PROVIDENCE — The First U.S. Circuit Court of Appeals has denied an attempt by the University of Rhode Island Student Senate and the American Civil Liberties Union to get the town's orange sticker ordinance thrown out.
In the decision written by Circuit Judge Bruce Marshall Selya, which can be read in full here, he emphatically denied all of the arguments put forward by H. Jefferson Melish, the attorney representing the ACLU and the student senate. Judges O. Rogeriee Thompson and Sandra Lynch joined in the opinion.
Selya, describing Narragansett as "a sleepy seaside community in southern Rhode Island, [that] boasts some of the most beautiful beaches on the eastern seaboard," agreed with all the claims advanced by the town's representation of Marc DeSisto and Mark A. McSally and upheld the existing ordinance.
In his brief, Selya wrote that Melish argued that two main elements of the ordinance — the preemption aspect of the ordinance and its problem in adhering with the Constitution — made it illegal.
By preemption, Selya said Melish was arguing that the Narragansett sticker ordinance is preempted by the state's Residential Landlord and Tenant Act. Melish argued that the ordinance requires landlords to evict tenants without allowing the tenants an opportunity to correct any issues with the rental unit, which oversteps the bounds of the Rhode Island law.
However, Selya said the ordinance only gives landlords the option to evict a renter to avoid further fees.
In his decision, he wrote, "The Ordinance does not require a landlord to initiate eviction proceedings against an offending tenant. Rather, section 46-34(a)(5) explains that the owner of a previously posted property may avoid liability for a subsequent unruly gathering at that location as long as the owner is 'actively attempting to evict a tenant from the premises.' Affording the landlord an 'ongoing eviction' defense is not tantamount, either legally or practically, to compelling him to institute eviction proceedings."
Melish also argued three Constitutional problems with the ordinance. The first was procedural due process — a sticker can be put on a home without a hearing.
Selya wrote that for this to be a reason to strike down the ordinance, it would have to be proven that the sticker violates a Constitutional right. He found Melish's argument that harm to reputation was insufficient, citing previous Supreme Court rulings that harm to reputation alone was not enough to strike down a law.
"Thus, when a person alleges that she has suffered stigmatization at the hands of a government actor, she must show an adverse effect on some interest 'more tangible' than reputational harm," Selya wrote, later writing that this had not been proven.
Melish's second argument was based on overbreadth, according to Selya. He wrote that it was based on the idea that the ordinance and the sticker clamped down on a tenant or landlord's right to free speech and expression.
However, Selya rejected this argument as well.
He wrote, "The appellants' overbreadth argument misses the mark. The constitutionally protected right of association cannot be reinvented to suit a plaintiff's fancy. It has never been expanded to include purely social gatherings. Rather, it is contingent on the presence of underlying individual rights of expression protected by the First Amendment."
Selya also rejected Melish's third claim — the ordinance should be stricken down because of its vagueness. Selya noted that the ordinance provides examples and additional descriptions of what is considered a "public nuisance."
He wrote, "The bottom line is that, viewed in context, it is clear what conduct the Ordinance as a whole forbids. Taken together, the requirement that someone at a gathering must have committed a predicate offense, the list of examples of violations of law that might serve as such a predicate to police intervention included in the Ordinance, and the Town's articulated concern about quality-of-life issues provide sufficient enforcement guidance to police and adequately define the type of behaviors prohibited by the Ordinance. One can envision many permissible applications of the Ordinance."
Barring an appeal to the Supreme Court, or a future case appeal, the Narragansett ordinance is upheld.