The opinion of the court was delivered by: Judge Kane
Before the Court are cross motions for summary judgment. (Doc. Nos. 38 and 50.) Having been fully briefed and heard on oral argument, the motions are ripe for disposition.
York Ordinance No. 10 ("York Ordinance"), adopted on April 16, 2002, amended Article 741, § 741.03 "Public meetings" of the Codified Ordinance of the City of York, Pennsylvania, to establish a permit requirement for the use of public land and facilities in the City of York. (Attached hereto as Appendix A.) The York Ordinance prohibits persons from conducting any public assembly, parade, picnic, or other event involving more than twenty-five individuals without first obtaining a permit. (Doc. No. 14, Ex. A, York Ordinance § (c); § 741.03(c).)*fn2
Permits may be obtained by filing a written application for a permit with the Recreation and Parks Bureau. (York Ordinance § (d)1(1); § 741.03(d)(1)A.) "Recreational permits" are also available by written application with the Recreation and Parks Bureau for individuals seeking to reserve park facilities for an event involving less than twenty-five people. (York Ordinance § (d)1(3); § 741.03(d)(3).) Individuals who hold an event in violation of this statute are subject to a $1,000.00 fine or 30 days imprisonment. (York Ordinance § (g); § 741.03(j).)
In order to be considered for a permit, an applicant must first pay an application fee. (York Ordinance § (d)3; § 741.03(d)(5).) The "Basic Permit" fee is $50.00 for city residents and $100.00 for non-residents. (York City Council Resolution No. 56 of Session 2002, Doc. No. 14, Ex. A at 14.) The applicant must also pay a security deposit equal to the "estimated cost of policing, cleaning up, and restoring the park", procure and maintain insurance "in such amounts and with such coverage as shall reasonably be required by the City", agree to reimburse the City for "any such costs incurred by the City" in connection with the event, and agree to "indemnify the City and hold the City harmless from any liability to any person resulting from any damage or injury occurring in connection with the permitted event proximately caused by the action of the [applicant]". (York Ordinance § (d)4-7; § 741.03(d)(6)-(9).) Prior to August 19, 2003, the York Ordinance also restricted the distribution of literature and the display of signs.
Permit applications are processed in order of receipt. (York Ordinance § (e)1; § 741.03 (e)(1).) Pursuant to section (e)5 of the Ordinance, the City may deny applications that are not fully complete, contain material falsehood, plan activities that would represent an unreasonable danger to the health, safety, or welfare of the public, or if the applicant has not complied with the section (d) requirements. (York Ordinance § (e)5; § 741.03(e)(5).) An application that is deficient in one of the section (d) conditions, but that otherwise complies with all other requirements, will be granted a conditional approval so long as the applicant satisfies all of the section (d) requirements prior to the event. (York Ordinance § (e)2; § 741.03(e)(2).) "If no written denial or conditional approval is issued within fourteen days of the date on which a permit application is fully completed, executed and filed with the appropriate officer or employee . . . the application shall be deemed to have been granted a conditional approval . . . ." (York Ordinance § (e)3; § 741.03(e)(3).) Otherwise, an applicant will receive a written notice of denial clearly specifying the grounds upon which the permit was denied. (York Ordinance § (e)4-5; § 741.03(e)(4)-(5).)
Applicants may apply to the Solicitor's Office for a waiver of the user fee, security deposit, or certificate of insurance if "the activity is protected by the First Amendment of the Untied States Constitution and the requirement would be so financially burdensome that it would preclude the applicant from using Park property for the proposed activity." (York Ordinance § (f)3; § 741.03(f)(3).) If no written denial of waiver is issued within fourteen days, the waiver is deemed approved.*fn3 (Id.) Any application denied by the City or waiver denied by the Solicitor's Office may be appealed to the Recreation Director who, within seven days, must affirm, modify, or reverse the denial. (York Ordinance § (f)1; § 741.03(f)(1).)
On or about June 14, 2002, the Nationalist Movement ("Plaintiff") submitted an application for a permit to hold a protest of the Martin Luther King, Jr. holiday, in and around York City Hall, on January 20, 2003. On its application, Plaintiff objected to several of the provisions of the York Ordinance, including, inter alia restrictions on distribution of literature, restrictions on the display of signs, the required security deposit, the indemnification agreement, the permit fee, and the payment of police and public work services costs. (Doc. No. 14, Ex E.)
In protest of the permit fee, Plaintiff did not submit any form of payment for fees or costs required by the application.
By letter dated July 12, 2002, Defendant's Assistant City Solicitor notified Plaintiff that the permit application was being denied as incomplete and for failure to comply with the York Ordinance. On or about July 15, 2002, Plaintiff appealed the denial. On July 25, 2002, Defendant's Director of Public Works affirmed the denial. Thereafter, Plaintiff requested that Defendant's City Council entertain a further appeal. Plaintiff's request was denied.
On August 2, 2002 (Doc. No. 14, Ex. L) and September 3, 2002 (Doc. No. 14 Ex. P), Plaintiff wrote to Defendant requesting a waiver form excusing Plaintiff from paying the application fee. Plaintiff received no response from Defendant to either request for a fee waiver. On October 25, 2002, Plaintiff initiated the instant civil action by filing a Complaint grounded in the First, Fifth and Fourteenth Amendments and for declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202. (Doc. No. 1.) On January 03, 2003, Plaintiff filed a motion to dismiss the Complaint. (Doc. No. 11.) The same day, Plaintiff filed a motion for a temporary restraining order and a preliminary and permanent injunction. (Doc. No. 12.) By Order dated January 10, 2003, the Court scheduled an injunction hearing for January 13, 2003. (Doc. No. 20.) However, prior to the scheduled hearing, Defendant agreed that Plaintiff could hold its event on January 20, 2003 without obtaining a permit and agreed to provide police protection and electricity, for the nominal fee of $1. (Doc. No. 21.) Defendant did not concede any defect in the Ordinance, but represented to the Court that the Ordinance was inapplicable because Plaintiff's gathering was too small. Pursuant to the agreement, Defendant withdrew its motion to dismiss and Plaintiff withdrew its motion for a temporary restraining order. The parties thereafter reported to the Court that Plaintiff's event was held without incident and that fewer than twenty-five people attended Plaintiff's rally.
On August 19, 2003, Defendant amended the York Ordinance, deleting the provisions restricting the circulation of papers and the display of signs. On May 5, 2003, with the permission of the Court, Defendant filed a motion to "Enforce Settlement Agreement or, in the alternative, Motion to Dismiss". (Doc. No. 29.) By Order dated March 23, 2004, the Court denied Defendant's motion.
Summary judgment is proper where "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." Fed. R. Civ. P. 56; White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). A factual dispute is material if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 249. The evidence presented must be viewed in the light most favorable to the non-moving party. Id. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Id. This standard does not change by virtue of cross-motions being presented. United States v. Hall, 730 F. Supp. 646, 648 (M.D. Pa. 1990).
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, the non-moving party may not simply sit back and rest on the allegations in the complaint. Instead, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The evidence must be viewed in the light most favorable to the non-movant. See Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322.
With respect to the sufficiency of the evidence that the nonmoving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory or speculative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). There must be more than a scintilla of evidence supporting the nonmoving part and more than some metaphysical doubt as to the material facts. Id. at 252; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Plaintiff alleges that the York Ordinance violates the First Amendment of the United States Constitution, facially and as applied. Plaintiff also claims that Defendant violated its right to due process and equal protection under the law in not ruling on its request for a waiver of fees. Both parties seek summary judgment in their favor on all counts of the Complaint. The Court will address each claim in turn.
A. Plaintiff's First Amendment Challenge
The First Amendment of the United States Constitution protects speech and other expressive activity in public places, or "government fora," although the degree of protection depends upon the type of forum at issue. Kreimer v. Bureau of Police, 958 F.2d 1242, 1255-56 (3d Cir. 1992). The Supreme Court has identified three types of fora: traditional public fora; designated public fora; and nonpublic fora. Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998). Traditional public fora consist of streets, parks and public sidewalks long considered as places for public assembly and the communication of ideas. Kreimer, 958 F.2d at 1261. Designated public fora are areas the government has specified for First Amendment activities. Included in this group are "limited public fora," property designated by the government for the exercise of some forms of First Amendment activity, but not all. Id. Nonpublic fora are places "which are not by tradition or designation [fora] for public communication . . . ." Id. at 1255-56 (brackets in original) (quoted case omitted). This third group is the government equivalent of private property. Id. at 1256.
For traditional fora and designated fora, government regulation of First Amendment activities is subject to higher judicial scrutiny than regulation in nonpublic fora. Id. In these areas, prior restraint of First Amendment activity is constitutional only if the regulation does not "delegate overly broad licensing discretion to a government official," Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992), is "justified without reference to the content of the regulated speech, . . . [is] narrowly tailored to serve a significant governmental interest, and . . . leave[s] open ample alternative channels for communication of the information" Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoted cases omitted). The same standard applies to regulation in limited public fora for First Amendment activities either permitted in that area or consistent with permitted activities. Kreimer, 958 F.2d at 1262. Otherwise, regulation of First Amendment activities in limited public fora and nonpublic fora need only be reasonable and not an effort to suppress communication based on the speaker's view. Id. at 1256, 1262.
Plaintiff attempts to distinguish the public streets surrounding a city hall from all other governmental fora, arguing that the former "comprise[s] the 'quintessential,' 'classic' public forum" and should therefore be "accorded the utmost protection." (Doc. No. 65 at 8.) Regulation of First Amendment activity on public streets is subject to the highest form of review under Forbes. The Court finds no legal basis for the proposition that a fourth, higher form of governmental fora need be created to protect the area directly surrounding ...