NARRAGANSETT–Rejecting the ACLU’s legal arguments, the U.S. Court of Appeals for the First Circuit upheld the constitutionality of the Town of Narragansett’s highly-publicized 2005 “orange sticker” ordinance on Wednesday. However, in upholding the ordinance on its face, the court acknowledged that it could still be subject to constitutional challenge in its application to particular cases, and the ACLU plans to go back to court to pursue those challenges.
The ordinance authorizes police both to charge tenants and landlords for allowing “unruly gatherings,” and to place orange stickers on houses that have allegedly been the site of such gatherings. Under the ordinance, the orange sticker cannot be removed until the end of the school year without financial penalty, regardless of the presence or absence of the original ‘unruly’ tenants who allegedly engaged in a violation of the law.
The decision reads that Narragansett's "thriving rental market among college students has proven to be both a blessing and a curse. On the one hand, the clamor for student housing is an economic boon to property owners willing to rent their dwellings. On the other hand, the sheer mass of exuberant young people and their predilections have proven to be a threat to the quality of life in a quiet enclave."
The lawsuit, filed in 2008 by ACLU volunteer attorney H. Jefferson Melish, was on behalf of the URI Student Senate, as well as four students and three landlords who have been affected by enforcement of the ordinance.
Among other things, the ACLU argued that the ordinance is unconstitutional, deprives appellants of equal protection under the law, and violates the plaintiffs’ due process rights by allowing police to affix the large orange stickers to the front door of a rental property with no opportunity for a hearing either before or after the posting. In upholding the ordinance, the appellate court acknowledged that it was “uneasy about the absence of a hearing,” but that the “mere possibility of misuse is insufficient to invalidate an ordinance” on its face. But the court concluded that the record is "barren of evidence that unconstitutional applications have occurred" arguing that "the mere possibility of misuse is insufficient to invalidate an ordinance..." Senior Circuit Judge Bruce Selya wrote that the ordinance could be applied in a manner which "might impair constitutionally protected liberty or property interests (say, if the police were to enforce the ordinance in an invidiously discriminatory way.)"
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