doubts, that many of those types of crimes most commonly
associated with door-to-door solicitation, e.g., consumer
fraud, are more commonly committed after sunset.
In any event, defendants time restrictions unduly impinge upon
First Amendment rights. To the extent defendants wish to prevent
the commission of those categories of crimes more frequently
committed at night by persons posing as door-to-door solicitors,
defendants can employ an array of legislative weapons which are
much less intrusive of plaintiffs' and their residents' First
Amendment rights than a blanket ban on solicitation after sunset
or some earlier hour. For example, defendants could enact
appropriate registration and identification procedures. See Hynes
v. Mayor of Oradell, 425 U.S. at 618, 96 S.Ct. at 1759; Martin v.
Struthers, 319 U.S. at 147, 63 S.Ct. at 865; but see Mayor of
Oradell, 425 U.S. at 610, 96 S.Ct. at 1756 (Brennan, J.,
concurring). Perhaps the best answer to defendants' concern about
crime, however, is simply that in view of the collision between
First Amendment rights and a time restriction on solicitation
they should look primarily to stringent enforcement of their
substantive criminal statutes to assuage that concern. See
Village of Schaumburg v. Citizens For A Better Environment, 100
S.Ct. at 837.
Defendants' public annoyance justification for their
ordinances' time restrictions demands little discussion. To
support the restrictions on this ground is to derogate the First
Amendment rights of plaintiffs and those of defendants' residents
who would be willing recipients of plaintiffs' message during the
evening hours to the nuisance concerns of those of their
residents who would not be willing listeners during those hours,
when the wishes of both groups can be easily accommodated.
Ordinances which make a solicitor liable for trespass for
ignoring a resident's no solicitation directive have long been
viewed as immune from constitutional challenge. Martin v.
Struthers, 319 U.S. at 148, 63 S.Ct. at 865; Hall v.
Commonwealth, 188 Va. 72, 49 S.E.2d 369 (1948), appeal dismissed
sub nom., 335 U.S. 875, 69 S.Ct. 240, 93 L.Ed. 418. Thus, a
resident wishing to avoid being called upon by door-to-door
solicitors may do so simply by posting a "no solicitation" or "no
trespassing" sign. Village of Schaumburg v. Citizens For A Better
Environment, 100 S.Ct. at 836-37.*fn5
The Court's research has unearthed but three cases that appear
to have squarely faced the question of the constitutional
validity of time restrictions on door-to-door solicitation.
Connecticut Citizens Action Group v. Town of Southington,
508 F. Supp. 43 (D.Conn., 1980); Westfall v. Board of Commissioners of
Clayton County, 477 F. Supp. 862 (N.D.Ga. 1979); McMurdie v.
Doutt, 468 F. Supp. 766 (N.D.Ohio 1979); see also Citizens For A
Better Environment v. Village of Elm Grove, 462 F. Supp. 820 (E.D.
Wis. 1978) (granting preliminary injunctive relief to exempt
plaintiffs from a solicitation ordinance for two consecutive days
from 9:00 a.m. to 9:00 p.m.). Southington found an ordinance
restricting door-to-door solicitation from 8:00 a.m. to 6:00 p.m.
to be unreasonably burdensome upon the plaintiffs' free speech
rights for reasons virtually identical to those voiced by the
Court today, while Westfall and McMurdie sustained the validity
of similar restrictions. The McMurdie opinion, however, is devoid
of any analysis on the time restriction question and Westfall's
limited analysis on the question does not, in this Court's
opinion, comport with the applicable principles of constitutional
free speech. The Westfall court's holding relied in part upon the
availability of both Saturday hours for door-to-door solicitation
and public places in which
the plaintiffs therein could deliver their message. As stated,
the availability of alternate modes of communication is not
pertinent to the constitutional validity of a particular
restriction on free speech. Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. at 556, 95 S.Ct. at 1245; Citizens For A
Better Environment v. Village of Schaumburg, 590 F.2d at 224. In
addition, this Court finds the Westfall court's reasoning
unpersuasive in that it relies on the municipal defendant's
assertion that darkness facilitates crime without indicating how
the municipality carried its burden to show the requisite close
nexus between door-to-door solicitation after dark and the
incidence of crime or, in the event such a nexus exists, the
absence of crime prevention measures which are less restrictive
of First Amendment rights. Accordingly, the Court respectfully
declines to follow Westfall and McMurdie.*fn6
The Court now addresses plaintiffs' challenge to defendants'
failure to enact specific time periods by which a request for a
permit to conduct door-to-door solicitation must be acted upon by
municipal officials. This question also requires little
discussion. When a municipality enacts permit requirements as a
prior restraint to the exercise of free expression, it must do so
without vesting broad discretionary powers in municipal
officials. Hynes v. Mayor of Oradell, 425 U.S. at 617, 96 S.Ct.
at 1759. Shuttlesworth v. Birmingham, 394 U.S. 147, 153, 89
S.Ct. 935, 940, 22 L.Ed.2d 162 (1969). In view of the above, a
statutory deadline for municipal action upon a permit application
is essential if the permit requirement is to avoid being found
constitutionally infirm. A Quaker Action Group v. Morton,
516 F.2d 717, 735 (D.C.Cir. 1975). Indeed, it is easy to envision the
range of discretionary abuses which an ordinance that does not
contain a deadline for administrative action could be subject to.
Accordingly, the Court finds plaintiffs' challenge to this
feature of defendants' ordinances to be well-taken.
In conclusion, the Court finds that insofar as defendants'
ordinances prohibit door-to-door solicitation to certain daytime
hours and insofar as they do not establish reasonable deadlines
for municipal action with respect to permit applications,
defendants' ordinances are void on their face, see Bates v.
State Bar of Arizona, 433 U.S. 350, 380, 97 S.Ct. 2691, 2707,
53 L.Ed.2d 810 (1977), and as applied to plaintiffs. Accordingly,
the Court grants plaintiffs' motion for summary judgment. An
appropriate order shall enter.