                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2004

Terminello v. City of Passaic
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4832




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"Terminello v. City of Passaic" (2004). 2004 Decisions. Paper 84.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/84


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-4832




        GLORIA TERMINELLO; MONTAUCK AMUSEMENT SPACE, INC.

                                          v.

   CITY OF PASSAIC; SAMUEL RIVERA, individually and as Mayor of the City of
     Passaic; CITY COUNCIL OF THE CITY OF PASSAIC; GARY S. SCHAER,
  individually and as President and member of the City Council of the City of Passaic;
 GERARDO FERNANDEZ, individually and as member of the City Council of the City
    of Passaic; HERMAN S. BARKLEY, JR., individually and as member of the City
 Council of the City of Passaic; JOSE GARCIA, individually and as member of the City
Council of the City of Passaic; MARCELLUS JACKSON, individually and as member of
the City Council of the City of Passaic; CHAIM M. MUNK, individually and as member
of the City Council of the City of Passaic; DANIEL J. SCHWARTZ, individually and as
member of the City Council of the City of Passaic; JONATHAN SOTO, individually and
   as member of the City Council of the City of Passaic; JOHN H. M CKINNEY, JR.,
               individually and as Director of Police of the City of Passaic,

                                               Appellants


          ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY

                                (Dist. Court No. 03-4364)
                District Court Judge: Hon. John W. Bissell, Chief Judge


                              Argued November 2, 2004

            Before: ALITO, FUENTES, and STAPLETON, Circuit Judges.
                          (Opinion Filed:     December 13, 2004)

                                            ROBERT E. LEVY (argued)
                                            Scarinci & Hollenbeck, LLC
                                            1100 Valley Brook Avenue
                                            Lyndhurst, New Jersey 07071

                                            Howard B. Mankoff
                                            Marshall, Dennehey, Warner, Coleman &
                                            Goggin
                                            425 Eagle Rock Avenue
                                            Suite 302
                                            Roseland, NJ 07068

                                            Counsel for Appellants

                                            HERALD P. FAHRINGER (argued)
                                            ERICA T. DUBNO
                                            Lipsitz, Green, Fahringer, Roll, Salisbury &
                                            Cambria, LLP
                                            780 Third Avenue, 32nd Floor
                                            New York, New York 10017

                                            Counsel for Appellees




                               OPINION OF THE COURT


PER CURIAM:

       As we write only for the parties involved, we will not restate the facts below. The

City of Passaic appeals a preliminary injunction against the enforcement of Resolution

9439-03. The effect of the preliminary injunction is to allow the plaintiffs to operate The

Montauck Theater while they challenge the denial of their application for an


                                              2
entertainment license. The entertainment license was denied because the theater refused

to employ an off-duty police officer as part of the security team. For the reasons stated

below, we vacate the order.




                                              I.

       Orders granting or denying a preliminary injunction are reviewed for abuse of

discretion. Catrol, Inc. v. Pennzoil Co., 987 F.2d 939 (3d Cir. 1993). Because an abuse

of discretion exists where the District Court's decision rests on an incorrect conclusion of

law, the Court applies plenary review to a District Court's legal conclusions. AmeriSteel

Corp. v. Int'l Bhd. of Teamsters, 267 F.3d 264, 267 (3d Cir. 2001). In this case, the

appropriate constitutional standard is a question of law, and is therefore subject to plenary

review.

                                             II.

       Gloria Terminello and Montauck Amusement Space, Inc. (The Montauck) filed

this case under 42 U.S.C. § 1983. The statute of limitations for any Section 1983 claim is

determined by referring to the state statute governing actions for personal injuries. The

plaintiffs filed their action on September 30, 2004, approximately six months after the

City Council’s denial of an entertainment license. The action was therefore timely under

the applicable two-year Jersey statute of limitations. N.J. S TAT. A NN. § 2A:14-2 (2003);

see Cito v. Bridgewater Township Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989).



                                              3
                                             III.

       The District Court erred in reviewing the City Council’s action under the

“arbitrary, capricious, and unreasonable” standard applicable to all exercises of police

power under New Jersey Court Rule 4:69 (“Actions in Lieu of Prerogative Writs”).

Although this case bears factual similarity to the line of New Jersey cases in which

business owners challenged city ordinances requiring them to hire off-duty police

officers, this case is legally distinct because it was filed under Section 1983 and

specifically asserts violations of the federal Constitution, including rights guaranteed by

the First Amendment. Each of the asserted violations must be analyzed in light of the

proper constitutional test. See Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 171

(3d Cir. 2001). Because the failure to do so constitutes an abuse of discretion, the

resulting order must be vacated.

       Although the District Court will address the matter in due course, the parties’

continued disagreement regarding the constitutional standard applicable to the First

Amendment claim prompts a fuller discussion of that question at this time. The Passaic

City Council passed Resolution 9439-03 to prevent criminal activity associated with the

operation of The Montauck Theater, and therefore the resolution is properly viewed as a

regulation directed against the secondary effects of speech. See City of Renton v.

Playtime Theaters, Inc., 475 U.S. 41, 47 (1986). Regulations targeting secondary effects

remain within the ambit of the First Amendment, but because the city’s interest in



                                              4
preserving the quality of urban life weakens the inference of impermissible

discrimination, these regulations are subjected only to intermediate scrutiny. See City of

Los Angeles v. Alameda Books, 525 U.S. 425, 447 (2002) (Kennedy, J., concurring).

Regulations addressing secondary effects must satisfy the same constitutional test as other

“time, place, and manner” restrictions on expressive speech. See Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989); Mitchell v. Commission on Adult Entertainment, 10

F.3d 123 (3d Cir. 1993). A regulation will be upheld if (1) it is justified without reference

to the content of the regulated speech; (2) it is narrowly tailored to serve a substantial or

significant government interest; and (3) it leaves open ample alternative channels for

communication. Ben Rich Trading, Inc., et al. v. City of Vineland, 126 F.3d 155, 160 (3d

Cir. 1997). Although the ultimate burden of proof rests with the City, the plaintiffs must

show a likelihood of success on the merits in order to secure a preliminary injunction.

See Phillips v. Borough of Keyport, 107 F.3d 164, 172-73 (3d Cir. 1997) (en banc).

       The requirement that the regulation be narrowly tailored to serve a substantial

government interest does not demand that the City adopt the least restrictive means

capable of achieving their goals. See Ward, 491 U.S. at 799. Nevertheless, a regulation

is overbroad if “a substantial portion of the burden on speech does not serve to advance

[the government’s] goals.” Id.; see also Phillips, 107 F.3d at 174. In this case, the District

Court could not have properly made this determination because there is no evidence in the

record establishing the cost of hiring off-duty police officers as compared to bonded



                                               5
security guards or the total cost of the measures required by Resolution 9439-03 that were

voluntarily adopted by The M ontauck. At oral argument, counsel for the City refused to

concede that off-duty police officers charge substantially more for their services than

bonded security guards. We must assume that counsel had a good faith basis for taking

this position, and accordingly on remand the District Court should receive evidence and

make findings on the factual issues noted above. The District Court previously found that

the requirement that plaintiffs hire off-duty police officers was not justified even in light

of plaintiffs’ past conduct. On remand, the District Court should address that question

armed with facts on the record regarding the relative costs of hiring off-duty officers, and

in the context of narrow tailoring.

       Because The Montauck’s probability of success under the appropriate

constitutional test cannot be determined on the record before this Court, we must vacate

the preliminary injunction. Our decision is without prejudice to any future application for

temporary or preliminary relief grounded on the governing constitutional standard

discussed above.
