A Utah-based pest control company is suing the Village of East Rockaway over a law that limits the times that businesses can solicit at local homes and requires certain companies to pay a surety bond. Company officials claim the law violates the First Amendment.
In response, the village board voted on June 10 to place a moratorium on all solicitation until Dec. 31 to give trustees time to assess the constitutionality of the village code. But the company, Aptive Environmental LLC, won a restraining order against the village to prevent the moratorium. East Rockaway is now appealing the court decision.
Meanwhile, in response to concerns over several such lawsuits, Lynbrook village trustees voted to amend village code to extend the amount of time that companies can solicit at homes by a couple of hours per day. To date, Lynbrook has not been sued, however.
Under East Rockaway’s village code, it is illegal for anyone to enter a private property “for the purpose of peddling or soliciting” any day before 9 a.m. or after 5 p.m., unless the homeowner invites the solicitor onto the property.
Additionally, any business from outside East Rockaway that would like to solicit village residents must file a $2,500 surety bond with the village clerk for each of its solicitors.
Aptive’s owners claim the law is unconstitutional, and the company filed suit against the village in federal court on June 6. The suit states that the law “deprive[s] village citizens of their First Amendment right to receive information” and impinges on the company’s commercial speech rights.
In the lawsuit, Aptive claims that most of its sales are made through door-to-door solicitation after 5 p.m., when residents return from work, school and other activities. Under East Rockaway’s curfew, however, sales representatives from the company are not permitted to solicit then.
The lawsuit also states that the village’s bond requirement is a “de facto ban on solicitation in the village,” because Aptive loses thousands of dollars in revenue for each day that it is unable to pay the bond. And if the company posted the $2,500 bond for each of its sales representatives, the suit continues, “the curfew would directly and substantially impact Aptive’s revenues and profits.”
The courts have previously ruled that laws like East Rockaway’s are unconstitutional if they are not narrowly defined. In 1986, for example, Seventh Circuit Judge Harlington Wood Jr. wrote that a city must prove that a law to limit solicitation is “narrowly tailored to serve the governmental objective.”
“Effectively what the courts are finding is that for a curfew to be constitutional, it has to protect the city’s aim,” said Jon Kelley, the lead attorney for Aptive. He added that municipalities must also prove that there are no “less cumbersome” ways to protect residents’ privacy, and said that Aptive’s solicitors are all subject to drug tests and background checks.
Kelley also said that the bond is cost-prohibitive for the company, and is thus another violation of its First Amendment rights.
East Rockaway’s planned moratorium, he added, was another way that the village restricted the company’s First Amendment rights, which led to Aptive refiling its restraining order against the village last Thursday.
A judge granted the order, Village Attorney John Ryan said, even though he was not present to represent the village. “We’re dealing with it,” he said.
But, Kelley said, he would like to resolve the issue amicably.
The Lynbrook village board voted unanimously to amend its solicitation law at Monday’s meeting.
Village Attorney Tom Atkinson referenced Aptive during the meeting and told the board that it would be best to make certain changes.
One amendment gave the village a window of 20 business days to investigate and approve or deny anyone who wanted to solicit door to door to sell a product.
Previously, village code gave the board up to two years to approve a solicitor, which could have been construed by the courts as unconstitutional, officials said. The board also voted to change the time that a commercial businessperson could solicit from 9 a.m. to 8 p.m. to 9 a.m. to dusk, or a half-hour after sunset.
Atkinson did note that residents with village-issued no-solicitation magnets on their houses can report anyone who rings their doorbells in order to sell a commercial product, and the solicitor will receive a $250 fine. Applications for the magnet are available at Village Hall.