NOTE: This text was converted to HTML/Web format from a copy of the electronic file used to print the official document that was submitted to the court. This text was not derived from the official printed document itself, and may not be considered a legal copy of the official document. Although the text itself is believed to be identical to that of the originating electronic file, the nature of HTML format makes the exact layout of the text on the page somewhat unpredictable. As a result, this text will not exactly duplicate the appearance of the official printed document, and page numbers in particular should be discounted.


v. Case No. 97-2058 CIV-T-17
Judge Elizabeth A. Kovachevich


Plaintiffs hereby submit their Memorandum of Law in Opposition to the Defendants’ Motion for Summary Judgment in the above captioned matter. The Defendants’ Memorandum of Law involves faulty logic and faulty legal research. It starts with the major premise that not all licensing schemes are unconstitutional, and then makes the illogical leap to the conclusion that since the Defendants administer a licensing regime it therefore must be constitutional. In order to “prove” that point, the Defendants misstate the holdings of prior cases and assume their own conclusions throughout their brief. This Memorandum will attempt to show some of the worst legal reasoning contained in the Defendants’ Memorandum, rather than exhaustively exposing each and every flaw in that Memorandum. Furthermore, the Plaintiffs’ own Memorandum of Law in Support of their own Motion for Summary Judgment more fully exposes the flaws in the Defendants’ arguments, and to the extent that this Memorandum does not address all of the Defendants’ arguments, the Plaintiffs refer this Court to their previously submitted Memorandum of Law.


The Defendants ask this Court to apply an incorrect legal standard

The Defendants’ Memorandum asserts that “Plaintiffs must prove no conceivable basis by which the ordinance may be upheld.”1 That assertion is false.

It is true that the Plaintiffs have challenged the Pinellas County regulatory regime as being both overbroad and vague. As such, it impermissibly infringes the First Amendment rights of the Plaintiffs’ charitable clients, which the Plaintiffs properly assert in the instant proceeding.2 In the First Amendment context, where the threat is that individuals wishing to engage in fully protected First Amendment activities3 will censor their activities thereby making “the free dissemination of ideas the real loser,”4 it is not the Plaintiffs’ burden to show that there are no constitutional applications of the law. The cases cited by the Defendants refute their own position.5 As was set forth at length in the Plaintiffs’ previously filed Memorandum of Law, overly broad regulation of core First Amendment activities is inherently suspect and presumptively invalid, because of the chilling effect such regulation has on speech.6 Accordingly, the Defendants’ have merely knocked down a straw man when they attempt to show that the Plaintiffs cannot prove that there is no conceivable basis by which the Ordinance could be upheld.7

The Defendants incorrectly state First Amendment law

Defendants acknowledge that the applicable test for the constitutionality of the Pinellas County regulatory regime is the strict scrutiny test.8 Moreover, they assert the power “to regulate First Amendment activity through an ordinance that is narrowly tailored to achieve a legitimate government purpose, is content neutral, and does not unduly burden speech.”9 However, the Pinellas County Ordinance cannot survive review under the strict scrutiny standard.

The Defendants’ assertion above does not set forth the appropriate test for content based regulation of speech. In order for such regulations to survive constitutional scrutiny, they must be supported by a compelling (as opposed to a “legitimate”) government interest, and the means chosen to further that compelling interest must be the least restrictive consistent with the achievement of that purpose.10

The Pinellas County Ordinance is emphatically not content neutral. It does not require the registration of consultants of all solicitors of the public. Instead, it only requires the registration of consultants to solicitors of charitable support. Those consultants who advise for profit companies regarding commercial speech activities (such as advertising to the public) are not required to register under the Pinellas County Code.11 Accordingly, it is clear that these regulations are not content neutral, but rather that they single out speech which is “core” protected speech of charitable organizations.

Although the Defendants’ purported interest in protecting the public from fraud12 is a substantial one, Defendants offer absolutely no evidence that this regulatory regime furthers that purpose.13 Even the Pinellas County Ordinance itself contains a provision that exists presumably because registration is so imprecisely related to the prevention of fraud that registrants are prohibited from using their registration to even imply that such registration is evidence that the registrant is legitimate.14 Furthermore, it is clear that the method employed by the Defendants to further that purpose is not the least restrictive one available.15 As was set forth in greater detail in the Plaintiffs’ previous Memorandum, this regulatory regime does unduly burden speech, the Defendants’ bald assertions to the contrary notwithstanding. Accordingly, it cannot survive the strict scrutiny test which the Defendants admit applies.

The Defendants also misstate the law regarding prior restraints. Consistent with the non sequitur reasoning employed throughout its brief, the Defendants simultaneously cite Freedman v. Maryland16 for the proposition that “the concerns with licensing schemes such as the Pinellas County Ordinance, is that it will act as an unlawful prior restraint on speech,” and then one page later cite a Federal District Court opinion17 for the proposition “that regulations which require licensure of the purveyors of speech are not licensing speech directly and therefore the more stringent Freedman test is inapplicable.”18 Although Defendants did not make it clear in their Memorandum, the Supreme Court has made it clear that Freedman principles apply to licensing provisions relating to charitable speech.19 As was set forth in the Plaintiffs’ previously filed Memorandum, the Pinellas County Ordinance cannot survive the exacting scrutiny of the Freedman test.20

The Defendants also cite an array of cases which stand for the novel proposition that “the First Amendment does not preclude a license or user fee to remunerate government for the expense of maintaining a valid21 regulation scheme.”22 However, the cases cited by the Defendants can be distinguished on a crucial fact which is central to the Plaintiffs’ challenge herein: none of them involved a local political subdivision’s attempt to burden the exercise of First Amendment rights, but instead all dealt with regulation at the state level.23 The duplication and proliferation in fees, bonding requirements and reporting requirements that results from regulation at the local political subdivision level (as opposed to the state level) has a burdensome and chilling effect on First Amendment activities.24

Finally, it should be pointed out that the Defendants overstate their power as a local government authority to regulate charitable solicitations.25 They rely on cases that either have been implicitly reversed, or which struck down charitable solicitations laws passed by local government authorities.26

The Defendants’ Due Process arguments must fail

The Defendants arguments relating to the Due Process Clause ignore the allegations of the Plaintiffs’ Complaint in that they assume that the Plaintiffs’ Minimum Contacts/Due Process challenge is solely a facial one. That assumption is incorrect.27 Accordingly, the Defendants’ argument that “thus, the Plaintiffs’ challenge is facial, and as such the Plaintiffs must survive a heightened standard of review” completely misses the point. The fact that the Plaintiffs have not applied for a license does not alter their ability to challenge the Pinellas County Ordinance.28

Furthermore, the Defendants misstate the extent of their jurisdictional reach under the Florida long arm statute. It should be noted that the Florida long arm statute confers less jurisdiction than would be permissible under the Due Process Clause of the Fourteenth Amendment.29 Since the Plaintiffs themselves do not have any contacts with the State of Florida30, the Florida long arm statute does not confer jurisdiction over them.31

The Defendants mistakenly rely on Fla. Stat 48.193 (1)(a)(f) and (g) as well as two cases for the proposition that they can exercise jurisdiction over the Plaintiffs herein.32 Such reliance is clearly misplaced. The facts of Interfase Marketing v. Pioneer Technologies Group, Inc.33 are fully distinguishable from the case at bar, since the nonresident defendant’s agents in that case mailed into the State of Florida,34 and made at least three trips to Florida and otherwise “clearly sought the benefits of marketing their product in Florida.”35 Similarly, S.E.C. v. Carrillo36 is readily distinguishable.37 Furthermore, the Defendants’ assertion that “any determination that the Plaintiffs ... [are] causing injury to persons or property within this state because of their acts or breaching a contract in the County will subject them to jurisdiction” is also false.38

As was pointed out at great length in the Plaintiffs’ previously filed Memorandum, even if the Florida long arm statute would confer jurisdiction over these Plaintiffs, such assertion of jurisdiction would violate the Due Process Clause, since they have clearly not “purposefully directed their activities at Pinellas County.”39 Although the Defendants’ correctly point out that the test for Minimum Contacts is whether the Plaintiffs have purposefully directed their activities at Pinellas County, they refuse to even address the issue of whether the admitted facts40 indicate whether such test could be met by the Defendants if their threatened prosecution of the Plaintiffs became actual. Instead, they merely repeat the chant that since they can conceive of many potential fact scenarios not presently before the court under which Pinellas County could assert jurisdiction, the Plaintiffs’ challenge therefore cannot succeed.41 Moreover, the Defendants’ citation to State v. Richard A. Viguerie Co., Inc.42 is inapposite, as that case was a state trial court decision which was never appealed and was decided before the Supreme Court’s latest pronouncements on Minimum Contacts.43

The Plaintiffs consult with charities regarding mailings which charities may send to the public. The Plaintiffs do not directly contact the public and do not direct mail at any jurisdiction, purposefully or otherwise, since the decision of whether, where, when, and what to mail is exclusively the charity’s and not the PFC’s. The Pinellas County Ordinance makes this clear.44 Therefore, the Plaintiffs cannot be said to be purposefully directing their activities (consulting on national mailings) at any particular jurisdiction.

The Defendants’ Commerce Clause analysis is misplaced

The Defendants begin their Commerce Clause analysis with the illogical supposition that because they have some legitimate power to regulate PFCs that necessarily all such regulation is constitutional.45 They ignore the argument put forth by the Plaintiffs that there is insufficient nexus under the Commerce Clause for the Defendants to regulate the conduct of these Plaintiffs. Moreover, the Defendants misapply the applicable Supreme Court test for determining whether the Pinellas County regulations violate the Commerce Clause.

As was set forth at length in the Plaintiffs’ previous Memorandum of Law, the Pinellas County Ordinance is a direct regulation of interstate commerce because (1) it attempts to regulate activity occurring wholly outside of its borders; (2)it attempts to force out of state actors in interstate commerce to obtain a license for the privilege of engaging in such commerce; and (3) if such a regulation were enacted by all other similarly situated jurisdictions it would entangle interstate commerce in a web of regulation that would grind such activity to a halt.46

The Defendants admit that “economic regulations which have extra-territorial effects on interstate commerce are disfavored where the regulation has the effect of controlling commercial activity occurring wholly outside of the state...”47 That is precisely the situation in the case at bar, as the Plaintiffs’ have shown that they operate wholly outside of the Pinellas County.48 The Plaintiffs’ assertion that “there is no incentive or disincentive for these entities to solicit in Pinellas County based on their state of origin,”49 represents another example of the Defendants’ ignoring the admitted facts of this case.50 It is clear that Pinellas County’s attempt to project its power beyond its jurisdictional reach violates the Commerce Clause despite the fact that the regulation may also restrain the activities of those constitutionally within its reach.51 Accordingly, the Pinellas County Ordinance must be struck down without consideration of the balancing test put forth in Pike v. Bruce Church, Inc.52

Even under the Pike test, however, the Pinellas County Ordinance fails to pass constitutional muster. As the Plaintiffs set forth more fully in their previously filed Memorandum of Law, the Pinellas County Ordinance imposes much more than a mere incidental burden on interstate commerce.53

The fact that the Pinellas County Ordinance restrains fully protected speech if a charity deals with an unlicensed PFC makes the burden on interstate commerce enormous.54 Even if this Ordinance did not violate the Commerce Clause facially under Healy, Brown Forman, and Edgar v. Mite Corp.,55 it would still violate the Due Process Clause for all of the reasons set forth above. In restraining the speech of charities who might otherwise contract with unlicesned PFCs , the Ordinance effectively prevents out of state PFCs from selling their services at all within Pinellas County.56 Moreover, the proliferation of regulations from every conceivable local jurisdiction would stifle the flow of not just fundraising consulting services, but of charitable speech itself.57

It must also be remembered that the mere “incantation of a purpose to promote health or safety does not insulate a state statute from Commerce Clause attack.”58 While the Defendants assert that Pinellas County “ interest in protecting the safety, health and welfare of its citizens is a valid and weighty purpose,”59 they have failed to come forward with any evidence that this regulatory regime accomplishes that purpose. Accordingly, while the burdens on interstate commerce are great, the putative local benefits are small or non-existent. Accordingly, these regulations do not pass muster even under the Pike balancing test.


The Pinellas County Ordinance tramples the First Amendment rights of the charities that commit the sin of being a link in the chain that contains an unregistered party, even if the failure to register was due to the fact that the Ordinance reaches beyond what is constitutionally permissible. As has been shown, the Ordinance’s reach violates both the Due Process Clause and the Commerce Clause. Accordingly, this court should deny the Defendants’ Motion for Summary Judgment, and grant the Plaintiffs’ Motion for Summary Judgment.

Respectfully submitted,

Pro Hac Vice

Geoffrey W. Peters, Esq.
Geoffrey W. Peters, P.C.
9024 Trailridge Court
Vienna, VA 22182
Phone: (703) 356-8703
Pro Hac Vice

Clifford Perlman
220 Fifth Avenue, 7th Floor
New York, New York 10001
Phone: (212) 889-0575

George K. Rahdert
FBN: 213365
Rahdert, Anderson, McGowan & Steele, P.A.
535 Central Avenue
St. Petersburg, FL 33701
(813) 823-4191

1 See page 3 of Defendants’ Memorandum.
2 Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984)(hereinafter “Munson”).
3 The Defendants admit that the Ordinance regulates fully protected First Amendment activities, see Defendants’ answers at Paragraph 92.
4 Smith v. California, 361 U.S. 147, 151 (1959).
5 For example, in United States v. Salerno, 481 U.S. 739 (1987) and cited by the Defendants, the Supreme Court denied a facial challenge to the Bail Reform Act, holding that

[a] facial challenge to a legislative act is of course the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment.

Salerno at 744-5 (emphasis added). Since the Plaintiffs’ challenge involves the First Amendment speech rights of their charitable clients, the Defendants’ have clearly misstated the Plaintiffs’ legal burden.

Similarly, Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982) does not stand for the proposition asserted by the Defendants. In upholding a commercial marketing regulation, the Court stated

[i]n a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge, and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all applications.

Hoffman at 494 (emphasis added). Again, the Defendants have cited a case for the proposition that outside the First Amendment context, courts do not strike down laws facially on overbreadth grounds. However, that is simply not the case here. Even Plaintiffs’ non-First Amendment claims of violations of the Commerce Clause and of the Due Process Clause ultimately implicate First Amendment claims as well, since the Defendants have restrained the speech of charities that contract with unlicenced Professional Fundraising Consultants (“PFCs”). See Defendants’ Answers at Paragraphs 25 and 53; and the Affidavit of Raymond Grace, attached as Exhibit “3" to the Plaintiff’s Motion for Summary Judgment.
6 NAACP v. Button, 371 U.S. 415 (1963); see also Munson at 968 (“where the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack”)(citations omitted).
7 Defendants’ Memorandum of Law at page 3. Even under the standard argued by the Defendants’ the Plaintiffs still must win their case. In all applications of the Ordinance, it operates under the fundamental assumption that a failure to register is indicative of fraud. However, as has been argued at length in the Plaintiffs’ previously filed brief, a PFC’s failure to register may have nothing to do with fraud, but rather may be the result of (a) the fact that the Ordinance attempts to regulate conduct beyond the County’s jurisdictional reach under the Commerce and Due Process Clauses, or (b) that some unrelated entity in the chain connecting PFCs with their charitable clients has refused to register, leading to the County’s revocation of permits of completely non-fraudulent entities for failure to comply with Pinellas County Code 42-321. The Ordinance is a direct and substantial limitation of First Amendment activities, and since the Defendants have used such an imprecise means for measuring fraud, it is arguable that the overbreadth doctrine is not even needed to invalidate this Ordinance. Munson at 967-8 (“[w]here, as here, a statute imposes a direct restriction on First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State’s objectives are too imprecise, so that in all of its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to a facial attack”).
8 Defendants’ Memorandum of Law at page 8.
9 Id.
10 Riley at 795 (holding that content based regulations are subject to the most exacting level of judicial scrutiny). See also Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1989); City of Boerne v. P.F. Flores, __ U.S. __, 117 S.Ct. 2157, 2171 (1997)(“requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law”) .
11 Pinellas Co. Code 42-291 (1995).
12 On page 5 of their Memorandum, the Defendants cite Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988)(hereinafter Riley) for the proposition that the County has an interest in protecting both charities and the public from fraud. However, Riley makes clear that the “regulating charities for their own benefit” is not a substantial interest, in that it is too “paternalistic.” Riley at 790-1.

Moreover, as part of their argument the Defendants also assert that the Pinellas County Ordinance survives First Amendment review “because Florida law specifically provides for and intends for the County to take action above and beyond that of the state.” Defendants’ Memorandum at page 5. This argument makes no sense, and ignores crucial aspects of the Plaintiffs claims. First of all, under this reasoning the County could ban all charitable solicitation activities, since such an action would be “above and beyond” the state of Florida’s regulation.

Furthermore, Defendants’ argument ignores the critical distinction between this case and the currently pending case of American Target Advertising v. Giani, Case No. 2:97-cv-610 D.Utah 1997), cited by the Defendants on page two of their Memorandum. Unlike that case, in the instant matter the Plaintiffs challenge the regulation of a local political subdivision, as opposed to that of the state. The distinction is important, albeit ignored by the Defendants, because the proliferation of duplicative regulation by local political subdivisions creates an additional and substantial burden on speech rights not present when the regulation is present solely at the state level.
13 See Plaintiff’s Memorandum of Law previously submitted, at pages 33-5.
14 Pinellas County Code 42-324 (1995) prohibits a person from “us[ing] or exploit[ing] the fact that a charitable solicitations permit has been issued so as to lead the public to believe that such permit constitutes an endorsement or approval by the county of the charitable or sponsor purpose.”
15 For instance, the Defendants can punish fraudulent activity directly, without trampling the rights of those not engaging in fraud with unduly burdensome registration requirements. As the Supreme Court held in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 639,

“‘Frauds may be denounced as offenses and punished by law. Trespasses may similarly be forbidden. If it is said that these means are less convenient and efficient than ... [deciding in advance] what information may be disseminated from house to house, and who may impart the information, the answer is that considerations of this sort do not empower a municipality to abridge the freedom of speech and press.’” (Citation omitted).

16 380 U.S. 51 (1965)(hereinafter Freedman).
17 Heritage Publishing v. Fishman, 634 F.Supp. 1489 (D.Minn. 1986).
18 See Defendants’ Memorandum at pages 10 and 11.
19 Riley at 802 (striking down under Freedman a North Carolina licensing provision for a charity’s professional fundraisers).
20 See pages 28-31 of the Plaintiffs’ previously filed Memorandum, as well as the Affidavit of Raymond J. Grace attached as Exhibit 3 thereto.
21 This is another example of the Defendants assuming their own conclusions. They start with the premise that the Pinellas County Ordinance is valid and simply proceed from there. However, the Plaintiffs’ challenge is to the validity of this registration scheme (on various grounds, including the application of the fees) in the first instance.
22 See Defendants’ Memorandum at page 18.
23 See e.g., National Awareness Foundation v. Abrams, 50 F.3d 1159 (2d. Cir. 1995)(upholding State of New York licensing fees)(hereinafter NAF); and Center for Auto Safety v. Athey, 37 F.3d 139 (4th Cir. 1994)(upholding Maryland fee system)(hereinafter Athey). These cases are cited on pages 18-9 of the Defendants’ Memorandum of Law.
24 The Pinellas County fee schedule differs from the fees suggested on page 2 of Exhibit “5" (purporting to contrast the differences between the County’s and the State’s law) of the Defendants’ Memorandum. A copy of the current application fee schedule (on a form that bears the date of May 20, 1997 at the bottom) is attached hereto as Exhibit “A."

Although this fee schedule might, at first glance appear similar to the ones upheld in NAF and Athey, it must be remembered that there is literally no limit to the number of subdivisions that a State may create when it subdivides into local governments. Consequently, it is simply not proper to look at the Pinellas fee schedule without taking into account all of the other subdivisions (as well as the State of Florida) that may impose a similar fee for essentially duplicative functions.

It is worth noting that the court in NAF held that the burden is on the government licensor to prove that its fees are not duplicated by other parts of the government that have similar regulatory powers:

“[t]he stipulated record establishes that the enforcement efforts of the Attorney General’s Office have not overlapped or duplicated any administrative proceeding of OCR [another government agency with coextensive jurisdiction]. On the contrary, the two agencies keep each other advised of the court actions filed by the Attorney General’s Office and the administrative proceedings commenced by OCR in order to avoid overlap and duplication.”
NAF at 1167. Accordingly, the burden is on Pinellas County to show that none of the fees it collects for enforcing its law pay for enforcement functions that duplicate those already performed by the State of Florida or any of its other political subdivisions.
25 See Defendants’ Memorandum at pages 4-5.
26 For instance, the Defendants cite Gospel Missions of America v. Bennett, 951 F.Supp. 1429 (C.D.Cal.1997)(hereinafter “Gospel Missions”) for the proposition that a municipality has the power to regulate charitable solicitations. Defendants’ Memorandum at page 4. However, the court in Gospel Missions actually struck down most of the Los Angeles city and county registration requirements as violative of the First Amendment.

Similarly, the Defendants also cite National Foundation v. City of Fort Worth, 415 F.2d 41 (5th Cir. 1969) for the same proposition. However, the Defendants ignore the fact that the Supreme Court in Munson held that the Fort Worth Ordinance would not pass constitutional muster today. Munson at 962.
27 See Paragraphs 120-6 of the Plaintiffs’ Complaint, wherein it is clear that this aspect of their challenge relates to the application of the Ordinance to them.
28 Lovell v. Griffin, 303 U.S. 444, 452-3 (1938)(holding that it was not necessary to seek permit under city’s solicitation ordinance in order to challenge it).
29 Mallard v. Aluminum Co. Of Canada, Ltd., 634 F.2d 236, 241 (11th Cir. 1981); American Investor’s Life Ins. Co. v. Webb Life Ins. Agency, Inc., 876 F.Supp. 1278 (S.D.Fla. 1995).
30 See the Statement of Facts contained within the Plaintiffs’ previously filed Motion for Summary Judgment.
31 Milberg Factors, Inc. v. Greenbaum, 585 So.2d 1089 (Fla.App. 3 Dist. 1991)(holding that a foreign corporation which did not maintain an office, agent, employee or telephone listing in Florida could not be subject to jurisdiction in Florida).
32 See pages 21-2 of the Defendants’ Memorandum of Law.
33 774 F. Supp. 1355 (M.D. Fla. 1991)(hereinafter Interfase).
34 Plaintiffs do not mail into Pinellas County or anywhere else. It is the charitable client that ultimately mails the public education messages into the desired locales. See Paragraph 25 of the Plaintiffs’ Complaint.
35 Interfase at 1357-8.
36 115 F.3d 1540 (11th Cir. 1997)(hereinafter Carrillo).
37 That case involved jurisdiction over a non-U.S. resident under a federal question issue. In upholding jurisdiction, the court held that “[i]nasmuch as the federalism concerns over the jurisdictional equation in a diversity case are absent in a federal question case, a federal court’s power to assert jurisdiction is geographically expanded [to the entire United States].” Carrillo at 1543. Since the Defendants’ are attempting to enforce a County Ordinance as opposed to a federal law, clearly this case is inapposite.
38 Under the “economic loss rule,” a breach of contract by a non-resident arising out of acts occurring outside of the state of Florida does not confer jurisdiction if the only damages are purely economic as opposed to personal injury or property damage. See Aetna Life & Casualty Co. V. Therm-O-Disc, 511 So.2d 992 (Fla 1987). Clearly, a charitable solicitations ordinance such as the one administered by the Defendants seeks to protect the residents of Pinellas County from purely economic losses associated with fraudulent conduct. Pinellas County Code 42-270 (1995). The “economic loss rule” is also discussed in Interfase, cited by the Defendants at pages 21-2 of their Memorandum.
39 See Plaintiffs’ previously filed Memorandum of Law at pages 14-21.
40 See Plaintiff’s Motion for Summary Judgment previously filed with this court, Paragraphs 3, 7, 8, 13, and 14.
41 See Defendants’ Memorandum at pages 22-3. This argument merely supports the novel proposition that governments like Pinellas County have real powers that they can, in certain circumstances, exercise over individuals within their jurisdiction. However, it does not answer the question of who is within their jurisdiction, which is at the heart of the Plaintiffs’ challenge herein.
42 382 N.Y.S.2d 622 (1976).
43 See especially, World Wide Volkswagen Corporation v. Woodson, 444 U.S. 286 (1980) and Asahi Metal Industries Co. V. Superior Court of California, 480 U.S. 102 (1987).
44 See Pinellas County Code 42-266, in which the definition of a PFC specifically excludes those who “manage, conduct, or carry on any fundraising activity, or solicit contributions, or employ, procure, or engage any compensated person to solicit contributions, and [those] who ... at any time have custody or control over contributions.”
45 Defendants’ Memorandum at page 23.
46 See pages 1-10 of the Plaintiffs’ previously filed Memorandum of Law.
47 See Defendants’ Memorandum of Law at page 26.
48 See Plaintiffs’ Motion for Summary Judgment at Paragraphs 3, 7, 8, 13, and 14.
49 Defendants’ Memorandum of Law at page 27.
50 The Plaintiffs attached Affidavits from Marilyn Price (President of Plaintiff the Creative Advantage, hereinafter “TCA”) that TCA had asked its clients not to use any of the fundraising advice that it sold to them to solicit in Pinellas County, and that TCA has incurred substantial costs in removing Pinellas County zip codes from her clients mailings. See Exhibit “B” of the Plaintiffs’ Complaint at paragraphs 10 and 11. Similarly, the Affidavit of Norman Leahy (on his own behalf) makes clear that it is as a direct result of the unconstitutional projection of regulatory power emanating from the Pinellas County that he has not yet entered the business of professional fundraising consulting. See Exhibit “D” of the Plaintiffs’ Complaint at paragraphs 6 and 7. The Defendants have admitted that these affidavits are relevant and admissible evidence in this case. See Defendants’ response to Plaintiffs First Request for Admissions, number 54.
51 See e.g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 579 (1986)(holding that “forcing a merchant to seek regulatory approval in one state before undertaking a transaction in another directly regulates interstate commerce”). The fact that PFCs who have the required nexus with Pinellas County are also required to obtain a license does not save the regulation under this analysis. See Healy v. The Beer Institute, 491 U.S. 324, 335-342 (1989)(hereinafter Healy)(holding that not only did the statute there at issue discriminate against interstate commerce, but that in addition the Commerce Clause embodies special concerns relating to both the maintenance of a national union unfettered by state imposed limitations on interstate commerce and with the autonomy of individual states within their respective spheres, which is a separate limit on state regulatory power).
52 397 U.S. 137 (1970)(hereinafter Pike).
53 In determining the level of burden that the Pinellas County Ordinance imposes on interstate commerce, this court must look not only at the law itself but it must also consider “how the challenged statute may interact with the legitimate regulatory regimes of other States, and what effect would arise if not one, but many or every other State adopted similar legislation.” Healy at 326-7; see also National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753, 759-60 (1967)(hereinafter Bellas Hess). The effect of 6-7,000 local jurisdictions adopting various regulatory schemes would be to bring a halt to all national charitable solicitation and speech.
54 42-321 of the Pinellas County Code prohibits, inter alia, any charity soliciting in Pinellas County from speaking at all if it contracts with an unlicensed PFC (even through other alternative channels wholly unrelated to the unlicenced party)/ As the Affidavit of Raymond J. Grace demonstrates, the Defendants have so enforced that provision. See Affidavit of Raymond J. Grace, attached as Exhibit 3 to the Plaintiffs’ previously filed Memorandum of Law.
55 457 U.S. 624 (1982). Obviously, the Plaintiffs do not concede that these are not facial constitutional flaws.
56 If the charity is prohibited from speaking then clearly it cannot (or at least, will not) hire any PFC to consult regarding soliciting. The flip side of this is that in order to not lose business of their charitable clients in the first place, PFCs may intentionally withdraw their services as regards to Pinellas County so as to not lead to the clients having any registration problems themselves. This is exactly the case with regard to TCA and Leahy. See Exhibits “B” and “D” attached to the Plaintiffs’ Complaint, wherein both Marilyn Price and Norman Leahy attest to the fact that neither is engaging in any interstate commerce that could conceivably touch Pinellas County. Additionally, the withdrawal of out of state PFCs from the marketplace in Pinellas County has the effect of driving up the price to solicit in Pinellas County as well.
57 Bellas Hess at 759-60; see also the arguments supra relating to why the Pinellas County Ordinance violates the First Amendment..
58 Kassel v. Consolidated Freightways Corp. Of Delaware, 450 U.S. 662 (1981)(hereinafter Kassel).
59 See Defendants’ Memorandum at page 31. See note 52 supra.

Posted online at the:
Online Compendium of Federal and State Regulations for U.S. Nonprofit Organizations
Converted to HTML by Eric Mercer
Page last modified 11Feb99