Cities4life, Inc. v. City of Charlotte

341 F.Supp.3d 621

CITIES4LIFE, INC., a/k/a Cities4Life Charlotte; Daniel Parks; and Patrick Courtney, Plaintiffs,

v.CITY OF CHARLOTTE, et al., Defendants.

NO. 3:17-cv-670

United States District Court, W.D. North Carolina, Charlotte Division.

Signed September 18, 2018

Brennan Tyler Brooks, Law Office of B. Tyler Brooks, Cary, NC, for Plaintiffs.

Benjamin Robert Sullivan, Jr., Office of the City Attorney, Charlotte, NC, for Defendants.

ORDER

Graham C. Mullen, United States District Judge

THIS MATTER is before the Court on the Motion to Dismiss (Doc. No. 11) filed jointly by the Defendants. The Plaintiffs have responded, and Defendants have filed a reply. This matter is now ripe for adjudication. For the following reasons, Defendants' Motion is granted in part, denied in part.

I. BACKGROUND

A. Factual Background

Plaintiffs Cities4Life, Inc., Daniel Parks, and Patrick Courtney (collectively, "Plaintiffs") brought this civil rights action against: the City of Charlotte; Marcus D. Jones in his official capacity as City Manager of Charlotte ("Jones"); the City of Charlotte Department of Housing and Neighborhood Services ("HNS"); the City of Charlotte Division of Code Enforcement ("DCE"); Ben Krise, individually and in his official capacity as City of Charlotte Code Enforcement Division Manager ("Krise"); Mandy Edwards, individually and in her official capacity as a City of Charlotte Code Enforcement Inspector ("Edwards"); Mark Fowler, individually and in his official capacity as a City of Charlotte Code Enforcement Inspector ("Fowler"); Kimberly Sauer, individually and in her official capacity as a City of Charlotte N & BS Area Supervisor ("Sauer"); and Jane Does 1–5 and John Doe 1, individually and in their official capacities as City of Charlotte employees ("Does") (collectively, "Defendants").

The factual allegations contained in the Complaint are presumed to be true at this stage of the litigation, and thus the Court relies on them for purposes of resolving this motion alone. According to the Complaint, Plaintiff Cities4Life, Inc. ("Cities4Life") is a "faith-based organization that seeks to engage, strengthen, and support local churches and Christians to proclaim, protect, and provide life for unborn babies in each city across the United States where abortion exists." (Compl., ¶ 17). Plaintiff Daniel Parks ("Parks") is the Executive Director of Cities4Life, and Plaintiff Patrick Courtney ("Courtney") is a Missionary for Help Pregnancy Center in Monroe, North Carolina. (Compl., ¶¶ 20, 21).

Cities4Life regularly assembles volunteers and counselors outside of abortion facilities in order to "preach[ ] the Gospel and speak[ ] the Truth" to women contemplating an abortion. (Compl., ¶¶ 48–49). Specifically, Cities4Life volunteers hand out information to women going into abortion clinics about "the alternatives to abortion and the means by which they can obtain tangible help in their difficult situation" and pray for "specific immediate needs they encounter in front of abortion centers." (Compl., ¶ 50). As a part of this work, Cities4Life employs the use of signs and placards that are large enough to be seen by individuals entering abortion facilities. (Compl., ¶ 51).

The Charlotte City Code regulates signs within public rights-of-way and on public property. Specifically, the Code provides, in relevant part:

(a) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign within 11 feet of the edge of any pavement of any roadway or alley.

(b) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign within any public rights-of-way.

(c) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign upon any post, pole, tree, tree stake or guard, shrub, or fire hydrant.

(d) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any sign upon anything else within 11 feet of the edge of the public rights-of-way, upon any bridge or overpass within the city limits, or upon other public property including, but not limited to, traffic medians.

(e) Exceptions. This section shall not apply to the following signs:

1. Signs regulating traffic.

2. Signs required to be posted by law.

3. Warning signs and no trespassing signs.

4. Signs indicating bus stops, taxi stands and similar transportation facilities.

5. Signs not exceeding four square feet in area giving information concerning the location or use of accessory off-street parking facilities or loading and unloading facilities.

6. Signs established by governmental agencies.

7. Signs permitted by the state board of transportation along state-mandated streets. Proof of permission must be shown upon request.

8. Nothing in this section shall apply to the painting of house numbers on curbs done with the prior approval of the engineering department.

9. Nothing in this section shall apply to the installation of a plaque, plate, statue, or monument on public property with the approval of the city council.

10. Nothing in this section shall apply to the removal of an illegally placed sign which is in violation of this section.

11. A violation of any provision of this section shall not constitute an infraction or misdemeanor punishable under G.S. 14-4.

(f) Responsible person. The responsible person for any signs in violation of subsection (a) through (d) is defined as follows:

1. In the case of a sign advertising a service, product, dwelling, or event, the responsible person shall be deemed the person hosting or organizing the event or the person attaching, placing, painting, writing, stamping, or pasting any sign. Violation of this section shall subject the responsible person to a civil penalty of $100.00 per sign.

Charlotte, N.C., Code § 10-141 (June 6, 2018).¹

On June 29, 2017, Parks led a team of Cities4Life volunteers to hand out information on public property near an abortion clinic called A Preferred Women's Health Center of Charlotte ("Preferred Women's Health"). Defendants Krise and Fowler arrived and confiscated and subsequently destroyed a canopy belonging to Cities4Life. The canopy was not blocking any right of way, and it was not affixed permanently or semi-permanently.

On July 5, 2017, Parks and Cities4Life again engaged in their activities near Preferred Women's Health and three officials from the DCE arrived and began issuing citations for violation of City Code § 10-212. Parks received two citations on this date for allegedly violating City Code § 10-212, both of which were signed by Defendant Edwards. Defendant Sauer explained that one citation was being issued because "a placard was resting on an individual's shoes without her feet actually being inside her shoes." (Compl., ¶ 86). The officials also seized and destroyed the placards used by Cities4Life.

On July 11, 2017, Parks and Cities4Life again engaged in their activities near Preferred Women's Health. Officials from the DCE arrived, seized two placards that were leaning against a vehicle, and subsequently destroyed them. When a volunteer sat on a sign, the officials declined to take it, stating that because it was no longer being "displayed," there was no violation of any ordinance. (Compl., ¶ 91).

Similar seizures and destruction of placards belonging to individuals associated with Cities4Life occurred on August 8, 2017, and August 18, 2017. And on September 16, 2017, both pro-life and pro-choice groups marched in the vicinity of Preferred Women's Health carrying flyers and signs. City officials arrived and issued citations to individuals affiliated with the pro-life protesters, but not to pro-choice protesters.

On November 5, 2017, Parks was issued two additional citations by members of the DCE, including Defendant Krise, while displaying signs on public property in the vicinity of Preferred Women's Health.

Additionally, in the summer of 2017, Courtney spent time "peacefully praying, preaching, and further exercising his First Amendment rights on public property" near Preferred Women's Health. He brought a sign with him, and he held it upright with his hands while the bottom of the sign rested on the ground. Three officials from the DCE arrived and approached Courtney. Courtney then put his sign on the ground and sat on it "to protect his property from the city officials." (Compl., ¶ 110). The DCE members demanded that he turn over his sign, and he refused to do so. The officials then left. Courtney alleges that this "threat to take his property" has made him "fear he will lose his ability to exercise his First Amendment rights and that the city will confiscate his property." (Compl., ¶ 115).

B. Procedural Background

As stated above, Parks received two citations for violating § 10-141 on July 5, 2017 and two additional citations for violating § 10-141 on October 5, 2017, each carrying a $100 fine. On August 4, 2017, Parks requested an appeal of the first pair of citations issued to him and reimbursement for the cost of the destroyed placards on behalf of Cities4Life. On October 4, 2017, the City of Charlotte reimbursed the cost of the destroyed property to Parks without admitting any wrongdoing. On November 9, 2017, Parks again requested an appeal of the July 5 citations as well as an appeal of new citations that had been issued to him on October 5, 2017. Shortly thereafter, on December 11, 2017, the City of Charlotte rescinded the July 5 citations and granted Parks' request for an appeal of his October 5 citations subject to his compliance with the ordinance appeal provisions, including a bond payment.

In the meantime, however, Plaintiffs filed their Complaint in this matter on November 11, 2017. The Complaint alleges that Defendants, through their enforcement of § 10-141, violated the First Amendment of the Constitution; the Due Process and Equal Protection Clauses of the Fourteenth Amendment; Article I, Section 1 of the North Carolina Constitution ; Article I, Section 14 of the North Carolina Constitution ; and Article I,...