Sticker Shock! Bright orange postings deemed constitutional in First Circuit case challenging “unruly gathering” ordinance: URI Student Senate v. Narragansett (Jan. 5, 2011)

An ordinance authorizing the posting of bright orange stickers at an "unruly gathering" is both constitutional and not preempted according to the First Circuit's recent ruling. The First Circuit rejected plaintiffs' due process claim and refused to find the Rhode Island Residential Landlord and Tenant Act (L&T Act) preemptive.

To combat against disorderly gatherings of college students, the Rhode Island town of Narragansett adopted an ordinance authorizing police to post a bright orange sticker at the entrance of any residence hosting an "unruly gathering." The stickers admonished that, should police intervention be required in response to another violation, various parties would be held jointly and severally liable.

In their lawsuit against the town, plaintiffs contended that the ordinance conflicted with the L&T Act because it "requires" a landlord to evict an offending tenant without providing an opportunity to cure. Eviction was required, the plaintiffs argued, so that the landlord could avoid liability for subsequent ordinance violations. Plaintiffs also assert constitutional claims based on due process, overbreadth and vagueness.  

In URI Student Senate v. Town of Narragansett, 2011 U.S. App. LEXIS 141 (1st Cir. R.I. Jan. 5, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the First Circuit rejected the preemption argument, holding that the ordinance did not require a landlord to initiate eviction proceedings. Rather, it allowed an owner of a previously posted property to avoid liability for a subsequent violation by actively attempting to evict a tenant. Affording the landlord an "ongoing eviction" defense was not tantamount to compelling an eviction.

The First Circuit also rejected plaintiffs' constitutional claims. Plaintiffs argued that the ordinance violated due process because it allowed police to post the orange sticker without a hearing. To establish a liberty/property interest, plaintiffs focused on reputational harm; particularly, the ordinance's stigmatizing effects. They asserted that when an orange sticker was posted, both the landlord and tenants were publicly branded as criminals. In rejecting this argument, the First Circuit applied the "stigma plus" standard:

The appellants say that some landlords have been unable to re-rent posted dwellings. Taking this as true, the resulting loss of rent is not a viable "plus" factor. Nothing in the L&T Act (or elsewhere in state law, for that matter) confers on landlords an entitlement to have rental units fully occupied. . . .

Similarly, the vacancies that the appellants lament do not result from state action but, rather, from the actions of third parties. After all, it is prospective tenants, acting without government compulsion, who decide whether or not to rent particular dwellings. . . .

The student tenants' proposed "plus" factor is no more robust. This claim relies on evictions as a source of harm. It suggests that a tenant has a right to peaceable enjoyment of a rented dwelling free from eviction and that, therefore, eviction represents a cognizable "plus" factor. This is too sanguine a view.

. . . .

[Appellants] complain that the Ordinance prevents them from living in Narragansett. That is codswallop pure and simple: the Ordinance does not prevent anyone from living anywhere. Although the Ordinance creates consequences for those who choose to reside in the Town but fail to abide by the law, these consequences, whether viewed singly or collectively, do not constitute harm to any tangible interest enjoyed by the appellants.