Opinion
Case No. 2:02-CV-1205TC
December 16, 2003
ORDER
Plaintiffs are independent distributors and independent contract dealers for the Kirby Company. The Plaintiffs sell their product (vacuum cleaners) through door-to-door solicitation, They have brought this 42 U.S.C. § 1983 action against Pleasant Grove City and various City officials. (All Defendants will be collectively referred to as "the City" unless otherwise noted,) Plaintiffs claim that a City ordinance which imposes a number of licensing requirements on door-to-door solicitors violates the First Amendment.
The matter is now before the court on Plaintiffs' Motion for a Preliminary Injunction. For the reasons set forth below, the court grants Plaintiffs' Motion.
FINDINGS OF FACT
Chapter 5.48 of the Pleasant Grove City Code ("the Ordinance") requires that those wishing to engage in door-to-door solicitation first obtain a license. The relevant requirements, that is, those that Plaintiffs contend violate the First Amendment, are that solicitors be fingerprinted, that a $1,000 bond be given (a joint $1,000 bond may be posted for each set of five employees or agents), and that solicitors pay a fee.
The stated purpose of the Ordinance is "to protect the local citizenship against crime and to preserve the private property, peace, and comfort of the occupants of the private residents [sic] in the City," (Pleasant Grove City Ordinance 2000-28, enacting Chapter 5, 48, Ex, G to Pls.' Mem. in Supp. of Mot. for Prelim. Inj.) Plaintiffs challenge the Ordinance's requirement that solicitors pay a fee, obtain a bond, and be fingerprinted before obtaining a license.
The City, for several years, had been charging a fee amount that was not authorized by the Ordinance. A City employee had prepared an information sheet that purported to set forth the requirements for a solicitor's license, The fee amount on the information sheet was given as: "The Door to Door origination fee is $100.00. It is good from one day up to one week, After the week, the $100.00 payment will be required again if business is to be continued." (Ex. H to Pls.' Mem. in Supp. of Mot. for Prelim. Inj.) At the hearing, the testimony of Carol Emery, who is in charge of licensing for the City, was received by proffer. According to Ms. Emery's testimony, she created the information sheet (Ex. H) based on information she received from her predecessor. It was Ms. Emery's understanding that each solicitor must pay a fee of $100 either daily or weekly. That information was wrong, a fact that neither the City nor the Plaintiffs discovered until shortly before the hearing. The correct amount of the fee that a solicitor must pay is $100 annually.
Plaintiffs submitted the affidavit of Roger Mantz, a shareholder and co-owner of Plaintiff Pacific Frontier, Inc. In his affidavit, Mr. Mantz testified that "[a]s a result of these prohibitive costs per salesperson, my co-owner, Steve Mantz, and I decided against obtaining licenses in Pleasant Grove." (Aff, of Roger Mantz ¶ 30, submitted with Pls.' Mem. in Supp. of Mot. for Prelim. Inj.) Mr. Mantz also testified that "[fingerprinting places a stigma on the type of door to door work we do in selling Kirby vacuums, and makes it extremely difficult to hire and retain qualified individuals because they feel as though they are being treated like criminals," (Id. at ¶] 19.)
Captain Cody Cullimore, a police officer with the City, testified regarding complaints the police department had received that were associated with door-to-door solicitors. Captain Cullimore stated that in the ten-year period from 1992 to 2003, 160 complaints were made regarding door-to-door solicitors. (Transcript of Oct. 29, 2003 Hearing [hereinafter "Tr."] at 10.) Between December 11, 2002, and September 30, 2003, the police department received 54 complaints; 71 complaints were filed between April 2000 and July 2000, (Id. at 11.)
Captain Cullimore explained that he believed that fingerprinting door-to-door solicitors and conducting background investigations of them was necessary to law enforcement. According to Captain Cullimore,
The purpose and desirability of doing that [background investigations] is to hopefully prevent individuals who are of a character or a history that would lead them to possibly commit crimes in our neighborhoods that prevent them from going into those neighborhoods and discovering who is not in the homes and being able to perpetrate these crimes. As far as taking the fingerprints, that also allows us to potentially identify those individuals in the event that there is a crime, or to rule those individuals out in the event that there is a crime, It is another historical fact in our department that sometimes these individuals don't provide correct identification and we have had to track those people down with fingerprints,
(Id. at 14.)
On cross examination, Captain Cullimore admitted that, from the evidence submitted, it appeared that during a ten-month period in 1997, there had been approximately 2,000 calls made to the police department on issues "impacting business." Yet, during the eleven-year period from 2002 to 2003, there were only 160 complaints concerning door-to-door solicitors, (Id. at 15.)
The Captain testified that during that eleven-year period, although there had been several prosecutions involving door-to-door solicitors (including a prosecution for sexual assault), none of those prosecuted had gone through the City's licensing procedure. The Plaintiffs' attorney asked, "So Pleasant Grove's fingerprint requirement would have been of no use to you in that situation because they didn't register, correct?" ( Id. at 16.) Captain Cullimore answered, "Yeah. They did not register. If they had registered, possibly it would have prevented those things from happening, yes." (Id.) (emphasis added).
According to Captain Cullimore, he was "aware of some instances where criminal histories [obtained through background investigations] were found were then transmitted back and people were refused [licenses] because of that." (Id. at 17.) But Captain Cullimore knew of no instance where information found through the fingerprinting requirement was the basis of denying a license. (Id. at 18.)
Christine Petersen, the City Attorney, testified at the hearing. Ms. Petersen explained why she believed that the bond requirement imposed by the Ordinance was important:
Well, quite often door-to-door salespeople will collect money at the door for a product, and then we can't find them. They're gone. The people don't get the product. And in my mind that was a safeguard for the citizens to allow them to have some sort of recourse in case they were bilked out of money that they had paid over for certain products.
(Id. at 45.) Ms. Petersen admitted, when questioned by the court, that to her knowledge, during the five years she had been with the City, no one had ever been reimbursed through the use of the bond.
Similarly, Ms. Petersen expressed her opinion that the fingerprinting requirement was necessary as a crime deterrent. She further stated that, contrary to the testimony of Captain Cullimore, licenses had been refused to solicitors based on fingerprint evidence. But Ms. Petersen had no specific examples to support her belief (Id. at 47.) And because she was not involved in the prosecution of residential burglaries, Ms. Petersen had no evidence that the fingerprints obtained from solicitors had ever been used in those prosecutions. (Id.)
CONCLUSIONS OF LAW
To obtain a preliminary injunction, the Plaintiffs must show (1) that they have a substantial likelihood of prevailing on the merits; (2) that they will suffer irreparable injury if the injunction does not issue; (3) that the threatened injury to the Plaintiffs outweighs the injury the Defendants will suffer under the injunction; and (4) that the injunction is not adverse to the public interest. Utah Licensed Beverage Ass'n v. Leavitt 256 F.3d 1061, 1066 (10th Cir. 2001) (citations omitted). "Because `a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal'" Id. (quotingSCFC ILC. Inc. v. Visa USA. Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)).
A. Likelihood of Success on the Merits
The parties agree that the speech at issue is commercial speech, subject to an intermediate level of scrutiny. In Central Hudson Gas Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 566 (1980), the Supreme Court set forth the test to be used in analyzing restrictions placed on lawful and non-misleading commercial speech. The Tenth Circuit recently described the Central Hudson test: "Regulation of such commercial speech passes constitutional muster if (1) the government asserts a substantial interest to be achieved by the restrictions; (2) the restriction directly advances that government interest; and (3) the restriction is narrowly tailored to meet that interest." Federal Trade Common v. Mainstream Mktg. Serv., Inc., 345 F.3d 850, 853 (10th Cir. 2003) (citing Central Hudson). The Central Hudson factors "are not entirely discrete. All are important and, to a certain extent, interrelated." Greater New Orleans Broad. Ass'n, Inc. v. United States. 527 U.S. 173, 183 (1999).
The Plaintiffs acknowledge that the City has substantial interests in the regulation of door-to-door solicitation. But they argue that the Ordinance fails to meet the final two Central Hudson factors. The Tenth Circuit noted the relationship between these final two factors; "Together, the final two factors in the Central Hudson analysis require that there be a `fit between the legislature's ends and the challenged restriction.'" Mainstream Mktg., 345 F.3d at 853 (quoting United States v. Edge Broad. Co., 509 U.S. 418, 427-28 (1993)).
The City bears the burden of demonstrating that there is a reasonable fit between its substantial interests and the restrictions imposed by the Ordinance. Utah Licensed Beverage Ass'n, 256 F.3d at 1070. The City must demonstrate that the Ordinance does more than "provide ineffective or remote support for the government's purpose." Central Hudson, 447 U.S. at 564. Rather, the City must show that the Ordinance "directly and materially advances the asserted governmental interest." Greater New Orleans. 527 U.S. at 188. The court is mindful that "in response to a First Amendment challenge to a regulation, the government is not limited in the evidence it may use to support the asserted harms; it may demonstrate its justification with anecdotes, history, consensus, and simple common sense."Mainstream Mktg. 345 F.3d at 853-54 (citing Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995)), What the City cannot do, however, is fulfill its burden "by mere speculation or conjecture; rather a government body seeking to sustain a restriction on commercial speech must demonstrate the harms it recites are real and that its restriction will in fact alleviate them to a material degree."Edenfield v. Fane, 507 U.S. 761, 770 (1993) (citations omitted).
Does the Ordinance Directly Advance the City's Interests?
In essence, the City defines its interests in regulating door-to-door solicitors as ensuring the privacy and comfort of its citizens in their homes and protecting them from criminal behavior. But, as discussed above, it was clear from the testimony of both Captain Cullimore and Ms. Petersen at the hearing that the requirements put in place by the Ordinance have had little, if any, effect on the problems caused by door-to-door solicitors. No citizen has ever sought to be reimbursed through the bond process; the fingerprint procedure has never been used to deny a license or solve a crime.
Although common sense dictates that the City's interests are such that it does have a right to regulate, to some degree, door-to-door solicitors (a fact Plaintiffs do not dispute), the City has failed to meet its burden of demonstrating that the Ordinance directly advances its interests,
Is the Ordinance More Restrictive than Necessary?
It is the City's burden to show that the restrictions imposed by the Ordinance "are no more extensive than necessary." Utah Licensed Beverage Ass'n. 256 F.3d at 1074, While it is true that "[a] regulation need not be `absolutely the least severe that will achieve the desired end' [citation omitted], . . . if there are numerous and obvious less-burdensome alternatives to the restriction on commercial speech, that is certainly a relevant consideration in determining whether the Tit' between ends and means is reasonable." City of Cincinnati v. Discovery Network, 507 U.S. 410, 417 n. 13 (1993).
Similarly, there appears to be no reasonable fit between the bond requirement and the fingerprint process, on the one hand, and the City's interests, on the other hand. The City produced no evidence that could be seen as justification for these burdensome procedures. In contrast, the Plaintiffs' evidence established that the Ordinance's requirements resulted in their inability to exercise their First Amendment rights.
The $100 fee licensing requirement is no longer at issue here. As noted in the Findings of Fact above, the City's problematical interpretation and application of the fee requirement has since been replaced with the requirement that the solicitor pay a $100 fee annually.
For the above reasons, the court concludes that the Ordinance does not meet the final two Central Hudson requirements, and Plaintiffs have established a substantial likelihood of succeeding on the merits of their lawsuit.
B. Irreparable Harm to Plaintiffs
Because Plaintiffs have established that the Ordinance deprives them of their First Amendment rights, they are entitled to a presumption of irreparable injury. Utah Licensed Beverage Ass'n, 256 F.3d at 1076.
C. Harm to the City
Plaintiffs do not dispute that the City has a right to regulate door-to-door solicitation so long as its regulations respect the First Amendment rights of the solicitors. And because, as discussed above, the City has not shown that burdensome restrictions imposed by the Ordinance directly advance the City's interests, there is no reason to believe that the City will be injured if it is enjoined from enforcing the Ordinance.
D. Public Interest
Because the challenged Ordinance unconstitutionally limits free speech, enjoining its enforcement is not adverse to the public interest.Id.
For the above reasons, the Plaintiffs' Motion for a Preliminary Injunction is GRANTED, and the City is enjoined from enforcing the bond and fingerprint requirements of the Ordinance.
At the hearing, the parties agreed that if the court were to find certain provisions of the Ordinance unconstitutional, these could be severed. (Tr. at 75.)