Terminello v. City of Passaic , 118 F. App'x 577 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-13-2004
Terminello v. City of Passaic
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4832
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"Terminello v. City of Passaic" (2004). 2004 Decisions. Paper 84.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4832
GLORIA TERMINELLO; MONTAUCK AMUSEMENT SPACE, INC.
v.
CITY OF PASSAIC; SAMUEL RIVERA, individually and as Mayor of the City of
Passaic; CITY COUNCIL OF THE CITY OF PASSAIC; GARY S. SCHAER,
individually and as President and member of the City Council of the City of Passaic;
GERARDO FERNANDEZ, individually and as member of the City Council of the City
of Passaic; HERMAN S. BARKLEY, JR., individually and as member of the City
Council of the City of Passaic; JOSE GARCIA, individually and as member of the City
Council of the City of Passaic; MARCELLUS JACKSON, individually and as member of
the City Council of the City of Passaic; CHAIM M. MUNK, individually and as member
of the City Council of the City of Passaic; DANIEL J. SCHWARTZ, individually and as
member of the City Council of the City of Passaic; JONATHAN SOTO, individually and
as member of the City Council of the City of Passaic; JOHN H. M CKINNEY, JR.,
individually and as Director of Police of the City of Passaic,
Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(Dist. Court No. 03-4364)
District Court Judge: Hon. John W. Bissell, Chief Judge
Argued November 2, 2004
Before: ALITO, FUENTES, and STAPLETON, Circuit Judges.
(Opinion Filed: December 13, 2004)
ROBERT E. LEVY (argued)
Scarinci & Hollenbeck, LLC
1100 Valley Brook Avenue
Lyndhurst, New Jersey 07071
Howard B. Mankoff
Marshall, Dennehey, Warner, Coleman &
Goggin
425 Eagle Rock Avenue
Suite 302
Roseland, NJ 07068
Counsel for Appellants
HERALD P. FAHRINGER (argued)
ERICA T. DUBNO
Lipsitz, Green, Fahringer, Roll, Salisbury &
Cambria, LLP
780 Third Avenue, 32nd Floor
New York, New York 10017
Counsel for Appellees
OPINION OF THE COURT
PER CURIAM:
As we write only for the parties involved, we will not restate the facts below. The
City of Passaic appeals a preliminary injunction against the enforcement of Resolution
9439-03. The effect of the preliminary injunction is to allow the plaintiffs to operate The
Montauck Theater while they challenge the denial of their application for an
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entertainment license. The entertainment license was denied because the theater refused
to employ an off-duty police officer as part of the security team. For the reasons stated
below, we vacate the order.
I.
Orders granting or denying a preliminary injunction are reviewed for abuse of
discretion. Catrol, Inc. v. Pennzoil Co., 987 F.2d 939 (3d Cir. 1993). Because an abuse
of discretion exists where the District Court's decision rests on an incorrect conclusion of
law, the Court applies plenary review to a District Court's legal conclusions. AmeriSteel
Corp. v. Int'l Bhd. of Teamsters, 267 F.3d 264, 267 (3d Cir. 2001). In this case, the
appropriate constitutional standard is a question of law, and is therefore subject to plenary
review.
II.
Gloria Terminello and Montauck Amusement Space, Inc. (The Montauck) filed
this case under 42 U.S.C. § 1983. The statute of limitations for any Section 1983 claim is
determined by referring to the state statute governing actions for personal injuries. The
plaintiffs filed their action on September 30, 2004, approximately six months after the
City Council’s denial of an entertainment license. The action was therefore timely under
the applicable two-year Jersey statute of limitations. N.J. S TAT. A NN. § 2A:14-2 (2003);
see Cito v. Bridgewater Township Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989).
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III.
The District Court erred in reviewing the City Council’s action under the
“arbitrary, capricious, and unreasonable” standard applicable to all exercises of police
power under New Jersey Court Rule 4:69 (“Actions in Lieu of Prerogative Writs”).
Although this case bears factual similarity to the line of New Jersey cases in which
business owners challenged city ordinances requiring them to hire off-duty police
officers, this case is legally distinct because it was filed under Section 1983 and
specifically asserts violations of the federal Constitution, including rights guaranteed by
the First Amendment. Each of the asserted violations must be analyzed in light of the
proper constitutional test. See Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 171
(3d Cir. 2001). Because the failure to do so constitutes an abuse of discretion, the
resulting order must be vacated.
Although the District Court will address the matter in due course, the parties’
continued disagreement regarding the constitutional standard applicable to the First
Amendment claim prompts a fuller discussion of that question at this time. The Passaic
City Council passed Resolution 9439-03 to prevent criminal activity associated with the
operation of The Montauck Theater, and therefore the resolution is properly viewed as a
regulation directed against the secondary effects of speech. See City of Renton v.
Playtime Theaters, Inc., 475 U.S. 41, 47 (1986). Regulations targeting secondary effects
remain within the ambit of the First Amendment, but because the city’s interest in
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preserving the quality of urban life weakens the inference of impermissible
discrimination, these regulations are subjected only to intermediate scrutiny. See City of
Los Angeles v. Alameda Books, 525 U.S. 425, 447 (2002) (Kennedy, J., concurring).
Regulations addressing secondary effects must satisfy the same constitutional test as other
“time, place, and manner” restrictions on expressive speech. See Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989); Mitchell v. Commission on Adult Entertainment, 10
F.3d 123 (3d Cir. 1993). A regulation will be upheld if (1) it is justified without reference
to the content of the regulated speech; (2) it is narrowly tailored to serve a substantial or
significant government interest; and (3) it leaves open ample alternative channels for
communication. Ben Rich Trading, Inc., et al. v. City of Vineland, 126 F.3d 155, 160 (3d
Cir. 1997). Although the ultimate burden of proof rests with the City, the plaintiffs must
show a likelihood of success on the merits in order to secure a preliminary injunction.
See Phillips v. Borough of Keyport, 107 F.3d 164, 172-73 (3d Cir. 1997) (en banc).
The requirement that the regulation be narrowly tailored to serve a substantial
government interest does not demand that the City adopt the least restrictive means
capable of achieving their goals. See Ward, 491 U.S. at 799. Nevertheless, a regulation
is overbroad if “a substantial portion of the burden on speech does not serve to advance
[the government’s] goals.” Id.; see also Phillips, 107 F.3d at 174. In this case, the District
Court could not have properly made this determination because there is no evidence in the
record establishing the cost of hiring off-duty police officers as compared to bonded
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security guards or the total cost of the measures required by Resolution 9439-03 that were
voluntarily adopted by The M ontauck. At oral argument, counsel for the City refused to
concede that off-duty police officers charge substantially more for their services than
bonded security guards. We must assume that counsel had a good faith basis for taking
this position, and accordingly on remand the District Court should receive evidence and
make findings on the factual issues noted above. The District Court previously found that
the requirement that plaintiffs hire off-duty police officers was not justified even in light
of plaintiffs’ past conduct. On remand, the District Court should address that question
armed with facts on the record regarding the relative costs of hiring off-duty officers, and
in the context of narrow tailoring.
Because The Montauck’s probability of success under the appropriate
constitutional test cannot be determined on the record before this Court, we must vacate
the preliminary injunction. Our decision is without prejudice to any future application for
temporary or preliminary relief grounded on the governing constitutional standard
discussed above.