Clatterbuck et al v. City of Charlottesville
Filing
23
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 1/18/12. (jcj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
ALBERT CLATTERBUCK, ET AL.,
CIVIL ACTION NO . 3:11-CV -00043
Plaintiffs,
v.
MEMORANDUM OPINION
CITY OF CHARLOTTESVILLE,
Defendant.
NORMAN K. MOON
UNITED STATES DISTRICT JUDGE
Described in the complaint as “impecunious and reliant to a certain extent on begging” for
sustenance, Plaintiffs1 filed this civil rights action alleging violations of their rights under the
First and Fourteenth Amendments to the United States Constitution. Plaintiffs complain that the
City of Charlottesville (the “City”) has “adopted and enforced” an ordinance that “restricts the
right to solicit on the downtown mall and criminalizes conduct in violation of the ordinance.”
Plaintiffs object to the ordinance’s prohibitions against soliciting (or, as Plaintiffs describe it,
“begging”) “[f]rom or to any person seated within an outdoor café area, during the hours of
operation of such outdoor café,” “[f]rom or to any person who is conducting business at any
vendor table or cart,” or “[o]n the Downtown Mall within fifty (50) feet (in any direction) of 2nd
Street West and 4th Street East, when those streets are open to vehicular traffic.” Charlottesville
City Code (1990), § 28-31(a)(5), (6), & (9) (as amended Aug. 16, 2010).
Plaintiffs seek declaratory and injunctive relief, compensatory and nominal damages, and
an award of costs and attorneys’ fees. The City moved to dismiss, arguing that Plaintiffs lack
1
Plaintiffs are Albert Clatterbuck, Christopher Martin, Earl McGraw, John Jordan, and Michael
Sloan. Plaintiffs are represented by counsel.
standing because they “fail to allege a plausible claim of ‘injury in fact,’” and arguing further
that Plaintiffs have failed to state a claim upon which relief can be granted. The matter has been
fully briefed and supplemented, and the parties’ arguments have been heard. As discussed
herein, I find that Plaintiffs have standing to bring this action, but I will grant the City’s motion
to dismiss for failure to state a claim upon which relief can be granted.
I.
Plaintiffs challenge the following provisions of the Charlottesville City Code:
Sec. 28-31. - Soliciting.
(a)
It shall be unlawful for any person to solicit money or other things of value,
or to solicit the sale of goods or services:
***
(5)
From or to any person seated within an outdoor café area, during the
hours of operation of such outdoor café;
(6)
From or to any person who is conducting business at any vendor
table or cart;
***
(9)
(b)
On the Downtown Mall within fifty (50) feet (in any direction) of
2nd Street West and 4th Street East, when those streets are open to
vehicular traffic.[2]
For the purposes of this section the following words and phrases shall have
2
Plaintiffs quote § 28-31(a)(9) as prohibiting soliciting “[o]n the Downtown Mall within fifty (50)
feet (in any direction) of 2nd Street W est and 4th Street East.” However, it is clear from public records that,
since August 16, 2010, § 28-31(a)(9) has prohibited soliciting “[o]n the Downtown Mall within fifty (50) feet
(in any direction) of 2nd Street West and 4th Street East, when those streets are open to vehicular traffic.”
(Emphasis added.) Additionally, the City’s rebuttal to Plaintiffs’ opposition to the motion to dismiss notes
that “[t]he original online version” of § 28-31 omitted the phrase that limits the application of § 28-31(a)(9)
to times when the relevant sections of 2nd Street West and 4th Street East “are open to vehicular traffic,” and
includes “[a] corrected copy of § 28-31 passed by the Charlottesville City Council on August 16, 2010. . . .”
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the meanings ascribed to them below, unless a different meaning is plainly
required by the context:
***
Solicit means to request an immediate donation of money or other thing of
value from another person, regardless of the solicitor’s purpose or intended use of
the money or other thing of value. A solicitation may take the form of, without
limitation, the spoken, written or printed word, or by other means of communication
(for example: an outstretched hand, an extended cup or hat, etc.).
(c)
Any person violating the provisions of this section shall be guilty of a class 3
misdemeanor.
Plaintiffs’ first “cause of action” alleges that the ordinance is “not content neutral and
advances “no compelling interest.” Asserting that “[t]he conduct” they “have engaged in and
seek to continue is expressive activity protected by the First Amendment to the United States
Constitution,” and that the City “adopted all or part of the cited sections in order to restrict the
rights of the impoverished to solicit funds for their own well-being,” Plaintiffs maintain that,
while the ordinance “criminalizes” the “solicitation of money or things of value or the sale of
goods and services,” it does not criminalize “all other forms of speech, including all other forms
of solicitation.”
Plaintiffs allege that this distinction is “based on the content of the
communication.” They further assert that the City “does not have a compelling interest in
limiting the First Amendment rights of the impoverished to solicit funds for their own wellbeing” and that ‘[t]he ordinance violates the First and Fourteenth Amendments to the United
States Constitution.”
Plaintiffs’ second “cause of action” challenges on vagueness grounds the ordinance’s
prohibitions against soliciting “[f]rom or to any person seated within an outdoor café area,
during the hours of operation of such outdoor café” and “[f]rom or to any person who is
conducting business at any vendor table or cart.” Plaintiffs maintain that subsections (a)(5) and
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(6) are “so vague as to require that those subject to its restrictions guess at its meaning” and,
because of this alleged vagueness, these subsections “give[] virtually unlimited discretion to law
enforcement in enforcing the ordinance,” thus “render[ing] [the ordinance] in violation of the
Due Process Clause of the Fourteenth Amendment to the United States Constitution.”
Plaintiffs’ third “cause of action” alleges that the “[o]rdinance does not serve a significant
interest and is not narrowly tailored.”
Describing the “Downtown Mall in the City of
Charlottesville” as “a traditional public forum,” Plaintiffs state that the challenged subsections of
the ordinance “violate the First and Fourteenth Amendments” because, even “[i]f construed as
content neutral,” they “do not serve a significant interest of the city and, in any event, are not
narrowly tailored to serve the asserted interest.”
Under each “cause of action,” Plaintiffs assert that they “have and will continue to
suffer . . . damages to their right to communicate to the general public,” and Plaintiffs seek, inter
alia, a declaration that the ordinance is “unconstitutional in violation of the First and Fourteenth
Amendment to the United States Constitution on its face and as applied to the plaintiffs.”
II.
There is no question that “[s]olicitation constitutes protected expression under the First
Amendment.” Comite de Jornaleros v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir.
2011) (en banc) (citing Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677–78
(1992); United States v. Kokinda, 497 U.S. 720, 725 (1990); Riley v. Nat’l Fed’n of the Blind of
N.C., Inc., 487 U.S. 781, 788–89 (1988); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc.,
452 U.S. 640 (1981)). The parties point out that the Supreme Court of the United States has not
specifically ruled that “begging” is speech protected by the First Amendment; however,
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assuming it is necessary to distinguish the concept of “begging” apart from “soliciting” (which
is, after all, the act restricted by the ordinance at issue here), it seems readily apparent that the
“begging” delimited by Charlottesville’s solicitation ordinance is protected speech. The Court
has ruled that seeking donations is protected speech, see Vill. of Schaumburg v. Citizens for a
Better Env’t, 444 U.S. 620, 632 (1980) (charitable solicitations “involve a variety of speech
interests . . . that are within the protection of the First Amendment”), and several circuit courts of
appeals have determined that begging stands on the same ground, see, e.g., Gresham v. Peterson,
225 F.3d 899, 904 (7th Cir. 2000) (“Neither the parties to this appeal nor any authorities found
by this Court suggest that we should distinguish between restrictions on organized charities and
individuals for the purposes of understanding the First Amendment guarantees.”); Loper v.
N.Y.C. Police Dept., 999 F.2d 699, 704 (2d Cir. 1995) (“We see little difference between those
who solicit for organized charities and those who solicit for themselves in regard to the message
conveyed.”).
III.
As previously mentioned, the City argues that Plaintiffs “fail to allege a plausible claim of
‘injury in fact’” and therefore lack standing under Article III of the United States Constitution.3
The City asserts that “none of the plaintiffs has alleged that they have been charged or convicted
3
A motion to dismiss for lack of standing attacks the district court’s subject matter jurisdiction. See
Allen v. Wright, 468 U.S. 737, 750 (1984) (federal courts are under an independent obligation to examine
their own jurisdiction, and standing “is perhaps the most important of [the jurisdictional] doctrines”). Rule
12(b)(1) of the Federal Rules of Civil Procedure permits a party to move for dismissal of an action based on
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). As with a motion to dismiss pursuant to Rule
12(b)(6), in considering a motion to dismiss pursuant to Rule 12(b)(1) a court must accept as true all material
factual allegations in the complaint and must construe the complaint in favor of the plaintiff. Warth v. Seldin,
422 U.S. 490, 501 (1975); see also Falwell v. City of Lynchburg, Virginia, 198 F. Supp. 2d 765, 772 n. 6
(W.D. Va. 2002).
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of a violation of any of these subsections,” adding that, although Plaintiffs allege that they
regularly beg “within view” of the restaurants and cafés on the Mall, “[t]he Complaint does not
allege that any of the plaintiffs beg . . . from persons seated within an outdoor cafe, from any
person who is conducting business at any vendor table or cart on the Downtown Mall, or in the
restricted vehicle crossover locations.” In the City’s view, “Plaintiffs do not allege that they
solicit in any of the restricted areas and, therefore, do not allege sufficient ‘injury in fact’ to
support standing.”
I disagree. Plaintiffs sufficiently allege that they have formerly solicited and wish to
solicit in the future from passers-by and customers of the restaurants and other businesses on the
Mall, and that their acts of solicitation are inhibited by the ordinance. There is no requirement
that one must violate a law in order to have standing to challenge the constitutionality of that
law. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“In these circumstances, it is not
necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to
challenge a statute that he claims deters the exercise of his constitutional rights.”); Doe v. Bolton,
410 U.S. 179, 188 (1973) (“We conclude, however, that the physician-appellants, who are
Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy
and do have standing despite the fact that the record does not disclose that any one of them has
been prosecuted, or threatened with prosecution, for violation of the State’s abortion
statutes. . . . They should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief.”); Evers v. Dwyer, 358 U.S. 202, 204 (1958) (“We do not believe that
appellant, in order to demonstrate the existence of an ‘actual controversy’ over the validity of the
statute here challenged, was bound to ride the Memphis buses at the risk of arrest if he refused to
seat himself in the space in such vehicles assigned to colored passengers. A resident of a
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municipality who cannot use transportation facilities therein without being subjected by statue to
special disabilities necessarily has, we think, a substantial, immediate, and real interest in the
validity of the statue which imposes the disability.”).
To satisfy the standing requirements of Article III, a plaintiff must show that:
(1) [he] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Stephens v. Cnty of Albemarle, 524 F.3d 485, 491 (4th Cir. 2008) (citations omitted). “The party
invoking federal jurisdiction bears the burden of establishing these elements.”
Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). “[A] proper assessment” of the injury in fact
element requires a court “to decide whether the Plaintiffs have ‘adduce[d] facts demonstrating
that [they have] suffered an invasion of a legally protected interest[.]’” Benham v. City of
Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (quoting White Tail Park, Inc. v. Stroube, 413 F.3d
451, 460 (4th Cir. 2005)).
The United States Court of Appeals for the Fourth Circuit has
recognized that, “to demonstrate injury in fact, it [is] sufficient . . . to show that
[one’s] First Amendment activities ha[ve] been chilled.” Smith v. Frye, 488 F.3d
263, 272 (4th Cir. 2007) (internal quotation marks omitted). “[S]ubjective” or
speculative accounts of such a chilling effect, however, are not sufficient. Laird v.
Tatum, 408 U.S. 1, 13–14, 92 S. Ct. 2318, 33 L. Ed.2d 154 (1972). Any “‘chilling’
effect . . . must be objectively reasonable.” Zanders v. Swanson, 573 F.3d 591,
593–94 (8th Cir. 2009). Nevertheless, a claimant “need not show she ceased those
activities altogether” to demonstrate an injury in fact. Smith, 488 F.3d at 272
(internal quotation marks omitted). Government action will be sufficiently chilling
when it is “likely [to] deter a person of ordinary firmness from the exercise of First
Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 500 (4th Cir. 2005) (internal quotation marks omitted).
Benham, 635 F.3d at 135 (alteration in original).
Plaintiffs allege that they beg on the Downtown Mall, which is a restricted pedestrian area
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of Main Street; that they need to do so in order to sustain themselves; and that the ordinance
challenged here causes and will continue to cause harm to their right to free speech. Solicitation,
as defined in the ordinance, “may take the form of, without limitation, the spoken, written or
printed word, or by other means of communication,” including, by way of example provided in
the ordinance, “an outstretched hand, an extended cup or hat, etc.” Plaintiffs specifically allege
that each of them “is impecunious and reliant to a certain extent on begging,” that “[o]ne of the
locations where each Plaintiff begs is East Main Street in the City, commonly known as the
Downtown Mall,” and that the ordinance “restricts the right to solicit on the downtown mall and
criminalizes conduct in violation of that ordinance.” In sum, Plaintiffs allege that the ordinance
limits their rights to beg on the Mall, where those rights were previously unfettered, and that
they have begged and, if permitted, would continue to beg in the restricted areas of the Mall.
The City does not deny that the ordinance limits the right to beg in those restricted areas.4
Plaintiffs have alleged a sufficient injury in fact to their First Amendment rights. They
have “alleged such a personal stake in the outcome of the controversy as to warrant [their]
invocation of federal court jurisdiction and to justify exercise of the court’s remedial powers on
[their] behalf.”
Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 789 (4th Cir. 2004).
Plaintiffs’ rights to beg or solicit are restricted by the ordinance, and they have standing to
challenge those restrictions without first violating the law.
4
And, for standing purposes only, Plaintiffs have adequately claimed that their speech is chilled
because soliciting in the form of “an outstretched hand” toward persons within the prescribed areas of the
Mall potentially subjects beggars to arrest and prosecution, and Plaintiffs have adequately alleged that they
have, in the past, begged within 50 feet on either side of 2nd Street or 4th Street, and intend to do so in the
future but for the criminal penalties they face under the ordinance.
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IV.
Regarding Plaintiffs’ allegations that the challenged subsections of the ordinance violate
their rights under First and Fourteenth Amendments, I find that Plaintiffs fail to state a claim
upon which relief can be granted.5, 6 The Mall is a public forum where content-neutral, time,
place, and manner regulations are nevertheless allowed, and the ordinance is content-neutral.
The ordinance applies to all forms of solicitations, regardless of the solicitor’s purpose or
the content of the solicitor’s speech. Additionally, the ordinance actually leaves intact the right
to solicit on most of the Mall, and it does not impose an outright ban on begging or panhandling
on the Mall – a common-sense reading of the ordinance reveals on its face that it does not, and
any casual stroller on the Mall can see that it does not. The ordinance simply limits soliciting
(whether by beggars or anyone else) on the Mall by imposing a time, place, and manner
restriction on requests for immediate donations of money from persons sitting in the Mall’s
outdoor cafés, conducting business with one of the Mall’s vendors, or within the Mall’s street
crossings when those crossings are open to vehicular traffic.
As I have already observed, solicitation is a recognized form of protected speech;
5
Despite Plaintiffs’ presentation of separate first and third “causes of action,” their allegations that
the challenged subsections of the ordinance violate their rights under the First and Fourteenth Amendments
are intertwined.
6
When considering a motion to dismiss for failure to state a claim upon which relief can be granted,
I apply the pleading standard refined by Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009). See also Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P. 8. Plaintiffs must
allege facts that “state a claim to relief that is plausible on its face,” i.e., facts that “have nudged their claims
across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A claim is plausible if the
complaint contains “factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged,” and if there is “more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at ___, 129 S. Ct. at 1949. The following long-held rule still stands: “In
evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
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however, the right to solicit is not absolute. Kokinda, 497 U.S. at 725. Generally speaking, the
Mall (a public street closed to vehicular traffic save for two crossings) is a traditional public
forum, and speech regulations pertaining to it are subject to strict scrutiny. See id. at 726
(“Regulation of speech activity on governmental property that has been traditionally open to the
public for expressive activity, such as public streets and parks, is examined under strict
scrutiny.”) (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983));
see also Frisby v. Schultz, 487 U.S. 474, 481 (1988) (“[A] public street does not lose its status as
a traditional public forum simply because it runs through a residential neighborhood.”); Heffron,
452 U.S. at 651 (a public street, which was “continually open, often uncongested, and
constitute[d] not only a necessary conduit in the daily affairs of a locality’s citizens, but also a
place where people [could] enjoy the open air or the company of friends and neighbors in a
relaxed environment,” was a traditional public forum).
In places which by long tradition or by government fiat have been devoted to
assembly and debate, the rights of the state to limit expressive activity are sharply
circumscribed. At one end of the spectrum are streets and parks which “have
immemorially been held in trust for the use of the public, and, time out of mind,
have been used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515, 59 S. Ct. 954,
963, 83 L. Ed. 1423 (1939). In these quintessential public forums, the government
may not prohibit all communicative activity.
Perry, 460 U.S. at 45.
However, content-neutral regulations of the time, place, and manner of expression in such
public fora are permissible if “narrowly tailored to serve a significant governmental interest, and
leave open ample alternative channels of communication.” Id. “[T]he ‘principal inquiry in
determining content neutrality, in speech cases generally and in time, place, or manner cases in
particular, is whether the government has adopted a regulation of speech because of agreement
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or disagreement with the message it conveys.’” Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989) (quoting Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 295 (1984)).
“[W]hether a statute is content neutral or content based is something that can be determined on
the face of it; if the statute describes speech by content then it is content based.” City of L.A. v.
Alameda Books, Inc., 535 U.S. 425, 448 (2002). “As a general rule, laws that by their terms
distinguish favored speech from disfavored speech on the basis of the ideas or views expressed
are content based.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994). Regulations
requiring enforcement authorities to “necessarily examine the content of the message that is
conveyed” are content-based. F.C.C. v. League of Women Voters of Cal., 468 U.S. 364, 383
(1984). Content-based regulations may also be identified where they “effectively drive certain
ideas or viewpoints” from the forum. Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 116 (1991). “By contrast, laws that confer benefits or impose
burdens on speech without reference to the ideas or views expressed are in most instances
content neutral.” Turner, 512 U.S. at 643 (citing Members of City Council of L.A. v. Taxpayers
for Vincent, 466 U.S. 789, 804 (1984)).
On the face of the ordinance, the restrictions at issue in the instant case are limited to
“situations in which people most likely would feel a heightened sense of fear or alarm, or might
wish especially to be left alone.” Gresham, 225 F.3d at 906 (adding that, “[b]y limiting the
ordinance’s restrictions to only those certain times and places where citizens naturally would feel
most insecure in their surroundings, the city has effectively limited the application of the law to
what is necessary to promote its legitimate interest”).7 It is important to recognize that this
7
While extrinsic evidence is generally not to be considered at the Rule 12(b)(6) stage, “a court may
(continued...)
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ordinance leaves unaffected Plaintiffs’ rights “to address a willing audience,” and only serves to
“protect listeners from unwanted communication.” Hill v. Colo., 530 U.S. 703, 716 (2000).
“The right to free speech . . . may not be curtailed simply because the speaker’s message may be
offensive to his audience. But the protection afforded to offensive messages does not always
embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it.” Id.
(citing Frisby, 487 U.S. at 487).
“The unwilling listener’s interest in avoiding unwanted
communication has been repeatedly identified in” the Supreme Court’s cases, and the Court has
observed that the “‘right to be let alone’” has been “characterized as ‘the most comprehensive of
rights and the right most valued by civilized men.’” Id. at 716-17 (quoting Olmstead v. United
States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)). The ordinance here protects the
7
(...continued)
consider official public records . . . so long as the authenticity of these documents is not disputed.” Witthohn
v. Fed. Ins. Co., 164 F. App’x. 395, 396-97 (4th Cir. 2006); see also Gasner v. Dinwiddie, 162 F.R.D. 280,
282 (E.D. Va. 1995) (district court may take judicial notice of public documents, such as court records, even
when the documents are neither referenced by nor integral to plaintiff’s complaint). The City’s reply to
Plaintiffs’ response in opposition refers me to the video archives of the Charlottesville City Council meetings
on August 2 and 16, 2010, which are a matter of public record available for viewing at
www.charlottesville.org. The reasonableness of the ordinance and the significant interests protected by it are
supported by this public record. The video archives of the meetings disclose that the 50-foot buffer zone in
the vehicular crossings was proposed as “absolutely crucial for the safety and security” of Mall patrons
because pedestrians were being “distracted” in and near the crossings. The restrictions around the outdoor
cafés and vendors were motivated by “complaints from patrons feeling unsafe,” were intended to allow
patrons of the cafés and vendors the “privacy to enjoy . . . time on the Mall in safety and security,” and were
compared to the then-already-existing buffer zones around bank entrances and ATMs. The vendor table
restriction was specifically intended to protect persons who might feel “threatened or intimidated . . . while
they have their money in their hands.”
Apparently a 15-foot buffer zone around ATMs and bank entrances has been in place for some time
prior to August 16, 2010 (as has the proscription against soliciting from patrons seated in the Mall’s outdoor
cafés). When enacting the instant ordinance, the City Council rejected placing a buffer zone around the
vendor tables and the outdoor cafés, deciding instead to prohibit soliciting from persons conducting business
at the vendor tables and from persons seated in the outdoor cafés.
Most (perhaps all) of the outdoor cafés on the Mall are chained or partitioned off in some manner,
and it is not difficult to discern the outdoor vendors. It is not part of the record on the instant motion, but it
was alluded to in the City Council’s August 2, 2010, discussions of the ordinance, and it must be safe to
assume that the City has granted a permit, likely for a fee, to the outdoor vendors and the restaurants operating
the outdoor cafés on the Mall.
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captive audience, i.e., it protects one in such circumstances that one might not freely get away
from the solicitor, whether that solicitor be a beggar, a busker, or a politician imploring a vote.
A person seated at one of the Mall’s outdoor cafés is entitled to the exclusion of importuning
hands, much as one would be were one seated inside one of the Mall’s restaurants; a person
engaged in a business transaction at one of the vendor stations, with wallet or purse or till open,
is likewise entitled to conduct that transaction free from such importunities and distraction; and a
person waiting or attempting to cross one of the Mall’s two vehicular crossings is entitled to
proceed unimpeded.
Here, the ordinance does not distinguish between favored and disfavored solicitation, and
it does not discriminate based on a solicitor’s identity. The ordinance leaves open most of the
Mall’s “channels of communication,” Perry, 460 U.S. at 45, while protecting captive audiences
(of certain outdoor diners, persons transacting purchases at the outdoor vending tables, and
pedestrians waiting to cross the vehicular through-points) in just a very few areas of the Mall,
see, e.g., Hill, 530 U.S. at 716.
The challenged subsections are content-neutral, narrowly
tailored time, place, and manner limitations on solicitation.8
V.
The ordinance is not susceptible to a vagueness challenge. Subsection (a)(5) prohibits
soliciting “[f]rom or to any person seated within an outdoor café area, during the hours of
operation of such outdoor café[.]” Subsection (a)(6) prohibits soliciting “[f]rom or to any person
8
Charlottesville’s solicitation ordinance affords much more deference to Plaintiffs’ First Amendment
rights than the ordinance at issue in Smith v. City of Fort Lauderdale, Fla, 177 F.3d 954, 956-57 (11th Cir.)
(affirming summary judgment in favor of Fort Lauderdale, which had enacted an ordinance proscribing
begging on a five-mile stretch of beach and two attendant sidewalks), cert. denied, 528 U.S. 966 (1999).
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who is conducting business at any vendor table or cart[.]” Plaintiffs maintain that subsections
(a)(5) and (6) are “so vague as to require that those subject to its restrictions guess at its
meaning” and, because of this alleged vagueness, these subsections “give[] virtually unlimited
discretion to law enforcement in enforcing the ordinance,” thus “render[ing] [the ordinance] in
violation of the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.”
A statute is void for vagueness where a person of “‘common intelligence must necessarily
guess at its meaning and differ as to its application . . . .’” Roberts v. United States Jaycees, 468
U.S. 609, 629 (1984) (quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926)).
However, “the Constitution does not require impossible standards; all that is required is that the
language conveys sufficiently definite warning as to the proscribed conduct when measured by
common understanding and practices.”
Roth v. United States, 354 U.S. 476, 491 (1957)
(quotations omitted); see also U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers,
AFL–CIO, 413 U.S. 548, 578–79 (1973). “[T]he void-for-vagueness doctrine requires that a
penal statute define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citation omitted).
When considering the ordinary meaning of the terms “[f]rom or to any person seated
within an outdoor café area, during the hours of operation of such outdoor café,” and “[f]rom or
to any person who is conducting business at any vendor table or cart,” I find that the ordinance
plainly prohibits soliciting from persons dining in the outdoor cafés on Charlottesville’s
Downtown Mall, and from persons who are “conducting business” at the outdoor vendor stations
on the Mall. “A law is not void for vagueness so long as it (1) establishes minimal guidelines to
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govern law enforcement and (2) gives reasonable notice of the prescribed conduct.” Schleifer by
Schleifer v. City of Charlottesville, 159 F.3d 843, 853 (4th Cir. 1998) (quotations omitted).
Charlottesville’s solicitation ordinance proscribes easily identifiable conduct toward a
specifically limited audience (as I have already explained, such proscription directly advances
the public interest in protecting certain captive audiences), and it provides adequate guidance to
law enforcement to avoid arbitrarily suppressing First Amendment liberties.9
VI.
For the reasons discussed herein, the complaint will be dismissed for Plaintiffs’ failure to
state a claim upon which relief can be granted.10
9
To the extent Plaintiffs contend that they could be prosecuted merely for passive conduct in view
of persons in the outdoor cafés or at the vendor stations, a reasonable interpretation of subsections (a)(5)
and (6) by the Circuit Court for the City of Charlottesville could render the subsections constitutional. A
constitutional interpretation might find, for example, that the ordinance is violated by holding a placard in
the face of a customer at an outdoor café or vendor station, but that passively holding the placard while the
holder is within view of such a customer (a practice one sees every day on the Mall) is not prohibited. In any
event,
[s]triking down ordinances . . . as facially void for vagueness is a disfavored
judicial exercise. Nullification of a law in the abstract involves a far more
aggressive use of judicial power than striking down a discrete and
particularized application of it. . . . It is preferable for courts to demonstrate
restraint by entertaining challenges to applications of the law as those
challenges arise.
Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843, 853 (4th Cir. 1998) (affirming district court’s
denial of motion to enjoin a curfew ordinance).
10
I add that Plaintiffs are not entitled to the injunctive and declaratory relief they request, given that
their complaint fails to state a claim upon which relief can be granted.
A plaintiff seeking preliminary injunctive relief must establish that (1) he is likely to succeed on the
merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in his favor; and (4) a preliminary injunction is in the public interest. Winter v. Natural Res.
Defense Council, Inc., 555 U.S. 7, 20 (2008); Real Truth About Obama, Inc. v. F.E.C., 575 F.3d 342, 346-47
(4th Cir. 2009) (recognizing that Winter was in “fatal tension” with Fourth Circuit precedent governing the
(continued...)
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An appropriate order accompanies this memorandum opinion.
Entered this 18th day of January, 2012.
10
(...continued)
grant or denial of preliminary injunctions as articulated in Blackwelder Furniture Company of Statesville v.
Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977), and therefore expressly adopting the Winter standard), vacated
on other grounds, U.S. , 130 S. Ct. 2371, 2010 WL 1641299 (April 26, 2010), reissued on remand, 607
F.3d 355 (4th Cir. June 8, 2010) (reissuing Parts I and II of earlier opinion, 575 F.3d at 345-47, stating the
facts and articulating the standard for the issuance of preliminary injunctions). Inasmuch as Plaintiffs’
allegations fail to state a claim upon which relief may be granted, Plaintiffs fail to “establish that [they are]
likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in [their] favor, [or] that an injunction is in the public interest.” Winter,
555 U.S. at 20.
Declaratory relief is awarded if the relief sought (1) will serve a useful purpose in clarifying and
settling the legal relations in issue, and (2) will terminate and afford relief from the uncertainty, insecurity
and controversy giving rise to the proceeding. Nautilus Ins. Co. v. Winchester Homes, Inc., 15 F.3d 371, 375
(4th Cir. 1994), overruled on other grounds, Wilton v. Seven Falls Co., 515 U.S. 277 (1995). As the
ordinance is not vague and does not otherwise violate Plaintiffs’ rights under the First and Fourteenth
Amendments, declaratory relief is not warranted.
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