasons discussed below, Plaintiff's motion to amend the Complaint is GRANTED, and Plaintiff's motion for partial summary judgment is likewise GRANTED.

  BACKGROUND

  This case involves the constitutionality of a Wayne ordinance requiring door-to-door canvassers who solicit for donations or sales to obtain a permit from the Chief of Police of Wayne that restricts those groups from canvassing during evening hours.

  NJEF is the New Jersey chapter of Clean Water Action, a not-for-profit, grassroots organization engaged in environmental advocacy. NJEF disseminates information on issues of public interest by door-to-door canvassing throughout New Jersey. Canvassing provides NJEF the opportunity to both encourage political action in support of the causes for which it advocates, as well as raise funds for NJEF activities. The work of NJEF's canvass is self-supported, in that the donations solicited during the canvass are the principal source of funding used by NJEF to support any educational or advocacy efforts conducted during the Page 3 course of the canvass. (Goldsmith Cert. ¶ 4.)

  NJEF usually conducts its canvassing activities between 4:00 p.m. and 9:00 p.m., Monday through Friday, throughout the year. (Id. 1 5.) Through years of canvassing in hundreds of municipalities all over New Jersey, Plaintiff has found that these hours represent the times that residents are most likely to be at home. Furthermore, Plaintiff claims it is necessary to canvass until 9:00 p.m. every night in order to sustain the costs of the canvass. (Id. ¶ 7.)

  Defendant Wayne is a municipal corporation located in Passaic County, New Jersey. In Spring 2001, Plaintiff contacted Defendant and expressed interest in canvassing in Wayne. Plaintiff was then alerted to the existence of an ordinance that required organizations wishing to conduct door-to-door canvassing or solicitation in Wayne to obtain a permit prior to conducting these activities. (Pl. Br. in Support, Ex. B., Code of Township of Wayne, Ordinance No. 66, Chpt. 60) (hereinafter "the Ordinance").

  Plaintiff objects to the general classification scheme included in the Ordinance, which outlines those groups that are required to obtain a permit to conduct canvassing activities in Wayne and those groups exempt from this requirement. In the "Statement of Purpose" section, the Ordinance establishes four classes of potential canvassers that are exempt from the permit Page 4 requirement. For the purposes of this action, the most notable exemption is that those persons engaged in "political campaigning" are not required to obtain a permit from Wayne before commencing door-to-door canvassing. (Id. § 60-1(B)(4).)

  Section 60-2 of the Ordinance requires that individuals and groups conducting "Commercial Soliciting and [] Canvassing" must obtain a permit for those activities.

 
No person shall canvass, solicit in any public or quasi-public place or call from house to house in the township or sell goods by sample or take orders for future delivery, or sells [sic] services or takes [sic] orders for the performance of services, whether or not he receives advance payments for goods, unless he first receives a written permit from the Chief of Police as provided herein.
(Id. § 60-2.)

  The two sections of the Ordinance that follow § 60-2 outline the procedure for permit application (§ 60-3) and the requirements for issuance and exhibition of the permit (§ 60-4). Section 60-3 contains a limitation on the duration of the canvass. In Spring 2001, when Plaintiff first contacted Wayne, the Ordinance stated that the "[l]ength of time for which the permit is required shall not be more than two times a year, not to exceed seven days each time." (Id. § 60-3(A)(5) *fn1 Therefore, the Ordinance limited the duration of door-to-door commercial solicitations by any permit holder to a total of two-weeks Page 5 during a calendar year.*fn2

  Section 60-5 of the Ordinance outlines the permit requirements for those groups engaged in "Non-Profit Soliciting." (Id. § 60-5.) Section 60-5(A) states:
The provisions of this section shall apply to any individual, organization, society or association desiring to canvass, solicit or have solicited in his name money, donations of money or financial assistance of any kind or merchandise for which a fee is charged or solicited at any place or places within the Township of Wayne for a charitable, religious, civic, philanthropic or political purpose. Such individuals or entities shall provide a sworn application in writing with the Township Clerk and approved by the Township Council and Chief of Police. . . .
(Id.) Unlike the permit requirements outlined in Sections 60-2 through 60-4 of the Ordinance, which deal with commercial solicitations, § 60-5 addresses the permit requirements for those non-profit and charitable groups who canvass or solicit for donations.

  The application procedures and standards for issuing a Page 6 permit to non-profit groups, as outlined in § 60-5, are similar, but not identical, to the requirements for commercial soliciting in §§ 60-3 and 60-4. Upon applying for a permit pursuant to § 60-5, applicants must provide the Chief of Police with: (a) the purpose of the organization or cause for which the permit is sought; (b) the names and addresses of the officers and directors of the organization applying for the permit; (c) the period during which the solicitation will take place; and (d) the name and address of each individual who will conduct solicitation on the organization's behalf. (Id. § 60-5(A).) Unlike § 60-3, there is no requirement for non-profit organizations to apply for the permit two weeks prior to the date of solicitation.

  Furthermore, pursuant to § 60-5, a permit will be issued only if the Chief of Police is "satisfied that such person, organization, society or association is a bona fide religious, charitable, civic, philanthropic or political organization and free from fraud, and that the agents or representatives who shall conduct the solicitations are of good moral character. . . ." (Id. § 60-5(B).) Like the restrictions on commercial canvassing, § 60-5(B) limited the length of the permit issued to non-profit organizations to "no more than two times a year, not to exceed seven days each time" for a total of two weeks in a calendar year. (Id.)

  Finally, § 60-5(C) requires non-profit permit holders to Page 7 prominently display the permit while conducting door-to-door solicitations and to advise the Police Department daily of the locations that the permit holder plans to canvass that particular day.

  In addition, at the time Plaintiff contacted Wayne in Spring 2001, the Ordinance contained a provision permitting all permit holders to canvass only between the hours of 10:00 a.m. and dusk. (Id. § 60-7(B)) ("No persons subject to the provisions of this chapter shall canvass, solicit or peddle, except during the hours between 10:00 a.m. and dusk, Monday through Sunday, unless by express invitation of the resident.").*fn3

  Plaintiff did not apply for a permit to canvass in Spring 2001 and did not conduct any canvassing activities in Wayne. Instead, on April 2, 2001, NJEF filed a Complaint in this Court alleging that Wayne's canvassing Ordinance contained "provisions that substantially burden and interfere with the right of Plaintiff and others to canvass door-to-door." (Compl. ¶ 6.) Highlighting the dusk curfew and the two-week limitation on canvassing, Plaintiff alleged that Wayne's "arbitrary, burdensome, and selective restrictions on door-to-door canvassing by advocacy organizations violate the First and Fourteenth Amendments of the United States Constitution and 42 [U.S.C. §] Page 8 1983." (Id. ¶ 11.)

  On December 5, 2001, the Wayne Township Council adopted an amendment to the Ordinance, which, in part, amended § 60-7(B). (Hoeland Cert. ¶ 3, Ex. A) (the "Amendment"). Section 60-7(B) was amended to read: "No persons subject to the provisions of this article shall canvass, solicit or peddle, except during the hours between 10:00 a.m. and one-half hour after sunset, Monday through Sunday, unless by express invitation of the resident." (Id.) Therefore, where the Ordinance formerly required all permit holders to cease door-to-door activities at "dusk," the amended Ordinance requires permit holders to stop canvassing at a more specific hour, namely one-half hour after sunset.

  In addition, the Amendment altered the requirements of § 60-3(A)(5), which had previously limited the length of time a commercial canvasser could solicit or canvass to two times per year, not to exceed seven days each time.*fn4 The newly adopted § 60-3(A)(5) reads: "The required permit pursuant to this article shall be valid for a period of 60 days and may be renewed for additional 60 day periods." (Id.) Therefore, it is clear that those permit holders who obtain permits for commercial canvassing may now conduct door-to-door solicitations for a 60 day period, Page 9 and may renew the permit for another 60 days an indefinite number of times.

  However, it is unclear on the face of the Amendment whether the Amendment altered the provisions of § 60-5(B) as well. Again, § 60-5(B), which applies to non-profit canvassers, outlined a similar two-week limitation to the duration of canvassing for permit holders conducting canvassing on behalf of a non-profit or charitable organizations asking for donations. Both parties proceed under the assumption that the Amendment altered the validity for all permits obtained under the Ordinance to a duration of 60 days, renewable for additional 60 day periods. (See generally Pl. Reply Br., at 6; Def. Br. in Opp., at 1, 3.) The Court is inclined to agree with the parties' interpretation of the Amendment, given that the language in the Amendment states: "The required permit pursuant to this article shall be valid for a period of 60 days. . . ." (Hoeland Cert. ¶ 3, Ex. A.) Therefore, although the Amendment only notes a change in the duration of permits procured pursuant to § 60-3(A)(5), this Court agrees with the parties' interpretation that the Amendment in fact altered the requirements for all permits obtained pursuant to the Ordinance.

  Beyond the Ordinance requiring certain canvassers to obtain a permit from Defendant, there is another ordinance that has some bearing on this case. (Code of Township of Wayne, Ordinance No. Page 10 37, Chpt. 60, § 60-8.2) (hereinafter "Non-Solicitation List Ordinance"). The Non-Solicitation List Ordinance provides that, after supplying their address to the Township Clerk, Wayne residents may notify the Clerk that canvassing and solicitations are not permitted on their premises. The Clerk then submits the non-solicitation list to the Chief of Police, who distributes the list to those individuals or groups applying for a canvassing permit pursuant to the Ordinance. The permit holder is prohibited from canvassing or soliciting at any address on the non-solicitation list.*fn5

  The parties conducted discovery in this case. Plaintiff thereafter moved for partial summary judgment and, subsequently, to amend the Complaint. The Court considers both motions in turn below.

  DISCUSSION

 I. Plaintiff's Motion to Amend the Complaint

  On January 24, 2004, Plaintiff moved to amend the Complaint, pursuant to Fed.R.Civ.P. 15(d), to include alleged violations from the time the original Complaint was filed through the calendar year 2003. Defendant sent a letter to the Court dated February 26, 2004, in which Defendant indicated it had no Page 11 objection to Plaintiff's motion to amend.*fn6

  Given that such an amendment alters neither the substance of this action nor the legal issues before the Court, Plaintiff's motion to amend the Complaint is hereby GRANTED. Accordingly, this Court will consider any alleged violations from the date NJEF filed its initial Complaint through the end of calendar year ...


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