Clatterbuck v. City of Charlottesville

841 F. Supp. 2d 943, 2012 WL 137466, 2012 U.S. Dist. LEXIS 5695
CourtDistrict Court, W.D. Virginia
DecidedJanuary 18, 2012
DocketCivil Action No. 3:11-CV-00043
StatusPublished
Cited by5 cases

This text of 841 F. Supp. 2d 943 (Clatterbuck v. City of Charlottesville) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clatterbuck v. City of Charlottesville, 841 F. Supp. 2d 943, 2012 WL 137466, 2012 U.S. Dist. LEXIS 5695 (W.D. Va. 2012).

Opinion

MEMORANDUM OPINION

NORMAN K. MOON, 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 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:

[946]*946Sec. 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) 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.
(b) For the purposes of this section the following words and phrases shall have 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 well-being” 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.” [947]*947Plaintiffs 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 “rendering] [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 “[ordinance 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, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992); United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 788-89, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (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, 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, 100 S.Ct.

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Bluebook (online)
841 F. Supp. 2d 943, 2012 WL 137466, 2012 U.S. Dist. LEXIS 5695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clatterbuck-v-city-of-charlottesville-vawd-2012.