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Aptive Environmental, LLC v. Town of Castle Rock

No. 18-1166. D.Colo. Judge Holmes. Constitutional Standing—First Amendment Commercial Speech—Permanent Injunction.

May 11, 2020

The Town of Castle Rock enacted an ordinance creating a 7 p.m. curfew on commercial door-to-door solicitation. The ordinance expressly exempted noncommercial solicitors. Plaintiff sells pest control services through door-to-door solicitation and encourages its salespeople to go door-to-door until dusk during the traditional business week. Plaintiff applied for and received permits for its representatives to conduct door-to-door solicitation activities pursuant to the ordinance. Plaintiff complied with Castle Rock’s curfew and instructed its sales force to stop engaging in door-to-door solicitation at 7 p.m. When its independent contractors began marketing in Castle Rock, plaintiff struggled to sell its services as successfully as it had in other markets, and consequently ceased operating in Castle Rock.

Plaintiff sued Castle Rock for violating its First Amendment right to engage in door-to-door solicitation and sought an injunction against the curfew’s enforcement. After a bench trial, the district court permanently enjoined Castle Rock from enforcing the curfew.

On appeal, Castle Rock first argued that plaintiff lacks standing to challenge the ordinance. Plaintiff established the three elements of constitutional standing.

On the merits, Castle Rock argued that the First Amendment does not apply to the curfew. However, there is ample controlling authority that regulation of door-to-door solicitation implicates the First Amendment, and accordingly, so does the ordinance. Castle Rock had the burden of proving that its restriction on commercial speech was justified. Here, Castle Rock relied largely on common sense and anecdotal evidence to support its regulation, and it failed to demonstrate that the curfew directly advanced to a material degree its interests in public safety and privacy. Accordingly, Castle Rock’s curfew does not withstand First Amendment scrutiny.

The judgment was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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