No. 01 Civ. 9161(GBD)
August 1, 2002
MEMORANDUM OPINION ORDER
In this civil rights action, plaintiffs challenge the constitutionality of New York City Administrative Code § 10-115. This statute, the "puller-in" statute adopted in 1939, prohibits public solicitation of passersby for commercial purposes. Plaintiffs seek declaratory and injunctive relief, as well as damages, against defendants for the deprivation of plaintiffs' First Amendment rights. Plaintiffs have moved for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure enjoining defendants from enforcing § 10-115. Plaintiffs also move for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendants oppose these motions. For the reasons set forth below, the motion for preliminary injunction is granted with respect to the named plaintiffs and the motion for class certification is denied without prejudice.
Section 10-115 states in pertinent part:
It shall be unlawful for any person to stand, or cause or permit any person to stand on the sidewalk or street in front of, or in the entrance or hallway of any store or building for the purpose of calling the attention of passersby to goods, wares or merchandise displayed or on sale in such store or any other store or building, or to solicit patronage for any business or service, or to attempt by word of mouth or gesture, or by the distribution of handbills or other printed matter, or by the use of mechanical or sound making devices, to entice or persuade passersby to enter such store or building, or any other store or building, or to accept the services of any business.
N.Y. City Admin. Code § 10-115(a) (2001).
A. Preliminary Injunction
In this Circuit, a preliminary injunction may be granted if the moving party shows "1) absent injunctive relief, it will suffer irreparable harm, and 2) either a) that it is likely to succeed on the merits, or b) that there are sufficiently serious questions going to the merits to make them fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party." Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000); see also Jackson Dairy, Inc. v. H.P. Hood Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). In cases where, as here, "the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme," the court should apply the likelihood-of-success standard instead of "the less rigorous fair-ground-for-litigation standard. . . ." Plaza Health Labs, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989) (citing Union Carbide Agricultural Products Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980), cert. denied, 450 U.S. 996 (1981); Medical Society of the State of New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977)).
There is a presumption of irreparable harm where there is governmental deprivation of First Amendment rights. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (citations omitted)("[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."); Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), cert. denied 520 U.S. 1251 (1997) (citations omitted) ("violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction."). However, plaintiffs cannot rely on past injury to meet their burden, but must prove a likelihood of future harm. See Deshawn E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983)). Defendants allege that plaintiffs cannot meet this burden because, after plaintiffs filed their motion for preliminary injunction, defendant New York City Police Department ("NYPD") issued guidelines which purport to restrict enforcement of the statute to conduct performed in an "aggressive manner" as defined under the guidelines. Defs.' Mem. at 6-7. This argument is unpersuasive. These guidelines do not prohibit enforcement of the statute, but merely attempt to restrict enforcement while still allowing subjective determinations of the type of conduct that constitutes aggressive behavior. Defs.' Mem. at 5 (prohibited behavior includes "[c]onduct intended to or likely to cause a reasonable person to . . . suffer unreasonable inconvenience, annoyance or alarm."). Plaintiffs' constitutionally protected conduct could still be penalized under the statute. Thus, defendants have not overcome the presumption of irreparable harm raised by plaintiffs' allegations. See Bery, 97 F.3d 689, 693-94; Tunick v. Safir, 228 F.3d 135, 139 (2d Cir. 1999).
Turning to the second prong of the standard for issuing a preliminary injunction, plaintiffs must demonstrate a likelihood of success on the merits. In 1976, the United States Supreme Court held that purely commercial speech, when not deceptive or misleading, is protected by the First Amendment. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). In commercial speech cases, there is a four-part analysis to determine the constitutionality of a regulation. See Central Hudson Gas Electric Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557 (1980). The court must determine:
 whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading . . .  whether the asserted governmental interest is substantial . . .  whether the regulation directly advances the governmental interest asserted . . .  whether it is not more extensive than is necessary to serve that interest.
Id. at 566.
Plaintiffs' argument centers around the fourth prong of the Central Hudson test, that is, plaintiffs contend that the statute is more extensive than necessary and "constitutes a wholesale ban on commercial speech." Pls.' Mem. at 2. Plaintiff points to New York caselaw declaring the statute unconstitutional. In 1989, a New York criminal court held sua sponte that § 10-115 satisfies the first three prongs of the Central Hudson test, but is "more extensive that [sic] necessary to serve [a substantial government] interest and thus fails to satisfy the fourth part of that test." People v. Hall, 538 N.Y.S.2d 155, 158 (1989). In Central Hudson, the United States Supreme Court held that a regulation that completely banned promotional advertising, without a state interest sufficiently linked to the advertising ban, impermissibly restrains the First Amendment right of free speech. Here, the ordinance bans commercial speech which concerns lawful activity that is not misleading. The regulation is more extensive than is necessary to serve the asserted government interest. New York City Administrative Code § 10-115 is therefore unconstitutional on its face.
Defendants have not affirmatively argued that the statute is constitutional as written. Rather, defendants argue that the statute, as limited by the recently issued NYPD guidelines, survives a First Amendment challenge. However, none of the cases cited by defendants, nor any cases that this Court is aware of, indicate that this Court must graft police department guidelines, adopted absent any statutory authority, into the meaning of a statute when assessing its constitutionality.
Defendants rely on a line of authority originating from Poulos v. New Hampshire, 345 U.S. 395 (1953), and Grayned v. City of Rockford, 408 U.S. 104 (1972). In Poulos, the Supreme Court upheld a city licensing ordinance that was challenged as unconstitutional. In reaching its decision, the Court considered the interpretive limitation of the ordinance by the New Hampshire Supreme Court, the state's highest court, and held that the "state interpretation is as though written into the ordinance itself." Poulos, 345 U.S. at 402 (citation omitted). In Grayned, the Supreme Court upheld an anti-noise ordinance that was challenged as unconstitutionally vague and overbroad. In determining the meaning of the ordinance, the Court relied primarily on the language of the ordinance itself. See Grayned, 408 U.S. at 110-14. The Court also indicated that it could consider lower court interpretations of similar statutes and, "perhaps to some degree, . . . the interpretation of the statute given by those charged with enforcing it." Id. at 110 (citation omitted) (emphasis added). In that vein, the Court gave minor consideration to state supreme court interpretations of a similar ordinance and the defendant city's indication of the manner in which it enforced the ordinance at issue.
Poulos and Grayned involved state court and city government interpretations of statutes. They are thus distinguishable from the case at bar, which merely involves police department guidelines internally adopted after this action was commenced. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (court considered county administrator's implementation and construction of county ordinance); Ward v. Rock Against Racism, 491 U.S. 781 (1989) (court considered city's interpretation and implementation of city regulations); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 (1988) (court overturned city ordinance because "the doctrine forbidding unbridled discretion . . . requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice."); Turley v. Police Department of City of New York, 167 F.3d 757 (2d Cir. 1999) (court considered interpretation of city sound permit ordinance by city's Department of Environmental Protection).
Defendants also rely on Irish Lesbian and Gay Org. v. Giuliani, 918 F. Supp. 732 (S.D.N.Y. 1996), to support their arguments regarding the NYPD guidelines. However, that case is also clearly distinguishable from the present case. The plaintiff in that case challenged the constitutionality of a New York City parade permit ordinance both on its face and as applied to plaintiff, and moved for a preliminary injunction to prevent the City from denying the permit sought. In its as-applied challenge, the plaintiff argued that it was denied a permit based on the content of its parade. The court held that plaintiff had not demonstrated a likelihood of success on the merits because plaintiff had not demonstrated that the City's denial of plaintiff's parade permit was based on the content of the parade. In reaching its decision, the court considered evidence of prior City implementation of the ordinance, including "authority granted to the Police Commissioner under Administrative Code § 10-110 and the Police Department's Administrative Guide Procedure 321-14 interpreting that provision." Irish Lesbian and Gay Org., 918 F. Supp. at 742. The court also considered NYPD implementation of the ordinance in deciding plaintiff's facial challenge, holding that plaintiff had not demonstrated a likelihood of success on the merits because, among other reasons, there was an incomplete factual record regarding the existence of a well-established practice in the NYPD. In the present case, defendants have not cited any statutory authority granting the NYPD the power to issue restrictive guidelines under § 10-115. Furthermore, there is clearly no well-established practice since the purported guidelines were only issued this year, after commencement of this lawsuit, in an attempt to withstand constitutional muster. The ordinance at issue had been enforced for decades without any restriction on its application.
For the foregoing reasons, this Court concludes that plaintiffs have demonstrated irreparable harm and a likelihood of success on the merits. Accordingly, plaintiffs' motion for a preliminary injunction is granted. This Court hereby enjoins defendants from enforcing New York City Administrative Code § 10-115 against the named plaintiffs.
B. Class Certification
Parties seeking to certify and represent a class are required to show:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
FED. R. CIV. P. 23. These requirements are commonly referred to as numerosity, commonality, typicality, and adequacy of representation. See, e.g., General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980).
Plaintiffs seek to certify a class consisting
of all persons: (i) who have been or will be subjected by NYPD officers to defendants' policy, practice and/or custom of prohibiting the distribution of magazines and fliers on street corners and/or outside of bars and nightclubs in violation of the First Amendment; and/or (ii) against whom § 10-115 was enforced or will be enforced to prohibit such distribution.
Complaint ¶ 25. Based on the evidence presented, this Court cannot certify a class at this time. Plaintiffs have not met the requirements for class certification. Plaintiffs have identified, at most, 23 persons who have received a summons pursuant to § 10-115 and estimates that there are numerous others. Decl. of Alexander Torres; Decl. of Igor Dmitriev; Supplemental Decl. of Igor Dmitriev. Plaintiffs may make reasonable inferences from available facts and are not required to determine exact class size or identity of class members. See McNeill v. New York City Housing Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1982) (citations omitted). However, plaintiffs have not indicated whether the summonses issued to the 23 persons were within the applicable limitations period. Plaintiffs assert their damages claim falls under 42 U.S.C. § 1983, which does not contain its own limitations period. The appropriate period under this section is New York's three year statute of limitations for general personal injury actions. See, e.g., Singleton v. City of New York, 632 F.2d 185, 189 (2d Cir. 1980) (citations omitted); N.Y. C.P.L.R. § 214. Thus, the summonses must have been issued within the last three years and plaintiffs have not provided this information for the individuals that they have been able to identify. This Court cannot certify a class with such a paucity of information.
Plaintiffs' current lack of information does not end the matter. With respect to the number, timing, and location of summonses previously issued and those which may be issued in the future, the defendants are best equipped to provide this information. See McNeill, 719 F. Supp. at 252 ("the lack of knowledge as to the exact number of affected persons is not a bar to maintaining a class action where the defendants alone have access to such data."). Defendants have indicated that it would be extremely difficult and burdensome to compile the records for summonses issued. However, the absence of such records may ultimately require inferences adverse to defendants' position in this lawsuit.
Plaintiffs have not satisfied the requirements for class certification at this time. Accordingly, plaintiffs' motion for class certification is denied without prejudice. Plaintiffs may renew their motion for class certification at a later date if the information they obtain or the records provided by defendants provide them with a proper basis for doing so.