Paulsen v. Lehman

745 F. Supp. 858, 1990 U.S. Dist. LEXIS 11386, 1990 WL 126251
CourtDistrict Court, E.D. New York
DecidedAugust 29, 1990
DocketNo. CV 90-2942 (ADS)
StatusPublished
Cited by2 cases

This text of 745 F. Supp. 858 (Paulsen v. Lehman) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paulsen v. Lehman, 745 F. Supp. 858, 1990 U.S. Dist. LEXIS 11386, 1990 WL 126251 (E.D.N.Y. 1990).

Opinion

MEMORANDUM AND ORDER

SPATT, District Judge.

At issue in the plaintiff’s application for a preliminary injunction is whether the defendants’ denial of the plaintiff’s request to distribute noncommercial religious pamphlets in a limited area of Jones Beach State Park comports with the First Amendment to the United States Constitution. The Court concludes that the defendants’ action in denying a limited permit to the plaintiff is constitutionally impermissible. Accordingly, plaintiff’s application for a preliminary injunction is granted to the extent set forth below.

I. BACKGROUND

Plaintiff is the director of “Mitch Paul-sen Outreaches,” a “spiritual outreach program” which lists a Post Office Box in Baldwin, New York as its address. By Application dated August 2, 1990 plaintiff sought an “Area/Facility Use Permit” from the New York State Office of Parks, Recreation and Historic Preservation (the “State Office of Parks” or the “SOP”) to distribute “noncommercial literature with a Christian message” on September 1, 1990 at the “mosaic area and adjacent sidewalks” at Jones Beach State Park. In his moving papers, the plaintiff defines the “mosaic area” at Jones Beach as “the area where the sidewalk from parking field 4 and parking field 5 converge and channel the pedestrian traffic to the boardwalk area.” (See also Paulsen Aff., Exh. A [map of Jones Beach, indicating the “mosaic area” with the symbol “ * ”]).

In response to Application Question 10, “please indicate specific destination requested,” the plaintiff wrote as follows:

“Mosaic area as indicated above. Alternate location: Any non-obscure board walk area, at Jones Beach. As a last choice any remote Jones Beach Location is OK.” (emphasis in original)

The Application also stated that a total of three people would distribute literature and that “[w]e will not detain people, but simply extend an arm with leaflet and say ‘it’s free.’” (Id.)

The State Office of Parks denied plaintiff’s Application in a letter dated August 10, 1990, which in relevant part stated as follows:

“This letter will confirm our telephone conversation during which I denied your request to hand out non-commercial religious literature at the mosaic area of Jones Beach State Park on September 1, 1990.
[860]*860... permits are not available during holidays and holiday weekends. We limit the issuance of many permits due to limited park resources.
Typically, on holidays or holiday weekends during the summer season, attendance may reach capacity. Our operations, maintenance, police and first aid resources are strained to provide necessary service to our patrons. We try not to schedule any special activities which would further burden our resources or require additional supervision or monitoring. It is for this reason we chose to limit special activities where possible. Our purpose is not to infringe on your Constitutional rights of free speech.
Non-holiday weekends and weekdays are available for the activity you propose. We have been consistent in limiting activities and have cancelled events to insure that park resources are not overburdened. I indicated to you during our telephone conversation that other dates might be acceptable to you such as September 8, 1990, which is the following Saturday, or if you had another date that you wished ... and I would determine if that was available. You indicated to me that you are booked at other locations throughout the tri-county region, and that was the only available date you could make.”

By reason of an Order issued on August 21, 1990, defendants were directed to show cause “why a preliminary injunction should not be issued preventing defendants from refusing to grant plaintiff a permit to use the Mosaic area or any other area at Jones beach State Park ... September 1 and other holiday weekends until the trial and decision of this action_”1

The Court held a hearing on August 24, 1990. At the hearing only one witness testified, Mr. John Norbeck, the Director of Operations at Jones Beach State Park. Mr. Norbeck testified that SOP has a “policy” of not issuing any area/facility use permits on “holiday” weekends — that is, Memorial Day, July 4 and Labor Day weekends — to insure that at these “peak” times sufficient employees are available to meet the needs of the increased number of visitors to Jones Beach. Mr. Norbeck stated that many of SOP’s Jones Beach employees return to college prior to Labor Day weekend and that only 40% of its employees are available to work. Since the “stationary positions” — -watchmen, toll collectors, and first aid personnel, for example — must operate at normal levels, according to Mr. Norbeck SOP must substantially reduce the number of “maintenance” and “supervisory” personnel at Jones Beach over the Labor Day weekend.

As to the plaintiffs Application, Mr. Nor-beck testified that were the plaintiffs Application granted, SOP would have to assign three employees to “monitor” the plaintiffs activities. Significantly, the only reasons articulated by Mr. Norbeck as to why SOP would need to monitor the plaintiff and two associates with three employees, however, was to insure that the plaintiff was abiding by State policies and to explain the plaintiffs presence to other park patrons. Specifically, Mr. Norbeck testified as follows:

“What happens is when our staff goes a lot of people — while we do have to monitor the activities whether its Mr. Paulsen or anybody else who applies for a permit, has to make sure that they are abiding by the location and the procedures of the policy. Also, we have people that are assigned badges when they check in and quite a few people are spent explaining why these policies are in existence to our park patrons.”

Mr. Norbeck also testified that the plaintiffs proposed activity would not affect garbage collection. The Court notes that the literature at issue is a four-fold pamphlet, 2 and % inches wide, 8 and % inches high, and unfolds to a size of 12 inches wide and 8 and inches high. In fact, the plaintiff was granted a permit to distribute [861]*861leaflets on the Saturday prior to Labor Day in 1989 — September 2, 1989 — and, according to the plaintiff, “peacefully distributed leaflets on the mosaic and the boardwalk areas without any disruptions^] [w]e picked up any discarded pamphlets on the ground [and] [n]o one from the Parks Department made any complaints about our activities.” (Paulsen Aff., ¶ 3)

Importantly, the defendants submitted no evidence that the plaintiffs presence at the mosaic area on September 1, 1990 would cause any strain on the security and peaceful operation of Jones Beach. No evidence was adduced that the distribution of leaflets by three persons would obstruct passageways, cause accidents, kindle altercations or cause any danger or lack of safety to anyone. In fact, during cross examination Mr. Norbeck revealed that, on average, 25% less patrons visit Jones Beach on the Saturday prior to Labor Day than on the Sunday prior to Labor Day or on Labor Day itself.2 Also absent from the record is any evidence that any other persons or organizations submitted applications for area/facility use permits for the Labor Day weekend.

II. DISCUSSION

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Paulsen v. Lehman
839 F. Supp. 147 (E.D. New York, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
745 F. Supp. 858, 1990 U.S. Dist. LEXIS 11386, 1990 WL 126251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paulsen-v-lehman-nyed-1990.