by Brian Davis
On May 3, 1995, the United States District Court struck down the City of Cleveland’s vendor licensing law as it was applied to the Homeless Grapevine vendors and the Final Call distributors.
The American Civil Liberties Union, on behalf of the Northeast Ohio Coalition for the Homeless and the Nation of Islam had filed a lawsuit against the City of Cleveland to stop police ticketing of distributors of the two non-profit newspapers.
U. S. District Judge Ann Aldrich ruled that the vendor licensing fee violated the free speech constitutional rights of the distributors and that the fee merely defrayed the cost of collecting the fee. The cost of the vending license did not offset the costs of regulating vendors in the way that a parade fee offsets the costs of police closing the street and providing crowd control, Aldrich noted.
The court held that the fee is not legal because it is not tied to a peddler’s ability to pay the fee, which would make it impossible to distribute the Grapevine. Also, it imposes a “prior restraint on speech.”
The city was, in effect, prohibiting the message in the Grapevine from getting out even before it is published, according to Vasvari. The requirement that each vendor pay for a vending license would have effectively eliminated the distribution of the newspaper. “Prior restraint is a particularly egregious offense against civil liberties, and prohibited by the Bill of Rights,” commented Vasvari.
The city, by order of Mayor Michael White, temporarily stopped issuing tickets within weeks of the ACLU filing the lawsuit. The city had argued that the imposition of the fee was similar to that of the fee to parade, which the courts have found to be a legal imposition of a tax on speech.
The court’s decision stated that the City of Cleveland’s argument was circular. The tax imposed on vendors goes to defray the cost of collecting the tax, but does not defray the cost of any regulatory system.
Cleveland Law Director Sharon Sobol Jordan said that the ruling is in line with the legislation pending with city council that would require that newspaper vendors and charity solicitors to obtain a vending license, but would make them exempt from the paying the fee. When asked if the city was then happy with the decision, Sobol Jordan said, “We are looking at all our options legally, but from a policy standpoint it does precisely what our legislation addresses.”
“We tried to enlist the ACLU to draft legislation. We finally just did it ourselves,” said Sobol Jordan. “We feel the legislation that we drew up will be good policy.”
Vasvari confirmed that the city did try to enlist ACLU support for legislation. “Our role [at the ACLU] is that of a governmental watchdog,” stated Vasvari. “We are ill at ease,” according to Vasvari, in participating in the creation of legislation.
A Homeless Grapevine vendor who spoke anonymously out of fear of being harassed by the police said, “Forcing us to get a license is just another way for the city to control us. What is the purpose if we don’t have to pay the fee? I think it is just another way that the police can harass us. They will stop us every time they see us to check if we have a license and to show us who the boss of the street really is.”
A decision on whether to appeal the ruling has not been made, according to Sobol Jordan
Copyright NEOCH and the Homeless Grapevine, Issue 10 May – July 1995