Opinion
No. 11790/2012.
2012-10-11
In the Matter of the Application of TOWN OF HEMPSTEAD DEMOCRATIC COMMITTEE, Petitioner, v. NASSAU COUNTY POLICE DEPARTMENT and Town of Hempstead, Respondents.
Goldberg & Carlton, Esqs., Attorneys for Petitioner. Joseph J. Ra, Esq., Attorney for Respondent Town.
Goldberg & Carlton, Esqs., Attorneys for Petitioner. Joseph J. Ra, Esq., Attorney for Respondent Town.
John Ciampoli, Esq., Attorney for Respondent County.
JOEL K. ASARCH, J.
The Petitioner, TOWN OF HEMPSTEAD DEMOCRATIC COMMITTEE, seeks an Order of this Court directing the Respondent(s) to issue a parade permit in connection with the Presidential debate scheduled for October 16, 2012 at Hofstra University. The Respondents oppose such relief.
On the evening of October 16, 2012, Nassau County will become the center of the nation's political world when Hofstra University, for the second time in four years, hosts a Presidential debate. Both major candidates will attend such debate, scheduled for 8:45 p.m. The Petitioner seeks a parade permit so that its members may be allowed a specific location to show their support for the President. The Petitioner seeks a parade permit “on Hempstead Turnpike at or near the entrance to Hofstra University from 5:00 P.M. until 8:00 P.M.”
A request for such a permit was made to the Respondent NASSAU COUNTY POLICE DEPARTMENT by letter dated August 22, 2012. Petitioner was thereafter notified that the proper party from which to request such parade permit was THE TOWN OF HEMPSTEAD CLERK. Petitioner thereafter contacted the Town Clerk's Office and was told that it “was suggested” by Respondent NASSAU COUNTY POLICE DEPARTMENT that no permits be issued for the Presidential debate. Petitioner then filed a Freedom of Information Request for a copy of the NASSAU COUNTY POLICE DEPARTMENT letter “suggesting” that the Town Clerk deny all requests for parade permits in connection with the debate (Exhibit “A” to TOWN's Answer). This FOIL request was denied on September 10, 2012 and this Article 78 proceeding ensued. On the return date, the Court heard from all counsel.
In seeking mandamus relief, the Petitioner argues that the denial of the parade permit was arbitrary and capricious, with applicants for a parade permit being “made to run a circular gauntlet ... without reason, thus violating its right to assembly and free speech” (Petition ¶ 11). The Respondent THE TOWN OF HEMPSTEAD (“TOWN”) denies central allegations in the Petition and raises as a defense that no application for a parade permit was filed, as required under Chapter 117 of the Town Code, and that a necessary party (the Town Clerk) has not been joined. The Respondent NASSAU COUNTY POLICE DEPARTMENT (“COUNTY”) similarly opposes the relief requested and raises six affirmative defenses-that the Petition fails to state a cause of action, that a request for a parade permit was never filed, the failure to name the Town Clerk as a Respondent is a fatal defect, that a proper party (NASSAU COUNTY) has not been joined, that conclusory allegations in the Petition do not show an arbitrary or capricious act by the TOWN, and that alternate channels for communication and assembly have been provided on a content neutral basis.
Hempstead Turnpike at Hofstra University is located in the Town of Hempstead. The Petitioner seeks to compel the Respondents to issue them a permit. However, “[b]efore commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal,” Matter of Agoado v. Board of Educ. of City School Dist. of City of NY, 282 A.D.2d 602 (2nd Dept.2001). For the issuance of a such a permit for any “public assembly which has movement on any of the sidewalks, streets, highways, parks or other public places in the town,” (Section 117–1 of the Code of the Town of Hempstead), an application must be filed “with the Town Clerk on forms provided by the Town Clerk” (Section 117–3 of the Code). Among the items to be included in such application are the name, address and telephone number of the person or organization seeking such permit, the person responsible for the good order and conduct of the parade and the number of persons involved (Section 117–3 of the Code of the Town of Hempstead). Here, it is clear that while Petitioner may have made informal inquiry about such permit and may have sought information under a FOIL request, no formal application for a parade permit was ever filed with the Town Clerk.
While Petitioner argues that the statements made to them constitute a denial of the permit request, there is no proof that a written parade permit application was ever filed with the Town Clerk [thus showing that the Petitioner failed to exhaust all administrative remedies, see McMoore v. Greene, 31 AD3d 1007 (3rd Dept.), leave to app denied,7 NY3d 717 (2006) ]. Further, the officer against whom mandamus is sought [the Town Clerk] is not a party to this proceeding [see CPLR 7803; DBCG Inc. v. Town of Ramapo, 99 A.D.2d 502 (2nd Dept.1984) ]. Even assuming arguendo that the filing of such written application was prevented by the Respondent TOWN, the Petitioner has failed to show that it had a clear legal right to a parade permit and that the Respondent(s) failed to perform a ministerial nondiscretionary act. See Joy Builders, Inc. v. Ballard, 20 AD3d 534 (2nd Dept.2005). Thus, the drastic remedy of mandamus does not lie.
Even if the Court were to find that such application form for a permit could not be obtained on the Town's website or was refused to be provided to Petitioner by the Town Clerk, the result must be the same.
The right of the public to peaceably assemble is a right long cherished and protected under both the United States Constitution and the New York State Constitution (Article I, Section 9). However, such rights are not absolute. See Adderley v. Florida, 385 U.S. 39 (1966); People ex rel Doyle v. Atwell, 232 N.Y. 96 (1921). It has long been held that municipalities may regulate public assembly to promote the public welfare. See, e.g. People v.. Pennisi, 149 Misc.2d 36 (Sup.Ct.Queens County 1990); Cox v. State of New Hampshire, 312 U.S. 569 (1941). “Put more succinctly, in determining whether a public place may be placed off limits to pickets and demonstrators, the court must consider the character of the place being sought for use as a public forum, the usual activities conducted there, the nature of its essential purposes, whether a relevant audience is to be found, and whether substantial inconvenience may result from the use or abuse of that forum,” Byrne v. Long Island State Park Commission, 66 Misc.2d 1070,1082 (Sup.Ct. Nassau County 1971).
Here, the south side of Hempstead Turnpike near Hofstra University (subject to perimeter fencing) will be accessible to persons wanting to peaceably assemble near the Presidential debate site. Further, an additional area near a Hofstra residence hall and parking lot will be made available to the public. This area (which may be expanded further southward if necessary) will have a podium and sound system installed (see Hofstra University website as set forth in the COUNTY's Objections in Point of Law). In view of the active participation by the United States Secret Service and the COUNTY Police Department with regard to security issues, the Court cannot find that restricting access to areas of the debate site or, with thousands of demonstrators expected in the area, declining to permit Petitioner to have “a reserved spot” on the south side of Hempstead Turnpike, is either arbitrary or capricious. See Marcavage v. City of New York, 689 F3d 98,105 (2nd Circ.2012) [holding that “the restriction on speech was a reasonable time, place, and manner restriction”]. This Court need not address in the context of this Article 78 proceeding the propriety of a “suggestion” by the Respondent COUNTY Police Department to the Town Clerk that all parade permit requests in connection with the Presidential debate be denied; however, such a blanket “suggestion” does give the Court pause.
Accordingly, the Petition for relief under Article 78 of the CPLR is denied and the proceeding is hereby dismissed.
Settle judgment.