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.



vs. CASE NO. 97-2058-CIV-T-17B
PINELLAS COUNTY, a political
subdivision of the State of Florida,
NUGENT WALSH, as chairperson of the
Charitable Solicitations Board of
Pinellas County, and SHERYL LORD,
as Director of Consumer Protection
of Pinellas County,




As anticipated, the Plaintiffs in their Brief in Support of their Motion for Summary Judgment, cite case law that does not apply to the fact situation involved in the case at bar. See Defendants' Memorandum at 31. ("...none of the cases cited herein involved a general use tax, but all involved regulations which imposed user fees [and were not protectionist in nature]"). As such, these cases are not on point concerning the proper Commerce Clause analysis in the case at bar, because the Pinellas County ordinance involves a user fee, is not protectionist in nature, does not discriminate in favor of intrastate commerce and does not affect commerce occurring wholly outside of the County, unlike the cases cited by Plaintiffs.

A. Cases Cited By Plaintiffs Are Inapplicable To The Pinellas County Code

Each of the main cases that Plaintiffs rely upon are based on statutes and ordinances that are antithetical to the ordinance challenged in the case at bar.

Plaintiffs extensively cite Brown-Forman Distillers v. New York Liquor Authority, 476 U.S. 573 (1986), for the propositions that state statutes that directly regulate interstate commerce are generally struck down without further inquiry and that the United States Supreme Court generally does not uphold local laws regulating interstate commerce. These statements are in fact true, but they do not apply to the Pinellas County ordinance, because the Pinellas County ordinance does not attempt to regulate any activity occurring outside of its jurisdictional boundaries. The Pinellas County ordinance only applies where its citizens receive solicitous materials, within Pinellas County, through the mail or by telephone. Conversely, the ordinance in Brown-Forman was a form of economic protectionism in that it attempted to give local consumers an advantage over consumers in other states.

Specifically, the Brown-Forman law required liquor distillers licensed to do business in New York to affirm that the prices of its products would be no higher than the lowest prices that the distillers would charge anywhere else in the United States. The breadth of this law had the effect of modifying the business activities of New York licensees in their independent dealings with customers in other states by limiting the range of prices that could be offered these non-New York entities. Therefore, the effect of the Brown-Forman law did indeed effect wholly interstate commerce through a form of economic protectionism and, as such, it violated the Commerce Clause. The Pinellas County ordinance has no effect on Plaintiffs' dealings with individuals outside of Pinellas County.

Similarly, in Philadelphia v. New Jersey, 437 U.S. 617 (1978), the Supreme Court found the New Jersey law prohibiting the import of solid wastes into the state in violation of the Commerce Clause because it evinced a form of protectionism. The Court explained that the total prohibition of importation discriminated against articles of commerce coming from outside of the state because the state could not isolate itself from problems by erecting a barrier against the movement of interstate commerce, especially where intrastate firms were allowed to deal in such commerce. The Pinellas County ordinance does not attempt to erect any barriers.

Finally, in Edgar v. MITE, 457 U.S. 624 (1982), the Court distinguished the law challenged in that case with state blue sky laws. Id. at 641. State blue sky laws require registration by out-of-state entities which conduct their form of commerce within the state boundaries and the Court has consistently upheld the validity of these laws. Id. The MITE law in contrast required compliance even if all conduct of commerce occurred outside of the state and not a single state shareholder would be affected. Clearly, this is in contrast to the Pinellas County law which requires registration only where citizens of the County are affected and does not attempt to in any way regulate what Plaintiffs do outside of Pinellas County.

The several other cases cited by Plaintiffs but not addressed in this response are similarly distinguishable. Each of the cases cited by Plaintiffs involve local laws found in violation of the Commerce Clause because they either discriminate against interstate commerce by providing protectionist measures, as in Brown-Forman, or attempt to effect transactions occurring wholly out of state and not involving citizens of the locality, as in MITE. Furthermore, several of the cases cited by Plaintiffs involve laws that imposed general use taxes. See National Bellas Hess v. Department of Revenue, 386 U.S. 753 (1967). As explained in Defendants' Memorandum, such an analysis is inappropriate because the Pinellas County ordinance imposes only a user fee. Defendants' Memorandum at 24.

B. Pike Analysis

Under the appropriate Pike analysis, Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), the Plaintiffs only cite the Court to Pike itself and Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). These cases are easily distinguishable from the case at bar. Unlike the well established government interest in local charitable solicitations laws, Riley v. National Federation of the Blind, 487 U.S. 781, 792 (1988), see also Defendants' Memorandum at 8, the governmental interest asserted in the cases cited by Plaintiffs are not nearly as compelling.

In Pike, the State of Arizona required identification of the state origin of cantaloupes based on the state in which the cantaloupes were packed. The Court specifically acknowledged that the legitimate public purpose was for the enhancement of the reputation of Arizona cantaloupe growers and not the more weighty purpose of public safety or protection of consumers. Pike, 397 U.S. at 143. It was for these reasons that the state law did not survive the balancing test.

In Kassel, the State of Iowa, unlike any other state in the West or Midwest, required the use of a different form of tractor-trailer, thereby causing a distinct burden on those firms traveling across the several states. Such an anomaly in standards directly impacted interstate commerce and did so in a manner which did not further a legitimate government interest, because the state's distinction would not realize its purported interest. Id. at 678.

As can be seen, these cases clearly do not apply because: 1) unlike in Pike, Pinellas County has a traditionally well-established interest in maintaining its charitable solicitations ordinance, compared to an enhancement of cantaloupe regulation; 2) unlike in Kassel, requiring registration of entities involved in making solicitations provides specific benefits to citizens of Pinellas County; and 3) the County ordinance is in general conformity with other charitable solicitations ordinances. See Defendants' Memorandum 1-2. Overall, the burden placed on commerce is not clearly excessive in relation to the local benefit.

C. Interstate Activity Is Not Affected

As to Plaintiffs' other contentions, as explained above, Pinellas County does not require out-of-state PFCs to seek approval before engaging in wholly interstate commerce. If Plaintiffs have no clients that solicit in Pinellas County, there is no requirement for Plaintiffs to register; therefore, the ordinance does not affect interstate activity.

In Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276 (1961), the Court explained that although a state cannot require a foreign corporation to obtain a license to do business within the state if the corporation's activity is wholly interstate, it is well settled that if the corporation is involved in intrastate as well as interstate conduct, the state can require registration. Id. at 279. The mere fact that a corporation conducts interstate commerce is insufficient to allow it to escape local regulation. Id. Applying this law to the facts, the Pinellas County ordinance clearly does not oversee the interstate commerce activities of Plaintiffs.

D. Commerce Clause Does Not Give Firms Any Right to Conduct Business

Plaintiffs also contend that upholding this ordinance would cause many other local jurisdictions to follow Pinellas County's lead and such response could fatally burden interstate commerce. This argument shows a misunderstanding of the reach of the Commerce Clause.

The purpose of the Commerce Clause is to protect interstate commerce itself, not particular firms, from prohibitive or burdensome regulation. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 127-28 (1978). See also, Allenberg Cotton v. Pittman, 419 U.S. 20, 29, (1974), see also, Executive Town & Country Services v. Atlanta, 789 F.2d 1523, 1526 (14th Cir. 1986).

Therefore, in claiming that the Pinellas County ordinance is overly burdensome as relates to Plaintiffs specifically and not as it relates to the free flow of goods, the Plaintiffs misinterpret the intent of the Commerce Clause. Indeed, "[a] company which seeks to do business in all 50 states must bear the cost of doing business in those states. That cost includes complying with all national and state laws." Silver v. Woolf, 538 F.Supp. 881, 889 (D.Conn.1982). Thus, if Plaintiffs want the benefit of soliciting throughout the nation, registration requirements are a cost of doing business and, to be sure, they have no right to conduct commercial activity in this action in an unfettered manner. Finally, this argument of Plaintiffs makes many presumptions which are improper when reviewing under a facial standard for summary judgment. Particularly, since many jurisdictions would choose not to employ a new set of regulations which do not enhance the coffers of their state or locality.

As to Plaintiffs' contention that there is an insufficient nexus between Pinellas County and Plaintiffs for Pinellas County to have jurisdiction, this is untrue. Specifically, courts have determined that where a company performs services for its clients within a state by contact of citizens through the mail or telephone, even though the services are performed by mail or telephone, such activity has a substantial impact within the state. Id. at 887. See also Defendants' Memorandum at 4-5.

Overall, the arguments asserted by Plaintiffs are inapplicable to the case at bar because they involve different factual situations which affect the applicable law. The Pinellas County ordinance, unlike cases cited in support of Plaintiffs' Motion, does not discriminate against interstate commerce, and it doesn't attempt to favor intrastate firms. Also, the ordinance is valid under the Pike analysis; this is illustrated by the distinction between cases cited by Defendants and the Pinellas County ordinance. See Defendants' Memorandum at 28-31. Finally, interstate conduct is not affected by the ordinance and Plaintiffs have no right to be exempted from local regulation under the Commerce Clause.

For these reasons, and because of the indisputable need for localities such as Pinellas County to regulate entities that solicit within its borders, Plaintiffs' Brief in Support of its Motion for Summary Judgment is not persuasive and, as such, this Count of Plaintiffs' Motion should be denied and Defendants' Motion granted.


Plaintiffs in their Brief in Support of their Motion for Summary Judgment urge this Court to find that their commercial activities do not bring them within the jurisdictional authority of Pinellas County. In support of this contention, they cite the landmark cases decided on this issue. See International Shoe Co. v. Washington, 326 U.S. 310 (1945); World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); and Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987). Particularly, Plaintiffs rely on this latter, Asahi, decision for the proposition that there are insufficient minimum contacts between Pinellas County and the Plaintiffs to justify application of jurisdiction against Plaintiffs. This is the proper course of review at this time because, as discussed in Defendants' Memorandum in Support of its Motion for Summary Judgment, the challenge to the Pinellas County ordinance is facial. Defendants' Memorandum at 20. As such issues concerning the first prong of the jurisdictional text in Florida is not ripe because there has been no enforcement action taken by Pinellas County under which provisional Section 48.193(1) and (2), Florida Statutes, must be employed. See Defendants' Memorandum at 21. See also, Travelers Health Association v. Virginia, 339 U.S. 643 (1950) (inferring that the proper standard for review of a regulatory provision may be more relaxed than review for jurisdiction to maintain a suit). Id. at 653 (Douglas, concurring opinion). Therefore, only a hypothetical analysis is available, and this Court may properly uphold the County's jurisdiction without further review of the arguments of the parties because of the hypothetical nature of any review as applied to the facial standard. Defendants' Memorandum at 21-22 (there are many hypothetical situations under which Pinellas County would clearly have jurisdiction, thus any facial challenge should fail). See also, Defendants' Memorandum at 3-4 for facial standard.

A. Minimum Contacts Analysis:

In the event that this Court wishes to review the minimum contacts question, several assertions of Plaintiffs are misplaced; specifically, as to the Eleventh Circuit and this Court's interpretation of the application of the above cited landmark cases. See Defendants' Memorandum at 22, citing Interfase Marketing v. Pioneer Technologies Group, 774 F.Supp. 1355 (M.D.Fla.1991) and S.E.C. v. Carillo, 115 F.3d 1540 (11th Cir. 1997).

The crux of Plaintiffs' argument is that they have no contacts with Pinellas County. Defendants disagree with this assessment for the following reasons.

Plaintiffs, in their capacity as professional fundraising consultants and solicitors, provide the services of providing strategic planning and scheduling for direct mailings, creating copy to be used, coordinating mailings and directly calling by telephone and directly mailing to specific addresses. See Exhibits "1" (professional consultant) and "2" (professional solicitor) (examples of the contracts between Plaintiffs and charities). These services direct solicitations to specific individual citizens in specific localities. See Exhibit "1" at Section 2. Therefore, any claim that Plaintiffs are ignorant of who and where solicitous material is going controverts any reasonable understanding of what an effective fundraising consultant/solicitor does as part of its services. As previously cited by Defendants, a New York state court, in the only case directly addressing this issue, determined that because of the nature of the relationship between fundraising consultants/solicitors and charities, procedural due process was not violated by the assertion of jurisdiction. Defendant's Memorandum at 22, citing State v. Richard A. Viguerie Co., Inc., 382 N.Y.S.2d 622, 624-625 (1976). The Viguerie Court in its analysis made this determination because of the services provided by the consultant and because contributions were deposited in a separate bank account from that of the charity. Furthermore, the Viguerie Court acknowledged the validity of the governmental interest in protecting its citizens against potential abuses inherent in direct mail charitable solicitation. Id. at 625. Therefore, the Court found that professional fundraising consultants were more analogous to securities dealers, and thus requiring registration and a bond were constitutionally proper.

B. Actions of PFCs:

It would be naive to believe that the fundraising consultants are unaware of where solicitations are made. Indeed, it is their responsibility to determine where solicitations should be made. Plaintiffs in their Brief argue that they have no control over where their services are used, but this controverts common sense and the practical reality. The only reason for charities to hire consultants and solicitors is to defer to their expertise in these areas. Furthermore, the practical reality is that Pinellas County residents receive more than their share of charitable solicitations; therefore, one way or the other, these solicitous materials are finding their way into Pinellas County. Therefore, there can be no doubt that because of the proficiency of professional fundraisers, and the integral nature of their relationship with charities soliciting in Pinellas County, they involve themselves in activity within Pinellas County. See Exhibits "8" and "9", Defendants' Memorandum of Law at 2.

C. Middle District and Eleventh Circuit Review:

This court and the Eleventh Circuit have both found that contrary to Plaintiffs' argument, the activities which it undertakes will subject the Plaintiffs to jurisdiction. "A direct solicitation by a foreign defendant of a business of a forum resident has been held to be 'purposeful availment', in cases where either a continuing relationship (citation omitted) or some in- forum performance on the part of the Plaintiffs, (citations omitted) was contemplated." Sea Lift, Inc. v. Refinadora Costarricense, 792 F.2d 989, 994 (11th Cir. 1986). In the case at bar it is clear that Plaintiffs made a solicitation to citizens of Pinellas County because otherwise they would not be required to register in Pinellas County. It is also clear that Plaintiffs intend to maintain a continuing relationship and in-forum performance by citizens of the forum. Indeed, Plaintiffs make as one of their primary arguments that their actions and contacts are in fact interstate commerce. They cannot now deny the commercial nature of their activities as regards their justiciability. This commercial activity is directed at specific individuals in Pinellas County with the intent to have the specific effect of convincing those individuals to contribute money to a specific charity. This is exactly the type of activity that the Eleventh Circuit has determined to satisfy the purposeful availment prong of the minimum contacts analysis. See Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 258-259 (11th Cir. 1996) citing Asahi Metal, 480 U.S. at 112 (1987) (the type of foreseeability critical to the proper exercise of personal jurisdiction is whether the defendant's own purposeful acts will have some effect on the forum).

For these reasons, Plaintiffs in this matter clearly availed themselves to jurisdiction in Pinellas County in contrast to Plaintiffs' claim to the contrary. As the Courts explain, the fact that Plaintiffs have no offices, employees or property in Pinellas County is immaterial; what matters is the fact that they purposefully solicit individual citizens in Pinellas County for contributions to their cause for their own commercial benefit.

As to the fair play requirement, this Court has previously acknowledged the Supreme Court factors to be considered. These factors are: 1) the forum's interest in adjudicating the dispute; 2) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and 3) the shared interest of the several states in furthering fundamental substantive social policies. Hoechst Celanese Corp. v. Nylon Engineering Resins, Inc., 896 F.Supp. 1190, 1196 (M.D.Fla. 1995), citing Burger King v. Rudzewicz, 471 U.S. 462, 477 (1985); World Wide, 444 U.S. at 292.

Applying this law to the case at bar, the challenged ordinance is clearly fair. The County has a substantial interest in registering professional fundraisers that solicit for clients in Pinellas County and, because it affects the economic welfare of citizens of Pinellas County, registration simplifies the resolution of any controversies by providing for a specific jurisdictional forum for any controversies and the several states and counties are interested in furthering this goal of overseeing professional fundraisers. See Amicus Brief at 6-10.

As can be seen, application of jurisdiction by Pinellas County over professional fundraisers soliciting and consulting in Pinellas County is well within the County's constitutional authority. The Memorandum of an attorney with the State Department of Agriculture retains no precedental authority over the County or over this court. See Nikolits v. Nicosia, 682 So.2d 663, 666 (Fla. 4th DCA 1996) (explaining that under Florida law, where the opinion of Department’s Assistant General Counsel is in conflict with the state statute, that opinion will be ignored by the court). Indeed, the memo in question is contrary to the intent of the Legislature. See Section 496.409, Florida Statutes (1997) (requires registration by professional fundraisers). Therefore, consistent with Section 496.421, Florida Statutes, which allows localities to require more stringent regulations, Pinellas County's ordinance complies with the requirements of state law.

The landmark decisions cited by Plaintiffs in their Brief provide a general outline as to the review of a law on procedural due process grounds. The Eleventh Circuit and Middle District of Florida have filled in the outline by providing direction in more specific factual situations. Pursuant to the more precise review it becomes clear that Plaintiffs, through their own commercial activity, have brought themselves within the jurisdictional boundaries of Pinellas County. Plaintiffs have purposefully availed themselves to the benefits of Pinellas County through their solicitations and application of jurisdiction is fair and realizes substantial justice. Plaintiffs' generalized arguments are not applicable as the Plaintiffs wish for them to be applied in the case at bar. Also, under a facial standard of review, Plaintiffs' claim is clearly inapplicable. Therefore, Defendants request that, as to this Count of Plaintiffs' Complaint, Defendants' Motion be granted and Plaintiffs' Motion be denied.


Plaintiffs' broad based attack of the Pinellas County ordinance was an acknowledgment of the proper standard of review to which the Defendants previously agreed. Defendants' Memorandum at 8. Unlike the Defendants' argument to this Court, though, Plaintiffs challenge every prong of the strict scrutiny standard, even those which are clearly not applicable. Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 637 (1980).

A. Overbreadth

As has been Plaintiffs' tactic throughout their supporting Brief, the cases cited by Plaintiffs have no contextual relationship to the case at bar. For example, City of Houston v. Hill, 482 U.S. 451 (1987) (no specific page designation is provided), is cited by Plaintiffs to support their overarching assertion that any regulatory scheme that is within its ambit burdens activities which are protected by the First amendment is over broad. Plaintiffs' Memorandum at 24. Nothing could be further from the truth.

Many statutes/ordinances and other regulations place burdens on First Amendment activities. Indeed, the entire field of time, place and manner restrictions involves an analysis of whether the governmental unit has gone too far in regulating First Amendment activity. U.S. v. O'Brien, 391 U.S. 367, 376-377 (1968). See also, Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989). Therefore, as acknowledged by Plaintiffs in the only contextually accurate case they cite, the real question is whether the challenged law is narrowly tailored. Plaintiffs' Brief at 24 n. 85, quoting Schaumburg, 444 U.S. at 637. See also, Defendants' Memorandum at 8 (the first two factors [of the O'Brien test] are most critical). Therefore, the real question is whether the challenged ordinance is narrowly tailored because as a general proposition it is clearly not overbroad.

B. Vagueness

The vagueness challenge asserted by Plaintiffs is completely without merit. Each hypothetical question proffered by Plaintiffs has an easily definable answer through an examination of the ordinance. See Plaintiffs' Brief at 25 n. 90 (each of these hypotheticals has an easily understandable answer, though it might not be the answer Plaintiffs want). Furthermore, while there can be no doubt that the ordinance is valid facially, see Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982), see also, Defendants' Memorandum at 3-4 (asserting the proper standard of review), an as applied challenge while applying the rational person standard must also acknowledge deferential acceptance of the fact that words can never be expected to yield mathematical certainty as to their meaning. Grayned v. City of Rockford, 408 U.S. 104 (1972). Furthermore, “[t]he applicable standard for vagueness is ‘the practical criterion of fair notice to those to whom the statute is directed. The particular context is all important’.” ISKCH v. City of Houston, 689 F.2d 541, 553 (5th Cir. 1982), quoting American Communications Association v. Douds, 339 U.S. 382, 412 (1950). Therefore, where, as in the case at bar, parties intentionally attempt to confuse themselves as to the terms of an ordinance in order to factually support their claim, the mere fact that they have understood the law well enough to bring a facial action refutes their claim of confusion. This argument is also specious because the fee for consultants and solicitors is identical.

C. Unconstitutionally Burdensome

Plaintiffs argue that Pinellas County's distinct registration requirements are overly burdensome because the State of Florida maintains its own charitable solicitations ordinance. This argument ignores the fact that the State of Florida specifically provides, in its charitable solicitations ordinance, authority for counties to provide for more strict regulatory requirements. Section 496.421, Florida Statutes (1997). Furthermore, it is without question that localities are authorized to regulate charitable solicitation activity occurring within their boundaries. National Foundation v. City of Fort Worth, 415 F.2d 41, 45, (5th Cir. 1969), cert. den. 396 U.S. 1090 (1970); see also, Gospel Missions of America v. Bennett, 951 F.Supp. 1429, 1440 (C.D.Cal.1997), citing Cantwell v. Connecticut, 310 U.S. 296, 306 (1940).

D. Prior Restraint

Consistent with the rest of its Brief, the Plaintiffs cite to this Court a standard of review on the issue of prior restraint which is inapplicable, in order to find support for its argument. The standard cited to you by Plaintiffs is from Freedman v. Maryland, 380 U.S. 51 (1965), in which the State of Maryland reviewed motion pictures and approval by the state was necessary before allowing the movies to be shown. This directly involved an examination of the content of the movie and therefore a heightened level of scrutiny concerning the government action was deemed necessary.

This standard is not applicable in the case at bar because Pinellas County does not consider the content of the solicitor's speech in accepting or denying an application. See Pinellas County Code Section 42-293(c), et. seq. (1995) (specific guidelines for denial does not include a review of the content of applicant's speech). Therefore, the proper standard to be applied is that of the United States Supreme Court in FW/PBS v. City of Dallas, 493 U.S. 215 (1990).

Prior to FW/PBS, the Court had never addressed the proper scope of review regarding a licensing scheme; therefore, when it previously struck down Riley v. National Federation of the Blind, 487 U.S. 781 (1988), the Freedman standard did not apply. Freedman, 380 U.S. at 58-60. Therefore, the proper standard of review as cited by Defendants in their Memorandum (see Defendants' Memorandum at 6-7) is: 1) the ordinance may not place unbridled discretion in the hands of government officials in deciding whether to grant or deny a permit, and 2) a prior restraint that fails to place limits on the time within which the decision maker must issue a license is faulty. FW/PBS, 493 U.S. at 225-226. The Pinellas County ordinance satisfies both prongs of this analysis because: 1) pursuant to Section 42-293(c), the Department of Consumer Protection is limited to denying an application for five fact specific reasons, and 2) the Department must make a decision concerning an applicable within 30 days. Section 42-293(a) and (b), Pinellas County Code (1995). These narrowly tailored standards protect the Department from violating any First Amendment rights. Streich v. Pennsylvania Commission on Charitable Organizations, 579 F.Supp. 172, 175 (M.D.Penn.1984), citing Martin v. Struthers, 319 U.S. 141, 144 (1943) (J. Black).

E. Charitable Solicitations Board

The standard to be applied as against the Charitable Solicitations Board is fact specific to each provision it affects, but so long as those provisions are narrow, objective, and provide a definite standard, there will be no prior restraint. Holy Spirit Association for Unification of World Christianity v. Hodge, 582 F.Supp. 592, 597 (N.D.Texas 1984), citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 149, 150-51 (1969).

The Pinellas County Charitable Solicitations Board provides the level of administrative review for hearing appeals from actions affecting charitable solicitations permits. As such it takes no actions which can be construed to be overly discretionary because any decision by the Board may be appealed to the state circuit court.

F. "Content Based"

As discussed previously, the County ordinance is clearly by its terms not content based. There is no case law and indeed in the cases cited by Plaintiffs, there is no support for the argument that the County ordinance is content based. See Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir. 1989) (the Court examined the compelling interest of the state and whether the law regulating that interest was narrowly tailored). Furthermore, Plaintiffs cannot and do not provide a scintilla of support for this contention as it relates to the Pinellas County ordinance.

G. Compelling Interest

An argument that Defendants may have underplayed in their Memorandum is the unambiguously clear rule that government has a compelling interest in regulating charitable solicitation. Schaumburg, 444 U.S. at 637; Riley v. National Federation for the Blind, 487 U.S. 781, 792 (1988) ("[t]he interest in protecting charities [and the public] from fraud is of course a sufficiently substantial interest to justify a narrowly tailored regulation). Id., Gospel Missions, 951 F.Supp. at 1440, citing Cantwell, 310 U.S. at 306, National Foundation, 415 F.2d at 45, Telco Communications, 885 F.2d at 1231 (substantial interests include: 1] involving the public, 2] preventing fraud, and 3] adding to the public knowledge of professional solicitation), Famine Relief Fund v. West Virginia, 905 F.2d 747, 751 (4th Cir. 1990) (...the Supreme Court has acknowledged the legitimate interest in regulating this type of speech to prevent fraud and misrepresentation). Indeed, there has not been a single case in which a court has determined that the challenged governmental unit does not have a substantial interest in regulating charitable solicitations. Furthermore, in the Supreme Court cases regarding this issue, the violation cited by those courts were based on a lack of nexus between the percentage guidelines and the substantial government interest in regulating charitable solicitations. See Famine Relief, 905 F.2d at 750-51 (explaining the distinguishing characteristics of the Schaumburg, Riley, Munson trilogy of cases overturning regulation of fundraising consultants).

None of the cases cited by Plaintiffs support their argument because there is no support for this argument. Therefore, as initially acknowledged and explained by Defendants, the real question comes down to whether the provisions of the County charitable solicitations ordinance are narrowly tailored.

The Pinellas County charitable solicitations ordinance has a compelling interest in that it protects the citizens of Pinellas County by: 1) overseeing solicitous activity within the County, 2) requiring public accountability of solicitors, 3) protecting against fraudulent activity, and 4) to provide an educational clearinghouse for Pinellas County contributors.

H. Narrowly Tailored

Each provision in the Pinellas County charitable solicitations ordinance was chosen and included in the ordinance in order to effectuate the protective intent of the Board of County Commissioners while maintaining court approved narrowly tailored provisions. As Defendants have illustrated through a detailed review of case law which is content specific to charitable solicitations law precedent, each provision of the Pinellas County ordinance is valid. See Defendants' Memorandum at 9-19. After reviewing this law and applying it to the challenged ordinance, it will become clear that the provisions of the Pinellas County ordinance survive the crucial challenge; they are narrowly tailored. Therefore, as to this Count, Defendants’ request that Plaintiffs’ Motion for Summary Judgment be denied and Defendants’ Motion for Summary Judgment be granted.


Plaintiffs in their very scholarly missive provide this Court with wonderful illustrations of Supreme Court rulings. Unfortunately for Plaintiffs, though, these rulings, when taken in context, have no value in the case at bar.

When arguing their point regarding the Commerce Clause, Plaintiffs cite case law involving laws which were discriminatory and protectionist in nature. This contravenes the nature of the challenged ordinance which regulates even-handedly. Furthermore, Plaintiffs cite cases involving general use taxes, whereas the Pinellas County ordinance imposes only a minimal user fee. These distinguishing characteristics affect the standard of review, and this may explain Plaintiffs' misinterpretation of the ordinance in the case at bar.

This same inconsistency is found in Plaintiffs' review and argument concerning the County's jurisdiction. While the cases cited by Plaintiffs sound applicable in the abstract, where the rubber hits the road, the standards and activities of an out-of-state entity which result in jurisdictional access illustrate the County's justiciability over the Plaintiffs.

Finally, as to the First Amendment argument, the case law precedent is so abundantly clear the Plaintiffs do not even attempt to directly address these holdings head on. Indeed, as was their form throughout, generalizations were stated and then attempts to graft them onto the challenged ordinance were undertaken. This tactic illustrates the inherent weakness of their arguments and for these reasons, Defendants request that Plaintiffs’ Motion for Summary Judgment be denied and Defendants’ Motion for Summary Judgment be granted.

Respectfully submitted,

Assistant County Attorney
315 Court Street
Clearwater, FL 33756
(813) 464-3354
FL Bar #0102229
Attorney for Defendants


I HEREBY CERTIFY that a copy of the foregoing has been furnished by U. S. Mail to ALISON M. STEELE, ESQ., Rahdert, Anderson, McGowan & Steele, P.A., 535 Central Avenue, St. Petersburg, FL 33701, CLIFFORD PERLMAN, ESQ., Perlman & Perlman, 220 Fifth Avenue, New York, NY 10001, SETH PERLMAN, ESQ., Perlman & Perlman, 220 Fifth Avenue, New York, NY 10001, and GEOFFREY W. PETERS, ESQ., Geoffrey W. Peters, P.C., 9024 Trailridge Court, Vienna, VA 22182, this 24th day of June, 1998.

Assistant County Attorney

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