Petition for Writ of Certiorari — Northeast Ohio Coalition for the Homeless v. City of Cleveland

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AY wee 2 sé i

“no. 97775 IUL 9 1997

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

NORTHEAST OHIO COALITION FOR THE HOMELESS,

RICHARD CLEMENTS, FRUIT OF ISLAM OF

MUHAMMAD'S MOSQUE NO. 18, AND STEVEN D. HILL,

Petitioners,

CITY OF CLEVELAND,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circnit

PETITION FOR A WRIT OF CERTIORARI

KevIN Francis O’ NEILL

Of Counsel: ACLU Cooperating

Davip GOLDBERGER Attorney

Ail tS Connenetin Assistant Professor of Law

iii P & Cleveland-Marshall

The Ohio State Universit College of Law

Y Cleveland State Universit

College of Law y

Ciiieal Chetan 1801 Euclid Avenue

& Cleveland, Ohio 44115

55 West 12th Avenue

(614) 292-6821 Counsel of Record

Joan M. ENGLUND RAYMOND VASVARI

Legal Director ACLU Cooperating

American Civil Liberties Attorney

Union of Ohio 1300 Bank One Center

Foundation, Inc. 600 Superior Avenue East

1266 W. 6th St., Suite 200 Cleveland, Ohio 44114-2650

Cleveland, Ohio 44113-1353 (216) 522-1925

(216) 781-8639 Attorneys for Petitioners

CALL COLLECT (402) 342-2831

COC 8 ant iee ee (800) 225-6964 A9

QUESTIONS PRESENTED FOR REVIEW

1. Whether, consistent with this Court’s holding in

Murdock v. Pennsylvania, a municipality may impose a

flat, fifty-dollar-per-vendor license fee as a precondition

to the sidewalk distribution of political and religious

“street” newspapers?

2. Whether the First Amendment permits the impo-

sition of a flat, fifty-dollar-per-vendor license fee as a

precondition to the sidewalk distribution of political and

religious “street” newspapers, even where it is undis-

puted that Petitioners are either homeless persons or

indigent proselytizers for the Nation of Islam who cannot

afford to pay the fee, and the licensing scheme that

imposes the fee is bereft of an indigency exception?

TABLE OF CONTENTS

Page

QUESTA PR occ vseccckeeiendensscess i

TABLE GP COT G ea oes ices ii

FABLE OF} AUST 6 ives icvenscassacrescenes iv

CP Te 6 ons 6 xs esaddccekareeameeeraes> 1

FEI RIS hs nso inn adn ead Oe eee 1

THE CONSTITUTIONAL PROVISIONS AT ISSUE.. 2

THE ORDENAIICE Ad Tape «akc onsen cnsccemens ces 2

STATENGRIG? COP TOG Ce on esd ce sckwetwenecce 3

REASONS FOR GRANTING THE WRIT OF CER-

TRIAL. « «+ «055.460 ee ea ee ee ee eees 7

I. By Holding that Municipalities May Impose a

Flat, Fifty-Dollar-Per-Vendor License Fee as a

Precondition to the Sidewalk Distribution of

Political and Religious “Street” Newspapers, the

Opinion Flouts Fifty Years of First Amendment

Precedent — Including this Court’s Controlling

Decision in Murdock v. Pennsylvania ........... 11

A. In rejecting Murdock, the Opinion relies

heavily on a line of cases that Murdock

ET ee eT eee 14

B. Left undisturbed, the Opinion will cast

grave doubt on Murdock’s continued vital-

POET ECT Ee Fee ee eee 15

ili

TABLE OF CONTENTS - Continued

Page

II. The Opinion Creates an Irreconcilable Conflict

I I bs 55:04 SEW hae o ben 4's.85 08-400 4 15

III. The Opinion Erects Unprecedented Barriers to

Sidewalk Speech by Upholding the Instant Fee

in the Face of these Undisputed Facts: Peti-

tioners Are Either Homeless Persons or Indi-

gent Proselytizers for the Nation of Islam Who

Cannot Afford to Pay the Fee, and the Licens-

ing Scheme that Imposes the Fee is Bereft of

an Indigency Exception ...........ssccescess 17

IV. Across this Country, More than Seventy Cities

Have “Street” Newspapers Like Those at Issue

Here. By Paving the Way for Their Eradica-

tion, the Opinion has Prompted a Free Speech

Conflict of National Dimensions............. 22

ie cece ese h ey ke ab S sense eek ede mee es 23

TABLE OF AUTHORITIES

Page

CASES

Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996),

cert. denied, 65 U.S.L.W. 3798 (U.S. 1997).......... 16

Central Florida Nuclear Freeze Campaign v. Walsh,

FF Wome Behe CEU OWE. TOE iv tvnsssatesccswssess 21

City of Bowling Green v. Lodico, 11 Ohio St. 2d 135,

re Bk eS Beg errr TTT TET rr reere 8, 13

City of Cincinnati v. Mosier, 61 Ohio App. 81, 22

ee Fg ee eee rere ear Toner 8

Cox v. New Hampshire, 312 U.S. 569 (1941)..... 9, 10, 14

Dayton Area Visually Impaired Persons, Inc. v. Fisher,

70 F.3d 1474 (6th Cir. 1999), cert. denied, 116 S.

CE: Fe Ce 6 he ices 0b eee ik 0458s aera ae ease 9

Follett v. Town of McCormick, 321 U.S. 573

ER vai vurho werent ese aaah oeey ere tees 7, 11, 12, 16

Gall v. Lawler, 322 F. Supp. 1223 (E.D. Wis. 1971) ..8, 13

Holy Spirit Ass'n for the Unification of World Chris-

tianity v. Hodge, 582 F. Supp. 592 (N.D. Tex.

MET eT Teen CTT eR ee Corer TT Pere 8

Hull v. Petrillo, 439 F.2d 1184 (2d Cir. 1971)...7, 15, 18

Invisibile Empire Knights of the Ku Klux Klan v. City

of West Haven, 600 F. Supp. 1427 (D. Conn. 1985) .... 21

Jimmy Swaggert Ministries v. Board of Equalization,

oe ee Bi eT ere eee ore 11, 16

Lovell v. City of Griffin, 303 U.S. 444 (1938).......... 20

Murdock v. Pennsylvania, 319 U.S. 105 (1943)..... passim

TABLE OF AUTHORITIES —- Continued

Northeast Ohio Coalition for the Homeless v. City of

Cleveland, 105 F.3d 1107 (6th Cir. 1997)............. 1

Northeast Ohio Coalition for the Homeless v. City of

Cleveland, 885 F. Supp. 1029 (N.D. Ohio 1995) ....passim

Stonewall Union v. City of Columbus, 931 F.2d

1130 (6th Cir. 1991), cert. denied, 112 S. Ct.

BOE CPM ED sieves bin bP Seu key edcaedeaaes 9, 14, 18, 19

Zimmerman v. Village of London, 38 F. Supp. 582

8 ME te er rrr rn et rss 7

CONSTITUTIONAL AND STATUTORY PROVISIONS

re CE NE Eg in bs vwed wanes nekeasaen passim

ep ee Be BD OR rer ere 2

Oe Ge a ED eb 4 Wk Kwa wun ae ne ee eae 1

ORDINANCES

Cleveland, Ohio, Ordinances § 675.01(a)(2)........... 3

Cleveland, Ohio, Ordinances § 675.02............... 21

Cleveland, Ohio, Ordinances § 675.02(c)(3) ......... ao

Cleveland, Ohio, Ordinances § 675.04............... 21

Cleveland, Ohio, Ordinances § 675.99............... 21

MISCELLANEOUS AUTHORITIES

Jon Anderson, Homeless Press Grows with Need:

Publications’ Base Expands with Poor, Chicago

See. PU. Ta, BU, Oe WE cova ek devs scdinavecens 3

Hillary Chura, Homeless Newspapers Help Two

Ways: Publications Inform Street People and Also

Employ Them to Sell the Newspapers, Austin

American-Statesman, Sept. 28, 1996, at D2......... 3

TABLE OF AUTHORITIES - Continued

Page

Larry Dum, Papers for Homeless Offer Needy a Leg

Lip, N.Y. Tienes, BERE. Si, 2957, BE D7. i occ ccs 3, 23

Don Jacobson, Street Newspapers Band Together,

United Press International, Aug. 18, 1996.......... 3

Tim Jones, Reader Guilt, Vendor Talent Propel Paper:

Streetwise Becomes Nation’s Largest Street Publica-

tion Aiding Homeless, Chicago Tribune, Oct. 2,

BORE GR Rhea he kk ede s ROE ee eke 3

Chad Rubel, Papers Sold by Homeless Reach for

Wider Audience, Marketing News, Sept. 25, 1995,

OR BE oko accesses dvisdeswin benee eee easel les 3

Paul Shepard, Final Call Sales Force Driving Legal

Debate: Police May Ticket the Nation’s News Ven-

dors, but Islam Leaders Say They'll Stay on the

Streets, (Cleveland) Plain Dealer, Dec. 25, 1995,

WE Dh sc wnccnsccesdsncecteseeenndtauenener rein 4, 23

James L. Tyson, Self-Sufficiency is Measure of Chi-

cago Newspaper’s Success, Christian Science

paonen, Ape. 14, TPR, OF Rowan cckss se cv cs Cisecges 3

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit in

this proceeding.

OPINIONS BELOW

The opinion of the Sixth Circuit Court of Appeals,

review of which is sought by this petition, is reported as

Northeast Ohio Coalition for the Homeless v. City of Cleve-

land, 105 F.3d 1107 (6th Cir. 1997) (hereinafter, “the Opin-

ion”). It is reprinted in the appendix to this petition at

page App. 1. The Opinion reversed a decision by the

United States District Court for the Northern District of

Ohio, which had granted Petitioners’ request for injunc-

tive relief. The District Court’s opinion is reported at 885

F. Supp. 1029 (N.D. Ohio 1995); it is reprinted at App. 12.

The Sixth Circuit’s unpublished order of April 10,

1997, denying Petitioners’ request for rehearing and sug-

gestion for rehearing en banc, is reprinted at App. 25.

JURISDICTION

The Sixth Circuit’s Opinion was issued on February

3, 1997. See App. 1. Petitioners timely filed a Petition for

Rehearing and Suggestion for Rehearing En Banc, which

the Sixth Circuit denied on April 10, 1997. See App. 25.

This Court has jurisdiction under 28 U.S.C. section

1254(1).

THE CONSTITUTIONAL PROVISIONS AT ISSUE

Constitution of the United States, Amendment I:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press, or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for a redress of grievances.

Constitution of the United States, Amendment XIV, Section 1:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

THE ORDINANCE AT ISSUE

The provisions of Chapter 675 of the Codified Ordi-

nances of Cleveland, Ohio are reprinted in the appendix

to this petition, commencing at App. 26. Among those

provisions, section 675.02(c)(3) is the specific target of

this First Amendment challenge. It imposes “an annual

license fee of fifty dollars” (App. 29), which must be paid

by all who engage in “peddling” (App. 28). “Peddling” is

defined as:

selling, bartering, or offering or exposing for

sale or barter any goods, wares, merchandise,

menial tasks, such as painting numbers on

curbs, food or beverages from, in, upon, along,

or through the highways, streets, or sidewalks

of the City, or in the open air or from a tempor-

ary shelter or vending device upon private

property in the City.

Codified Ordinances of Cleveland, Ohio, section

675.01(a)(2) (App. 26-27).

STATEMENT OF THE CASE

This is a case about the power of municipalities to

erect steep cost barriers to the sidewalk distribution of

political and religious “street”! newspapers. Petitioners

1 The sidewalk sale of “street” newspapers is a growing

phenomenon in American cities. See Larry Dum, Papers for

Homeless Offer Needy a Leg Up, N.Y. Times, March 31, 1997, at D7.

There are now more than 70 such newspapers in communities of

all sizes nationwide. Id. Most of them have an editorial focus on

homelessness - and are sold by the homeless as a means of

maintaining their individual sustenance. See Hillary Chura,

Homeless Newspapers Help Two Ways: Publications Inform Street

People and Also Employ Them to Sell the Newspapers, Austin

American-Statesman, Sept. 28, 1996, at D2; Jon Anderson,

Homeless Press Grows with Need; Publications’ Base Expands with

Poor, Chicago Tribune, Aug. 19, 1996, at B1; Don Jacobson, Street

Newspapers Band Together, United Press International, Aug. 18,

1996; James L. Tyson, Self-Sufficiency is Measure of Chicago

Newspaper’s Success, Christian Science Monitor, April 11, 1996, at

A3; Tim Jones, Reader Guilt, Vendor Talent Propel Paper; Streetwise

Becomes Nation's Largest Street Publication Aiding Homeless,

Chicago Tribune, Oct. 2, 1995, at C1; Chad Rubel, Papers Sold by

Northeast Ohio Coalition for the Homeless (“NEOCH”),

Richard Clements, Fruit of Islam of Muhammad’s

Mosque No. 18 (“Fruit of Islam”), and Steven D. Hill seek

Supreme Court review of the Opinion below because it

leaves street newspapers vulnerable to regulatory erad-

ication.

The material facts are undisputed.?

NEOCH is a non-profit advocacy group for the

homeless. It publishes a newspaper known as The Home-

less Grapevine, which is distributed exclusively by home-

less and destitute people. NEOCH’s purpose in

publishing the Grapevine is twofold: to publicize the

plight of the homeless, and to provide homeless persons

with a vehicle for maintaining their individual suste-

nance. Those who distribute the Grapevine obtain copies

from NEOCH for ten cents apiece. They distribute the

newspaper on public sidewalks, offering it to passers-by

Homeless Reach for Wider Audience, Marketing News, Sept. 25,

1995, at 12.

The Final Call, a newspaper that disseminates the religious

and political views of Minister Louis Farrakhan and the Nation

of Islam, is likewise sold on public sidewalks in major cities

nationwide. Paul Shepard, Final Call Sales Force Driving Legal

Debate; Police May Ticket the Nation’s News Vendors, but Islam

Leaders Say They'll Stay on the Streets, (Cleveland) Plain Dealer,

Dec. 25, 1995, at B1.

2 All record references are to the District Court’s opinion.

The following factual account is drawn directly from that

opinion, and was described by the district judge as containing

“[t]he undisputed and material facts.” 885 F. Supp. at 1030

(App. at 13).

for a suggested donation of one dollar each. The distribu-

tors retain all proceeds received in this fashion. 885 F.

Supp. at 1030 (App. at 13).

Fruit of Islam is a non-profit membership organiza-

tion affiliated with the Nation of Islam. Its members

disseminate the Nation of Islam's political and religious

message by selling a newspaper known as The Final Call.

Copies are sold on public sidewalks for one dollar apiece.

Fruit of Islam members retain only thirty cents per copy;

they remit the remainder to their mosque. Since they

must also donate fifty dollars per month to the mosque,

Fruit of Islam members earn only a subsistence living by

distributing the paper. 885 F. Supp. at 1030 (App. at

13-14).

Respondent City of Cleveland (“the City”) requires

all “peddlers” to secure a permit, obtainable only through

advance payment of a fifty-dollar fee.3 Grapevine and

Final Call distributors are financially unable to pay this

fee, and NEOCH cannot afford to procure licenses for its

distributors.* If the City persists in enforcing the chal-

lenged ordinance, NEOCH will be unable to distribute its

newspaper in Cleveland. 885 F. Supp. at 1030-31 (App. at

14).

3 Codified Ordinances of Cleveland, section 675.02(c)(3),

App. at 29.

* As the District Court observed: “Cleveland does not

dispute that the Coalition’s and the Mosque’s individual

distributors are unable to afford the license fee, nor does the city

dispute that the Coalition cannot afford to procure a license on

behalf of all its distributors.” 885 F. Supp. at 1034 (App. at 22).

Richard Clements and Steven Hill - Grapevine and

Final Call distributors, respectively - have each been

arrested at least once for “peddling” their newspapers

without the required license. Mr. Hill, in fact, has been

prosecuted several times for violating the challenged

ordinance. 885 F. Supp. at 1031 (App. at 14).

To identify the “administrative costs” associated with

its licensing system, the City offered only one piece of

evidence — an expense list that accounts for only forty-

three of the fifty dollars it collects per permit:

Application Process: $ 7.64

Supervisory Costs: $26.74

License Issuance: $ 2.25

Miscellaneous Paper Costs: $ .28

Annual Field Maintenance: $ 6.09

TOTAL: $43.00

The City offered no further explanation of the costs asso-

ciated with its licensing system. 885 F. Supp. at 1031

(App. at 14).

On May 3, 1995, the U.S. District Court for the North-

ern District of Ohio granted Petitioners’ request for

injunctive relief. It held that the City, by enforcing its

license fee against Grapevine and Final Call distributors,

was in violation of the First Amendment. App. at 12. On

February 3, 1997, the U.S. Court of Appeals for the Sixth

Circuit reversed. App. at 1. Petitioners timely filed a

Petition for Rehearing and Suggestion for Rehearing En

Banc, which the Sixth Circuit denied on April 10, 1997.

App. at 25.

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

By upholding the imposition of a flat, fifty-dollar-

per-vendor license fee as a precondition to the sidewalk

distribution of political and religious “street” news-

papers, the Sixth Circuit has flouted 54 years of First

Amendment precedent — including this Court’s control-

ling decisions in Murdock v. Pennsylvania and Follett v.

Town of McCormick.© Time and time again in American

history, municipalities have employed such license fees to

discourage sidewalk sales of newspapers, books, and

pamphlets by a veritable Who’s Who of unpopular

groups: Jehovah’s Witnesses,” Black Panthers,® anti-war

> 319 U.S. 105 (1943) (rejecting - under the First

Amendment - the application of a peddler’s license fee to

sidewalk and house-to-house sales of religious literature by

Jehovah’s Witnesses).

6 321 U.S. 573 (1944) (rejecting - under the First

Amendment - the application of a peddler’s license fee to

sidewalk and house-to-house sales of religious literature by

Jehovah’s Witnesses).

7 Murdock v. Pennsylvania, 319 U.S. 105 (1943) (see supra

footnote 5); Follett v. Town of McCormick, 321 U.S. 573 (1944) (see

supra footnote 6); Zimmerman v. Village of London, 38 F. Supp. 582

(S.D. Ohio 1941) (rejecting — under the First Amendment - the

application of a license fee to door-to-door sales of religious

literature by Jehovah’s Witnesses).

§ Hull v. Petrillo, 439 F.2d 1184, 1185-86 (2d Cir. 1971)

(recognizing that city could not constitutionally apply its

peddler’s license fee to sidewalk sales of the Black Panther

Party’s newspaper - to do so would offend the First

Amendment).

activists,? Socialists,!° and Christian Fundamentalists.!!

Time and time again over the past six decades, courts

have declared these enforcement efforts unconstitu-

tional.}2

This case is no different than the foregoing disputes;

only the unpopular groups have changed. Targeted for

suppression here are the twin pariahs of the Nineties: the

homeless and the Nation of Islam. Their fate should have

been no different than that of their predecessors. But the

Sixth Circuit flouted Murdock’s mandate. Its Opinion is

literally unprecedented: Neither the Sixth Circuit nor the

City has managed to cite a single case upholding the

application of a peddler’s license fee as a precondition to

the sidewalk distribution of printed matter.

9 Gall v. Lawler, 322 F. Supp. 1223 (E.D. Wis. 1971) (rejecting

— under the First Amendment - the application of a peddler’s

license fee to sidewalk sales of an “underground” newspaper).

10 City of Bowling Green v. Lodico, 11 Ohio St. 2d 135, 228

N.E.2d 325 (1967) (rejecting — under both the First Amendment

and Article I, section 11 of the Ohio Constitution - the

application of a peddler’s license fee to sidewalk sales of Young

Socialist magazine, because city official possessed unfettered

discretion in issuing the license and because imposition of the

fee constituted an impermissible prior restraint).

11 City of Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d

418 (1939) (rejecting - under both the First Amendment and

Article I, section 11 of the Ohio Constitution — the application of

a peddler’s license fee to sidewalk sales of religious literature).

Accord: Holy Spirit Association for the Unification of World

Christianity v. Hodge, 582 F. Supp. 592 (N.D. Tex. 1984) (invoking

the First Amendment to strike down, on its face, an ordinance

requiring a fee before one could engage in a charitable

solicitation campaign).

12 See supra footnotes 5-11.

To reach the desired result, they rely instead on

strands of precedent that feature very different facts and

far more lenient levels of First Amendment scrutiny:

cases upholding the regulation of parades!® and charita-

ble solicitations.1* By invoking these alien precedents as if

they were no less applicable than Murdock, the Opinion

imports a new and far more deferential standard for

gauging precisely the type of license fee that Murdock

itself condemned:

The lesson to be gleaned from Cox and Murdock

is that an ordinance requiring a person to pay a

license or permit fee before he can engage in a

constitutionally protected activity does not vio-

late the Constitution so long as the purpose of

charging the fee is limited to defraying expenses

incurred in furtherance of a legitimate state

interest.

13 See App. at 6-8 (relying on Cox v. New Hampshire, 312 U.S.

569 (1941)); App. at 9-10 (relying on Stonewall Union v. City of

Columbus, 931 F.2d 1130 (6th Cir. 1991), cert. denied, 112 S. Ct. 275

(1991)). We will demonstrate that parade cases are entirely

inapplicable to this dispute; see infra footnotes 20-24 and

accompanying text.

14 See App. at 8-9 (relying on Dayton Area Visually Impaired

Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995), cert. denied, 116

S. Ct. 1421 (1996)). The “compelling governmental interest in

preventing fraudulent solicitations,” 105 F.3d at 1110 (App. 8),

has no place in the context of street newspapers. In exchange for

one dollar, those who purchase The Homeless Grapevine and The

Final Call get what they pay for: publications with distinctive

editorial voices. To the extent that government may insinuate

itself into these transactions in the name of rooting out “fraud,”

it may just as likely be on an undeclared mission to stamp out

dissent.

App. at 7-8. In one fell swoop, the Opinion blurs Cox and

Murdock, setting aside Murdock’s prohibition against flat

fees imposed as a precondition to sidewalk expression

and replacing it with Cox’s far more lenient test for

parade permits. Thus, even while paying lip service to

Murdock, the Opinion consigns it to oblivion. And it does

so while studiously avoiding the salient question of the

fee’s affordability - on a record in which even the City

concedes that Petitioners cannot afford to pay its fifty-

dollar-per-vendor assessment.

There are four independently sufficient grounds for

granting this request for a writ of certiorari:

a The Opinion contradicts controlling

Supreme Court authority - and, if left

undisturbed, will cast grave doubt on

Murdock’s continued vitality.

II. The Opinion creates an irreconcilable

conflict in the circuits.

III. The Opinion erects unprecedented bar-

riers to sidewalk speech by upholding

the instant fee on a record in which it is

undisputed that Petitioners cannot afford

to pay the fee, and the licensing scheme

that imposes the fee is bereft of an indi-

gency exception.

IV. Across this country, more than seventy

cities have “street” newspapers like those

at issue here. By paving the way for their

eradication, the Opinion has prompted a

free speech conflict of national dimen-

sions.

We will address each of these four grounds in turn.

Neer ree eee ee ere cece eEeEeEeeeeeeeee

I. By Holding that Municipalities May Impose a Flat,

Fifty-Dollar-Per-Vendor License Fee as a Precondi-

tion to the Sidewalk Distribution of Political and

Religious “Street” Newspapers, the Opinion Flouts

Fifty Years of First Amendment Precedent — Includ-

ing this Court’s Controlling Decision in Murdock v.

Pennsylvania.

Starting with this Court’s seminal decision in Mur-

dock v. Pennsylvania,15 American courts have consistently

held that a city cannot impose a flat license fee as a

precondition to exercising the First Amendment right to

disseminate ideas on public sidewalks.’ The Opinion

upholds precisely the type of fee that Murdock con-

demned (a flat license fee), in precisely the same context

(as a precondition to expression), barring precisely the

same medium (the printed word) in precisely the same

forum (a public sidewalk). It is objectionable enough that

the Opinion ignores Murdock; but the Opinion also

ignores the fact that this Court recently reaffirmed the

very aspect of Murdock on which Petitioners rely.?7

15 319 U.S. 105 (1943) (rejecting - under the First

Amendment - the application of a peddler’s license fee to

sidewalk and house-to-house sales of religious literature by

Jehovah’s Witnesses). Accord: Follett v. Town of McCormick, 321

U.S. 573 (1944) (rejecting - under the First Amendment - the

application of a peddler’s license fee to sidewalk and house-to-

house sales of religious literature by Jehovah’s Witnesses).

16 See supra footnotes 5-11.

17 Jimmy Swaggert Ministries v. Board of Equalization, 493 U.S.

378, 387 (1990) (observing that the constitutional flaw in the

Murdock and Follett ordinances was that, by imposing a flat

license tax “as a precondition” to the exercise of First

Amendment freedoms, “they operated as prior restraints”)

(emphasis in original).

What Murdock condemned, what this Court still con-

demns,!8 and what the Opinion inexplicably upholds is

choking off sidewalk expression in advance by making its

exercise preconditioned on the payment of a flat license

fee. See Murdock, 319 U.S. at 112 (condemning the imposi-

tion of “a flat license tax, the payment of which is a

condition of the exercise of these constitutional privi-

leges”) (emphasis added). Accord: Follett, 321 U.S. at 577

(“The exaction of a tax as a condition to the exercise of the

great liberties guaranteed by the First Amendment is as

obnoxious as the imposition of a censorship or a previous

restraint.”) (citations omitted; emphasis added). Such a

regulatory scheme restrains First Amendment freedoms

in advance and “inevitably tends to suppress their exer-

cise.” Murdock, 319 U.S. at 114. It therefore offends one of

the core purposes of the First Amendment:

The taxes imposed by this ordinance can hardly

help but be as severe and telling in their impact

on the freedom of the press . . . as the “taxes on

knowledge” at which the First Amendment was

partly aimed.

Id. at 114-15.

Since there is no meaningful difference between the

licensing scheme in Murdock and the one at issue here,

and since both schemes share a constitutional flaw that is

still recognized by this Court, the Opinion’s failure to

follow Murdock is insupportable. Accordingly, this Court

18 See supra footnote 17.

should either grant review of the Opinion or summarily

reverse it.!9

19 Whether or not the instant newspapers are “sold” to

passers-by is irrelevant for First Amendment purposes. The fact

that a publication is sold rather than given away does not

diminish its First Amendment protection. Murdock, 319 U.S. at

111; City of Bowling Green v. Lodico, 11 Ohio St. 2d 135, 138, 140,

228 N.E.2d 325 (1967); Gall v. Lawler, 322 F. Supp. 1223, 1225

(E.D. Wis. 1971). “It should be remembered,” observed this

Court, “that the pamphlets of Thomas Paine were not

distributed free of charge.” Murdock, 319 U.S. at 111.

Nor is the constitutionality of the ordinance saved by the

fact that it regulates hot dog vendors and newspaper

distributors alike. Murdock, 319 U.S. at 115; Gall, 322 F. Supp. at

1225. In striking down the application of a peddler’s license fee

to sidewalk sales of an “underground” newspaper, the Gall

court observed:

Insofar as the ordinance applies to First Amendment

rights, it is fatally overbroad. The licensing provision

of the ordinance, which might properly apply to a

transient vacuum cleaner salesman, becomes

constitutionally offensive when it is applied to the

distribution of ideas.

322 F. Supp. at 1225. Accord: Murdock, 319 U.S. at 115 (“A license

tax certainly does not acquire constitutional validity because it

classifies the privileges protected by the First Amendment

along with the wares and merchandise of hucksters and

peddlers and treats them all alike. Freedom of press, freedom of

speech, freedom of religion are in a preferred position.”).

A. In rejecting Murdock, the Opinion relies

heavily on a line of cases that Murdock itself

distinguished.

Consigning Murdock to oblivion, the Opinion relies

instead on parade cases?° —- even though Murdock itself

distinguished parades from sidewalk expression,?) and

even though the same distinction is made by the very

parade cases that appear in the Opinion.?2 Indeed, both of

the Opinion’s parade cases turn in part on the recognition

that disappointed parade applicants may always avail

themselves of the sidewalk. Thus, the Opinion uses

parade cases to justify heightened barriers to sidewalk

speech, even though those very precedents assume that

public sidewalks will remain freely accessible to prospec-

tive speakers.?4

20 See 105 F.3d at 1109-10 (App. at 6-10) (citing Cox v. New

Hampshire, 312 U.S. 569 (1941) and Stonewall Union v. City of

Columbus, 931 F.2d 1130 (6th Cir. 1991)).

21 Murdock, 319 U.S. at 116 (distinguishing Cox v. New

Hampshire, 312 U.S. 569 (1941)).

22 Cox, 312 U.S. at 575 (observing that prospective speakers

were free to use the sidewalk rather than marching in

formation); id. at 576 (statute was designed to prevent

congestion of public streets); Stonewall Union, 931 F.2d at 1137

(distinguishing streets from sidewalks as fora for speech) (in

justifying heightened fees for use of streets, the Sixth Circuit

here stresses that sidewalks are free and readily available to

prospective speakers).

23 See supra footnote 22.

24 See, e.g., Stonewall Union, 931 F.2d at 1137 (“[I]n the

present case, an alternative forum is available - the Columbus

sidewalks which parallel the streets are free for purposes of

conducting a parade... . ”) (emphasis added); id. (describing

B. Left undisturbed, the Opinion will cast grave

doubt on Murdock’s continued vitality.

If the Opinion stands, what is left of Murdock? To

what set of facts does it apply, if not to ours? Does it

serve now only to protect Jehovah’s Witnesses? In rural

Pennsylvania?

This case involves — as did Murdock — the application

of a peddler’s licensing scheme to sidewalk expression,

imposed in the form of a flat fee, and exacted as a

precondition to the sidewalk distribution of printed mat-

ter. Any factual dissimilarity between these cases is, from

a First Amendment perspective, utterly trivial. Thus, the

Sixth Circuit’s refusal to treat Murdock as directly control-

ling is an affront to Murdock’s continued vitality. To dispel

the impression that Murdock is effectively overruled, this

Court should grant the instant petition.

Il. The Opinion Creates an Irreconcilable Conflict in

the Circuits.

The Opinion’s holding stands in sharp contrast to the

Second Circuit’s decision in Hull v. Petrillo, 439 F.2d 1184,

1185-86 (2d Cir. 1971) - thereby creating a conflict in the

federal circuits that justifies Supreme Court review.

In Hull, the Second Circuit was confronted with a

First Amendment controversy effectively identical to the

instant case. At issue was the power of a municipality to

impose a flat, fifteen-dollar-per-vendor peddler’s license

sidewalks and parks as “a constitutionally acceptable

alternative for indigent paraders”).

fee as a precondition to the sidewalk sale of the Black

Panther Party’s newspaper. 439 F.2d at 1185. Properly

invoking Murdock, the Second Circuit concluded that the

city could not constitutionally apply its peddler’s license

fee to sidewalk sales of the Black Panther publication — to

do so would offend the First Amendment. Id. at 1185-86.25

In diametrical opposition to the Sixth Circuit’s Opinion,

the Second Circuit observed:

[A]ny fee imposed as a prerequisite to the exer-

cise of the right to communicate ideas on the

public sidewalks is an unconstitutional prior

restraint upon the freedom of expression.

Id. at 1186 (emphasis added). The foregoing quote is

entirely consistent with this Court’s recent reaffirmation

of Murdock and Follett in Jimmy Swaggert Ministries v.

Board of Equalization, 493 U.S. 378, 387 (1990) (observing

that the constitutional flaw in the Murdock and Follett

ordinances was that, by imposing a flat license tax “as a

precondition” to the exercise of First Amendment free-

doms, “they operated as prior restraints”) (emphasis in

original).

25 Accord: Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996)

(striking down, under the First Amendment, the enforcement of

a municipal regulation prohibiting visual artists from selling

their works in public places without a general vendors license)

(by imposing a numerical cap on the availability of such

licenses, leaving a long list of individuals who were thus

effectively barred from engaging in sidewalk expression, the

regulation did not meet the First Amendment’s “narrowly

tailored” requirement, nor did it leave open ample alternative

channels of communication), cert. denied, 65 U.S.L.W. 3798 (U.S.

1997).

Since the Opinion creates an irreconcilable conflict

between the Sixth and Second Circuits on an important

First Amendment question, this Court should grant Peti-

tioners’ request for a writ of certiorari.

III. The Opinion Erects Unprecedented Barriers to

Sidewalk Speech by Upholding the Instant Fee in

the Face of these Undisputed Facts: Petitioners Are

Either Homeless Persons or Indigent Proselytizers

for the Nation of Islam Who Cannot Afford to Pay

the Fee, and the Licensing Scheme that Imposes

the Fee is Bereft of an Indigency Exception.

The Opinion treats the challenged fee as a legitimate

time, place, or manner regulation - even though it is

really a forum-access admission price, one that makes the

exercise of First Amendment freedoms contingent on

one’s ability to pay. Here, the Opinion willfully ignores

the most important fact in the case (an undisputed fact, at

that): namely, that Petitioners cannot afford the flat fee

imposed by the City.76 By leaving this critical fact out of

its analysis, and by ignoring the whole question of afford-

ability, the Opinion gives local government carte blanche

to raise forum-access fees. In the analysis employed by

the Opinion, the upward growth of such fees is limited

only by the administrative cost estimates that are offered

to support them. The Opinion even indulges a vague

26 885 F. Supp. at 1030-31 (App. at 14); id. at 1034 (App. at

22). See supra footnote 4 and accompanying text.

reference to inflation as supporting an otherwise inexpli-

cable gap between the City’s estimate and its fee.?7

Speech regulations that impose steep barriers of

affordability have been constitutionally suspect for more

than fifty years. As this Court observed in Murdock, the

state may not impose a charge for the enjoyment of a

right granted by the Constitution;8 nor may it render the

exercise of a constitutional right contingent on one’s abil-

ity to pay.?? As the Second Circuit observed in Hull v.

Petrillo:

The ability to pay is not a legitimate criterion for

the state to employ in determining who is to

express his views on its streets and who is not.%°

This is especially critical when the issue is access to the

sidewalk — the last bastion of free expression for impov-

erished speakers. In upholding a fifty-dollar fee for

access to the sidewalk, the Sixth Circuit cites its own

decision in Stonewall Union v. City of Columbus, 931 F.2d

27 See the District Court’s opinion, 885 F. Supp. at 1031

(App. at 14), where the judge notes that the City’s admin-

istrative costs are substantially less — in fact, 14% less —- than the

fee it actually imposes. Though the City explains this disparity

as inevitably justified by rising costs, it would be odd indeed if

an otherwise unconstitutional permit fee could be redeemed by

the happenstance of inflation.

28 Murdock, 319 U.S. at 113.

29 Id. at 111.

30 439 F.2d 1184, 1186 (2d Cir. 1971).

1130 (6th Cir. 1991).31 But Stonewall Union, in rejecting an

affordability requirement for parade fees, specifically cited

public sidewalks as an alternative forum for indigent

speakers. Id. at 1137. Thus, the Opinion contradicts the

very Sixth Circuit decision on which it places the greatest

reliance.

The Opinion is especially offensive to free speech

principles because, in upholding steep cost barriers to

sidewalk expression, it does so on a record in which the

City concedes that Petitioners cannot pay the required

fee.32 By subjecting these particular newspapers to the City’s

license fee, the Opinion paves the way for their demise.

This is because the Grapevine is distributed exclusively by

homeless and destitute individuals; when directed at

them, the fifty-dollar fee might just as well be a flat

prohibition against distributing the newspaper at all.

Likewise, The Final Call is distributed exclusively by

young Fruit of Islam members who, just like the

31 See 105 F.3d at 1110 (App. at 9-10).

32 As the District Court observed: “Cleveland does not

dispute that the Coalition’s and the Mosque’s individual

distributors are unable to afford the license fee, nor does the city

dispute that the Coalition cannot afford to procure a license on

behalf of all its distributors.” 885 F. Supp. at 1034 (App. at 22).

33 885 F. Supp. at 1030 (App. at 13).

Jehovah’s Witnesses in Murdock,** keep only a fraction of

their sales proceeds, turn over most of their money to the

Mosque, and therefore maintain only a subsistence liv-

ing.*> Since a peddler’s license is beyond the reach of the

very people who distribute these newspapers, their circu-

lation is gravely threatened by the enforcement of this

licensing scheme.

From a First Amendment perspective, thwarting a

paper’s distribution is no different than halting its pub-

lication:

[An] ordinance cannot be saved because it

relates to distribution and not to publication.

Liberty of circulating is as essential to [First

Amendment] freedom as liberty of publishing;

indeed, without the circulation, the publication

would be of little value.

Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).

To survive First Amendment scrutiny, a licensing

scheme of the sort imposed here must at least contain an

34 319 U.S. at 107 n.2 & 109 n.7 (noting that “colporteurs” of

the Jehovah’s Witness faith must purchase the books and

pamphlets they sell, may retain only half of their sales proceeds,

and must pay all of their traveling and living expenses with the

funds they are permitted to retain).

35 885 F. Supp. at 1030 (App. at 13-14).

exception for indigent speakers;>* but the ordinance here

is bereft of an indigency exception.*”

By ignoring the foregoing authorities, and by ignor-

ing the record before it, the Sixth Circuit has erected

unprecedented barriers of cost to sidewalk expression.

Accordingly, its Opinion should be subjected to Supreme

Court review.*®

36 Invisible Empire Knights of the Ku Klux Klan v. City of West

Haven, 600 F. Supp. 1427, 1435 (D. Conn. 1985) (successful First

Amendment challenge by KKK to an ordinance that required

prospective speakers to purchase a permit for use of a public

park — the permit scheme’s invalidity stemmed in part from the

lack of an indigency exception for impoverished speakers)

(“Even if the city were allowed to impose costs of police

protection on permit applicants, section 5L makes no provision

for applicants who, by reason of indigency, cannot provide the

necessary financial security. It has been well established in

recent years that the exercise of fundamental constitutional

rights cannot be conditioned upon an individual’s wealth. To

the extent that section 5L requires payment of a bond for costs to

those who can demonstrate their inability to obtain such a bond,

it is declared unconstitutional.”) (citations omitted). Accord:

Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515,

1523-24 (11th Cir. 1985) (striking down ordinance that required

persons wishing to demonstrate in city streets and parks to

prepay amount of costs for police protection — in part because it

denied indigent persons who wished to exercise their First

Amendment rights of speech and assembly, but who were

unable to pay such costs, an equal opportunity to be heard, and

the ordinance contained no indigency exception).

37 See Codified Ordinances of Cleveland, sections 675.02,

675.04, 675.99 (App. at 28, 30, 43).

38 The instant fee is constitutionally vulnerable on yet

another ground: As the District Court correctly held below

(App. at 19-20), the fifty-dollar license fee is not even reasonably

related to the cost of defraying legitimate government expenses,

IV. Across this Country, More than Seventy Cities

Have “Street” Newspapers Like Those at Issue

Here. By Paving the Way for Their Eradication, the

Opinion has Prompted a Free Speech Conflict of

National Dimensions.

The Opinion represents a special threat to “street”

newspapers — publications that are sold on sidewalks

nationwide by the homeless?? and the Nation of

because the fee serves almost exclusively to defray nothing

more than the cost of its own collection. Referring to the City’s

own cost breakdown (App. at 14), only a small portion of the

fifty-dollar license fee —- the $6.09 spent on “Annual Field

Maintenance” — seems to be linked in any way to the regulation

of the secondary effects of expression. The bulk of the costs

involved — for the application process ($7.64), unspecified

“Supervisory Costs” ($26.74), and license issuance ($2.25) -

seem related only to the cost of issuing the license itself. And

despite the fact that the fee totals fifty dollars, Cleveland can at

best account for only forty-three dollars of its use (App. at 14),

asserting in passing that the disparity between what is collected

and what is spent by now must have closed with rising costs.

Respondent’s Sixth Circuit Brief at 5. It would be odd indeed if

an otherwise unconstitutional permit fee could be redeemed by

the happenstance of inflation. But it should take more than

inflation to save Cleveland’s fee. Even assessed in the most

charitable light, as a restriction reasonably related to the

administrative cost of policing the harm it seeks to regulate, the

permit fee in question is —- even by the City’s own reckoning -

larger than the sum of the nebulous costs it is alleged to cover,

and the vast majority of the money collected is in no way

directed to “the problems with which the police power of the

state is free to deal.” Murdock, 319 U.S. at 116. Accordingly, the

District Court correctly held the fee to be unrelated to any

legitimate purpose, and justified solely as a means of

supporting the mechanism of its own collection.

39 See supra footnote 1.

Islam.#° Indeed, more than seventy*! American cities

have street newspapers like those at issue here. If the

Opinion is left undisturbed by this Court, municipalities

across the country will be armed with a potent new

weapon for eradicating such newspapers. Since they are

distributed solely on public sidewalks and solely by indi-

gent people, street newspapers are particularly vulner-

able to the sort of pre-distribution license fee that the

Opinion upholds - especially because, in the Opinion’s

wake, such fees may be imposed regardless of their

affordability.42

Given the broad proliferation of street newspapers

and the regulatory choke-hold to which the Opinion sub-

jects them, this case presents a First Amendment contro-

versy of national dimensions. Accordingly, this Court

should grant Petitioners’ request for a writ of certiorari.

CONCLUSION

A municipality may not impose a flat, fifty-dollar-

per-vendor license fee as a precondition to the sidewalk

40 The Final Call, which disseminates the religious and

political views of Minister Louis Farrakhan and the Nation of

Islam, is sold on public sidewalks in major cities nationwide.

Paul Shepard, Final Call Sales Force Driving Legal Debate; Police

May Ticket the Nation’s News Vendors, but Islam Leaders Say They'll

Stay on the Streets, (Cleveland) Plain Dealer, Dec. 25, 1995, at B1.

41 Larry Dum, Papers for Homeless Offer Needy a Leg Up, N.Y.

Times, March 31, 1997, at D7 (“[T]here are now more than 70

newspapers for the homeless in communities of all sizes

nationwide ... ”).

42 See supra section III of this petition.

distribution of political and religious “street” newspapers. By

holding otherwise, the Sixth Circuit has simply refused to

follow this Court’s controlling decision in Murdock v. Pennsyl-

vania. Its Opinion is all the more offensive to the First

Amendment - and all the more threatening to “street” news-

papers generally — because the Sixth Circuit upheld the fee

on a record that contains these undisputed facts: The news-

papers here are distributed either by homeless persons or

indigent proselytizers for the Nation of Islam who cannot

afford to pay the fee, and the licensing scheme that imposes

the fee is bereft of an indigency exception.

Accordingly, Petitioners request that this Court either

grant their petition for a writ of certiorari or summarily

reverse the ruling below.

Respectfully submitted,

Kevin Francis O’NEILL

Of Counsel: ACLU Cooperating

Davip GOLDBERGER P wenn 4 ,

ACLU Cooperating ssistant Professor of Law

Attorne Cleveland-Marshall

J College of Law

The Ohio State University olleg .

Cleveland State University

College of Law can facta A

Clinical Programs 1 Euclid Avenue

Cleveland, Ohio 44115

55 West 12th Avenue :

Columbus, Ohio 43210 (216) 687-5282

(614) 292-6821 Counsel of Record

Joan M. ENGLUND RAYMOND VASVARI

Legal Director ACLU Cooperating

American Civil Liberties Attorney

Union of Ohio 1300 Bank One Center

Foundation, Inc. 600 Superior Avenue East

1266 W. 6th St., Suite 200 Cleveland, Ohio 44114-2650

Cleveland, Ohio 44113-1353 (216) 522-1925

(216) 781-8639

Attorneys for Petitioners

App. 1

NORTHEAST OHIO COALITION

FOR THE HOMELESS, et al.,

Plaintiffs-Appellees,

CITY OF CLEVELAND, Defendant-Appellant.

Nos. 95-3665, 95-4016

United States Court of Appeals,

Sixth Circuit.

Argued Sept. 23, 1996.

Decided Feb. 3, 1997.

Nonprofit organizations brought declaratory judg-

ment action against city challenging constitutionality of

city ordinance requiring payment of $50 license fee for all

peddlers within city. The United States District Court for

the Northern District of Ohio, Ann Aldrich, J., 885

F.Supp. 1029, enjoined enforcement of ordinance. City

appealed. The Court of Appeals, Alan E. Norris, Circuit

Judge, held that license fee imposed by city ordinance

requiring street peddlers to register with city was not

impermissible prior restraint of speech under First

Amendment or Ohio Constitution.

Reversed and remanded.

Raymond V. Vasvari, Kevin F. O’Neill (argued and

briefed), Cleveland-Marshall College of Law, Visiting

Assistant Professor of Law, Cleveland, OH, for Plaintiffs-

Appellees.

Charles E. Hannan, Jr. (argued and briefed), City of

Cleveland Law Department, Office of. Director of Law,

Cleveland, OH, for Defendant-Appellant.

App. 2

Before: NORRIS, SUHRHEINRICH, and

BATCHELDER, Circuit Judges.

ALAN E. NORRIS, Circuit Judge.

In this consolidated appeal, defendant, the City of

Cleveland, challenges the district court’s order granting

summary judgment to plaintiffs, the Northeast Ohio

Coalition for the Homeless (“Coalition”), Richard Clem-

ents, Fruit of Islam of Muhammad’s Mosque No. 18

(“Mosque”), and Steven D. Hill, and permanently enjoin-

ing the enforcement of a City of Cleveland ordinance

requiring all ,:eddlers to pay a license fee. The city also

challenges the district court’s subsequent order awarding

attorney’s fees to plaintiffs pursuant to 42 U.S.C. § 1988.

For the following reasons, we reverse both of the district

court’s orders and remand with instructions to enter sum-

mary judgment in favor of the city.

Plaintiffs bring this action pursuant to 42 U.S.C.

§ 1983, he [sic] free speech provision of the Ohio Consti-

tution, Ohio Const, art. I, § 11, and the Declaratory Judg-

ment Act, 28 U.S.C. §§ 2201-2202. They challenge the

constitutionality of a Cleveland ordinance regulating

peddling on public property. The material facts of the

case are not in dispute. Cleveland Codified Ordinance

§ 675.02(a) requires that every person who engages in

peddling anywhere in the city be in possession of a

peddler’s license.! Section 675.02(c)(3) states that each

1 The ordinance defines “peddling” broadly to include

App. 3

applicant for such a license must pay an annual fee of

fifty dollars to cover the expenses incident to processing

the application and supervising the licensee. In return for

the fee, each applicant receives the license itself, contain-

ing his name and address, a detailed description of the

goods he is authorized to sell, and a license number and

expiration date, as well as a laminated identification card

containing his photograph. See § 675.03(a)-(b). Section

675.03(a) states that the peddler must wear the identifica-

tion card and carry the license on his person whenever he

is engaged in peddling. In 1989, the cost to the city of

administering the licensing program was forty-three dol-

lars per license issued.

The Coalition is a nonprofit organization dedicated

to addressing the needs of homeless citizens. To publicize

the plight of the homeless and to provide homeless indi-

viduals with a means for soliciting charitable contribu-

tions, the Coalition publishes a periodic newspaper called

The Homeless Grapevine. The Grapevine is distributed

exclusively by homeless and destitute individuals who

obtain copies of the paper from the Coalition for ten cents

each and then offer them to passers-by on public side-

walks for a suggested donation of one dollar. The distrib-

utors may retain all of the donations they receive.

“selling, bartering, or offering or exposing for sale or barter any

goods, wares, merchandise, menial tasks, such as painting

numbers on curbs, food or beverages from, in, upon, along, or

through the highways, streets, or sidewalks of the City, or in the

open air or from a temporary shelter or vending device upon

private property in the City.” See § 675.01(a)(2).

App. 4

The Mosque is a nonprofit membership organization

affiliated with the Nation of Islam. Its members dissemi-

nate the Nation of Islam’s religious and political beliefs

by selling copies of a newspaper known as The Final Call.

Members sell the newspapers on public sidewalks for one

dollar per copy. Of the one dollar they collect for each

copy of the paper, members retain thirty cents, remitting

the remainder to the Mosque. In addition, members must

donate fifty dollars a month to the Mosque. Plaintiffs

Clements and Hill have been arrested in the past for

distributing the Grapevine and Final Call without ped-

dler’s licenses.

On September 27, 1994, plaintiffs brought this action

in the United States District Court for the Northern Dis-

trict of Ohio, challenging the license fee ordinance under

both the United States and Ohio constitutions, and seek-

ing declaratory and injunctive relief. Plaintiffs filed a

motion for summary judgment, and the city filed a cross-

motion for summary judgment. On May 3, 1995, the

district court addressed the constitutionality of the

§ 675.02(c)(3) license fee requirement. Concluding that

the city failed to adequately articulate a purpose for its

peddlers’ ordinance, the court characterized the license

fee as a flat tax which serves only “to defray the expenses

of the licensing provision itself.” Northeast Ohio Coalition

for the Homeless v. City of Cleveland, 885 F.Supp. 1029, 1033

(N.D.Ohio 1995). Relying upon Murdock v. Pennsylvania,

319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), and Follett

v. Town of McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88

L.Ed. 938 (1944), the court concluded that the fee consti-

tuted an impermissible prior restraint on speech under

both the United States and Ohio constitutions. 885

App. 5

F.Supp. at 1034. Accordingly, the district court granted

plaintiffs’ motion for summary judgment, denying the

city’s cross-motion for summary judgment and perma-

nently enjoining the enforcement of § 675.02(c)(3).

On August 18, 1995, the district court awarded plain-

tiffs attorney’s fees in the amount of $15,628. The city

filed timely appeals from both orders.

Il.

The city contends that the fifty dollar license fee is a

reasonable fee which serves to defray the expenses asso-

ciated with administering an otherwise valid ordinance,

and thus does not violate either the United States or Ohio

constitutions. Since the facts of this case are not in dis-

pute, we review the district court’s grant of plaintiffs’

motion for summary judgment and denial of the city’s

cross-motion for summary judgment de novo. Pinney

Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472

(6th Cir.1988).

A. First Amendment

It is well-settled that solicitations to pay or contribute

money to charity involve a variety of speech interests and

are generally entitled to protection under the First

Amendment. See Riley v. Nat'l Fed’n of the Blind of North

Carolina, Inc., 487 U.S. 781, 788-89, 108 S.Ct. 2667, 2673-74,

101 L.Ed.2d 669 (1988); Secretary of State of Maryland v.

Joseph H. Munson Co., 467 U.S. 947, 959-60, 104 S.Ct. 2839,

2848-49, 81 L.Ed.2d 786 (1984); Village of Schaumburg v.

Citizens for a Better Environment, 444 U.S. 620, 632, 100

App. 6

S.Ct. 826, 833-34, 63 L.Ed.2d 73 (1980). It is equally clear

that while the government may not tax the exercise of

constitutionally protected activities, it may restrict the

exercise of such activities by “reasonable time, place, and

manner regulations as long as the restrictions ‘are con-

tent-neutral, are narrowly tailored to serve a significant

government interest, and leave open ample alternative

channels of communication.’ ” United States v. Grace, 461

U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983)

(quoting Perry Educ. Ass'n v. Perry Local Educators’ Ass’n,

460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)).

The Supreme Court’s decisions in Cox v. New Hampshire,

312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), Murdock v.

Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292

(1943), and Forsyth County v. Nationalist Movement, 505

U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992), demon-

strate these principles in the context of license fee

requirements. In Cox, the Supreme Court considered the

constitutionality of a state statute requiring marchers to

obtain licenses and to prepay fees of no more than three

hundred dollars a day before they could parade on public

streets. In upholding the validity of the state statute, the

Supreme Court held that the license fee did not offend

the marchers’ First Amendment rights because it was not

a revenue tax, but rather a means to defray the expenses

incident to the administration of the statute, and to the

maintenance of public order during licensed parades. 312

U.S. at 577, 61 S.Ct. at 766. In reaching its conclusion, the

Court noted that “[t]here is no evidence that the statute

has been administered otherwise than in the fair and non-

discriminatory manner which the state court has con-

strued it to require.” Id.

App. 7

In Murdock, decided two years after Cox, a religious

group attacked the constitutionality of a city ordinance

which required it to pay a flat license fee as a condition to

conducting its distribution activities. The Supreme Court

struck down the ordinance as unconstitutional because

the license fee was essentially “a flat tax imposed on the

exercise of a privilege granted by the Bill of Rights.”

Murdock, 319 U.S. at 113, 63 S.Ct. at 875. In referring to

the ordinance, the Court stated:

[T]he issuance of the permit or license is depen-

dent on the payment of a license tax. And the

tax is fixed in amount and unrelated to the

scope of the activities of petitioners or to their

realized revenues. It is not a nominal fee

imposed as a regulatory measure to defray the

expenses of policing the activities in question.

Id. at 113-14, 63 S.Ct. at 875. The Supreme Court distin-

guished the state statute it upheld in Cox, stating that

unlike the statute in Cox, the ordinance challenged in

Murdock was not a “state regulation of the streets to

protect and insure the safety, comfort, or convenience of

the public,” and the license fee “[was] not a nominal one,

imposed as a regulatory measure and calculated to defray

the expenses of protecting those on the streets and at

home against the abuses of solicitors.” Id. at 116, 63 S.Ct.

at 876.

The lesson to be gleaned from Cox and Murdock is

that an ordinance requiring a person to pay a license or

permit fee before he can engage in a constitutionally

protected activity does not violate the Constitution so

long as the purpose of charging the fee is limited to

App. 8

defraying expenses incurred in furtherance of a legiti-

mate state interest. In Forsyth County, 505 U.S. at 123, 112

S.Ct. at 2397-98, the Supreme Court appended an impor-

tant limitation to a government’s ability to recover such

expenses. There, the Court found unconstitutional a city

ordinance which required private groups to pay a license

fee as a condition to engaging in demonstrations on pub-

lic lands. The amount of the license fee was to be fixed by

the county’s Board of Commissioners “in order to meet

the expense incident to the administration of the Ordi-

nance and to the maintenance of public order in the

matter licensed,” but the fee was not to exceed one thou-

sand dollars per day. Id. at 126-27, 112 S.Ct. at 2399-2400.

The Court concluded that the ordinance was not content-

neutral because “[t]he fee assessed will depend on the

administrator’s measure of the amount of hostility likely

to be created by the speech based on its content.” Id. at

134, 112 S.Ct. at 2403.

In the present case, the district court held that the

peddlers’ licensing ordinance constitutes an impermissi-

ble prior restraint on speech because the fifty dollar

license fee is not “tied to defraying the expenses of

administering a valid regulatory scheme, [given that] the

only regulation whose expenses it defrays is that requir-

ing payment of the fee.” 885 FSupp. at 1034. We are

unable to agree with the court’s characterization of the

purpose underlying the ordinance and the license fee.

This court has previously referred to the “compelling

governmental interest in preventing fraudulent solicita-

tions of the very individuals most disposed to contribute

financial support in response to pleas for donations.”

Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d

App. 9

1474, 1482 (6th Cir.1995), cert. denied, __ U.S. __, 116

S.Ct. 1421, 134 L.Ed.2d 545 (1996). In addition, the city

has an interest in giving its citizens some assurance that it

can identify and pursue peddlers who do engage in

fraudulent or unlawful conduct. This ordinance, by

requiring street peddlers to register with the city and

wear identification cards while they are engaged in ped-

dling, furthers the aforementioned interests, and the

administrative costs incident to the implementation of an

ordinance embodying compelling governmental interests

are defrayed by the fee.

Plaintiffs argue that a license fee which serves to

defray the expenses of administrating an ordinance that

encroaches on First Amendment rights is permissible

only if the fee is nominal in amount. They rely upon

Murdock, 319 U.S. at 116, 63 S.Ct. at 876, for this proposi-

tion. We have previously addressed this precise issue in

Stonewall Union v. City of Columbus, 931 F.2d 1130 (6th

Cir.1991). In that case, we upheld a Columbus ordinance

that required applicants for parade permits to pay an

eighty-five dollar fee. We specifically held that a more

than nominal permit fee is constitutionally permissible so

long as the fee is “reasonably related to the expenses

incident to the administration of the ordinance and to the

maintenance of public safety and order.” Id. at 1136. In

the present case, the parties do not dispute that in 1989,

the city’s cost of administering the peddlers’ licensing

ordinance was forty-three dollars per permit. Moreover,

there is no evidence that the fees were charged for any

reason other than to defray the costs of administering the

ordinance. Thus, the fifty dollar fee is neither unreason:

able, nor excessive.

App. 10

Like the regulations upheld in Cox and Stonewall,

Cleveland’s peddlers’ ordinance and the license fee it

imposes are narrowly tailored to further a legitimate

governmental interest. The fee is reasonably related to the

costs of administering the ordinance, and the licensing

program helps to prevent fraud by solicitors. In addition,

the program enables the city to offer some protection to

individuals who donate money to street peddlers. More-

over, unlike the fee in Forsyth County, the fifty dollar

license fee in this case is content-neutral - all peddlers

must pay it regardless of the source and nature of the

products they peddle. Accordingly, the city’s fee does not

unduly or impermissibly burden plaintiffs’ First Amend-

ment rights.

Consequently, we hold that the license fee imposed

by Cleveland’s peddlers’ ordinance is a constitutionally

permissible time, place, and manner regulation of expres-

sive conduct.

B. Ohio Constitution

Article I, § 11 of the Ohio Constitution provides in

part: “no law shall be passed to restrain or abridge the

liberty of speech, or of the press.” In Eastwood Mall, Inc.,

v. Slanco, 68 Ohio St.3d 221, 222, 626 N.E.2d 59, 61 (1994),

the Ohio Supreme Court reiterated that the protections

afforded by this clause extend no further than those

provided under the First Amendment to the United States

Constitution. Since the license fee required by Cleve-

land’s peddlers’ ordinance does not constitute an imper-

missible prior restraint of speech under the First

App. 11

Amendment to the United States Constitution, the ordi-

nance does not run afoul of the Ohio Constitution.

Accordingly, the district court erred in granting

plaintiffs’ motion for summary judgment, and in perma-

nently enjoining enforcement of the ordinance. Moreover,

the district court erred in denying the city’s cross-motion

for summary judgment.

Il.

The city further argues that the district court erred in

awarding plaintiffs attorney's fees under 42 U.S.C. § 1988.

In view of our disposition of this appeal, plaintiffs are not

“prevailing parties” as contemplated by § 1988; they are

therefore not entitled to attorney’s fees.

IV.

For the reasons stated above, the district court’s

order granting summary judgment to plaintiffs, denying

defendant’s cross-motion for summary judgment, and

permanently enjoining the enforcement of Cleveland

Codified Ordinance § 675.02(c)(3) is reversed, and this

case is remanded with instructions to enter summary

judgment in favor of the city. Furthermore, the district

court’s order awarding plaintiffs attorney's fees under 42

U.S.C. § 1988 is reversed.

App. 12

NORTHEAST OHIO COALITION

FOR THE HOMELESS, et al., Plaintiffs,

CITY OF CLEVELAND, Defendant.

No. 1:94CV2008,

United States District Court,

N.D. Ohio,

Eastern Division.

May 3, 1995.

Nonprofit organizations challenged constitutionality

of city ordinance requiring payment of $50 license fee for

all peddlers distributing literature in exchange for money.

The District Court, Aldrich, J., held that imposition of a

flat license tax on the dissemination of religious literature

in public by solicitors who seek a donation in return for

publication violates the First Amendment as a prior

restraint on protected speech.

Motion for summary judgment granted.

Kevin F. O’Neill, American Civ. Liberties Union of

Ohio Foundation, Raymond V. Vasvari, Cleveland, OH,

for plaintiffs.

Sharon Sobol Jordon, Charles E. Hannan, Jr., City of

Cleveland, Dept. of Law, Cleveland, OH, for defendant.

MEMORANDUM AND ORDER

ALDRICH, District Judge.

The Northeast Ohio Coalition for the Homeless (the

“Coalition”), Richard Clements, Fruit of Islam of Muham-

-——-———-—— ——nad's Mosque No. 1é{the~Mosque*}, and Steven BD-Thiii—_ —

App. 13

(collectively “plaintiffs”) bring this action pursuant to 42

U.S.C. § 1983, 28 U.S.C. § 2201(a), and the Ohio Constitu-

tion, against the City of Cleveland. The complaint chal-

lenges the constitutionality of Cleveland’s Codified

Ordinances § 675.02(c)(3). This Court has jurisdiction

over the federal question, and supplemental jurisdiction

over the state constitutional claim. Both sides have

moved for summary judgment. For the reasons discussed

below, the plaintiffs’ motion for summary judgment is

granted and the defendant's motion is denied.

The undisputed and material facts follow.

The Coalition is a non-profit organization whose

asserted purpose is to address the needs of homeless

citizens. To this end, it publishes The Homeless Grapevine

to publicize the plight of the homeless and to solicit

charitable contributions for the sustenance of homeless

individuals. The homeless and destitute people who dis-

tribute the paper acquire their copies from the Coalition

for $.10 each. They then offer them to passers-by on

public sidewalks, for a suggested donation of $1.00. The

distributors retain all funds they receive in this fashion.

The Mosque is a non-profit membership organiza-

tion. Its members propagate the Nation of Islam's reli-

gious and political paper, The Final Call. Distributors sell,

on city sidewalks, copies of the paper for $1.00 each; they

retain $.30 of this amount, and remit the remainder to the

Mosque. Because members of the Mosque are expected to

donate an additional $50.00 a month to the Mosque,

ee eae

App. 14

distributors earn only a subsistence living through distri-

bution of the paper.

The City of Cleveland requires all “peddlers” to

obtain a permit, which requires payment of a $50.00 fee in

advance. The Coalition, most of its distributors, and most

Final Call distributors are financially unable to pay this

fee. In fact, the Coalition will be unable to distribute its

publication in Cleveland if the city continues to enforce

the challenged ordinance. Richard Clements and Steven

Hill, distributors of The Homeless Grapevine and The Final

Call, respectively, have been arrested at least once for

disseminating their respective publications without the

required license. Hill, in fact, has been prosecuted several

times for violation of the city’s ordinance.

In 1989, the administrative cost of Cleveland’s ped-

dler registration system was $43.00, apparently per per-

mit issued. These costs were allocated as follows:

Application process: $ 7.64

Supervisory costs: $26.74

License issuance: $ 2.25

Miscellaneous Paper Costs: $ .28

Annual Field Maintenance: $ 6.09

TOTAL: $43.00

The City offers no further explanation of the costs

associated with its licensing system.

II.

Federal Rule of Civil Procedure 56(c) governs sum-

mary judgment motions and provides: _ _

App. 15

The judgment sought shall be rendered forth-

with if the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

matter of law

Rule 56(e) specifies the materials properly submitted

in connection with a motion for summary judgment:

Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth

such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is

competent to testify to the matters stated therein

_.. The court may permit affidavits to be sup-

plemented or opposed by depositions, answers

to interrogatories, or further affidavits. When a

motion for summary judgment is made and sup-

ported as provided in this rule, an adverse party

may not rest upon the mere allegations or denial

of the adverse party’s pleading, but the adverse

party’s response, by affidavits or as otherwise

provided in this rule, must set forth specific

facts showing that there is a genuine issue for

trial. If the adverse party does not so respond,

summary judgment, if appropriate, shall be

entered against the adverse party.

However, the movant is not required to file affidavits

or other similar materials negating a claim on which its

opponent bears the burden of proof, so long as the

movant relies upon the absence of the essential element

in the pleadings, depositions, answers to interrogatories,

and admissions on file. Celotex Corp. v. Catrett, 477 US.

317,.106 S.Ct. 2548, 91 L.Fd.2d 265 (1986).

App. 16

In reviewing summary judgment motions, this Court

must view the evidence in a light most favorable to the

non-moving party to determine whether a genuine issue

of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S.

144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway

Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir.1990).

A fact is “material” only if its resolution will affect the

outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Determination of whether a factual issue is “genuine”

requires consideration of the applicable evidentiary stan-

dards. Thus, in most civil cases the Court must decide

“whether reasonable jurors could find by a prepon-

derance of the evidence that the [non-moving party] is

entitled to a verdict.” Id. at 252, 106 S.Ct. at 2512.

Il.

Cleveland Codified Ordinances § 675.01(a)(2) pro-

vides:

“Peddling” means selling, bartering, or offering

or exposing for sale or barter any goods, wares,

merchandise, menial tasks, such as painting

numbers on curbs, food or beverages from, in,

upon, along, or through the highways, streets,

or sidewalks of the City, or in the open air or

from a temporary shelter or vending device

upon private property in the City.

The term “peddler” includes a “solicitor.” C.C.O.

§ 675.01(a)(3). Section 675.02(a) prohibits the practice of

peddling without a license. Section 675.02(c)(3) requires

every person seeking to obtain a license to pay a $50.00

annual fee. The plaintiffs here challenge the imposition of

App. 17

this license under both the federal and Ohio constitu-

tions. Each of these issues is addressed below.

A. Imposition of a flat license tax on the dissemina-

tion of religious literature in public by solicitors who seek

a donation in return for the publication violates the first

amendment as a prior restraint on protected speech. Mur-

dock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63

S.Ct. 870, 87 L.Ed. 1292 (1943); and Follett v. Town of

McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938

(1944). The charitable solicitation of funds in general is

speech wholly within the scope of first amendment pro-

tection. Village of Schaumburg v. Citizens For A Better Envi-

ronment, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d

73 (1980). In reaching its conclusion, the Murdock court

noted that “[t]he power to tax the exercise of a privilege

is the power to control or suppress its enjoyment.” Mur-

dock, 319 U.S. at 112, 63 S.Ct. at 874. The Court distin-

guished a flat tax or license fee, imposed on the

distribution of a publication, from “a nominal fee

imposed as a regulatory measure to defray the expenses

of policing the activities in question,” and from a fee that

is apportioned. Id., at 113-114, 63 S.Ct. at 875.

A fee limited to the expense incident to the adminis-

tration of a regulatory provision and to the “maintenance

of public order in the matter licensed” does not offend

the first amendment where the regulatory provision itself

is constitutional. Cox v. State of New Hampshire, 312 U.S.

569, 577, 61 S.Ct. 762, 766, 85 L.Ed. 1049 (1941). In Cox,

the Supreme Court upheld a $300 permit fee applied to

requests for permission to conduct a parade or march.

The Court made clear that its decision turned on the

power of the state to regulate its highways against the

App. 18

harms caused by spontaneous marches, and to defray the

expense of that regulation. Id., at 574-575, 61 S.Ct. at 765.

The Court noted that the marchers were not charged for

distributing leaflets, and expressly refused to consider

whether their rights to disseminate written materials

were implicated by the imposition of a fee for a parade

permit. Id., at 571-575, 61 S.Ct. at 764-765.

The Court recently considered its decisions in Mur-

dock and Follett in the context of a generally applicable

sales and use tax imposed on the distribution of religious

materials by a religious organization. Jimmy Swaggart

Ministries v. Board of Equalization of California, 493 U.S.

378, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990). The Court there

upheld against first amendment challenge a sales tax

when imposed on the receipts from sales of religious

materials. The Court reconciled this decision with Mur-

dock and Follett in holding that those decisions invali-

dated only flat licensing taxes that operated as prior

restraints. Id., at 389, 110 S.Ct. at 695. Because the tax at

issue in Jimmy Swaggart Ministries was not imposed at the

time of registration, it did not constitute a prior restraint.

Id., at 390-391, 110 S.Ct. at 696. In addition, the tax was

apportioned, unlike that at issue in Murdock and Follett,

because it was tied to the realized receipts from the sales

of the material in question. Id.

Most of the subsequent federal cases addressing the

imposition of fees as a prerequisite to permission to dis-

tribute leaflets in public have held that such fees are

invalid under Murdock and Follett. See, e.g., Holy Spirit

Association for the Unification of World Christianity v. Hodge,

582 F.Supp. 592 (N.D.Tx.1984) (permit fee applied to

solicitations of charitable contribution and posting of

App. 19

fidelity bond as prerequisite to registration of soliciting

organization held unconstitutional); and Gall v. Lawler,

322 F.Supp. 1223 (E.D.Wisc.1971) (imposition of licensing

fee on distribution of newspaper held invalid because,

inter alia, it constitutes a prior restraint).

Cleveland points to several cases in which licensing

fees were permitted in various contexts in support of the

proposition that, so long as such fees are related to

defraying the administrative expense associated with reg-

ulation, they are constitutionally permissible. Representa-

tive of these cases are Jimmy Swaggart Ministries; Bright

Lights Inc. v. City of Newport, 830 F.Supp. 378

(E.D.Ky.1993); and Center For Auto Safety, Inc. v. Athey, 37

F.3d 139 (4th Cir.1994) None of these decisions is applica-

ble to the facts before this Court.

As discussed above, Jimmy Swaggart Ministries

approved a sales and use tax on the receipts from sales of

religious literature. Unlike the fee imposed here and in

Murdock and Follett, that tax did not constitute a prior

restraint on expression and it was apportioned to the

target’s ability to pay. Jimmy Swaggart Ministries is simply

inapposite here.

The court in Bright Lights Inc. upheld against first

amendment challenge a tax imposed on bars at which

nude dancing was performed. The court found that the

license fee was incident to defraying the administrative

costs of regulating the secondary effects of such establish-

ments, such as the increase in prostitution and related

crimes near the establishments in question.

This tax is clearly distinguishable from the license fee

here. Here, Cleveland -does- not-mainteinthatits fee ts

App. 20

directed to policing secondary effects of distribution of

The Homeless Grapevine and The Final Call. Instead, Cleve-

land maintains that its fee is necessary to defray the

expenses of the licensing provision itself. Cleveland’s

Memorandum In Support of Motion For Summary Judgment,

at 5. This justification is wholly circular. That is, the

challenged ordinance revolves around the mechanism

requiring the collecting of a fee, and the city defends that

mechanism as incident to defraying the costs of that same

regulatory scheme. If this Court found the city’s justifica-

tion sufficient to survive first amendment scrutiny, Mur-

dock and Follett would, in effect, be overruled. This is so

because the Murdock and Follett decisions invalidated the

process of imposing a flat fee in return for a license to

disseminate material where that fee, inter alia, is a general

revenue tax. Simply through the artifice of maintaining

that the fee defrays the cost of collecting the fee, and is

therefore not a general revenue tax but a fee necessary to

defray the costs of regulation, the city would be permit-

ted to circumvent the Murdock and Follett decisions.

While the first amendment certainly countenances the

imposition of nominal fees to defray the costs of permiss-

ible regulation of speech, it does not permit the avoidance

of its command through the sort of bootstrapping Cleve-

land attempts here. Further distinguishing the Bright

Lights Inc. case from that currently before this Court is the

fact that the Bright Lights Inc. court did not address the

prior restraint concerns that were central to the Murdock

and Follett decisions.

The Fourth Circuit, in Athey, approved the imposition

of a sliding-scale fee on organizations wishing to engage

in charitable solicitation. Athey, 37 F.3d at 145. The size of

App. 21

the fee was based on the level of the organization’s

charitable contributions. The purpose of this fee was to

defray the costs of a regulatory scheme aimed at the

prevention of fraud by charitable organizations. Id. This

case is inapposite to the dispute here for two reasons.

First, the fee at issue in Athey was apportioned through

its sliding-scale mechanism. This apportionment was cen-

tral to the court’s holding that the fee satisfied the

requirements of Murdock and Follett as understood by the

Jimmy Swaggart Ministries court. Second, the regulatory

scheme, the costs of which the fee was directed toward

defraying, was directed at combating a specific regula-

tory problem - the prevention of fraud — while that at

issue here is not.

Cleveland also points to a recent Second Circuit deci-

sion in support of its position. See National Awareness

Foundation v. Abrams, 50 F.3d 1159 (2nd Cir.1995).! There,

the court upheld imposition of a flat fee on charitable

organizations that employed professional solicitors. How-

ever, the parties did not dispute the constitutionality of

such a fee. Id., at 1163-1164. Thus, the court did not

address the question at issue here, but rather addressed

the question whether such a fee, assuming its constitu-

tionality, could be imposed not merely to defray adminis-

trative costs but also to defray the costs of enforcing the

regulatory scheme pursuant to which the fee was

imposed. In answering this question in the affirmative,

the court did no more than reject the distinction between

1 The city actually points to the district court judgment the

Second Circuit affirmed. At the time the briefs were filed in this

case, the Second Circuit had not yet decided Abrams.

App. 22

costs tied to the administration of a regulation and those

tied to its enforcement. Id., at 1165-1166. In any event, to

the extent that the Abrams decision can be read to hold

that the imposition of a fee to defray the costs merely of

collecting the fee is constitutional, this Court rejects such

a holding as contrary to Murdock, Follett, and Jimmy Swag-

gart Ministries.

Here, the ordinance in question imposes a $50 fee on

all “peddlers” who seek to distribute literature in return

for money. Cleveland does not dispute that the Coali-

tion’s and the Mosque’s individual distributors are

unable to afford the license fee, nor does the city dispute

that the Coalition cannot afford to procure a license on

behalf of all its distributors. In any event, the city does

not challenge the plaintiffs’ standing to attack the consti-

tutionality of the ordinance on this ground even were all

the plaintiffs able to afford the licensing fee.2 Cleveland

offers nothing to suggest that the fee defrays the expense

of any regulatory system other than that imposing the fee

itself. That is, the fee is justified as necessary to defray

the cost of collecting the fee and issuing a permit after the

fee is paid.

The ordinance is constitutionally infirm not only

because it is not tied to the peddler’s ability to pay - and

thus serves to prevent at least some individuals, such as

* A plaintiff whose first amendment rights are not violated

by a particular provision may nonetheless challenge the law on

overbreadth grounds “by showing that it substantially abridges

the first amendment rights of other parties not before the court.”

Village of Schaumburg v. Citizens For A Better Environment, 444

U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980).

App. 23

the Coalition and Richard Clements - from distributing

their messages, but also because it is a prior restraint on

speech. This prior restraint is not constitutionally permis-

sible as a fee tied to defraying the expenses of administer-

ing a valid regulatory scheme, because the only

regulation whose expenses it defrays is that requiring

payment of the fee.

Therefore, there are no issues of material fact in

dispute and the plaintiffs are entitled to judgment in their

favor as a matter of law on count one of their complaint.

B. Article I, § 11 oi the Ohio constitution provides in

pertinent part: “no law shall be passed to restrain or

abridge the liberty of speech, or of the press.” “[T]he free

speech guarantees accorded by the Ohio Constitution are

no broader than the First Amendment, and .. . the First

Amendment is the proper basis for interpretation of Sec-

tion 11, Article I of the Ohio Constitution.” Eastwood Mall,

Inc. v. Slanco, 68 Ohio St.3d 221, 626 N.E.2d 59, 61 (1994).

Thus, the foregoing analysis with respect to the first

amendment is applicable with respect to the Ohio consti-

tutional claim as well. See, e.g., City of Bowling Green v.

Lodico, 11 Ohio St.2d 135, 228 N.E.2d 325 (1967)

(invalidating, under federal and Ohio constitutions, ordi-

nance requiring solicitor to obtain license for a fee before

selling magazine on sidewalks, both because city official

possessed unfettered discretion in issuing license and

because imposition of fee constituted impermissible prior

restraint).

Consequently, for the reasons discussed in section

IlI.A. above, there are no disputed issues of material fact

App. 24

and the plaintiffs are entitled to judgment as a matter of

law on count two of their complaint.

IV.

This Court finds that no material facts remain in

dispute and that the plaintiffs are entitled to judgment as

a matter of law on both counts of their complaint.

Accordingly, the plaintiffs’ motion for summary judg-

ment is granted and the defendant’s motion for summary

judgment is denied. This Court enters judgment in favor

of the plaintiffs, declares that Cleveland Codified Ordi-

nances § 675.02(c)(3) violates both the first amendment to

the United States constitution and Article I, section 11 of

the Ohio constitution, and permanently enjoins its

enforcement.

Within ten days of the date of this order, the plaintiffs

shall submit any motion for attorneys’ fees, including all

materials in support of such a motion. The city may

respond within ten days of the plaintiffs’ filing.

IT IS SO ORDERED.

App. 25

Nos. 95-3665 /4016

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NORTHEAST OHIO COALITION )

FOR THE HOMELESS, ET AL.,

Plaintiffs-Appellees, ORDER

)

v. ) (Filed Apr. 10, 1997)

CITY OF CLEVELAND,

Defendant-Appellant. )

BEFORE: NORRIS, SUHRHEINRICH, and

BATCHELDER, Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submis-

sion and decision of the case. Accordingly, the petition is

denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

App. 26

CODIFIED ORDINANCES OF CLEVELAND, OHIO

Chapter 675

PEDDLERS AND PRODUCE DEALERS

675.01 Definitions; Chapter Scope

675.02 Peddler’s License Required; Application

675.03 Peddler’s License: Issuance and Replacement

675.04 Permits Required

675.05 Permit; Peddling on Private Property

675.06 Permit: Zones Within the Central Business District

675.07 Permit; Temporary Sidewalk Occupancy Outside

the Central Business District

675.08 Permit: Mobile Peddling Outside the Central

Business District

675.09 Regulations Governing Peddlers

675.10 Revocation or Suspension of License or Permit;

Appeals

675.11 to 675.14 Reserved

675.99 Penalty

675.01 Definitions; Chapter Scope

(a) For purposes of this chapter:

(1) “Commissioner” means the Commissioner of

Assessments and Licenses.

(2) “Peddling” means selling, bartering, or offering

or exposing for sale or barter any goods, wares, merchan-

dise, menial tasks, such as painting numbers on curbs,

food or beverages from, in, upon, along, or through the

App. 27

highways, streets, or sidewalks of the City, or in the open

air or from a temporary shelter or vending device upon

private property in the City.

(3) “Peddler” means any person who engages in

peddling. “Peddler” includes “hawker,” “huckster,” and

“solicitor,” but does not include itinerant vendors or itin-

erant wholesale produce dealers licensed pursuant to

Chapter 682.

(4) “Person” means an individual, corporation,

partnership or association; provided however, that for

purposes of Section 675.02, “person” shall mean a natural

person only.

(5) “Potentially hazardous food” means any food

that consists in whole or in part of milk or milk products,

eggs, meat, poultry, fish, shellfish, edible crustacea, or

other ingredients, including synthetic ingredients, in a

form capable of supporting rapid and progressive micro-

organisims [sic]. The term does not include clean, whole,

uncracked, odor-free shell eggs or foods which have a pH

level of 4.6 or below or a water activity (aw) value of 0.85

or less.

(6) “Sidewalk” means that portion of the street

between the curb lines or the lateral lines of a roadway

and the adjacent property line.

(7) “Street” means street, alley, highway, roadway

or avenue, including all curbs along such streets.

App. 28

(8) “Vending device” means a container for the sale,

display or transport of goods, wares, merchandise, equip-

ment used for menial tasks, food or beverages by a ped-

dler, which container has wheels and is capable of being

moved by one person by muscular power.

(b) Scope of Chapter. The provisions of this chapter

shall not apply to sales made to dealers by commercial

travelers or selling agents in the usual course of business,

to bona fide sales of goods, wares, or merchandise by

samples for future delivery, to sales at trade shows or

conventions, or to sales by charitable organizations in

conjunction with solicitations for charity.

prohibit the distribution of non-commercial handbills,

cards, leaflets, or other literature upon the sidewalks of

the City. (Ord. No. 532-93. Passed 6-14-93, eff. 6-23-93)

—

675.02 Peddler’s License Required; Application

(a) No person shall engage in peddling anywhere in

the City without a peddler’s license issued pursuant to

Section 675.03. The issuance of a peddler’s license to a

person shall not be deemed to authorize the agents or

employees of such person to peddle without a license.

(b) The application for the license required by divi-

sion (a) of this section shall be made to the Commissioner

upon forms to be prescribed by the Commissioner. The

application shall include the following information:

(1) the name and address of the applicant;

he BIO TE HE

App. 29

(2) a detailed description of the goods, wares, mer-

chandise, food, or beverages which the applicant intends

to sell; and

(3) such other information as the Commissioner

deems necessary to ensure compliance with this chapter.

sion (a) of this section, each applicant for a peddler’s

license shall furnish the following:

(1) two (2) photographs of the applicant taken

within thirty (30) days prior to the date of application

and of a size designated by the Commissioner;

(2) if the applicant will be peddling food or bever-

ages, a copy of the applicant’s food service license; and

(3) an annual license fee of fifty dollars ($50.00)

which shall cover the period commencing August 1 and

ending July 31 of the following year. (Ord. No. 1428-92.

Passed 7-22-92, eff. 7-24-92)

675.03 Peddler’s License: Issuance and Replace-

ment

(a) Upon receipt of a completed application and all

other materials required by Section 675.02, and in the case

of an applicant who intends to peddle focd or beverages,

upon receipt of confirmation by the Director of Public

Health that the applicant is free of communicable disease,

the Commissioner shall issue to the applicant a peddler’s

license and a laminated identification card containing the

applicant’s photograph. The identification card shall be

worn by and the license shall be kept upon the person of

App. 30

the peddler at all times during which the peddler is

engaged in peddling.

(b) The license issued pursuant to division (a) of

this section shall contain the following information:

(1) the peddler’s name and address;

(2) a detailed description of the goods, wares, mer-

chandise, food, or beverages which the peddler is autho-

rized to sell;

(3) the license number and the license expiration

date.

laminated identification card issued pursuant to division

(a) of this section, the Commissioner shall issue a replace-

ment identification card upon payment by the peddler of

a fee of ten dollars ($10.00). (Ord. No. 1428-92. Passed

7-22-92, eff. 7-24-92)

675.04 Permits Required

(a) No person shall engage in peddling upon or

from private property anywhere in the City without a

permit issued in accordance with Section 675.05.

(b) No person shall engage in peddling on the high-

ways, streets or sidewalks within the Central Business

District without a permit issued in accordance with

Chapter 508 or without a permit issued in accordance

with Section 675.06.

ing continuously from place to place on the highways,

App. 31

streets or sidewalks of the Central Business District with-

out a permit issued in accordance with Section 675.06.

(d) No person shall engage in peddling upon or

from a fixed location on a sidewalk outside of the Central

Business District without a permit issued in accordance

with Section 675.07.

(e) No person shall engage in peddling while mov-

ing continuously from place to place on the highways,

streets, or sidewalks outside of the Central Business Dis-

trict without a permit issued in accordance with Section

675.08. (Ord. No. 1670-92. Passed 8-19-92, eff. 8-27-92)

Note: Section 675.04 was enacted by Ord. No.

1428-92, passed 7-22-92, eff. 7-24-92.

675.05 Permit; Peddling on Private Property

(a) The application for the permit required by divi-

sion (a) of Section 675.04 shall be made to the Commis-

sioner upon forms to be prescribed by the Commissioner.

The application shall contain the following:

(1) the peddler’s name, address and peddler’s

license number;

(2) the name and address of the owner of the pri-

vate property upon which the peddler intends to peddle;

(3) if the-peddler is the owner of said private prop-

erty, documentation of the peddler’s ownership, and if

the peddler is not the owner of said private property,

documentation, signed by the property owner, of the

peddler’s right to peddle upon such property;

App. 32

(4) the address of the private property upon which

the peddler intends to peddle; and

(5) a description of the vending device, truck, or

temporary structure, if any, from which the applicant

intends to peddle, including its size.

(b) Upon receipt of a permit application, the Com-

missioner shall notify the Council member in whose ward

the proposed permit location lies that said application

has been received.

intends to peddle is a parking lot subject to the licensing

regulations of Chapter 457, the permit shall provide that

peddling is limited in duration to a maximum period of

five (5) consecutive days on no more than two (2) occa-

sions per calendar year for each parking lot for which a

permit is applied. Furthermore, the permit shall provide

that peddling is permitted only in conjunction with a

carnival, festival or other special event authorized by the

City. Any permit issued prior to the effective date of this

division (c) but not in conformance with the requirements

of this division (c) shall be revoked thirty (30) days after

the effective date of this division (c).

(d) The Commissioner shall refer all permit applica-

tions to the Commissioner of Building and Housing for

review and approval. The Commissioner of Building and

Housing shall not approve any such application unless he

or she finds that no provisions of the City’s Building

Code or Zoning Code will be violated by issuance of the

permit, including without limitation, the following:

(1) set back requirements;

App. 33

(2) use restrictions;

(3) if the peddler intends ta_operate from a “struc-

ture” within the meaning of the Building Code, those

provisions of the Building Code applicable to “struc-

tures”; and

(4) if the peddler intends to operate from private

property that is a parking lot, those portions of the Zon-

ing Code that require that a specified number of parking

spaces be available for the use of particular business.

(e) Upon receipt of a completed application which

has been approved by the Commissioner of Building and

Housing and a permit fee of twenty dollars ($20.00), the

Commissioner of Assessments and Licenses shall issue a

permit which shall cover the period commencing August

1 and ending July 31 of the following year.

(f) The permit shall be kept upon the vending

device, truck, or structure at all times during which the

peddler is engaged in peddling, and shall contain the

following information:

(1) the peddler’s name and address:

(2) the address of the private property upon which

the peddler is authorized to peddle;

(3) the name and address of the owner of such

private property:

(4) a description of the vending device, truck, or

temporary structure, if any, from which peddling is

authorized including its size; and

(5) the permit number and permit expiration date.

(Ord. No. 1427-A-92. Passed 6-14-93, eff. 6-23-93)

App. 34

675.06 Permit: Zones Within the Central Business

District

(a) In addition to the temporary sidewalk occu-

pancy permits issued pursuant to Chapter 508, the Direc-

tor of Public Service is hereby authorized to issue permits

to peddle in zones in the Central Business District estab-

lished by the Director in which the holders of such per-

mits may peddle on such days, at such times of day and

under such conditions as the Director shall determine.

The zones shall be created by regulation taking into

account the following factors:

(1) pedestrian and vehicular traffic patterns, includ-

ing possible congestion during special events and sport-

ing events;

(2) proximity to special events and sporting events

occurring in the Central Business District and at the

lakefront;

(3) proximity to retail establishments; and

(4) such other factors deemed relevant by the Direc-

tor of Public Service.

No food or beverage, except as authorized in the rules

and regulations promulgated pursuant to division (e) of

this section, may be peddled by a person holding a per-

_mit issued in accordance with this division (a).

(b) The application for the permit authorized by

division (a) of this section shall be made to the Director of

Public Service upon forms to be prescribed by said Direc-

tor. The application shall contain the following:

App. 35

(1) the peddler’s name, address, and peddler’s

license number;

(2) a description of the vending device, truck, or

temporary structure, if any, from which the applicant

intends to peddle, including its size;

(3) the zone or zones for which a permit is sought;

and

(4) a description of the items to be peddled.

annual permit fee of one hundred dollars ($100.00) per

zone or a daily permit fee of twenty dollars ($20.00), the

Director of Public Service shall issue the appropriate

permit. An annual permit shall cover the period com-

mencing August 1 and ending July 31 of the following

year.

(d) The permit shall be kept upon the vending

device, truck, or structure at all times during which the

peddler is engaged in peddling and shall contain the

following information:

(1) the peddler’s name and address;

(2) a statement of the zone or zones in the Central

Business District to which the peddler is restricted;

(3) a description of the vending device, truck, or

temporary structure, if any, from which peddling is

authorized, including its size; and

(4) the permit number and permit expiration date.

App. 36

(e) The Director of Public Service may issue rules

and regulations to carry out the purposes of this section.

(Ord. No. 1670-92. Passed 8-19-92, eff. 8-27-92)

Note: Section 675.06 was enacted by Ord. No.

1428-92, passed 7-22-92, eff. 7-24-92.

675.07 Permit; Temporary Sidewalk Occupancy

Outside the Central Business District

(a) The application for the permit required by divi-

sion (d) of Section 675.04 shall be made to the Director of

Public Service upon forms to be prescribed by said direc-

tor. Upon receipt of a permit application, the Director of

Public Service shall notify the Council member in whose

ward the proposed permit location lies that said applica-

tion has been received. The application shall contain the

following:

(1) the peddler’s name, address, and peddler’s

license number;

(2) asketch and narrative indicating the location for

which permit application is being made, with sufficient

detail to enable the Director of Public Service to verify the

placement of the temporary vending device in accordance

with the criteria contained in Section 675.09;

(3) a description of the vending device, truck, or

temporary structure, if any, from which the applicant

intends to peddle, including its size; and

(4) a copy of an ordinance of Council specifying the

location described in division (a) (2) of this section and

authorizing the peddler to peddle there from.

PP UMAR Ore AHF,

WT, te OT

App. 37

(b) Upon receipt of a completed application and a

permit fee of twenty dollars ($20.00), the Director of

Public Service shall issue a permit which shall cover the

period commencing August 1 and ending July 31 of the

following year.

device, truck, or structure at all times during which the

peddler is engaged in peddling, and shall contain the

following information:

(1) the peddler’s name and address;

(2) the address or description of the location upon

which the peddler intends to peddle;

(3) the number and passage date of the ordinance

described in division (a) (4) of this section;

(4) a description of the vending device, truck, or

temporary structure, if any, from which peddling is

authorized including its size; and

(5) the permit number and permit expiration date.

(Ord. No. 1814-92. Passed 2-22-93, eff. 3-4-93)

675.08 Permit: Mobile Peddling Outside the Cen-

tral Business District

(a) The application for the permit required by divi-

sion (e) of Section 675.04 shall be made to the Director of

Public Service upon forms to be prescribed by said direc-

tor. Upon receipt of a permit application, the Director of

Public Service shall notify the Council member or mem-

bers in whose ward or wards the peddler intends to

App. 38

peddle that said application has been received. The appli-

cation shall contain the following:

(1) the peddler’s name, address, and peddler’s

license number;

(2) a statement that the peddler intends to move

continuously from place to place upon those highways,

streets, or sidewalks that are located outside of the Cen-

tral Business District. The statement shall specify the

ward or wards in which the peddler intends to peddle;

(3) a copy of the ordinance of Council specifying

the ward or wards in which the peddler is authorized to

peddle; and

(4) a description of the vending device, truck, or

temporary structure, if any, from which the applicant

intends to peddle, including its size.

(b) Upon receipt of a completed application and a

permit fee of twenty dollars ($20.00), the Director of

Public Service shall issue a permit which shall cover the

period commencing August 1 and ending July 31 of the

following year.

device, truck, or structure at all times during which the

peddler is engaged in peddling and shall contain the

following information:

(1) the peddler’s name and address;

(2) the ward or wards in which the peddler is

authorized to peddle;

(3) the number and passage date of the ordinance

described in division (a) (3) of this section;

App. 39

(4) a description of the vending device, truck, or

temporary structure, if any, from which peddling is

authorized including its size; and

(5S) the permit number and permit expiration date.

(Ord. No. 1428-92. Passed 7-22-92, eff. 7-24-92)

675.09 Regulations Governing Peddlers

(a) For purposes of this section:

(1) “Merchandise” means goods, wares, merchan-

dise, food, or beverages.

(2) “Street” means street, alley, highway, roadway,

or avenue.

(b) No peddler shall sell or display merchandise:

(1) to the occupants of vehicles stopped in traffic;

(2) from any vehicle, structure, or device that is

situated in any portion of a street which is designed or

ordinarily used for vehicular travel; or

(3) at a location or in a manner that hinders or

restricts access to a telephone booth, mail box, parking

meter, police or fire call box, traffic control box, fire

hydrant, or sidewalk elevator, or that blocks, obstructs, or

restricts the free passage of pedestrians or vehicles in the

lawful use of the sidewalks or streets.

determination to the contrary, which determination is

reflected in the location specified on a permit issued in

accordance with this chapter, no peddler shall sell or

display merchandise:

App. 40

(1) at any location where the sidewalk is less than

ten (10) feet in width;

(2) within ten (10) feet of a crosswalk;

(3) within that portion of a sidewalk bounded by

the prolongation of each intersecting abutting property

line to the respective curblines or within ten (10) feet

thereof;

(4) within ten (10) feet of any doorway or the pro-

longation of any doorway width to the curbline; or

(5) within twenty (20) feet of another permitted

location, provided however, that the distance between

locations permitted pursuant to Section 675.06 shall be in

accordance with the rules and regulations promulgated

by the Director of Public Service pursuant to division (e)

of Section 675.06.

(d) No peddler shall display merchandise or place

lines or other devices for the display of merchandise on

any building or on any utility pole, planter, tree, trash

container, or other sidewalk fixture.

(e) A peddler who has received a permit to peddle

upon private property shall not encroach into any street

or sidewalk in any way.

(f) No peddler shall place any merchandise in or

upon any street or sidewalk, and all peddlers shall exer-

cise reasonable care to ensure that their merchandise,

packaging, display equipment or other paraphernalia

does not create a health or safety hazard to customers,

other users of the sidewalks and streets, or persons on

abutting property.

App. 41

(g) No peddler shall leave a vending device unat-

tended at any time, leave a vending device on a sidewalk

between the hours of midnight and 6:00 a.m., or conduct

business on a sidewalk between those hours.

(h) A peddler who has received a permit to peddle

on public property shall obey any lawful order of a police

officer to remove himself and his vending device entirely

from the sidewalk to avoid congestion or obstruction

during an emergency.

(i) A peddler selling food from a vending device

which is required by state law to have a food service

operation license shall:

(1) serve only nonpotentially hazardous foods or

commissary-wrapped foods maintained at proper tem-

peratures, provided that if water systems and handwash-

ing facilities are available, the peddler may prepare and

serve frankfurters and pre-cooked sausages;

(2) operate only from a licensed commissary to

which the peddler takes the vending device daily for

cleaning and servicing.

(j) No peddler shall:

(1) cook food in or on a street or sidewalk;

(2) conduct business without making available a

container suitable for the placement of litter; or

(3) throw or deposit any merchandise, packaging,

containers, fat, grease, paper or other litter on any streets

or sidewalk or in any sewer.

(k) A peddler who is required to move continuously

from place to place shall locate any vending device,

App. 42

equipment and merchandise adjacent and parallel to a

curb when stopped for a sale.

(1) No peddler shall make any loud or unreasonable

noise for the purpose of advertising or drawing attention

to merchandise or for any other purpose.

(m) All peddlers shall comply with all requirements

of state and local law applicable to them, including with-

out limitation the City’s Fire Code. (Ord. No. 1670-92.

Passed 8-19-92, eff. 8-27-92)

Note: Section 675.09-was enacted by Ord. No.

1428-92, passed 7-22-92, eff. 7-24-92

675.10 Revocation or Suspension of License or Per-

mit; Appeals

(a) The Commissioner may at any time revoke or

suspend any license or permit granted by the Commis-

sioner under the authority of this chapter for failure to

comply with the terms of this chapter or with any law,

rule or regulation relating to peddlers or the conduct of

their business.

(b) The Director of Public Service may at any time

revoke or suspend any permit granted by said director

under the authority of this chapter for failure to comply

with the terms of this chapter or with any law, rule or

regulation relating to peddlers or encroachments in the

rights-of-way of the City.

or the revocation or suspension of a license or permit by

the Commissioner or by the Director of Public Service,

the applicant or licensee may appeal the Commissioner’s

App. 43

or Director’s action to the Board of Zoning Appeals,

established pursuant to Charter Section 76-6. Notice of

such appeal shall be in writing and shall be filed with the

Board within ten (10) days from the date of the Commis-

sioner’s or Director’s action. Within ten (10) days after

the filing of such notice, the Board shall proceed to hear

such appeal, at which hearing all parties interested shall

be afforded an opportunity to be heard. The Board shall

render a decision within ten (10) days of the conclusion of

the hearing. The Board may sustain, disapprove or mod-

ify the Commissioner’s or Director’s action, and the

- Board’s decision shall be final. (Ord. No. 1670-92. Passed

8-19-92, eff. 8-27-92)

Note: Section 675.10 was enacted by Ord. No.

1428-92, passed 7-22-92, eff. 7-24-92.

675.11 to 675.14 Reserved

Note: Former Sections 675.11 through 675.14 were

repealed by Ord. No. 1428-92, passed 7-22-92, eff. 7-24-92.

675.99. Penalty

(a) Whoever violates any of the provisions of this

chapter is guilty of improper peddling, a minor misde-

meanor, and shall be fined one hundred dollars ($100.00).

The fine set forth herein is mandatory and shall not be

suspended by the court in whole or in part. Each day

upon which a violation occurs or continues shall consti-

tute a separate offense and shall be punishable as such

hereunder.

App. 44

(b) In addition to any other method of enforcement

provided for in this chapter, the provisions of division (a)

of this section may be enforced by the issuance of a

citation in compliance with Rule 4.1 of the Ohio Rules of

Criminal Procedure.

after reasonable warning or request to desist, improper

peddling is a misdemeanor of the first degree. (Ord. No.

137-A-91. Passed 6-17-91, eff. 6-26-91)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.