February 15, 2012 – Village of Ruidoso v. David Warner, No. 30,591

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: February 15, 2012
NO. 30,591
VILLAGE OF RUIDOSO,
Plaintiff-Appellee,
v.
DAVID WARNER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Jerry Ritter Jr., District Judge
Bryant, Schneider-Cook Law Firm, P.A.
Daniel A. Bryant
Angie K. Schneider-Cook
Ruidoso, NM
for Appellee
David Warner, Pro Se
Ruidoso, NM
Pro Se Appellant

OPINION
SUTIN, Judge.
{1} 	On behalf of a non-profit foundation that he created after the death of his son,
Defendant David Warner stationed himself and his pickup truck in a public street
intersection in the Village of Ruidoso, New Mexico. 	He handed out flyers that
solicited funds to support his foundation. Posters in the bed of the truck identified the
foundation and asked for donations. 	Defendant was arrested and convicted in
municipal court of soliciting without a permit contrary to Ruidoso, N.M., Code of
Ordinances ch. 58, art. III, § 58-84(b) (1998). He appeals from a repeated conviction
in a de novo appeal in the district court. 	He presents constitutional challenges to
Section 58-84(b). We reverse Defendant’s conviction.
BACKGROUND
The Ordinance at Issue
{2} 	Section 58-84(b) reads:
Solicitation on public property. 	The practice by itinerant vendors or
solicitors of going onto public property for the purpose of soliciting
money or for the sale of goods, wares[,] and merchandise or for the
purpose of disposing of goods, wares[,] and merchandise shall be
considered a nuisance and punishable under this Code, except as
otherwise provided by law or authorized by the council.

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Section 58-84 (use of streets, sidewalks, parks, and village-owned public property) is
found under Article III (offenses against property) of Chapter 58 (offenses and
miscellaneous provisions) of the Village’s Code of Ordinances.
{3} 	The parties consider three other Village ordinances to be related in the
constitutional analyses. These ordinances are found in Division 2 (special licenses)
under Article II (business registration and licenses) of Chapter 26 (businesses) of the
Village’s Code of Ordinances. Ruidoso, N.M., Code of Ordinances ch. 26, art. II, div.
2, § 26-62 (1998) (definitions) defines “solicitation” to include requesting contribution
of funds for charitable or other noncommercial purposes. It defines “solicitor” as any
person who engages in solicitation along “any streets[.]” 	Ruidoso, N.M., Code of
Ordinances ch. 26, art. II, div. 2, § 26-75 (1998) (amended Jan. 26, 2010) (solicitation)
makes it unlawful for any solicitor to engage in solicitation without first obtaining a
license from the Village, but it exempts “[p]ersons, organizations[,] and other entities
who are not otherwise required by the provisions of this article to obtain business
registrations 	and/or 	licenses[.]” 	Section 	26-75(b)(2) 	(1998) 	(prior 	to 	2010
amendment). And Ruidoso, N.M., Code of Ordinances ch. 26, art. II, div. 2 § 26-77
(1998) (fundraising events by non-profit organizations) sets out criteria under which
outdoor fundraising activity by a non-profit organization can be conducted. Criteria
applicable to Defendant’s activity include “submit[ting] an application supplied by the

1 Statutes and ordinances are treated the same in cases addressing the
constitutionality of laws restricting First Amendment speech. In this Opinion, because
this case involves ordinances, unless “statute” appears in quoted material, we use
“ordinance” throughout even though several of the cited cases deal with statutes.
3
village clerk[,]” providing documentation of not-for-profit status, and obtaining
permission from “the administering agency” (e.g., school, village, county, federal, or
state agency) if the activity is held on public property. 	Section 26-77(2), (4), (5).
None of these ordinances refers to Section 58-84(b). We see nothing in the record that
indicates that either the municipal court or the district court considered these other
ordinances when convicting Defendant for violating Section 58-84(b).
{4} 	Defendant requests this Court to rule that Section 58-84(b) alone or in
combination with Sections 26-62, 26-75, and 26-77 suffers from facial and as-applied
constitutional deficiencies, naming the facial culprits overbreadth, prior restraint, and
vagueness. 	It appears from the briefs on appeal that, in pursuit of the issue of the
constitutional validity of Defendant’s conviction under Section 58-84(b), the parties
believe that all of these sections are to be read together as one regulatory scheme.
Applicable General Principles
{5} 	Our analysis of the facial invalidity of statutes and ordinances 1 prohibiting
content-neutral speech in public places essentially considers how substantial, broad,
and chilling the prohibition is, sometimes involving concerns about unbridled

4
government official discretion and prior restraint. 	In a facial challenge to an
ordinance, we consider only the text of the ordinance itself, not its application;
whereas, in an as-applied challenge, we consider the facts of the case to determine
whether application of the ordinance even if facially valid deprived the challenger of
a protected right. Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174-75 (2d Cir.
2006).
{6} 	“According to our First Amendment overbreadth doctrine, a statute is facially
invalid if it prohibits a substantial amount of protected speech.” 	United States v.
Williams, 553 U.S. 285, 292 (2008); State v. Ebert, 2011-NMCA-098, ¶ 6, 150 N.M.
576, 263 P.3d 918. The concept of overbreadth is applicable to invalidate ordinances
that fail to serve “legitimate interests [through] narrowly drawn regulations designed
to serve those interests without unnecessarily interfering with First Amendment
freedoms.” 	Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637
(1980). The overbreadth doctrine is also applied to invalidate ordinances restricting
speech that do not include reasonable restrictions based on time, place, and manner
of communicating information. See, e.g., Young v. Am. Mini Theatres, Inc., 427 U.S.
50, 59 n.17 (1976) (collecting cases that entertained facial overbreadth claims “where
statutes, by their terms, purport to regulate the time, place, and manner of expressive
or communicative conduct”); Grayned v. City of Rockford, 408 U.S. 104, 114-15

5
(1972) (stating that an ordinance, even if clear and precise, “may nevertheless be
overbroad if in its reach it prohibits constitutionally protected conduct” and “that
reasonable, time, place[,] and manner regulations may be necessary to further
significant governmental interests, and are permitted” (internal quotation marks
omitted)).
{7} 	In some instances, the concept of void for vagueness is applicable to ordinances
that restrict speech. 	See, e.g., Grayned, 408 U.S. at 109 (“[W]here a vague statute
abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit
the exercise of those freedoms.” (alterations omitted) (internal quotation marks and
footnotes with citations omitted)); see also Coates v. City of Cincinnati, 402 U.S. 611,
611, 614 (1971) (holding an ordinance prohibiting, among other things, “conduct . . .
annoying to persons passing by” to be “unconstitutionally vague because it subjects
the exercise of the right of assembly to an unascertainable standard,” to be vague “in
the sense that no standard of conduct is specified at all[,]” and also to be
“unconstitutionally broad because it authorizes the punishment of constitutionally
protected conduct”).
{8} 	In addition, the concept of prior restraint has also been applied in a First
Amendment context. See Young, 427 U.S. at 59 n.17 (collecting cases that entertained
facial overbreadth claims where expressive or communicative “conduct has required

6
official approval under laws that delegated standardless discretionary power to local
functionaries, resulting in virtually unreviewable prior restraints on First Amendment
rights”); cf. Cantwell v. Connecticut, 310 U.S. 296, 306 (1940) (involving an invalid
prior restraint on the free exercise of religion); see also Vill. of Schaumburg, 444 U.S.
at 629 (noting that, following the Cantwell decision, the Court “understood Cantwell
to have implied that soliciting funds involves interests protected by the First
Amendment’s guarantee of freedom of speech”).
{9} 	The ordinances in question are content neutral. See, e.g., Thomas v. Chicago
Park Dist., 534 U.S. 316, 322 (2002) (discussing the distinction between “subject-
matter censorship [and] content-neutral time, place, and manner regulation of the use
of a public forum”). 	Content-neutral regulation of protected speech may survive
constitutional attack if the regulation is made subject to reasonable time, place, and
manner restrictions. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984) (stating, in the context of content-neutral park service regulations relating to
demonstrations, that “[e]xpression, whether oral or written or symbolized by conduct,
is subject to reasonable time, place, or manner restrictions”); Martin v. City of
Struthers, 319 U.S. 141, 143 (1943) (“[T]he peace, good order, and comfort of the
community may imperatively require regulation of the time, place[,] and manner of
distribution [of literature].”); Cox v. New Hampshire, 312 U.S. 569, 576 (1941)

7
(indicating that “[i]f a municipality has authority to control the use of its public streets
for parades or processions, as it undoubtedly has, it cannot be denied authority to give
consideration, without unfair discrimination, to time, place[,] and manner in relation
to the other proper uses of the streets”); cf. City of Farmington v. Fawcett, 114 N.M.
537, 540, 843 P.2d 839, 842 (Ct. App. 1992) (stating, in the context of free speech
under the New Mexico Constitution on the issue of prior restraint, related to an
ordinance criminalizing dissemination of obscene material, that “our [S]upreme
[C]ourt has recognized that the state may constitutionally regulate the place and
manner of such speech”). 	Still, through “unduly broad discretion” enjoyed by
officials in the permitting process, “even content-neutral time, place, and manner
restrictions can be applied in such a manner as to stifle free expression.” Thomas, 534
U.S. at 323. The regulation must “contain adequate standards to guide the official’s
decision and render it subject to effective judicial review.” 	Id. 	And, “in order to
constitute a legitimate time, place, and manner restriction . . . the restriction on speech
must . . . serve a significant governmental interest, and . . . in so doing, . . . must leave
open ample alternative channels for communication of the information.” 	Stuckey’s
Stores, Inc. v. O’Cheskey, 93 N.M. 312, 318, 600 P.2d 258, 264 (1979) (internal
quotation marks and citation omitted).

8
{10} 	We apply an intermediate level of scrutiny to content-neutral ordinances that
restrict speech. Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622,
642 (1994) (citing Clark, 468 U.S. at 293). Under that scrutiny, the restrictions in the
ordinance must be narrowly tailored to serve a significant or substantial governmental
interest without unnecessarily interfering with First Amendment freedoms and must
“leave open ample alternative channels for communication of the information.”
Clark, 468 U.S. at 293; Vill. of Schaumburg, 444 U.S. at 637; Am. Target Adver., Inc.
v. Giani, 199 F.3d 1241, 1247 (10th Cir. 2000).
Preliminary Preservation Question
{11} 	In the district court, Defendant broadly asserted that his First Amendment rights
were violated and that Section 58-84(b) was void for vagueness. The district court
expressed disagreement with Defendant’s void-for-vagueness assertion but noted that
Defendant raised the issue. 	The record proper in this Court shows that in the
municipal court proceedings Defendant argued that charitable solicitations qualified
as protected speech under the First Amendment, that the Village’s content-neutral
Section 58-84(b) regulation of the solicitations was subject to intermediate scrutiny,
and that although government can impose reasonable restrictions of time, place, and
manner of protected speech, narrowly tailored to serve a significant governmental
interest, the Village “lacked specific instructions or procedures set in place by which

9
a non-profit organization would apply for and obtain a license or permit to request
donations.” In the municipal court proceedings, Defendant cited several cases that set
out the constitutional guidelines related to Defendant’s arguments, two of which were
Village of Schaumburg, 444 U.S. at 637 (addressing overbreadth), and American
Target Advertising, 199 F.3d at 1246-53 (addressing intermediate scrutiny of content-
neutral regulation of fundraising activity, facial challenge and narrow-tailoring
requirements, prior restraint, and unbridled discretion). Thus, the constitutional issues
appear to have been contained in the district court record.
{12} 	The record does not reflect that the district court addressed First Amendment
issues. 	Because Defendant failed to argue First Amendment issues with any
specificity, we cannot fault the district court if it did not specifically address them.
Nevertheless, for the following reasons, we will address the First Amendment issues
that Defendant has raised on appeal: 	(1) Defendant raised the issues in municipal
court and the issues were part of the district court record; (2) the Village has not
argued any lack of preservation and has addressed the constitutional issues in its
answer brief on appeal; and (3) colorable First Amendment challenges to content-
neutral ordinances that do not contain standards of time, place, and manner of
communication restrictions on protected speech should be heard on appeal even
though the challenges were not clearly preserved in the district court. 	See State v.

10
Laguna, 1999-NMCA-152, ¶¶ 18-23, 128 N.M. 345, 992 P.2d 896 (reviewing a
constitutional void-for-vagueness challenge despite lack of preservation).
DISCUSSION
{13} 	We review the constitutional issues raised by Defendant de novo. See Christus
St. Vincent Reg’l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, ¶ 21, ___ N.M. ___,
267 P.3d 70, cert. granted, 2011-NMCERT-010, ___ N.M. ___, ___ P.3d ___ (No.
33,166, Oct. 12, 2011). 	There is a presumption that municipal ordinances are
constitutional. City of Albuquerque v. Jones, 87 N.M. 486, 488, 535 P.2d 1337, 1339
(1975); Fawcett, 114 N.M. at 540, 843 P.2d at 842. The challenger has the burden to
establish that an ordinance is unconstitutionally invalid. See Jones, 87 N.M. at 488,
535 P.2d at 1339; see also State v. Ball, 104 N.M. 176, 178, 718 P.2d 686, 688 (1986)
(“It is the duty of [an appellate court] to uphold statutes [and ordinances] unless it is
satisfied beyond all reasonable doubt that the [legislative body] went outside the
Constitution in enacting the challenged legislation.”). We are to uphold the ordinance
at issue here unless otherwise satisfied beyond all reasonable doubt that it is outside
the Constitution. Fawcett, 114 N.M. at 540, 843 P.2d at 842.

11
Observations Regarding the Ordinances
{14} 	Section 58-84 is titled “Use of streets, sidewalks, parks[,] and village-owned
public property[,]” and Subpart (b) specifically relates to solicitation on public
property. 	Unless otherwise provided by law or authorized by the Village council,
Section 58-84(b) by itself unqualifiedly criminalizes as a nuisance a practice by an
itinerant solicitor “of going onto public property” to solicit money. 	As it plainly
reads, Section 58-84(b) criminally prohibits a non-profit organization’s charitable
solicitation of funds orally or by use of leaflets and posters at any time, in any public
place, and in any manner. 	Thus, unless other law or Village council authorization
saves this clear First Amendment infringement, Section 58-84(b) cannot pass
constitutional scrutiny. See City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994) (collecting
“prior decisions [that] voiced particular concern with laws that foreclose an entire
medium of expression”); Martin, 319 U.S. at 147 (“The dangers of distribution [of
literature] can so easily be controlled by traditional legal methods . . . that stringent
prohibition can serve no purpose but that forbidden by the Constitution, the naked
restriction of the dissemination of ideas.”); Jamison v. Texas, 318 U.S. 413, 416
(1943) (“The right to distribute handbills concerning religious subjects on the streets
may not be prohibited at all times, at all places, and under all circumstances.”);
Schneider v. New Jersey, 308 U.S. 147, 163-65 (1939) (holding that regulations

12
embodied in various ordinances abridged the freedom of speech and press); Lovell v.
City of Griffin, 303 U.S. 444, 450-51 (1938) (holding an ordinance facially
unconstitutional because of its “broad sweep” prohibiting “the distribution of
literature of any kind at any time, at any place, and in any manner”).
{15} 	As we have indicated earlier in this Opinion, the parties treat Sections 26-62,
26-75, and 26-77 as related to Section 58-84(b). 	The question is whether these
ordinances come within the phrase “except as otherwise provided by law or authorized
by the council.” 	Section 58-84(b). 	Section 26-62 appears intended to define
“solicitation” and “solicitor” that appear in Section 58-84(b). 	We understand the
parties to argue that this definitional provision applies in the application of Section 58-
84(b). 	Thus, Section 26-62 includes within the definition of “solicitation,”
presumably as it is applied in Section 58-84(b), “requesting contribution of funds . .
. for political, charitable, religious[,] or other noncommercial purposes.” Section 26-
62. Section 26-62 also includes within the definition of “solicitor,” presumably as it
is applied in Section 58-84(b), “any person . . . along any streets within the [V]illage
conducting solicitation.” Section 26-62. Assuming these definitions apply to Section
58-84(b), that section covers Defendant’s charitable fundraising activity and brings
that activity within the proscription of Section 58-84(b). 	Section 26-62 does not
relieve Section 58-84(b) of its constitutional defect.

13
{16} 	Section 26-75(a) appears intended, at first glance, to place a restriction on
“solicitation” and “solicitor” in Sections 58-84(b) and 26-62 by making unlawful any
solicitation by a solicitor without first obtaining a license from the Village. Section
26-75(b)(2) (1998) (prior to 2010 amendment) exempts solicitors from the license
requirement as long as the solicitors are not required under another section to obtain
a business registration or license. 	Because those who engage in requesting
contributions for charitable purposes are not required to obtain a business registration
or license, Defendant was presumably exempt from the license requirement. 	Like
Section 26-62, Section 26-75 does not relieve Section 58-84(b) of its constitutional
defect.
{17} 	Section 26-77 appears intended to allow a non-profit organization to engage in
outdoor fundraising activity on public property under the specific requirements, called
criteria, set out in the section. 	This section does not mention “solicitation” or
“solicitor.” Among the criteria for engagement in outdoor fundraising activity are that
the organization must “submit an application supplied by the [V]illage clerk[,]” must
provide documentation of its non-profit status, and “[i]f the activity is to be held on
public property, permission must be granted from the administering agency, such as
but not limited to school, village, county, federal[,] or state agencies.” Section 26-
77(2), (4), (5). 	Further, under Section 26-77(6), “[d]uration of the fundraiser is

14
limited to five consecutive days.” Thus, in the present case, assuming that Section 26-
77 is to be considered a law narrowing the proscriptive scope of Section 58-84(b),
Section 58-84(b)’s proscription will not be enforced against someone in Defendant’s
circumstance as long as that person files an application provided by the Village, files
documentation showing its non-profit status, and is given permission by the Village
to engage in the fundraising activity, which can be no longer than five consecutive
days in duration. The arresting officer testified that he recommended to Defendant
that if he got a permit, the citation would probably be dismissed. Notwithstanding this
testimony, it is notable that neither the record nor the briefs reflect whether an
application form existed for anyone to use to obtain a permit, what information an
application required, or what standards were to be considered in granting or
withholding permission for a non-profit organization to engage in fundraising.
Considering Sections 58-84(b) and 26-77 together as the Village’s attempt to regulate
the time, place, and manner of solicitation by a non-profit organization for charitable
purposes in a public place, the following picture emerges of the coverage of the
sections in relation to Defendant’s solicitation conduct on behalf of his non-profit
organization and of the constitutional status of his conviction.
{18} 	Section 58-84(b) outright proscribes any solicitation whatsoever of funds for
charitable purposes, “except as otherwise provided by law or authorized by the

15
council.” 	Sections 26-62 and 26-75 add nothing to our constitutional analysis.
Section 26-77 can arguably be considered a law that the Village intended as limiting
the breadth to Section 58-84(b). 	Read in that manner, the two sections might be
interpreted as implying that the solicitation flatly proscribed in Section 58-84(b)
would nevertheless be allowed if the criteria set out in Section 26-77 were met. We
gather from the Village’s arguments on appeal that it intends this interpretation.
Based on the interplay of Sections 58-84(b) and 26-77, it is reasonable to conclude
that, under that two-ordinance regulatory scheme, Defendant was prohibited from
soliciting funds on behalf of his non-profit organization unless he first completed an
application supplied by the Village, submitted it to the Village, and then obtained
permission from the Village to engage in the fundraising activity.
Constitutional Analysis
{19} 	The diagnosis is not one of constitutional health but instead of constitutional
infirmity. As we indicated earlier in this Opinion, without Section 26-77, Section 58-
84(b) is clearly facially unconstitutional, unless a law or authority provides otherwise,
because Section 58-84(b) outright prohibits all solicitation of money at any time, at
any place, and in any manner.
{20} 	Even with Section 26-77 at its side, however, Section 58-84(b) is facially
unconstitutional. The regulatory scheme comprised of Sections 58-84(b) and 26-77

16
still broadly prohibits solicitation of money at any time, at any place, and in any
manner unless a permit from the Village is obtained. This regulation does not save
the infirmity of the ordinances. We understand the Village to argue that solicitation
is not prohibited but rather that the ordinances “merely require a permit prior to
solicitation and are designed to provide the Village with notice of time, place, and
manner of presentation so that public health[,] safety[,] and welfare concerns can be
addressed.” 	However, there exists nothing in the record to indicate whether any
particular form of application actually exists; nothing to indicate what is required in
the application, if it does exist; nothing to indicate who is responsible for granting or
denying permission; and nothing to indicate by what standards permission will be
granted or denied. Nothing in the ordinances or in the record reflects the existence of
any limitation on discretion, or any time, place, or manner of solicitation regulation.
{21} 	Thus, the scheme facially and unconstitutionally prohibits activity without
obtaining a permit, the issuance of which rests in what appears from the lack of
evidence to the contrary to be unbridled discretion of public officials. 	See Vill. of
Schaumburg, 444 U.S. at 628-29 (characterizing Schneider’s analysis as “holding that
the city could not . . . subject . . . communication of views to the discretionary permit
requirement”); Schneider, 308 U.S. at 164-65 (holding an ordinance void in requiring
a permit to disseminate information where the police had discretion to allow some

17
persons to act and not others). Furthermore, the regulatory scheme before us does not
“constitute[] a reasonable time, place, and manner restriction on [Defendant’s]
exercise of protected First Amendment Rights[,]” nor did the Village sustain its
“burden . . . to show the validity of [any significant governmental interest] and the
absence 	of 	less 	intrusive 	alternatives.” 	Heffron 	v. 	Int’l 	Soc’y 	for 	Krishna
Consciousness, Inc., 452 U.S. 640, 656, 658 (1981) (Brennan, J., concurring in part
and dissenting in part, citing Schneider). 	The scheme at hand is “demonstrably
overbroad” and lacks essential “precision of drafting and clarity[.]” Erznoznik v. City
of Jacksonville, 422 U.S. 205, 216-17 (1975); see also Young, 427 U.S. at 59 n.17
(discussing cases involving claims of facial overbreadth, which include entertainment
of the claims “where statutes, by their terms, purport to regulate the time, place, and
manner of expressive or communicative conduct,” and “where such conduct has
required official approval under laws that delegated standardless discretionary power
to local functionaries, resulting in virtually unreviewable prior restraints on First
Amendment rights”). 	The scheme utterly fails to pass the test of intermediate
scrutiny, a test that requires the governmental regulator to show where
[e]xpression, whether oral or written or symbolized by conduct, is
subject 	to 	reasonable 	time, 	place, 	or 	manner 	restrictions. 	. 	. 	.
[R]estrictions of this kind are valid provided that they are justified
without reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and that

18
they leave open ample alternative channels for communication of the
information.
Clark, 468 U.S. at 293; see also Turner Broad. Sys., 512 U.S. at 642 (stating that
“regulations that are unrelated to the content of speech are subject to an intermediate
level of scrutiny,” citing Clark, 468 U.S. at 293). 	And the scheme “subject[s] the
exercise of First Amendment freedoms to the prior restraint of a [permit]” and has
built in no protection of protected speech against “the uncontrolled will of an
official—as by requiring a permit . . . which may be granted or withheld in the
discretion of such official.” Am. Target Adver., 199 F.3d at 1252 (internal quotation
marks and citations omitted). Moreover, the Village presented no evidence showing
that the solicitation regulations are narrowly tailored to serve a substantial, significant
governmental interest, nor any evidence that the restriction leaves open ample
alternative channels for communication of the information Defendant sought to give
to the public.
{22} 	Based on our holding that the ordinances in question are facially invalid
abridgments of First Amendment speech, we deem it unnecessary to address
Defendant’s as-applied and void-for-vagueness arguments.
CONCLUSION
{23} 	We reverse Defendant’s conviction.
{24} 	IT IS SO ORDERED.

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__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
CELIA FOY CASTILLO, Chief Judge
___________________________________
CYNTHIA A. FRY, Judge