Craft v. Village of Lake George, New York et al
Filing
32
MEMORANDUM-DECISION and ORDER - That defendants' 23 Motion for Summary Judgment is GRANTED. That Craft's 24 Motion for Partial Summary Judgment is DENIED. That Craft's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 8/7/2014. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LARRY P. CRAFT,
Plaintiff,
1:12-cv-1619
(GLS/CFH)
v.
VILLAGE OF LAKE GEORGE
NEW YORK et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
American Liberties Institute
P.O. Box 547503
Orlando, FL 32854
Office of Philip J. Vecchio, P.C.
24 Huntswood Lane
East Greenbush, NY 12061
FOR THE DEFENDANTS:
Lemire, Johnson Law Firm
P.O. Box 2485
2534 Route 9
Malta, NY 12020
Gary L. Sharpe
Chief Judge
FREDERICK H. NELSON, ESQ.
PHILIP J. VECCHIO, ESQ.
GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
MARY ELIZABETH KISSANE,
ESQ.
TIMOTHY J. HIGGINS, ESQ.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Larry P. Craft commenced this action against defendants the
Village of Lake George, New York, the Board of Trustees of Village of Lake
George, New York, Robert M. Blais, in his official capacity as Mayor for the
Village of Lake George, and Ernie LaVine, in his official capacity as
Supervisor of Peace Officers for the Village of Lake George, pursuant to 42
U.S.C. § 1983, alleging violations of his right to free speech and free
exercise under the First Amendment, and his right to equal protection
under the Fourteenth Amendment. (Compl., Dkt. No. 1.) The central focus
of Craft’s pleading is the constitutionality of specific permit
requirements—pertaining to temporary signs and solicitation—imposed by
the Village Code. (See generally id.) Pending are defendants’ motion for
summary judgment, (Dkt. No. 23), and Craft’s motion for partial summary
judgment, (Dkt. No. 24). For the reasons that follow, defendants’ motion is
granted, and Craft’s motion is denied.
II. Background
A.
Facts1
1
Unless otherwise noted, the facts are not in dispute.
2
1.
The Village and its Code
The Village, a busy summer destination venue, is most crowded
during its annual, nearly week-long summer event, “Americade.” (Defs.’
Statement of Material Facts (SMF) ¶¶ 2-3, 7-9, Dkt. No. 23, Attach. 19.) At
issue here are portions of the Village Code that impose certain permit
requirements.2 In particular, Craft challenges certain portions of § 220-24
and chapter 15, Article III, which is comprised of § 157-8 through § 157-13.
(Compl. ¶¶ 2, 18, 23-35.) As it existed in 2012, § 220-24, a section titled
“Sign standards,” required a permit for certain signage. Village Code
§ 220-24(B) (2012). Section 220-24 is divided into seven subsections, A
through G. The first of those subsections is titled “General regulations.” Id.
§ 220-24(A). It includes, among other things, the command that “[s]igns
shall not contain misleading or inaccurate information.” Id. § 22024(A)(17). The second of the subdivisions, and most pertinent here,
imposes a seasonal permit requirement. Id. § 220-24(B). Among the signs
for which a permit was required were certain “temporary signs,” which, as
defined elsewhere, include leaflets, flyers, brochures or other handout
2
The parties have supplied portions of the Village Code from both 2012 and 2013.
(Dkt. No. 1, Attachs. 1, 3; Dkt. No. 23, Attach. 6; Dkt. No. 24, Attach. 6.) For the sake of
simplicity, the court cites directly to the Code, in its different iterations, throughout this
Memorandum-Decision and Order.
3
materials. Id. §§ 220-101,3 220-24(B)(7)(b). As for the temporary signs
that were exempted from the permit requirement, those signs were
expressly required to “comply with the general regulations” as set forth in
§ 220-24(A). Id. § 220-24(B)(7)(a). All other temporary signs required a
permit, were subject to a fee and deposit, and had to comply with a slew of
regulations. Id. § 220-24(B)(7)(b). Among the relevant regulations were
that a permit could be granted only twice per season, with the seasons
running from October 1 to May 1 and May 1 to October 1, and each permit
could not exceed fifteen days. Id. § 220-24(B)(7)(b)(1), (3). The other five
subsections dealt with “Placement, number, and height limitation[s],”
“Restrictions,” “Sign removal,” “Amortization of nonconforming signs,” and
“Nonconforming freestanding signs.” Id. § 220-24(C)-(G). The application
for a seasonal permit further required that it be filed “three days in advance
of request,” and that a fee of $100 plus a $100 deposit, which was
refundable “only if [the] area [wa]s not littered,” must accompany the
application. (Dkt. No. 1, Attach. 2.)
The 2012 version of chapter 157, Article III, which pertains to
3
Although neither party provided the 2012 version of § 220-101, the parties do not
appear to dispute that the definition of “temporary sign” connoted the kinds of materials
distributed by Craft in June 2012.
4
“Solicitation of Funds,” included a permit requirement as well. Village Code
§ 157-8 (2012). Ten days prior to the solicitation of funds, any person,
corporation, or association wishing to so act was required to seek a permit
from the Mayor or his representative in writing. See id. §§ 157-8, 157-9.
The Mayor was empowered to deny the application for a permit to solicit
funds if, in his discretion, the applicant would not qualify for I.R.C. § 501(c)
tax exempt status “or if [the] proposed solicitation would be likely to disturb
the peace and order of the Village or be immoral or improper.” Id. § 15710. A validly issued permit could remain effective for no more than three
days, and the Mayor was required to specify the precise location where the
solicitation was allowed. Id. § 157-12. A violation of Article III would result
in a fine of up to $100 and the violator’s conduct was deemed to constitute
“disorderly conduct,” presumably under the New York Penal Law. Id.
§ 157-13.
On August 19, 2013, several months following commencement of this
action, the Board adopted resolutions amending certain sections of
Chapters 220 and 157. (Dkt. No. 23, Attach. 10.) Relevantly, with respect
to Chapter 220, § 220-24 was amended as to the seasonal permit
requirement as follows:
5
(b) The display of all other temporary signs requires a permit from
Memorial Day through Labor Day, and is subject to a deposit and must
comply with the following regulations.
[1] An application for a permit to erect, distribute, or post a
temporary sign is required to be in writing and must be filed with
the Village Clerk-Treasurer not less than two business days prior
to the date of the proposed temporary sign activity. The applicant
will be notified in writing of the grant or denial of a permit. If the
permit is denied, the applicant will be notified in writing of the
reason for the denial. If such application is filed before two
business days prior to the date of the proposed temporary sign
activity, the applicant will be notified of the grant or denial of the
permit within two business days of when the application for the
permit is submitted. If the application for a permit is submitted on
exactly two business days prior to the date of the proposed
temporary sign activity the applicant will be notified of the grant or
denial of the permit within one business day of when the
application for the permit is submitted.
[2] The Mayor shall issue a permit, after receipt of a $100 deposit,
if such application complies with the criteria set forth within the
section. When issuing a permit for temporary sign activity the
only criteria the Mayor will consider are: any history of illegal
behavior within the Village by the applicant and the number and
locations of temporary signs already permitted. In determining
how many temporary signs for particular locations will be issued
a permit, the Mayor will only take into account the level of vehicle
traffic, foot traffic and pedestrian flow reasonably anticipated in
such location and any public safety concerns that could result
from the disruption of vehicle and pedestrian traffic.
[3] A permit can also be denied if the applicant, on a prior
occasion within the last year, had knowingly violated a material
term or condition of the previous permit they had been granted.
A violation of a material term or condition of a previous permit
includes disregarding the location specified on the permit, causing
litter as defined in §137-1, or violating any local or general law
while participating in the activity specified on the permit which was
granted. An applicant who is refused based upon the forgoing
6
factors may only be refused for a maximum of one year upon their
first application thereafter.
[4] if a permit is denied based upon the considerations set forth in
[2] of this subsection, a new permit can be granted for a different
location based upon a first come first serve basis. The Mayor
shall issue a new permit for a different location so as to reduce
the inconvenience of the applicant filing a new permit application.
When the Mayor issues a new permit, the Mayor will contact the
applicant to discuss a new location without the need for a new
permit application.
[5] The requirement of a $100 deposit required for permits as
specified in subsection [2] may be waived upon a showing of
indigence. Indigence can be shown through a written explanation
by the applicant setting forth the exact reasons for their inability
to provide the $100 deposit. The $100 deposit shall be used to
clean up any litter left behind by the temporary signs, if no litter is
left behind the deposit will be refunded in full. Any portion of the
deposit which is forfeited will be limited to the actual cost of the
clean-up of the litter. If any litter left behind causes the Village of
Lake George to spend more than the $100 deposit to clean up;
the persons, firms, corporations, partnerships, or associations
responsible for the litter may be denied a permit the next time they
apply and will be subject to the penalties of littering pursuant to
§137-12.
[6] The sign shall be no more than 15 square feet with no single
dimension greater than five feet.
[7] Except in the case of a stationary temporary signs; each permit
shall not exceed one consecutive day if there are other permits
pending for that same location by other applicants. However,
there are no limitations as to how many permit applications can be
submitted for a specified location by a person, firm, corporation,
partnership or association. For stationary signs no permit shall
exceed 14 days. After 14 days a person, firm, corporation,
partnership or association may submit a new application which
will be granted or denied based upon the same considerations
enumerated within this subsection.
[8] The Mayor shall specify in the terms of all permits issued
7
pertaining to temporary signs the precise location within the
Village where such signs shall be allowed. These permits for
specific locations will be issued based upon a first come first
serve basis.
[9] Such signs shall not project more than 15 inches from the face
of the building wall nor extend beyond the outer edge of the wall
to which it is attached.
[10] Such signs shall not attach to fences, trees, utility poles or the
like, or be placed in a position that will obstruct or impair vision or
traffic or in any manner create a hazard or disturbance to the
health and welfare of the general public.
[11] Placement of temporary signs shall not hinder pedestrian
traffic.
[12] Each business property site is allowed only one such sign at
a time. Each such sign shall be affixed to the business property
site of the property owner designated in the permit application.
Village Code § 220-24(B)(7)(b) (2013).
Chapter 157 was less extensively, but not insignificantly, amended.
Article III now provides:
§ 157-9. Application for permit.
All applications for a permit to solicit funds are required to be in
writing and must be filed with the Village Clerk-Treasurer not less
than 2 business days prior to the date of the proposed
commencement of fund solicitation.
§ 157-10. Issuance of permit.
The Mayor shall issue a permit, without fee, to such persons,
firms, corporations, partnerships or associations which comply
with the considerations set forth within this section. Such permit
shall be refused if: the applicant would not qualify for tax exempt
status as defined by Section 501(c) of the Internal Revenue Code
8
of 1954; or if such proposed solicitation would be likely to create
a risk or threat to public safety; or the applicant is deemed to be
fraudulently representing itself, a cause, issue or organization; or
if the applicant has occupied a specific location for at least one
consecutive day and there are other applications submitted by
other applicants for that specific location within the Village. If
there are other applications by other applicants for a specific
location the person, firm, corporation, partnership, or association
which has previously occupied the area can submit a permit for a
different location which will be awarded based upon a first come
first serve basis.
If a person, firm, corporations, partnership, or associations acted
unlawfully or disturbed the peace and order of the Village and
were cited for such behavior, they may be refused a permit the
next time they apply. An applicant who is refused based upon
past acts may only be refused for a maximum of one year upon
their first application after the unlawful or disruptive behavior.
Applicants will be notified of the Mayor’s decision whether to grant
or deny the permit within 2 business days of applying for the
permit.
The significant governmental interests being considered in this
permit requirement are:
1.
Protecting the public from fraudulent representation
by any person, firm, corporation, partnership, and
association.
2.
Safety regulating vehicle and pedestrian traffic. Protecting
public safety.
§ 157-11. Refusal of permit.
Any applicant who shall have been refused such permit by the Mayor
will be notified of the reasons for the denial and may apply to the Board
of Trustees therefor at a meeting thereof, and the same may be granted
or refused by the Board. In granting or denying the permit the Board will
9
take into account the same considerations as set forth in §157-10. An
applicant will be notified of the Board’s decision within two business
days of the Board’s meeting and will be notified of the reasons if such
application is denied.
§ 157-12. Solicitation period; location limited.
A.
B.
C.
Any permit issued for the solicitation of funds at a specific
location will remain valid for not longer than one day from
the effective date of the permit.
The Mayor shall specify in the terms of any and all permits
issued for the solicitation for funds the precise location
within the Village where such solicitation shall be allowed,
and may impose additional reasonable restrictions thereto.
If there is more than one application pending for a specific
location, no person, firm, corporation, association, or
partnership may solicit in the same location within the
Village for more than one consecutive day. Such person,
firm, corporation, association, or partnership may continue
to solicit with a newly granted permit identifying a new
location set by the Mayor based on a first come first serve
basis.
Id. §§ 157-9 to 157-12. Sections 157-8 and 157-13, regarding the basic
permit requirement and penalties, were unaffected by the 2013
amendments. The Board’s resolution also pronounced that “[t]he Village of
Lake George has no intention to re-enact or reinstate § 220-24, § 220-101,
and § 157 in the same form it previously existed prior to this amendment.”
(Defs.’ SMF ¶ 62.) With this statutory framework in mind, the court turns to
the particular facts of the case at hand.
10
2.
Craft’s Activities in the Village
The main thoroughfare in the Village is State Route 9, also known as
Canada Street. (Id. ¶ 4.) In June 2012, during Americade, Craft and his
family, who travel the country preaching the Gospel of Jesus Christ,
“engaged in street preaching” at the corner of Canada and Montcalm
Streets. (Id. ¶¶ 10, 11, 16, 17, 19, 21, 23, 32; Dkt. No. 23, Attach. 5 at 26.)
The Craft family “handed tracts to pedestrians who then proceeded to drop
the tract on the ground.” (Defs.’ SMF ¶ 22.) On June 8, 2012, Village
Peace Officer Keith Hendry approached Craft and his family on the
sidewalk, had some interaction with them, and ultimately issued two
appearance tickets to Craft—the first for disorderly conduct in violation of
New York Penal Law § 240.20, and the second for solicitation without a
permit pursuant to Village Code Chapter 157, Article III. (Id. ¶¶ 24, 30, 31,
33; Dkt. No. 23, Attach. 3 ¶ 1; Dkt. No. 23, Attach. 7.) The next day, June
9, 2012, Craft and his family returned to the Canada Street sidewalk and
again preached and distributed tracts just as they had done the day prior.
(Defs.’ SMF ¶ 32.) While Officer Hendry again spoke with Craft, he did not
issue any tickets on June 9. (Dkt. No. 25.) Both June 8 tickets were
eventually dismissed in July 2012 without any appearance by Craft. (Defs.’
11
SMF ¶ 52.) On June 11, 2012, Craft requested and received permit
applications from the Village, but he did not complete those applications.
(Id. ¶ 39.)
B.
Procedural History
Craft commenced this action in October 2012. (See generally
Compl.) In the complaint, Craft specifically identifies Code §§ 157-8, 1579, 157-10, 157-13, 220-101, 220-24(B)(7) of the Village Code as offensive
to his constitutional rights. (See generally Compl.) Craft’s claims consist of
constitutional challenges, both facial and as applied, to certain portions of
the Village Code based upon his right to: (1) free speech, (id. ¶¶ 2, 63-73);
(2) free exercise of religion, (id. ¶¶ 74-89); and (3) equal protection of the
laws, (id. ¶¶ 90-96). Craft’s free speech claim raises a challenge to the
Village Code for overbreadth and “vagueness and by granting unfettered
discretion to [d]efendants and their officials, agents and employees.” ( Id.
¶¶ 65, 69, 70.) By way of relief, Craft seeks: (1) an injunction restraining
and enjoining defendants from enforcing the challenged portions of “§ 22024 and § 157-8, et seq., while [he], and all persons acting in concert, or
participating with him, are engaging in [f]reedom of [s]peech and [f]ree
[e]xercise of [r]eligion activities in the Village’s [p]ublic [s]paces and
12
designated public fora”; (2) a declaration that the same portions of the
Village Code “constitute an impermissible restraint of [his] rights in violation
of the . . . Constitution”; and (3) an award of nominal and/or compensatory
and/or special and/or exemplary damages. 4 (Id. at 19-20.) Following the
completion of discovery, and an extension of the dispositive motion
deadline, the parties filed the pending summary judgment motions on the
same day. (Dkt. Nos. 20, 23, 24.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y.2011), aff’d sub nom. Wagner v. Sprague,
489 F. App’x 500 (2d Cir.2012).
IV. Discussion
Because the parties simultaneously filed their summary judgment
motions, (Dkt. Nos. 23, 24), there is significant overlap among the
4
Notably, while styled as separate causes of action, (Compl. ¶¶ 97-110), Craft’s
“claims” for injunctive and declaratory relief are merely the remedies he seeks for the
underlying causes of action alleged. See Miller v. Wells Fargo Bank, N.A., No. 13 CV 1541,
2014 WL 349723, at *11 (S.D.N.Y. Jan. 30, 2014) (“[D]eclaratory judgments and injunctions
are remedies, not causes of action.” (internal quotation marks and citation omitted)).
13
arguments raised by them. As an initial matter, the court notes that Craft’s
claims are somewhat difficult to understand. While Craft alleges that the
identified Village Code sections are vague, grant “unfettered discretion” to
decisionmakers, impose content-based restrictions, are overbroad, and fail
narrow tailoring, he fails to articulate why or how. (Compl. ¶¶ 65, 68, 69,
70.) As explained below, however, defendants’ motion for summary
judgment is granted as to all of Craft’s claims.
A.
Defendants’ Motion For Summary Judgment
1.
As Applied Challenges: Free Speech and Free Exercise
Defendants argue first that Craft’s as applied challenges to the
Village Code on free speech and free exercise grounds are without merit.
(Dkt. No. 23, Attach. 13 at 9-16.) In support of their argument, defendants
contend that: (1) the appearance tickets issued to Craft on June 8, 2012 do
not implicate Craft’s First Amendment rights to speech and exercise of
religion; (2) Craft’s admissions demonstrate that he was not deprived of his
free speech rights nor was his speech chilled; and (3) the tickets were
legitimately issued through a constitutional application of the solicitation
permit requirement. (Id.) The “only ‘application’ of the Village Code
[recognized by defendants] was the issuance of the two appearance tickets
14
to [Craft] on June 8, 2012, including a ticket for solicitation of funds without
a permit and a ticket for disorderly conduct.” (Id. at 9.) In other words,
defendants do not perceive an as applied challenge to the seasonal permit
requirement because, in their view, it has never been applied to Craft.
Craft contends that the Village Code was applied to him beyond the
issuance of the tickets; indeed, he argues that Hendry’s demands that he
obtain a permit before distributing leaflets and confirmation of the permit
requirement from Village officials demonstrate application of the seasonal
permit requirement to him. (Dkt. No. 29, Attach. 3 at 5-6.) Craft goes on to
assert that the citations deprived him of free speech rights in 2012,
although admittedly in dispute, and 2013. (Id. at 7-11.)
Before delving into the meat of Craft’s as applied challenges, it is
important to note that he failed to offer any response to defendants’
contention that his free exercise rights were not violated in June 2012.
(Dkt. No 23, Attach. 13 at 9.) Craft is deemed to have abandoned his as
applied free exercise claim, see Gaudette v. Saint-Gobain Performance
Plastics Corp., No. 1:11-cv-932, 2014 WL 1311530, at *16 (N.D.N.Y. Mar.
28, 2014) (explaining that a court may deem a claim abandoned when a
party moves for summary judgment on one ground and the nonmoving
15
party fails to address that argument), and, in any event, the court discerns
no facts supportive of any such claim. 5
Turning to whether Craft has standing to raise an as applied
challenge to the seasonal permit requirement, the court is not persuaded
that the Village Code was applied to Craft. It is axiomatic that “[a]n asapplied challenge . . . requires an analysis of the facts of a particular case
to determine whether the application of a statute, even one constitutional
on its face, deprived the individual to whom it was applied of a protected
right.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174 (2d Cir.
2006) (emphasis added) (internal quotation marks and citations omitted).
While threat of enforcement, and the concomitant chilling effect on speech,
may give rise to a facial challenge of a law that regulates speech, see
Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975), there is no way in this
case to measure the constitutionality of the seasonal permit requirement, in
its June 2012 iteration, as applied to Craft because it was not applied to
him. In fact, it has never been applied to him. Accordingly, Craft’s as
applied free speech claim is only potentially viable with respect to the
5
Indeed, no version of the facts would support a facial challenge under free exercise
principles either. Accordingly, summary judgment is granted on that claim.
16
solicitation permit requirement, which was clearly applied to him by way of
the appearance ticket issued by Hendry on June 8, 2012. (Defs.’ SMF
¶ 33.)
Craft’s as applied challenge to the 2012 Village Code solicitation
permit requirement fails without any need to analyze whether it constitutes
a permissible time, place, and manner restriction, or is unconstitutionally
vague or overbroad. Indeed, while the Village Code was applied to him
through Hendry’s issuance of an appearance ticket for solicitation without a
permit, (id.), Craft was not thereby deprived of any constitutional right. See
Field Day, 463 F.3d at 174 (requiring that an as applied challenger
demonstrate the deprivation of a protected right). Because Craft has
expressly disavowed that his family has ever solicited money from
passersby or that he personally did so on June 8, 2012, (Dkt. No. 23,
Attach. 5 at 19, 35-36), the ticket cannot be blamed for squelching his right
to engage in the very speech he disavows. Taking Craft’s undisputed
testimony at face value, he could not be deprived of what he did not
attempt or intend to exercise. For the foregoing reasons, defendants are
granted summary judgment as to Craft’s as applied challenges.
2.
Equal Protection
17
Next, defendants assert that there is no evidence to support an equal
protection claim. (Dkt. No. 23, Attach. 13 at 16-17.) Specifically,
defendants note that Craft is unable to show that he was treated differently
than anyone similarly situated to him, and that, during his deposition, he
“admitted that he possessed no evidence of disparate treatment.” ( Id.)
Craft argues in response that defendants’ argument regarding equal
protection is misguided and “fails to understand the distinction in the legal
analysis related to this claim.” (Dkt. No. 29, Attach. 3 at 12-13.) Without
explaining the connection to the Equal Protection Clause, Craft asserts that
his allegations of unbridled discretion, overbreadth, and vagueness give
rise to a facial attack decided in the First Amendment context. 6 (Id. at 1213, 19-27.)
Little need be said here. Despite Craft’s snarky assertion that
defendants misapprehend the analysis related to overbreadth and
unbridled discretion, (Dkt. No. 29, Attach. 3 at 12-13), the court can discern
no independent claim under the Equal Protection Clause here, whether
raised as an as applied or facial challenge. Indeed, Craft does not come
6
Craft also claims that unbridled discretion, overbreadth, and vagueness demonstrate
violations of due process. (Dkt. No. 29, Attach. 3 at 19-27.) Because no due process claim
was alleged in the complaint, references to due process violations are disregarded.
18
forward with any facts to show disparate treatment or impact based on any
classification, which is fatal to his claim. See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985) (“The Equal Protection Clause of the
Fourteenth Amendment commands that no State shall ‘deny to any person
within its jurisdiction the equal protection of the laws,’ which is essentially a
direction that all persons similarly situated should be treated alike.”).
Notwithstanding the shortcomings of Craft’s equal protection claim, the
court appreciates that allegations of overbreadth and unbridled discretion
may confer standing to mount a facial challenge to a licensing scheme that
targets speech. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223
(1990); Prayze FM v. F.C.C., 214 F.3d 245, 252 (2d Cir. 2000).
3.
First Amendment Facial Challenges
As a threshold matter, defendants claim that Craft’s facial challenges
to the Village Code on First Amendment grounds are moot by virtue of the
fact that the Village amended the Code in August 2013. (Dkt. No. 23,
Attach. 13 at 18-20.) Similarly, defendants assert that Craft lacks standing
to mount a facial challenge because, by his own admissions, Craft did not
return to the Village in 2013 “based on issues outside of the Village” and
that he “never solicits money.” (Id. at 26-27.) If Craft’s facial challenges to
19
the seasonal permit requirement are not moot, defendants contend that the
Village Code is not facially unconstitutional. (Id. at 20-25.) In particular,
the Village argues that the challenged portions of the Village Code are
content neutral, serve legitimate government interests, and leave open
ample alternative channels of communication. (Id.)
On the issue of mootness, Craft argues that the 2013 amendments to
the Village Code cannot moot his claims to the extent that the offensive
portions were not corrected or removed. (Dkt. No. 29, Attach. 3 at 13-15.)
Craft also asserts that his claim for damages prevents mootness. (Id. at
16.) With respect to standing, Craft claims that his allegations of unbridled
discretion confer standing upon him. (Id. at 27.) On the merits of his facial
challenges, Craft contends that the seasonal permit requirement is content
based, which gives rise to a presumption of invalidity and triggers strict
scrutiny review. (Id. at 17-19.)
The court addresses first defendants’ contention that the facial
challenges are moot. (Dkt. No. 23, Attach. 13 at 18-20.) Finding that
argument to be dispositive, the court goes no further. There is no doubt
that “[t]he voluntary cessation of allegedly illegal conduct usually will render
a case moot ‘if the defendant can demonstrate that (1) there is no
20
reasonable expectation that the alleged violation will recur and (2) interim
relief or events have completely and irrevocably eradicated the effects of
the alleged violation.’” Lamar Adver. of Penn, LLC v. Town of Orchard
Park, N.Y., 356 F.3d 365, 375 (2d Cir. 2004) (quoting Granite State
Outdoor Adver., Inc. v. Town of Orange, Conn., 303 F.3d 450, 451 (2d Cir.
2002)). “‘[S]ome deference must be accorded to a [legislative body’s]
representations that certain conduct has been discontinued,’” id. at 376
(quoting Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981
F.2d 50, 59 (2d Cir. 1992)), and ““[c]onstitutional challenges to statutes are
routinely found moot when a statute is amended,’” Cuomo, 981 F.2d at 61
(quoting Massachusetts v. Oakes, 491 U.S. 576, 582 (1989)).
Of course, the potential for mootness depends on the extent and
effect of the statutory amendments at issue. See Granite, 303 F.3d at 45152. Indeed, “claims will not be found moot where the defendant’s
amendments are merely superficial or the law, after amendment, suffers
from similar infirmities as it did at the outset.” Lamar, 356 F.3d at 378. The
Second Circuit has explained that, where an ordinance is altered such that
a substantially different controversy exists post amendment, “arguments as
to the unlawfulness of the ordinance as amended should [be] raised . . . in
21
an amended complaint.” Id.
Here, the Code sections at issue have been amended in such a way
as to present a substantially different case than the one sued by Craft.
Before recounting the obvious and substantial differences between past
and present versions of the Village Code, the court notes that, while it was
not amended, § 220-24(A)(17)—the Code provision that Craft continually
points to as the primary basis of his argument that the seasonal permit
requirement constitutes a content-based regulation of speech, 7 but that he
failed to specifically identify in his complaint, (Dkt. No. 24, Attach. 7 at 7;
Dkt. No. 29, Attach. 3 at 18)—does not apply to the seasonal permit
requirement. This determination relies on statutory interpretation. See
Field Day, 463 F.3d at 176-77.
As has been succinctly explained by the Second Circuit:
Statutory construction . . . is a holistic endeavor. In
interpreting statutes, this Court reads statutory
language in light of the surrounding language and
framework of the statute. [W]here an otherwise
acceptable construction of a statute would raise
serious constitutional problems, we may construe the
statute to avoid such problems unless such
construction is plainly contrary to the intent of [the
7
Craft also identifies § 220-24(B)(7)(a) as “allow[ing] for various exceptions based upon
the content [of] the message.” (Dkt. No. 29, Attach. 3 at 18.) That provision, however, pertains
to “temporary signs” that are not covered by the permit requirement.
22
Legislature].
Id. at 177 (internal quotation marks and citations omitted). Viewing § 22024 of the 2013 Village Code as whole, which is among the most obvious
means of ascertaining legislative intent, see, e.g., N.Y. Stat. § 97
(McKinney 2014) (“A statute or legislative act is to be construed as a
whole, and all parts of an act are to be read and construed together to
determine the legislative intent.”), it is apparent that neither § 22024(A)(17), which prohibits misleading or inaccurate signs, nor any other
part of the “General regulations” applies to the seasonal permit
requirement. Unlike § 220-24(B)(7)(a), which is expressly required to
“comply with the general regulations” contained within § 220-24(A), § 22024(B)(7)(b) requires compliance “with the [listed] regulations.” That
compliance with the general regulations is not expressly required as to the
seasonal permit requirement causes the court to conclude that the general
regulations do not apply to the seasonal permit requirement. As such, and
in the absence of any other provision that could be read to impose a
content-based regulation, the seasonal permit requirement is content
neutral.
Circling back around to the sweeping changes implemented by the
23
Board’s amendment of the Village Code in 2013, a side-by-side
comparison to the challenged 2012 version demonstrates the mootness of
Craft’s facial challenges. Among other things, the new Village Code
imposes a set of clearly defined criteria for granting or denying a seasonal
permit, which tends to significantly undermine Craft’s argument regarding
the unbridled discretion afforded to the Mayor as decisionmaker. The
solicitation permit requirement has likewise been revamped. The sections
dealing with solicitation now provide for more clearly delineated grounds for
the denial of a permit and expressly state the governmental interests
served by the permit requirement.
Notwithstanding the significant amendments to the Village Code, the
court gives some deference to the Board’s pronouncement that it has no
intention to reinstate the old version of the Village Code. (Defs.’ SMF
¶ 62); see Lamar, 356 F.3d at 376. Consistent with the logic of Lamar, the
amendments effectuated by the Board here have mooted Craft’s facial
challenges. Notably, Craft has not amended his complaint to allege facial
challenges to the revised Village Code, nor has he requested eleventhhour leave to do so.
As for Craft’s argument that his damages claims prevent mootness,
24
(Dkt. No. 29, Attach. 3 at 16), the court disagrees. While the basic premise
upon which Craft relies is correct, i.e., a claim for damages, even nominal
in nature, generally prevents mootness, see Van Wie v. Pataki, 267 F.3d
109, 115 n.4 (2d Cir. 2001), it is also true that the remedy for a facial
challenge “is necessarily directed at the statute itself and must be injunctive
and declaratory.” Ezell v. City of Chicago, 651 F.3d 684, 698 (7th Cir.
2011); see Tanner Adver. Grp., L.L.C. v. Fayette Cnty, Ga., 451 F.3d 777,
786 (11th Cir. 2006) (explaining that a facial challenge “cannot give rise to
the remedy of damages”); Lamar, 356 F.3d at 378 (“[W]e disagree with
Lamar’s contention that the controversy over the original ordinance
remains alive because Lamar incurred certain damages under the
pre-amended version of the ordinance that it should still be permitted to
recoup.”). Accordingly, Craft’s facial challenges are mooted by the
Village’s amendment, and his prayer for damages, which are unavailable
on those claims, cannot save them.
B.
Remaining Arguments and Craft’s Cross Motion
The remainder of defendants’ arguments—dealing with the
appropriateness of certain relief or whether Blais and LaVine are
appropriate parties to the action—go to issues that are irrelevant given the
25
court’s disposition of Craft’s causes of action. (Dkt. No. 23, Attach. 13 at 1
n.1, 28-30.) Moreover, for the same reasons that summary judgment was
granted to defendants on Craft’s facial challenges, Craft’s cross motion for
partial summary judgment on those claims, (Dkt. No. 24), must be denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
23) is GRANTED; and it is further
ORDERED that Craft’s motion for partial summary judgment (Dkt.
No. 24) is DENIED; and it is further
ORDERED that Craft’s complaint (Dkt. No. 1) is DISMISSED; and it is
further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 7, 2014
Albany, New York
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