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ARIETTA v. CITY OF ALLENTOWN

August 9, 2004.

JOSEPH A. ARIETTA, et al., Plaintiffs,
v.
CITY OF ALLENTOWN, et al., Defendants.



The opinion of the court was delivered by: JAMES KELLY, Senior District Judge

MEMORANDUM AND ORDER

Presently before the Court is the Motion for Temporary Restraining Order filed by Plaintiffs Joseph A. Arietta, Donald Earl Cummings, Joseph F. O'Hara, Edward J. Kuchar, Kathleen R. Kuhns, Phillip T. Pongracz, Karen Pongracz and Mary Ann Yorina (collectively, "Plaintiffs") seeking relief from the enforcement of certain provisions of the Codified Ordinances of the City of Allentown, Pennsylvania, specifically, those provisions relating to a permit requirement for special events. See Codified Ordinances of the City of Allentown, Sections 311.01-311.99 (the "Ordinance"). Plaintiffs allege that these provisions are facially unconstitutional and unconstitutional as applied to them in each of their individual abortion protest activities at the Keats Street entrance to the Allentown Women's Center (the "AWC"), a corporation organized under the laws of Pennsylvania that provides medical services to women, including abortions. Defendants City of Allentown, Police Chief Joseph Blackburn, Assistant Police Chief Ronald Manescu and Mayor Roy Afflerbach (collectively, "Defendants") filed their Opposition to Plaintiffs' Motion, and a full evidentiary hearing was held. Following the evidentiary hearing, which took place on January 28, 2004 and February 10, 2004, the parties submitted Proposed Findings of Fact and Conclusions of Law.*fn1

Upon consideration of the papers and the matters addressed during an evidentiary hearing before the Court, we make the following Findings of Fact and Conclusions of Law.

  I. FINDINGS OF FACT

  The Parties

  1. Plaintiffs are individuals motivated by their faith to protest against abortion in the public areas surrounding abortion clinics, and to counsel expectant mothers to seek alternatives to abortion. (Compl., ¶ 29.)

  2. Plaintiffs are individual volunteers and are not affiliated with any group. (Compl., ¶ 5; Tr. Feb. 10 at 99, 114, 130-31.)

  3. Plaintiffs volunteer their time to advocate their pro-life message through counseling, leafleting, praying and picketing. (Tr. Feb. 10 at 133.)

  4. Plaintiffs Phillip T. Pongracz and Karen Pongracz are husband and wife, and reside at 1325 East Livingston Street, Allentown, Pennsylvania, which residence is located approximately one block north of the AWC. (Compl., ¶ 6; Tr. Feb. 10 at 106.)

  5. Plaintiff Joseph A. Arietta resides in Allentown, Pennsylvania. (Compl., ¶ 1.)

  6. Plaintiff Donald Earl Cummings resides in Bethlehem, Pennsylvania. (Compl., ¶ 2.)

  7. Plaintiff Joseph F. O'Hara resides in Hobby, Pennsylvania. (Compl., ¶ 3.)

  8. Plaintiff Edward J. Kuchar resides in Allentown, Pennsylvania. (Compl., ¶ 4.)

  9. Plaintiff Kathleen R. Kuhns resides in Wyomissing, Pennsylvania. (Compl., ¶ 5.)

  10. Plaintiff Mary Ann Yorina resides in West Wyoming, Pennsylvania. (Compl., ¶ 7.)

  11. Defendant City of Allentown (the "City" or "Allentown") is the third largest city in the Commonwealth of Pennsylvania, and is located within the Eastern District of Pennsylvania. The City has a population of approximately 110,000. (Tr. Jan. 28 at 26.)

  12. Defendant Roy Afflerbach is the Mayor of Allentown. (Compl., ¶ 20.) 13. Defendant Joseph Blackburn is the Chief of Police of the City's Police Department. (Compl., ¶ 12.)

  14. Defendant Ronald Manescu is the Assistant Chief of Police of the City's Police Department and has been employed as a police officer since 1977. (Tr. Jan. 28 at 26.)

  15. Inspector Frank Peters has been employed by the City's Police Department for approximately thirty years. (Tr. Feb. 10 at 134.)

  16. Plaintiffs' Complaint alleges four counts against Defendants, as follows: Count I — 42 U.S.C. § 1983 (Deprivation of Right of Freedom of Speech); Count II — 42 U.S.C. § 1983 (Deprivation of Right to Freedom of Assembly); Count III — 42 U.S.C. § 1983 (Deprivation of Right to Free Exercise of Religion); Count IV — Supplemental State Law Claim (Civil Conspiracy). Counts I through III of Plaintiffs' Complaint hinge on the constitutionality of the Ordinance at issue in this matter.

  The AWC and Its Location

  17. On December 2, 2003, the AWC relocated from 1810 Steel Stone Road in Hanover Township, Pennsylvania to 1409 Union Boulevard in Allentown. (Tr. Jan. 28 at 62.)

  18. The AWC is a corporation organized under the laws of Pennsylvania and provides medical services to women, including abortions. (Tr. Feb. 10 at 47, 55.)

  19. Jennifer Boulanger has been employed as the Executive Director of the AWC since October 1997. (Tr. Jan. 28 at 61.)

  20. The AWC's facility is bound on the south by Union Boulevard, on the north by Keats Street, on the west by Nelson Street and on the east by Plymouth Street. (Defs.' Ex. 1.)

  21. The distance from the door of the AWC to Nelson Street is 166 feet. (Tr. Jan. 28 at 38.)

  22. The parking lot used by the AWC is across Keats Street. (Defs.' Ex. 1.)

  23. The AWC parking lot is bounded on the north by Livingston Street, on the west by Nelson Street and on the south by Keats Street, and measures 121 feet from Keats Street to Livingston Street. (Defs.' Ex. 1; Tr. Jan. 28 at 38.)

  24. There are several aprons on the Nelson Street-side of the parking lot for ingress to and egress from the lot. (Tr. Jan. 28 at 48.)

  25. The Keats Street entrance to the AWC is the primary entrance used by AWC staff and patients. (Tr. Jan. 28 at 30.)

  26. Keats Street is a fourteen-foot wide street with no sidewalks. (Tr. Jan. 28 at 36, 47; Tr. Feb. 10 at 141.)

  27. Keats Street is used by vehicular and pedestrian traffic. (Tr. Jan. 28 at 28, 45.)

  28. Union Boulevard, Nelson Street, Livingston Street and Plymouth Streets have sidewalks. (Tr. Jan. 28 at 36-37.)

  The City of Allentown Ordinances and Their Construction

  29. Section 311.02 of the Ordinance states:
All special events such as exhibits, fairs, athletic events, parades, concerts, block parties, church events or conventions, occupying, marching or assembling upon any street or public area of the City are permitted only after a permit for the holding thereof has been granted by the Mayor or his designee.
  30. Section 311.03 of the Ordinance sets forth the fee requirement for a permit application:
 
Applications for special events permits shall be accompanied by a fee. The exact fee shall be established by the Mayor and adopted by Administrative Regulation (AIM) in such amount as he may determine to be sufficient to cover the administrative cost of processing the permit.
  31. Section 311.05 of the Ordinance sets forth the standards for permit issuance and denial as follows:
 
A. Standards for issuance. The Mayor or his designee shall issue a special events permit conditioned upon the applicant's written agreement to comply with the terms of such permit unless the Mayor or his designee finds any of the following:
1. The time, size and location of the special event will disrupt to an unreasonable extent the movement of traffic or the public peace;
2. The special event is of a size or nature that the diversion of so great a number of police officers of the City that reasonable police protection would be denied to the City; 3. Such special event will interfere with another special event for which a permit has already been issued.
B. Standards for denial. The Mayor or his designee shall deny an application for a special events permit and notify the applicant of such denial where:
1. The Mayor or his designee makes any finding contrary to the findings required to be made for the issuance of a permit;
2. The information contained in the application is to be found to be false or nonexistent in any material detail;
3. The applicant refuses to agree to abide by or comply with all conditions of the permit.
  32. On December 11, 2003, Assistant Chief Manescu issued a memorandum to officers under his command instructing them to prohibit anti-abortion protesters from blocking Keats Street. Chief Manescu explained that Keats Street is a public thoroughfare used by vehicular traffic and, therefore, police would not allow any type of protestors or anyone else from "occupying" it. (Tr. Jan. 28 at 28.)

  33. "Occupying" means standing in one place in the street or blocking the street. (Tr. Jan. 28 at 28.)

  34. Police would not allow anyone to block Keats Street for the safety of people going to and from the AWC and for anyone who chose to ...


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