MANHATTAN (CN) – The Second Circuit was divided 2-1 Tuesday in striking down a municipal ban against roadside job in the small Long Island town of Oyster Bay.
A beach community about half an hour east of the city, Oyster Bay has a population that is more than 75 percent white, according to census records.
Though the town cited obstruction and traffic delays when it passed its ban on roadside solicitation in 2009, the groups Centro De La Comunidad Hispana De Locust Valley and The Workplace Project claimed in a federal complaint that the law’s true aim was to drive out Oyster Bay’s small community of predominantly Latino, immigrant day laborers.
The Second Circuit agreed Tuesday that Oyster Bay’s law is unconstitutional, emphasizing the exception lawmakers carved out from the ordinance for the most common forms of roadway solicitation: hailing a taxi or public bus.
“These exemptions strongly suggest that in the great majority of situations, stopping a vehicle on a public right of way creates no inherent safety issue,” U.S. Circuit Judge Barrington Parker wrote for the majority. “Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the town’s actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue.”
Oyster Bay invoked immigration, tax and labor laws to cast the day laborers’ transactions as illegal, but Parker found the argument unavailing.
“It is without question that the ordinance could be applied to prohibit speech proposing no illegal transaction,” the 23-page opinion states.
Though Parker agreed that the town has a substantial interest in promoting traffic and pedestrian safety, he found the day-laborer ban not narrow enough to achieve such aims.
He included a quote by the lower court to demonstrate this.
“[The ordinance] reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking,” U.S. District Judge Denis Hurley had said in 2015. “It reaches children selling lemonade at the end of a neighbor’s driveway (which is, after all, ‘adjacent to’ a public right of way), the veteran holding a sign on a sidewalk stating ‘will work for food,’ and students standing on the side of a road advertising a school carwash. Even a person standing on the sidewalk holding a sign ‘looking for work – park at the curb if you are interested in hiring me’ would violate the ordinance as it contains no specific intent element and no requirement that the ‘attempt to stop’ result in traffic congestion, the obstruction of other vehicles, or double parking.”
U.S. Circuit Judge Dennis Jacobs wrote in dissent meanwhile that he would dismiss the case for lack of standing.
Centro should be excluded because, as Jacobs put it, it is “a special-purpose litigation vehicle, created to bring this lawsuit.”
While he conceded that Hempstead-based Workplace is a “real organization,” he said it cannot show injury in fact.
Jacobs also found the underlying injunction unnecessarily broad, saying the court did not have to block enforcement of the ordinance as a whole, just the subdivision that regulates traffic.
Parker addressed this issue in the majority opinion.
“If the town wanted severance as an alternative remedy it, presumably, would have said so,” he wrote. “In any event, the law is well settled that arguments as to severability are waived where, as here, a party fails to raise the issue.”