GARY L. SHARPE, Chief Judge.
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
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.
The 2012 version of chapter 157, Article III, which pertains to "Solicitation of
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:
Village Code § 220-24(B)(7)(b) (2013).
Chapter 157 was less extensively, but not insignificantly, amended. Article III now provides:
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 reenact 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.
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.' SMF ¶ 52.) On June 11, 2012, Craft requested and received permit applications from the Village, but he did not complete those applications. (Id. ¶ 39.)
Craft commenced this action in October 2012. (See generally Compl.) In the complaint, Craft specifically identifies Code §§ 157-8, 157-9, 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 "§ 220-24 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
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 Fed.Appx. 500 (2d Cir.2012).
Because the parties simultaneously filed their summary judgment motions, (Dkt. Nos. 23, 24), there is significant overlap among the 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.
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 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
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 party fails to address that argument), and, in any event, the court discerns no facts supportive of any such claim.
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 as applied 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, 95 S.Ct. 2222, 44 L.Ed.2d 600 (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 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.
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
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.
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 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, 105 S.Ct. 3249, 87 L.Ed.2d 313 (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, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Prayze FM v. F.C.C., 214 F.3d 245, 252 (2d Cir.2000).
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 out-side of the Village" and that he "never solicits money." (Id. at 26-27.) If Craft's facial challenges to 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
Of course, the potential for mootness depends on the extent and effect of the statutory amendments at issue. See Granite, 303 F.3d at 451-52. 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 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,
As has been succinctly explained by the Second Circuit:
Id. at 177 (internal quotation marks and citations omitted). Viewing § 220-24 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
Circling back around to the sweeping changes implemented by the 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 eleventh-hour leave to do so.
As for Craft's argument that his damages claims prevent mootness, (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.
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 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,
