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decided: August 7, 1989.


Appeal from Common Pleas Court, Fayette County; Honorable Richard D. Cicchetti, Presiding Judge.


Mark S. Galper, Shire & Bergstein, American Civil Liberties Union, Greater Pittsburgh Chapter, Monessen, for appellant.

Jack R. Heneks, Jr., First Administrative Asst. Dist. Atty., Fayette County Dist. Attys. Office, Uniontown, for appellee.

Colins and McGinley, JJ., and Barbieri, Senior Judge.

Author: Mcginley

[ 128 Pa. Commw. Page 95]

This is an appeal by Mark Henry Satinoff (Appellant) from the order of the Court of Common Pleas of Fayette County (trial court) sentencing the Appellant to pay certain fines and court costs for violation of the Borough of Masontown's (Borough) Peddling and Soliciting Ordinance (Ordinance).

On May 2, 1987, Appellant was arrested by Lt. Robert L. Kelly of the Masontown Police Department for violation of the Borough's Ordinance. The Ordinance requires that any

[ 128 Pa. Commw. Page 96]

    person engaged in peddling, as defined in the Ordinance,*fn1 apply for a license, the fee for which is $20 per day, for the privilege of peddling between the hours of 9:00 a.m. and 5:00 p.m., Monday through Saturday. On the date of the arrest, Appellant was distributing the Social Workers Party's newspaper, "The Militant," "for a donation of $.75 or whatever pocket change they had" without a license. (Notes of Testimony, March 3, 1988, (N.T.) at 15.)

The district justice found Appellant guilty of violating the Ordinance and Appellant appealed. The trial court conducted a de novo hearing and found that Appellant's activity in the Borough on the date of arrest was not for the sole purpose of disseminating literature on the political ideas of the Socialist Party. The trial court found that Appellant sought to sell subscriptions to The Militant and was successful. The trial court determined that Appellant's conduct was one of a commercial nature beyond the protection of first amendment political speech. The trial court dismissed Appellant's appeal and reinstated the fine and costs imposed by the district justice.

[ 128 Pa. Commw. Page 97]

Initially, we note that the burden of proving that a statute is unconstitutional is on the challenger. Morris v. Public School Employes' Retirement System, 114 Pa. Commonwealth Ct. 369, 538 A.2d 1385 (1988). A statute is presumed to be constitutional, and the burden of proving otherwise is heavy. Morris. Furthermore, any doubts as to a statute's constitutionality are to be resolved in favor of sustaining the statute. Parker v. Department of Labor Page 97} and Industry, 115 Pa. Commonwealth Ct. 93, 540 A.2d 313 (1988).

On appeal Appellant argues that: 1) he was engaged in political activity and not in commercial activity; 2) the imposition of the $20 licensing fee to his political activity renders the Borough's Ordinance unconstitutional; and 3) the trial court erred in refusing to permit the Appellant to testify to his prior experience in selling The Militant in similar communities.

The freedom of speech and of press is secured by the First Amendment against abridgement by the United States and is similarly secured by the Fourteenth Amendment against abridgement by a state. Schneider v. Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).*fn2 Also, the right of freedom of speech and freedom of press has broad scope which embraces the right to distribute literature and the right to receive it. Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).*fn3 However, the United States Supreme Court has determined that the sale of magazines and periodicals are in the area of commercial activity and beyond the exercise of protected First Amendment political speech.*fn4

[ 128 Pa. Commw. Page 98]

The record clearly indicates that Appellant's primary purpose was to discuss political ideas and topics contained in The Militant with the residents of the community.*fn5 Although Appellant testified that The Militant cost $.75 a copy he would accept less than that amount and offered older copies of The Militant for free.*fn6 Appellant also testified

[ 128 Pa. Commw. Page 99]

    that he had never generated $20 in sales in other communities and that he was unaware the Borough required a $20 licensing fee before going door-to-door.*fn7 Further, Appellant was not paid to sell The Militant and his sales on the date of arrest amounted to only $5.00. (N.T. at 23, 24.) The small monetary gain from selling The Militant cannot be equated to the commercial activity of door-to-door selling of subscriptions to national periodicals, newspapers and magazines.

Additionally, Appellant contends that the application of the $20 licensing fee to him and other political party members renders the Ordinance unconstitutional because it makes it impossible to disseminate political ideas and speech through door-to-door solicitation. We agree.

A municipality is constitutionally permitted to enact regulations in the interest of public safety, health, welfare or convenience. Schneider. Such regulation in the form of an Ordinance must be reasonably drawn and rationally related to the goals of the community. While the Commonwealth contends that the Ordinance is designed to ensure community safety and regulate solicitations and sales to reasonable hours, the Ordinance abridges upon the constitutional liberty to impart information through speech and the distribution of literature. Schneider. Appellant testified that he only generated $5 in sales on the date of the arrest and that he never generated $20 in sales. (N.T. at 27.) The $20 licensing fee is not a nominal fee imposed as a regulatory measure calculated to defray the expense of protecting those at home against the abuses of the solicitor. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct.

[ 128 Pa. Commw. Page 100870]

, 87 L.Ed. 1292 (1943). Further, the Borough failed to present any evidence that the licensing fee defrayed the expense of policing the activities in question or covered the expense in administering the licensing fee. Additionally, Appellant's activities took place within the permitted hours and there were no allegations that his activities were a cover for any wrongdoing.

Therefore, the imposition of the $20 licensing fee upon Appellant's political activities is violative of the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution.*fn8

Accordingly, we reverse the decision of the trial court.*fn9


AND NOW, this 7th day of August, 1989, the order of the Court of Common Pleas of Fayette County at No. 248 S.D., 1987, dated December 19, 1988, is reversed.

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