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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
| AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC., et. al., |
|
| v. | Case No. 97-2058 CIV-T-17 Judge Elizabeth A. Kovachevich |
| PINELLAS COUNTY, et. al., |
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
COME NOW Plaintiffs American Charities for Reasonable Fundraising Regulation, Inc. (“ACFRFR”), The Creative Advantage (“TCA”) and Norman W. Leahy (“Leahy”), by and through their undersigned attorneys, and move this court for Summary Judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure.
Statement of Facts
1. ACFRFR is a tax exempt, 501(c)(3) organization under the Internal Revenue Code of 1986, as amended. It does not conduct business in Pinellas County, have an office within Pinellas County, or have any physical presence in Pinellas County. (See Answers at ¶ 2 and Defendants’ Response to Plaintiffs’ Request to Admit ¶ 1, 5, 13.)
2. Insofar as it is relevant to this lawsuit, ACFRFR appears on its own behalf as the assignee of a claim as well as in its representational capacity on behalf of various Professional Fundraising Consultants, who sell their services in interstate commerce to charitable clients located throughout the United States. (See Answers at ¶¶ 97 and 101.)
3. The Defendants have asserted the power to force ACFRFR’s Professional Fundraising Consultant (“PFC”) supporters to register with Pinellas County, even if these PFC supporters do not have any contacts with Pinellas County, so long as they sell fundraising advice to charitable clients regarding the possibility of mailing solicitation materials to residents of Pinellas County. (See Defendants’ Response to Plaintiffs’ Interrogatory ¶ 1, Defendants’ Response to Plaintiffs’ Request to Admit ¶ 52, and Answers at ¶¶ 25, 84, 97, and 101.)
4. Plaintiff TCA appears in this lawsuit as a result of having been threatened with prosecution by Pinellas County for failing to register with it if one of its unrelated charitable clients subsequently mails solicitation materials into Pinellas County. (See Answers at ¶¶ 25, 85, and 101.)
5. On April 15, 1997, the President of TCA, Marilyn Price, sent a letter to Pinellas County in which she described that TCA has no contacts with the state of Florida, and that she was unsure of whether any of her clients used the fundraising consulting advice that she sold to them to send solicitation materials into Pinellas County. Ms. Price indicated that she was uncertain whether such mailings by her clients, over whom she exercises absolutely no control, required her to register or otherwise secure a permit with Pinellas County. (See Complaint Exhibits A and B, Answers at ¶¶ 33-34, and Defendants’ Response to Plaintiffs’ Request to Admit ¶ 54.)
6. In response to that letter, Ms. Price received a telephone call from Mr. John Wood of the Pinellas County department of Consumer Protection. Mr. Wood warned her that if a charity raises funds in Pinellas County, then both it and its fundraising consultant must register with the County no matter where either is located. He further admonished her that Pinellas County’s registration requirements were separate and additional to any imposed by the state of Florida, and that failure to comply with Pinellas County’s laws could subject her to quasi-criminal penalties. (See Complaint Exhibit B, Defendants’ Response to Plaintiffs’ Request to Admit ¶ 54 and Answers at ¶¶ 57-59, 25, 85, and 101.)
7. TCA (1) maintains its only office and does all of its work in the state of Virginia, (2) enters into all of its contracts in Virginia, (3) does not market its services in Pinellas County, (4) does not solicit in Pinellas County (as that term is defined in § 42-266 of the Pinellas County Code), (5) does not have any physical presence or (6) any agents who could receive process for it in Pinellas County, and (7) does not otherwise conduct business in Pinellas County. (See Complaint Exhibit B and Defendants’ Response to Plaintiffs’ Request to Admit ¶¶ 6, 14, 42, and 54.)
8. The Plaintiffs also requested that the Defendants admit that they have no evidence to support any of the following, or if not produce evidence to the contrary: (1) that TCA conducted business within Pinellas County, (2) that TCA solicited contributions within Pinellas County, (3) that TCA has any agents within Pinellas County, (4) that TCA exercised dominion or control over funds raised by its charitable clients from residents of Pinellas County, (5) that TCA has any agents or other persons with authority to receive process for it in Pinellas County, (6) that TCA entered into any contracts with clients located in Pinellas County, (7) that TCA provided consulting services focused specifically on the residents of Pinellas County, (8) that TCA has entered into any contracts to perform fundraising consulting services in which those services will be performed within Pinellas County, and (9) that the factual statements contained in the Plaintiffs’ Complaint which were denied by the Defendants are false. (See Defendants’ Response to Plaintiffs’ Request to Admit ¶¶ 2, 10, 18, 22, 26, 30, 34, 38, and 53.)
Although the Defendants refused to directly admit any of these specific allegations (denying them on the basis of lack of knowledge), they simultaneously failed to produce a scintilla of evidence to the contrary (which they were requested to supply in the event of denials). This failure, when read in conjunction with the phrasing of the requests (requesting that they admit that they “have no information or evidence . . .”) is tantamount to an admission that the Defendants have no evidence contradicting the Plaintiffs’ statements of fact which should thus be treated as true.
9. Defendants assert the power to force TCA to register with Pinellas County if it is to continue advising charities that may solicit in the County. (See Defendants’ Response to Plaintiffs’ Request to Admit ¶ 46 and Answers at ¶¶ 25, 85, and 101.)
10. Leahy appears in this lawsuit as a result of having been threatened with prosecution for failing to register with Pinellas County if one of his charitable clients mails solicitations into the County. (See Answers at ¶¶ 25, 86, and 101.)
11. Leahy sent a letter to the Pinellas County Department of Consumer Protection on April 21, 1997, advising that he was a Virginia based copywriter that sold suggested “copy” to charitable organizations for their use in developing national direct mail public education campaigns. Although Leahy made clear that he was not soliciting in Pinellas county or elsewhere, Leahy received a response from the Pinellas County Department of Consumer Protection which stated that Professional Fundraising Consultants have to register with Pinellas County if their charitable clients mail solicitations into the County, even if the Consultant has already registered with the State of Florida. (See Complaint Exhibits C and D, Defendants’ Response to Plaintiffs’ Request to Admit ¶ 47, and Answers at ¶¶ 25, 86, and 101.)
12. The Defendants assert that they have the power to force Leahy to register with it. (See Defendants’ Response to Plaintiffs’ Request to Admit ¶ 47 and Answers at ¶¶ 25, 86, and 101.)
13. Leahy does not (1) maintain an office in Pinellas County, (2) has not had any physical presence within Pinellas County, and (3) has not marketed his services within Pinellas County. (See Defendants’ Response to Plaintiffs’ Request to Admit ¶¶ 7, 15, and 43.)
14. The Plaintiffs requested that the Defendants admit that they have no evidence from any relevant time period to support any of the following, or if not produce evidence to the contrary: (1) that Leahy conducted business within Pinellas County, (2) that Leahy solicited contributions within Pinellas County, (3) that Leahy has any agents within Pinellas County, (4) that Leahy exercised dominion or control over funds raised by his charitable clients from residents of Pinellas County, (5) that Leahy has any agents or other persons with authority to receive process for him in Pinellas County, (6) that Leahy entered into any contracts with clients located in Pinellas County, (7) that Leahy provided consulting services focused specifically on the residents of Pinellas County, (8) that Leahy has entered into any contracts to perform fundraising consulting services in which those services will be performed within Pinellas County, and (9) that the factual statements contained in the Plaintiffs’ Complaint which were denied by the Defendants are false. (See Defendants’ Response to Plaintiffs’ Request to Admit ¶¶ 3, 11, 19, 23, 27, 31, 35, 39, and 53.)
Although the Defendants refused to directly admit any of these specific allegations (denying them on the basis of lack of knowledge), they simultaneously failed to produce a scintilla of evidence to the contrary (which they were requested to supply in the event of denials). This failure, when read in conjunction with the phrasing of the requests (requesting that they admit that they “have no information or evidence . . .”) is tantamount to an admission that the Defendants have no evidence contradicting the Plaintiffs’ statements of fact which should thus be treated as true.
15. There is no remedy at law adequate to redress Plaintiffs’ grievances. (See Answers ¶ 128.)
16. The Pinellas County Ordinance seeks to regulate both protected and unprotected speech. (See Answers ¶ 92.)
17. Plaintiffs are required to register not only with Pinellas County but also with the State of Florida. (See Answers ¶¶ 26, 84 – 86.)
18. Pinellas County cannot impose regulations on interstate activity that does not have a sufficient nexus with the County. (See Answers ¶ 63.)
Causes of Action
As a result of the chilling effect that Pinellas County’s registration requirements for out of state Professional Fundraising Consultants have on the ability of charities to conduct public education campaigns in Pinellas County, the Plaintiffs instituted the present lawsuit. The Plaintiffs allege 6 causes of action, claiming violations of (1) the Commerce Clause contained in Article I Section 8 of the United States Constitution, (2) the Free Speech Clause contained in Amendment 1 of the United States Constitution, (3) the Due Process Clause contained in Amendment 14 of the United States Constitution, and (4) the Plaintiffs Civil Rights pursuant to 42 U.S.C. 1983.
Motion
Based on the aforementioned facts as set forth in (1) the Plaintiffs’ Complaint (and attached affidavits), (2) the Defendants Answers to the Complaint, and (3) the Defendants’ responses to the Plaintiffs discovery requests, the Plaintiffs now move this court for Summary Judgment pursuant Rule 56(a) of the Federal Rules of Civil Procedure.
WHEREFORE, Plaintiffs respectfully move this court for an Order: (1)granting Summary Judgment on the Plaintiffs’ Six Causes of Action; (2) declaring Sections 42-268, 42-274, 42-276, 42-278, 42-280, 42-291, 42-292, 42-295, 42-321, 42-326, 42-331, 42-334, and 42-335 of the Pinellas County Ordinance violative of the First and Fourteenth Amendments to the United States Constitution on their face and as applied to these Plaintiffs, as well as violative of the Commerce Clause contained in Article I Section 8 of the United States Constitution; (3) a permanent injunction enjoining the Defendants, their agents, and employees from enforcing Sections 42-268, 42-274, 42-276, 42-278, 42-280, 42-291, 42-292, 42-295, 42-321, 42-326, 42-331, 42-334, and 42-335 of the Pinellas County Ordinance; (4) requiring the Defendants to pay all costs, interest and attorneys fees incurred in connection with this civil action pursuant to 42 U.S.C. 1988; (5) providing that this court retain jurisdiction to enforce the injunction granted against the Defendants, their agents and employees, and (6) for such other and further relief as this court may deem just and proper for the purpose of redressing the violations of the Plaintiffs’ constitutional rights by the Defendants.
Respectfully submitted,
PLAINTIFFS
AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC.,
THE CREATIVE ADVANTAGE, and
NORMAN W. LEAHY
| By: __________________________ George K. Rahdert FBN: 213365 Alison M. Steele FBN:701106 Rahdert Anderson McGowan & Steele, P.A. 535 Central Avenue St. Petersburg, FL 33701 Phone: (813) 823-4191 Fax: (813) 823-6189 Attorneys for Plaintiffs |
By: __________________________ Clifford Perlman Pro Hac Vice Seth Perlman Pro Hac Vice Perlman & Perlman 220 Fifth Avenue, 7th Floor New York, New York 10001 Phone: (212) 889-0575 Fax: (212) 889-5228 Attorneys for the Plaintiffs |
___________________________
Geoffrey W. Peters
Pro Hac Vice
9024 Trailridge Court
Vienna, VA 22182
Phone: (703) 356-8703
Fax: (703) 356-0684
Attorney for American Charities for
Reasonable Fundraising Regulation