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| [1] | IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT |
| [2] | No. 99-11385 |
| [3] | 2000.C11.0042458 <http://www.versuslaw.com> |
| [4] | July 27, 2000 |
| [5] | COALITION FOR THE ABOLITION OF MARIJUANA PROHIBITION, PAUL D. CORNWELL,
II, PLAINTIFFS-APPELLANTS, V. CITY OF ATLANTA, DEFENDANT-APPELLEE. |
| [6] | D. C. Docket No. 96-00407-CV-1-JEC |
| [7] | Before Cox, Birch and Barkett, Circuit Judges. |
| [8] | The opinion of the court was delivered by: Birch, Circuit Judge |
| [9] | PUBLISH |
| [10] | Appeal from the United States District Court for the Northern District
of Georgia |
| [11] | The Coalition for the Abolition of Marijuana Prohibition ("CAMP")
and its national coordinator, Paul D. Cornwell, II, (collectively, the appellants)
appeal the district court's judgment finding the City of Atlanta Outdoor
Festivals Ordinance of 1994, codified at Atlanta. Ga., Code §§ 138-186 through
138-208 (1994), (the "1994 Festival Ordinance"), repealed by Atlanta
Outdoor Festivals Ordinance of 2000, Atlanta, Ga. Code § 99-O-1020 (2000),
to be, in part, facially unconstitutional and enjoining the future application
of those unconstitutional portions of the ordinance. The appellants appeal
the district court's determination that portions of the festival ordinance
were constitutional. For the reasons that follow, we AFFIRM the holding
of the district court. |
| [12] | BACKGROUND |
| [13] | CAMP is a non-profit organization focused primarily on forming alliances
and associating with other groups concerned with marijuana issues. Additionally,
CAMP sponsors the Great Atlanta Pot Festival (the "Pot Festival"),
a direct action event advocating changes in the laws governing marijuana. |
| [14] | CAMP held the Pot Festival in Atlanta's Piedmont Park from 1990 through
1995. Prior to 1995, the appellants erected a stage with a cover, stage
lights and barricades for the use of speakers and musical performers during
the Pot Festival. During the Pot Festival, CAMP distributed printed information
regarding the uses of marijuana and the hemp plant and advocating the repeal
of all laws prohibiting the use of marijuana. CAMP also sold products, such
as t-shirts, bearing messages about marijuana. Other vendors sold food and
drinks. |
| [15] | In 1995, the City of Atlanta requested that CAMP apply for an outdoor
festival permit. *fn1
The City explained that, because the Pot Festival had evolved into a larger,
more commercial event, attracting approximately 30,000 attendees and featuring
concerts, political speeches, and vendors selling food and merchandise,
it now fell within the 1994 Festival Ordinance's definition of an "outdoor
festival." *fn2
When the appellants complied with the City's request and applied for a festival
permit, their application was denied because the City determined that "`the
previous history of this event indicates to a reasonable certainty that
public safety would be compromised substantially.'" R2-37-5 (quoting
Labovitz Dep., Ex. 1, Letter of February 14, 1995, from Steven Labovitz
to Paul Cornwell at 1). The mayor's chief of staff explained that the permit
was denied based on the recommendation of the Atlanta Police Department.
The police department had estimated that in 1994 at least half of the Pot
Festival attendees openly smoked marijuana in blatant defiance of the law
and therefore, "[i]n the opinion of police officials monitoring this
event, any attempt to enforce the law on such an occasion would require
unusually large numbers of police officers and would be likely to provoke
a civil disturbance." Id. |
| [16] | Upon denial of their application for a festival permit, the appellants
exhausted the administrative appeals process defined in § 138-208 of the
1994 Festival Ordinance. The appellants then filed for a preliminary injunction,
requiring the City of Atlanta to grant them a festival permit. The district
court determined that the appellants' First Amendment rights were not being
infringed because they could hold a political demonstration and concert
without a festival permit. Accordingly, the district court denied the request
for a preliminary injunction. |
| [17] | After the 1995 Pot Festival, the appellants filed suit alleging that the
1994 Festival Ordinance was unconstitutional on its face and as applied
to the Pot Festival. Specifically, the appellants argued that the 1994 Festival
Ordinance was unconstitutional on its face because it provided unfettered
discretion to the mayor's chief of staff and other public officials when
deciding whether to issue a festival permit. After conducting a two-day
trial on the issues, the district court held that "while parts of the
Festival Ordinance pass constitutional muster, other parts, on their face,
constitute an impermissible prior restraint on First Amendment expression."
Id. at 6-7. |
| [18] | The district court determined that the 1994 Festival Ordinance was a prior
restraint on protected speech, but was content-neutral on its face. The
district court then assessed each section of the 1994 Festival Ordinance
individually to determine whether it passed constitutional muster. First,
the district court found that the definition of an outdoor festival found
in § 138-187 did not grant unfettered discretion, was narrowly tailored
to serve a significant government interest, and, therefore, was constitutional.
Nonetheless, the district court ordered the City "to set out more specifically
those attributes that would bring an event within the definition of outdoor
festival" when revising the 1994 Festival Ordinance. Id. at 26 n. 13. |
| [19] | The district court next considered § 138-203 of the 1994 Festival Ordinance
*fn3 and determined
that certain provisions within that section lacked sufficiently objective
and definite standards to limit the discretion of the chief of staff when
issuing festival permits. Thus, the district court concluded that "[b]y
allowing the individual charged with enforcing the Festival Ordinance to
balance or assign various weights to this list of subjective, imprecise
criteria, § 138-203 fails to restrict the decision-maker's discretion and
thus leaves open the door to unconstitutional, content based discrimination."
Id. at 33. Particularly, the district court noted that the following subsections
of § 138-203 set forth criteria which allow the chief of staff to exercise
an impermissible degree of discretion when approving applications for outdoor
festival permits: § 138-203(b) requires the chief of staff to "take
into account the effect the proposed special events will have upon the environment
and the public health and safety" and provides for balancing "the
convenience of the public in relation to the frequency with which an event
is held," § 138-203(c)(2) requires the chief of staff to consider whether
"[a]ny inconvenience which may be suffered by the general public is
outweighed by the potential benefit to the community as a whole," and
§ 138-203(c)(5) provides for consideration of whether "[t]he public
safety would be compromised substantially." Id. at 29-30. |
| [20] | The district court also considered the criteria in § 138-203(c)(1) requiring
consideration of whether "[t]he history, if any, of the particular
applicants, insofar as it can be determined, indicates their capability
or incapability of executing the planned festival." R2-37-31. The district
court found that "it is a much closer question whether this provision
fails to provide definite and precise standards on which to condition the
grant of a festival permit." Id. Therefore, it "d[id] not determine
. . . whether or not this provision is unconstitutionally vague," but,
nonetheless, suggested that the City should make this provision more precise
when it revised the 1994 Festival Ordinance. Id. at 32. |
| [21] | Turning to §§ 138- 204(a) and (b), the district court found that the requirement
that the chief of staff "deny an application if the applicant `proposes
to limit the use of public street by pedestrians using the streets to move
from location to location or if the applicant proposes to limit the use
of public parks when use of the parks by the general public shall not unreasonably
disturb the activities of the planned festival,'" id. at 34, was "neither
overbroad nor vague; indeed, its permit requirement is linked to a practical
justification and is narrowly tailored to meet this justification."
Id. at 35. The district court also noted that the section's provision granting
the chief of staff authority to regulate street closings applied only after
an applicant's permit had been approved and, thus was not unconstitutional
on its face. Therefore, the district court found that § 138-204 passed constitutional
muster. |
| [22] | The district court then analyzed §138-205 which requires an applicant
to pay a permit fee and sanitation deposit in order to obtain an outdoor
festival permit. These fees are calculated based on a sliding scale utilizing
the applicant's estimate of the anticipated attendance and the city's estimate
of the extra personnel hours it will expend to accommodate the festival.
Section 138-205 also requires the applicant to reimburse the City for the
cost of excess man hours and services actually provided by the city in support
of the event which exceed those covered by the initial permit fee. The district
court concluded that "the imposition of fees by § 138-205 does not
unconstitutionally burden the free expression of speech. A municipality
can impose a reasonable fee on certain kinds of expressive activities to
recover its costs, so long as the charge imposed does not exceed the administrative
costs of regulating the protected activity." Id. at 36. While the district
court found that § 138-205's fee schedule was "reasonable and content
neutral," id. at 38, it did caution the city that requiring the chief
of police to approve the applicant's security plan for the event, including
the number of off-duty police officers the applicant will hire to provide
security for the event, "could confer improper discretion to the Police
Department to determine the amount of police support a festival sponsor
must retain prior to the event," id. at 40 n. 19. The district court
"advise[d] the City to address in greater detail the content-neutral
bases by which the security supervisor and a festival sponsor should structure
their discussions about the scope of security required for an event, if
and when the City re-evaluates the 1994 Festival Ordinance." Id. at
40-41 n. 19. |
| [23] | Finally, the district court determined that § 138-208 was facially unconstitutional.
This section requires that the mayor make a final decision regarding the
grant of a festival permit to an applicant at least five days before the
event's scheduled date. The district court found that this deadline allowed
the City to effectively "`kill' the event by its inaction on the administrative
appeal." Id. at 43. Therefore, the district court concluded that the
administrative appeal mechanism provided by §138-208 does not provide adequate
procedural safeguards and does not guarantee prompt, final judicial review. |
| [24] | The district court also considered whether the 1994 Festival Ordinance
had been unconstitutionally applied to the Pot Festival, but determined
that the question was moot because the court was striking down the provisions
in question as facially unconstitutional. Finally, the district court issued
a permanent injunction preventing the City from applying those provisions
of the 1994 Festival Ordinance which it had found to be unconstitutional.
The injunction allowed the city to continue to use those portions of the
1994 Festival Ordinance that remained valid; however, because the ordinance
remaining after striking the unconstitutional portions was jumbled and difficult
to understand, the district court ordered the City to enact a new festival
ordinance prior to December 31, 1999. This deadline was subsequently extended
through March 1, 2000. |
| [25] | Prior to the enactment of a new festival ordinance, the appellants filed
this appeal. They contest the district court's conclusion that portions
of the 1994 Festival Ordinance are constitutional, specifically sections
138-187, 138-204, and 138-205. *fn4
The appellants argue that the 1994 Festival Ordinance is content-based,
does not allow effective access to public fora, and is not the least restrictive
means for regulating the appellant's First Amendment conduct. The appellants
also argue that the permit fees required by the 1994 Festival Ordinance
are not nominal and are manipulated to accomplish content-based restriction
of First Amendment activity. Finally, the appellants contend that the district
court erred by failing to exercise supplementary jurisdiction over their
Georgia Constitutional claims. |
| [26] | While this appeal was pending, the Mayor of Atlanta, on March 9, 2000,
signed a new outdoor festival ordinance, Ordinance Number 99-O-1040. See
Letter Brief of the Defendant-Appellee dated March 31, 2000 (with copy of
Ordinance Number 99-O-1040). *fn5
This new ordinance, styled the Atlanta Outdoor Festival Ordinance 2000 (the
"2000 Festival Ordinance"), repealed the 1994 Festival Ordinance
and purported to correct those portions of it that the district court found
unconstitutional and make clearer the remaining portions of the festival
ordinance. |
| [27] | DISCUSSION |
| [28] | I. JUSTICIABILITY |
| [29] | As an initial matter we must address the question of justiciability. Article
III of the Constitution requires an actual case or controversy to support
the exercise of judicial power. "Three strands of justiciability doctrine
-- standing, ripeness, and mootness -- play an important role in the determination
of whether the plaintiff-appellants' case against the [City] presents an
Article III case or controversy." Socialist Workers Party v. Leahy,
145 F.3d 1240, 1244 (11th Cir. 1998). |
| [30] | A. Standing |
| [31] | Citing City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-56,
108 S. Ct. 2138, 2143, 100 L. Ed. 2d 771 (1988) and United States v. Gilbert,
130 F.3d 1458, 1462 (11th Cir. 1997), the district court found that the
appellants had standing to bring a facial challenge against the 1994 Festival
Ordinance because they were subject to the licensing ordinance, they alleged
that it provided the government unbridled discretion, and the ordinance
could lead to content-based discrimination of constitutionally protected
speech. Similarly, we agree with the district court that the appellants
have proper standing to launch a facial challenge against the 2000 Festival
Ordinance because the appellants seek to engage in constitutionally protected
speech that the 2000 Festival Ordinance attempts to restrict. See Brockett
v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S. Ct. 2794, 2802, 86 L.
Ed. 2d 394 (1985). |
| [32] | B. Mootness |
| [33] | There must be a "present, live controversy in order to `avoid advisory
opinions on abstract propositions of law.'" Church of Scientology Flag
Serv. Org., Inc. v. City of Clearwater ("Church of Scientology I"),
777 F.2d 598, 604 (11th Cir. 1985) (quoting Hall v. Beals, 396 U.S. 45,
48, 90 S. Ct. 200, 201-02, 24 L. Ed. 2d 214 (1969) (per curiam)). "`[W]hen
the issues presented are no longer `live' or the parties lack a legally
cognizable interest in the outcome,'" the case has become moot. County
of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L.
Ed. 2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.
Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969)). As the Supreme Court recently
noted, "[t]he underlying concern is that, when the challenged conduct
ceases such that `"there is no reasonable expectation that the wrong
will be repeated,"' then it becomes impossible for the court to grant
`"any effectual relief whatever" to [the] prevailing party.'"
City of Erie v. Pap's A.M, ___ U.S. ___, 120 S. Ct. 1382, 1390, 146 L. Ed.
2d 265 (2000) (citations omitted) (alteration in original). When a case
has become moot, we do not consider the merits presented, but instead vacate
the judgments below with directions to dismiss even if a controversy did
exist at the time the district court rendered its decision. See United States
v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S. Ct. 104, 106-07, 95 L. Ed.
36 (1950). |
| [34] | When a subsequent law brings the existing controversy to an end "`the
case becomes moot and should be treated accordingly.'" Church of Scientology
I, 777 F.2d at 605 (concluding that the issue of an ordinance's validity
was moot when the ordinance had been repealed by the enactment of new ordinance
prior to the district court's consideration of the challenged, repealed
ordinance and the district court reviewed the repealed ordinance rather
than the newly enacted ordinance) (quoting United States v. Alaska S.S.
Co., 253 U.S. 113, 116, 40 S. Ct. 448, 449, 64 L. Ed. 2d 808 (1920)). *fn6
Generally, when an ordinance is repealed any challenges to the constitutionality
of that ordinance become moot. See Church Scientology Flag Serv., Org.,
Inc. v. City of Clearwater ("Church of Scientology II"), 2 F.3d
1509, 1511 (11th Cir. 1993) (explaining that we vacated a district court's
order concluding that a former municipal ordinance was facially unconstitutional
and enjoining its enforcement because it analyzed only the prior ordinance,
which had been repealed and replaced by a currently effective ordinance).
Nonetheless, when an ordinance is repealed by the enactment of a superseding
statute, then the "superseding statute or regulation moots a case only
to the extent that it removes challenged features of the prior law. To the
extent that those features remain in place, and changes in the law have
not so fundamentally altered the statutory framework as to render the original
controversy a mere abstraction, the case its not moot." Naturist Soc'y,
Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992) (holding that amendments
to challenged regulations did not moot the plaintiff's request for injunctive
relief). Accord Northeastern Fla. Chapter of Assocociated Gen. Contractors
of America v. City of Jacksonville, Fla., 508 U.S. 656, 661-62, 113 S. Ct.
2297, 2300-01, 124 L. Ed. 2d 586 (1993) (holding that repeal of a challenged
ordinance and enactment of a replacement statute after the Supreme Court
granted certiorari, but before it issued a decision did not render the case
moot because the new statute disadvantaged the plaintiffs "in the same
fundamental way"). *fn7
Therefore, in order to determine whether the controversy presented on appeal
is moot, we must "`stop, look, and listen' to determine the impact
of changes in the law." Naturist Soc'y, Inc., 958 F.2d at 1520 (quoting
Kremens v. Bartley, 431 U.S. 119, 135, 97 S. Ct. 1709, 1718, 52 L. Ed. 2d
184 (1977)). |
| [35] | Here, the 1994 Festival Ordinance has been repealed by the enactment of
the 2000 Festival Ordinance. Accordingly, we must review the 2000 Festival
Ordinance to ascertain whether it "`satisfies all the principles sought
in an attack on the prior statute.'" Naturist Soc'y, Inc., 958 F.2d
at 1520 (quoting Johnson v. State, 586 F.2d 387, 388 (5th Cir. 1978)). If
the 2000 Festival Ordinance "leaves objectionable features of the prior
law substantially undisturbed, the case is not moot." Id. Additionally,
we must determine whether any of the challenged portions of the statute
have been "`sufficiently altered so as to present a substantially different
controversy from the one the District Court originally decided.'" Northeastern
Fla. Chapter, 508 U.S. at 662 n.3, 113 S. Ct. at 2301 n.3 (quoting id. at
671, 113 S. Ct. at 2306 (O'Connor, J. dissenting) (agreeing that when the
challenged statute is repealed but replaced by new legislation the analysis
requires the court to consider whether the changes in the statute sufficiently
alter the challenged portions of the ordinance so as to render the case
moot, but disagreeing with the majority regarding the materiality of the
changes to the challenged ordinance)). *fn8
In order for the alterations to the 1994 Festival Ordinance to satisfy this
requirement and moot the issues presented on appeal the "gravaman of
petitioner's complaint" must have been changed in some fundamental
respect. Northeastern Fla. Chapter, 508 U.S. at 662, 113 S. Ct. at 2301
(reviewing a decision by this court where the City defendant repealed the
challenged ordinance and replaced it with a new ordinance while the appeal
was pending before the Supreme Court and noting that, although the new ordinance
differed from the repealed ordinance in three principal respects the case
was not moot). The Supreme Court explained its holding regarding the repeal
of challenged statutory language set forth in City of Mesquite v. Aladdin's
Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 1074-75, 71 L. Ed. 2d
152 (1982) (holding that a government defendant's repeal of objectionable
language from a challenged ordinance does not render the case moot because
the defendant's "repeal of the objectionable language would not preclude
it from reenacting precisely the same provision if the District Court's
judgment were vacated") as follows: |
| [36] | This is an a fortiori case. There is no mere risk that Jacksonville will
repeat its allegedly wrongful conduct; it has already done so. Nor does
it matter that the new ordinance differs in certain respects from the old
one. City of Mesquite does not stand for the proposition that it is only
the possibility that the selfsame statute will be enacted that prevents
a case from being moot; if that were the rule, a defendant could moot a
case by repealing the challenged statute and replacing it with one that
differs only in some insignificant respect. The gravaman of petitioner's
complaint is that its members are disadvantaged in their efforts . . . .
The new ordinance may disadvantage them to a lesser degree than the old
one, but . . . it disadvantages them in the same fundamental way. Id. at
662, 113 S. Ct. at 2301. |
| [37] | Therefore, we must determine if the changes enacted in the 2000 Festival
Ordinance alter the appellants' argument that the ordinance is content-based,
is not narrowly-tailored to serve a significant government interest, and
imposes fees on expression of protected speech which are more than nominal
and manipulated according to the content of the speech. *fn9 |
| [38] | In order to make this assessment, we must review the portions of the 1994
Festival Ordinance challenged on appeal to determine whether they have been
substantially altered in the 2000 Festival Ordinance. The City does not
suggest that the portions of the 1994 Festival Ordinance which the district
court found to be constitutional have been materially changed or corrected
in the 2000 Festival Ordinance. Likewise, our review of the 2000 Festival
Ordinance indicates that the portions of the 1994 Festival Ordinance which
are challenged on appeal have not been sufficiently altered so as to eliminate
the issues raised. |
| [39] | Compare Atlanta Outdoor Festival Ordinance of 1994, Atlanta, Ga., Code
§§ 138-187- 138-208 (1994) with Atlanta Outdoor Festival Ordinance of 2000,
Ordinance No. 99-O-1040. *fn10
Other than changes in grammar or word choice, the 2000 Festival Ordinance
differs from the 1994 Festival Ordinance in the following respects: it (1)
specifically excludes the hours of police officers from the definition of
extra personnel hours, (2) adds to the definition of outdoor festival the
explanation that such a festival "requires the erection of stages,
barricades, utility poles, booths, tents, or other temporary structures,
or the use of parked vehicles or of permanent structures," 2000 Festival
Ordinance, § 138-187, (3) removes the exclusion of political demonstrations
from the definition of an outdoor festival, (4) excludes from the definition
of an outdoor festival any event with a scheduled duration of less than
three hours, (5) requires that any time, place, manner restrictions imposed
by the chief of staff for the issuance of a permit be based upon constitutional
criteria, (6) adds additional bases - color, gender identity, and disability
- upon which festival applicants are forbidden from discriminating, (7)
specifically directs the applicant not to include counter-demonstrators
in their estimate of the anticipated attendance, (8) directs the chief of
staff to utilize the applicant's estimated attendance for classification
of the festival unless the estimate was made in bad faith, and (9) establishes
a deadline by which the City must bill the applicant for excess extra personnel
hours expended on the festival. These changes do narrow the scope of events
which will be governed by the 2000 Festival Ordinance; however, they do
not substantially alter the appellants' argument that the ordinance is content-based
because it discriminates against various messages based upon the size of
crowd gathered and the manner in which the message is conveyed. The appellants'
argument that the narrow-tailoring requirement is not satisfied because
the City does not have a legitimate interest in it's stated purpose of assuring
security and public safety and avoiding scheduling conflicts is not affected
by the changes incorporated in the 2000 Festival Ordinance. Similarly, the
appellants' argument that the 1994 Festival Ordinance does not leave open
adequate alternative channels of communication is not impacted by the 2000
Festival Ordinance because it neither opens nor closes any additional channels
of communication. Finally, the appellants' arguments that the fee schedule
in the 1994 Festival Ordinance is unconstitutional because the fees imposed
are more than nominal and the fees are content-based are unaffected because
the fees imposed remain almost completely identical and continue to be calculated
based upon a sliding scale considering estimated attendance in the 2000
Festival Ordinance. *fn11 |
| [40] | Accordingly, we conclude that the issues presented on appeal have not
been made moot by the repeal of the 1994 Festival Ordinance and simultaneous
enactment of the 2000 Festival Ordinance. See Crosby v. Hosp. Auth. of Valdosta
and Lowndes County, 93 F.3d 1515, 1534 (11th Cir. 1996) ("`Thus a superseding
statute or regulation moots a case only to the extent that it removes challenged
features of the prior law.'") (quoting Naturist Soc'y, 958 F.2d at
1520). *fn12 It is
reasonable to expect that the alleged constitutional violations resulting
from the enforcement of the provisions of the 1994 Festival Ordinance validated
by the district court will continue with the enforcement of the 2000 Festival
Ordinance. Therefore, we must consider the merits of the appellants' arguments
by reviewing the 2000 Festival Ordinance. See Naturist Society, 958 at 1519-20
(explaining that "[w]here a statute is amended after the entry of judgment
in the trial court, but before the decision of the appellate court, the
appellate court must `review the judgment of the district court in light
of [the] law as it now stands, not as it stood when the judgment below was
entered.'") (quoting Diffenderfer v. Cent. Baptist Church of Miami,
Fla., Inc., 404 U.S. 412, 414, 92 S. Ct. 574, 575, 30 L. Ed. 2d 567 (1972)
(alteration in original)). |
| [41] | C. Ripeness |
| [42] | Like mootness, "[t]he ripeness doctrine `prevent[s] the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements.'" Wilderness Soc'y v. Alcock, 83 F.3d 386, 390 (11th
Cir. 1996) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.
Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967)) (second alteration in the original).
Nonetheless, our conclusion that the issues presented on appeal are not
moot does not automatically suggest that the appeal is ripe for adjudication.
To determine whether a claim is ripe we must "`evaluate both the fitness
of the issues for judicial decision and the hardship to the parties of withholding
court consideration.'" Id. Specifically we " must examine `"`whether
there is sufficient injury to meet Article III's requirement of a case or
controversy, and if so, whether the claim is sufficiently mature, and the
issues sufficiently defined and concrete to permit effective decision-making
by the court.'"'" Georgia Advocacy Office, Inc. v. Camp, 172 F.3d
1294, 1298-99 (11th Cir. 1999) (quoting Socialist Workers Party, 145 F.3d
at 1244 (quoting Digital Properties, Inc. v. City of Plantation, 121 F.3d
586, 589 (11th Cir. 1997) (quoting Cheffer v. Reno, 55 F.3d 1517, 1524 (11th
Cir. 1995)))). |
| [43] | We acknowledge that changes to the 1994 Festival Ordinance enacted by
the City in the 2000 Festival Ordinance have not been reviewed by the district
court. We leave it for the appellants to challenge the constitutionality
of those provisions which have been substantially altered by the 2000 Festival
Ordinance in the district court. The district court should review those
provisions in the first instance and determine whether the City's changes
to the ordinance comport with the requirements of the district court's order
and whether those provisions, as amended, pass constitutional muster. However,
the provisions of the 1994 Festival Ordinance challenged on appeal - those
found by the district court to be constitutional - remain predominantly
unchanged by the enactment of the 2000 Festival Ordinance. Therefore, we
conclude that the alleged injury suffered by the appellants via the validated
provisions satisfies Article III's requirement of a case or controversy,
their claim is sufficiently mature, and the issues presented on appeal are
sufficiently defined and concrete to permit effective decision-making by
the court. Accordingly, the issues presented by the appellants are ripe
for our review despite the fact that it remains the province of the district
court to review the material changes enacted by the 2000 Festival Ordinance. |
| [44] | II. CONSTITUTIONALITY |
| [45] | Turning to the merits of the appeal, we review the district court's determination
of the "constitutional facts" in a First Amendment case de novo.
Falanga v. State Bar of Ga., 150 F.3d 1333, 1335 (11th Cir. 1998) . Additionally,
we consider the appellants' arguments that the 1994 Festival Ordinance is
unconstitutional by analyzing the 2000 festival ordinance. See Naturist
Soc'y, 958 at 1519-20 ("Where a statute is amended after the entry
of judgment in the trial court, but before the decision of the appellate
court, the appellate court must `review the judgment of the district court
in light of [the] law as it now stands, not as it stood when the judgment
below was entered.") (quoting Diffenderfer, 404 U.S. at 414, 92 S.
Ct. at 575 (alteration in original)); see also Crosby, 93 F.3d at 1533-34
(reviewing the "current statute as amended" to consider the issue
presented on appeal); Church of Scientology I, 777 F.2d at 606 n 22. (noting
that "[t]here are numerous cases illustrating the principle that where
a challenged ordinance is amended during litigation the appropriate course
is to proceed to a consideration of the amended ordinance"). |
| [46] | Like the 1994 Festival Ordinance, the 2000 Festival Ordinance imposes
a prior restraint on conduct protected by the First Amendment. Therefore,
in order to be considered constitutional, the 2000 Festival Ordinance must
meet the requirements for reasonable time, place and manner restrictions
of protected speech in public fora. As such, the 2000 Festival Ordinance
must be "(1) . . . content neutral, (2) . . . narrowly tailored to
serve a significant governmental interest, and (3) leave open ample alternative
channels for communication of the information." Int'l Caucus of Labor
Comm. v. City of Montgomery, 111 F.3d 1548, 1551 (11th Cir. 1997). |
| [47] | A. Content-Neutrality |
| [48] | We first consider the appellants' argument that the 2000 Festival Ordinance
is content-based. *fn13
See Nationalist Movement v. City of Cumming, Forsyth County, Ga., 913 F.2d
885, 888 (11th Cir.) ("Our method of determining the constitutionality
of the ordinance depends initially on whether it regulates expressive activity
on the basis of content."), vacated and reh'g granted by, 921 F.2d
1125 (1990), reinstated on reh'g, 934 F.2d 1482 (1991), aff'd on other grounds
by, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992) . The appellants
argued that the 1994 Festival Ordinance is content-based and point to the
festival ordinance's distinction between "political demonstrations"
and "entertainment, dancing, music, dramatic productions, art exhibitions,
[and] parades" as support for their argument. R1-2-Ex. A, § 138-187.
According to the appellants, because dancing, music, dramatic productions,
art exhibitions, and parades are all expressive activities protected by
the First Amendment just as is the expressive conduct associated with a
political demonstration, the 1994 Festival Ordinance's distinction between
these forms of expressive conduct equates to disparate treatment of protected
conduct on the basis of its content. |
| [49] | This argument is not relevant to the 2000 Festival Ordinance because it
does not make a distinction between political demonstrations and other forms
of expressive conduct. The 1994 Festival Ordinance defined an outdoor festival
in § 138-187 to exclude "events which are solely parades, footraces
or political demonstrations unless such parade, footrace or political demonstration
is proposed as an integral part of a larger festival." The 2000 Festival
Ordinance, however, only excludes from the definition of an outdoor festival
those "events which are solely parades, unless such parade is proposed
as an integral part of a broader outdoor festival. Also excluded from the
definition of `outdoor festival' herein is any event with a scheduled duration
of three (3) hours or less." Ordinance No. 99-O-1040, § 138-187. *fn14 |
| [50] | Like the district court, we conclude that, upon examining the intent behind
the 2000 Festival Ordinance, it is evident that the City adopted the ordinance
in an effort to manage effectively and efficiently the use of the City's
parks and other resources by the sponsors of large festivals, not because
of a disagreement with the message conveyed by any particular festival.
See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754,
105 L. Ed. 2d 661 (1989). The 2000 Festival Ordinance applies equally to
all festivals of any kind without regard to the content of any message the
festival sponsor might convey. The 2000 Festival Ordinance only distinguishes
between various festivals or similar gatherings on the basis of physical
attributes, not content. |
| [51] | The 2000 Festival Ordinance defines an Outdoor Festival as an event including
various forms of expressive conduct "and which requires the erection
of stages, barricades, utility poles, booths, tents, or other temporary
structures, or the use of parked vehicles or of permanent structures."
Ordinance No. 99-O-1940, § 138-187. These criteria attempt to identify those
outdoor events which will require additional municipal services. It does
not attempt to create distinctions based upon the content of the speech
and the 2000 Festival Ordinance specifically forbids the Chief of Staff
from basing the decision to grant a festival permit on the content of speech
or message conveyed by the festival. See Ordinance No. 99-O-1940, § 138-203.
By distinguishing events which require additional city resources based upon
their physical attributes, the City can schedule and coordinate the municipal
services required to ensure public safety and otherwise accommodate these
large public gatherings. Therefore, because the 2000 Festival Ordinance
"serves purposes unrelated to the content of expression" and is
"`justified without reference to the content of the regulated speech,'"
we, like the district court, conclude that it is content-neutral. Ward v.
Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed.
2d 661 (1989) (citations omitted). |
| [52] | B. Narrowly Tailored |
| [53] | The appellants also argue that the 2000 Festival Ordinance is not narrowly
tailored to serve a significant governmental interest. The appellants question
the legitimacy of the city's stated purposes of assuring security and public
safety, as well as avoiding scheduling conflicts. "To demonstrate the
significance of its interest, the City is not required to present detailed
evidence . . .,[but] is `entitled to advance its interests by arguments
based on appeals to common sense and logic.'" International Caucus
of Labor Comm., 111 F.3d at 1551 (quoting Multimedia Publishing Co. of S.
Carolina, Inc. v. Greenville-Spartanburg Airport, 991 F.2d 154, 160 (4th
Cir. 1993). Taking a common sensical approach, we find it obvious that the
City has a significant interest in regulating the use of its parks and streets
by large groups. Certainly, the City needs advance notice and the cooperation
of organizers to plan the services, such as security, sanitation, and traffic
control, that are required for an event which, like the Pot Festival, attracts
approximately 30,000 participants. It is only logical that a framework is
needed for the City to work with the organizers of a large, multi-faceted
event in order to coordinate the City's resources to successfully accommodate
the event. The 2000 Festival Ordinance provides such a framework. |
| [54] | Since we conclude that the City's stated purposes for the 2000 Festival
Ordinance are legitimate and significant interests of the City, we must
determine whether there is a "reasonable fit" between those interests
and the 2000 Festival Ordinance, as the City's chosen means for serving
them. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416,
113 S. Ct. 1505, 1510, 123 L. Ed. 2d 99 (1993). In this analysis, the City
bears the burden of demonstrating a "logical and practical relationship
between the restriction and [its] interests, so that [we] may determine
whether the restriction is substantially broader than is necessary to achieve
those ends." Nationalist Movement, 913 F.2d at 890. However, the City
need not prove that the 2000 Festival Ordinance is the least restrictive
means of serving them, see Jim Gall Auctioneers, Inc. v. City of Coral Gables,
210 F.3d 1331, 1333 (11th Cir. 2000) (quoting Smith v. City of Fort Lauderdale,
Fla., 177 F.3d 954, 957 (11th Cir. 1999)); "[t]he requirement of narrow
tailoring is satisfied `so long as the . . . regulation promotes a substantial
government interest that would be achieved less effectively absent the regulation.'"
Rock Against Racism, 491 U.S. at 799, 109 S.Ct. at 2758 (alteration in orginal)
(citation omitted). The district court determined that portions of the 1994
Festival Ordinance were not narrowly tailored to meet the City's interests
because they granted the chief of staff unfettered discretion. The appellants
challenge the conclusion that other portions of the 2000 Festival Ordinance
satisfy the narrow tailoring requirement. |
| [55] | 1. Section 138-187 |
| [56] | After reviewing the 2000 Festival Ordinance, we conclude that the district
court properly determined that § 138-187 is narrowly tailored to exclude
those events which do not require additional governmental services and therefore
do not logically fit within the scope of the City's interests. We note that
the addition of the description of events "requir[ing] the erection
of stages, barricades, utility poles, booths, tents, or other temporary
structures, or the use of parked vehicles or of permanent structures,"
Ordinance No. 99-O-1940, § 138-187, in the 2000 Festival Ordinance further
limits the universe of events that will fall within the parameters of the
2000 Festival Ordinance regulations and, thus, does not burden "`substantially
more speech than is necessary to further the government's legitimate interest.'"
Smith, 177 F.3d at 956 (quoting One World One Family Now v. City of Miami
Beach, 175 F.3d 1282, 1287 (11th Cir. 1999)) (second citation omitted). |
| [57] | 2. Section 138-204 |
| [58] | The district court also determined that § 138-204 (a) and (b) was not
unconstitutional because it primarily granted the Chief of Staff the authority
to impose restrictions on the applicants after their festival permit had
been approved. The district court did note that § 138-204 required the chief
of staff to deny any application where the applicant "proposes to limit
the use of public streets by pedestrians using the streets to move from
location to location or if the applicant proposes to limit the use of public
parks when use of the parks by the general public shall not unreasonably
disturb the activities of the planned festival," but concluded that
this restriction was "narrowly tailored to meet its justification."
R2-37 at 34-35. This restriction remains in force in the 2000 Festival Ordinance.
We, likewise, conclude that this restriction does not overburden festival
permit applicants because, as the Supreme Court has noted "[m]unicipal
authorities, as trustees for the public, have the duty to keep their communities'
streets open and available for the movement of people and property, the
primary purpose to which the streets are dedicated." Schneider. v.
State of New Jersey, Town of Irvington, 308 U.S. 147, 160, 60 S. Ct. 146,
150, 84 L. Ed. 2d 155 (1939). See also Clark v. Community for Creative Non-Violence,
468 U.S. 288, 296, 104 S. Ct. 3065, 3070, 82 L. Ed. 2d 298 (1984) (recognizing
the government's "substantial interest in maintaining the parks . .
. in an attractive and intact condition, readily available to the millions
of people who wish to see and enjoy them). Therefore, we conclude that the
district court properly determined that the above provisions satisfied the
requirement of being narrowly tailored to serve the City's significant interests. |
| [59] | C. Alternative Channels of Communication |
| [60] | The appellants also contend that the 2000 Festival Ordinance does not
provide effective access to alternative avenues for communication of their
message. The appellants assert that use of the city park for the Pot Festival
is "absolutely essential" for them to convey their message to
the intended audience. Appellants' Brief at 19. Additionally, the appellants
argue that they absolutely require lighting, electricity, barricades, and
stage covers to effectively convey their message. |
| [61] | The City can satisfy the requirement that alternative channels of communication
remain open to CAMP even if those channels "may be less effective than
[CAMP] would prefer." ISKCON Miami, Inc. v. Metropolitan Dade County,
147 F.3d 1282, 1290 (11th Cir. 1998). As the district court found when it
denied CAMP's request for a preliminary injunction, CAMP may hold a political
demonstration and concert in a city park without a festival permit. See
R2-37 at 6. Therefore, CAMP still has the opportunity to communicate its
message advocating changes in the marijuana laws without a festival permit.
Section 138-209 of the 2000 Festival Ordinance specifically limits the application
of the 2000 Festival Ordinance and provides that "[n]othing in this
article shall be construed to prevent members of the public from assembling
in the parks or streets for the purpose of making any speech or conveying
any message to the public or to the government without holding an outdoor
festival permit." Ordinance No. 99-O-1940, § 138-209. Those individuals
who organize an assembly without an outdoor festival permit are only limited
in the sense that they are not "entitled to the benefits of [the new
festival ordinance], including but not limited to, the right to erect stages,
barricades, utility poles, booths, tents, or other temporary structures,
or the use of parked vehicles or of permanent structures, or to the assistance
of city personnel in carrying out their event." Id. Lighting, stage
covers, electricity, barricades, or any of the other benefits conferred
by an outdoor festival permit are not essential to CAMP's message, rather
they are convenient mechanisms for increasing the efficiency with which
CAMP might choose to communicate its message. Accordingly, we conclude that
ample alternatives remain available to CAMP for communicating its message
despite the restrictions created by the 2000 Festival Ordinance. |
| [62] | D. Section 138-205: Festival Permit Fees |
| [63] | The appellants argue that the fees required for the grant of a festival
permit are unconstitutional because the required fees are manipulated according
to the content of the speech and they are more than nominal. The Supreme
Court has authorized a municipality to charge "fees for the use of
the public streets only when such fees are both nominal and related to the
expenses incidental to the policing of the event" Cent. Fla. Nuclear
Freeze Campaign v. Walsh, 774 F.2d 1515, 1522 (11th Cir. 1985) (interpreting
Murdock v. Commw. of Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed.
2d 1292 (1943)). In § 138-205, the 2000 Festival Ordinance requires the
each applicant for a festival permit to pay a $50 application fee. Upon
approval, each applicant is required to pay a permit fee and sanitation
deposit fee. The total amount of these fees ranges from $6,500 to $95, based
upon a sliding scale which considers the number of persons expected to attend
the event and the number of extra personnel hours which the City will expend
on the festival, excluding the hours spent on the festival by the City's
Special Events Coordinator, police officers, and any person with a ranking
of bureau director or higher. Applicants have the opportunity to reduce
the fee by supplying some of the personnel required when calculating the
extra personnel hours for which the City anticipates paying. Additionally,
the sanitation deposit fee will be returned to the applicant after they
have completed the sanitation deposit agreement by cleaning the festival
area of litter and debris and restoring parks and streets damaged in connection
with the festival. The applicant is also required to reimburse the City
for the cost of any extra personnel hours which exceed those provided for
in the festival permit fee. |
| [64] | The district court, reviewing the markedly similar fee provisions of the
1994 Festival Ordinance, found that the initial fee schedule was "both
reasonable and content neutral." R2-37 at 38. Additionally, the district
court concluded that the fees satisfied the requirement of being nominal
because they "actually reflect[] administrative costs." Id. at
41 n. 20. Therefore, the district court concluded that the imposition of
fees as provided in § 138-205 "does not unconstitutionally burden the
free exercise of speech . . . [because a] municipality can impose a reasonable
fee on certain kinds of expressive activities to recover its costs, so long
as the charge imposed does not exceed the administrative costs of regulating
the protected activity." Id. at 36. |
| [65] | We agree with the district court that the fees assessed under § 138-205
are content neutral. CAMP argues that the fees are content-based because
(1) they are based on anticipated attendance at the festival and, thus,
discriminate against festivals which attract larger crowds and (2) the number
of extra personnel hours charged to the festival can be manipulated so as
to accomplish content-based discrimination. *fn15
The fees are calculated based upon a sliding scale where the variables only
include the extra personnel hours the City will expend and the anticipated
number of individuals who will attend the festival. |
| [66] | When determining the anticipated attendance for the festival, "the
Chief of Staff shall be guided by the estimate provided by the applicant,
... [u]nless such estimate shall appear to have been made in palpable bad
faith or otherwise grossly in error." Ordinance No. 99-O-1940, § 138-204(c)(2).
"If the Chief of Staff determines not to adopt the estimate given by
the applicant, he shall state the reasons in writing on the permit."
Id. Further, the 2000 Festival Ordinance makes clear that "no regard
shall be given to any estimate of the number of persons who may be anticipated
to be in the vicinity of the festival as counter-demonstrators or to show
hostility to any message the festival may be perceived as having."
Id. These provisions assure that the estimate of anticipated attendance
is not manipulated in order to burden unconstitutionally speech based upon
its content. |
| [67] | Moreover, CAMP's argument that the fee schedule is content-based because
higher fees are charged for those festivals where the anticipated attendance
is larger contradicts the reasoning of the Supreme Court in Cox v. New Hampshire,
312 U.S. 569, 61 S. Ct. 762, , 85 L. Ed. 2d 1049 (1941). There, the Court,
considering a parade licensing fee which was adjusted to consider the comparatively
greater expense of "policing" an expansive event, rejected the
notion that a municipality should charge a flat fee for all parades and
explained that the court "perceived no constitutional ground for denying
to local governments that flexibility of adjustment of fees which in the
light of varying conditions would tend to conserve rather than impair the
liberty sought." Id. at 577, 61 S. Ct. at 766. Similarly, in Murdock
v. Pennsylvania, 319 U.S. 105, 113-14, 63 S. Ct. 870, 875, 87 L. Ed. 2d
1292 (1943), the Supreme Court found a local ordinance charging a flat fee
per day for a license to canvass or solicit within the locality to be unconstitutional
because "the license tax [wa]s fixed in amount and unrelated to the
scope of the activities of petitioners or their realized revenues."
It is only logical that the City's costs for supporting a festival will
be increased in some proportion to the number of individuals attending the
festival. Therefore, we conclude that fees based upon a sliding scale considering
the anticipated attendance of the festival are not content-based but, instead,
are reasonably related to "the expenses of policing the activities
in question." Murdock, 319 U.S. at 113-14, 63 S. Ct. at 875. |
| [68] | Under the 2000 Festival Ordinance, the number of extra personnel hours
required for a festival is determined by the Chief of Staff. After a completed
application has been submitted to the City's Special Events Coordinator,
copies of the application are forwarded to the Departments of Police, Fire,
Public Works, Parks, Recreation and Cultural Affairs, the Bureau of Buildings,
and the affected Neighborhood Planning Unit. These departments each estimate
the number of extra personnel hours that will be required by their department
for the festival in question. The definition of extra personnel hours excludes
the personnel hours worked by the City's Special Events Coordinator, any
City employee at the level of bureau director or higher, and all police
officers. The applicant may enter a separate contract with the City whereby
the applicant furnishes some of the personnel required and, therefore, reduces
the calculation of extra personnel hours and the associated fee. |
| [69] | While the 2000 Festival Ordinance does not provide the various department
heads specific criteria for determining the number of extra personnel hours
that will be required by their department to support a particular festival,
section 138-203 (b)(3) provides the admonition that "no consideration
may be given to the message of the festival, nor to the content of speech,
nor the identity or associational relationships of the applicant, nor to
any assumptions or predictions as to the amount of hostility which may be
aroused in the public by the content of speech or message conveyed by the
festival." Ordinance No. 99-O-1940, § 138-203(b)(3). Further, §138-203(b)(5)
provides that "[n]o applicant for, or recipient of, an outdoor festival
permit shall be required to provide for, or pay for the cost of, public
safety personnel necessary to provide for the protection of a festival and
its attendees from hostile members of the public or counter-demonstrators,
or for traffic control, or for general law enforcement in the vicinity of
the festival." Ordinance No. 99-O-1940, § 138-203(b)(5). |
| [70] | These provisions avoid the problem created by the ordinance which the
Supreme Court found to be facially unconstitutional in Forsyth County, Ga.,
505 U.S. 123, 112 S. Ct. 2395. That ordinance authorized the county administrator
to assess a fee covering "`"the expense incident to the administration
of the Ordinance and to the maintenance of public order in [the parade,
procession, of open air public meeting] licensed."'" Id. at 126-127,
112 S. Ct. at 2399 (citations omitted). The county's intent was for the
fee to also cover "`the cost of necessary and reasonable protection
of persons participating in or observing said . . . activit[y]." Id.
at 134, 112 S. Ct. at 2403 (quoting App. to Pet. for Cert. 100) (alteration
in original). The Supreme Court found that this fee scheme was an impermissible
content-based restriction on speech because "[t]he fee assessed will
depend on the administrator's measure of the amount of hostility likely
to be created by the speech based on its content." Id. The Supreme
Court noted that "[s]peech cannot be financially burdened, any more
than it can be punished or banned, simply because it might offend a hostile
mob." Id. at 134-135, 112 S. Ct. at 2404. See also Cent. Fla. Nuclear
Freeze Campaign, 774 F.2d at 1525 (concluding that the presence of out-of-town
demonstrators and the potential for hostile counter activity are factors
that "cannot be considered in fixing the costs of protection to those
asking to exercise their First Amendment rights" ). Additionally, the
festival applicant's ability to negotiate the number of extra personnel
hours assessed to the festival and enter a separate contract with the City
whereby they agree to supply some of the personnel required in the City's
calculation of the extra personnel hours it will expend supporting the festival
strongly mitigates against the danger of any content-based discrimination
creeping into the City's analysis of the number of extra personnel hours
required for a festival. |
| [71] | The 2000 Festival Ordinance is not a content-based prior restriction on
speech. Not only does the new festival ordinance specifically direct the
chief of staff not to consider "the amount of hostility which may be
aroused in the public by the content of speech or message conveyed by the
festival" when determining where the festival should be classified
on the fee scale and what the amount of the resulting permit fee should
be, but it also excludes from the calculation of the permit fee those extra
personnel hours expended by the city for police or other "public safety
personnel necessary to provide for the protection of a festival and its
attendees from hostile members of the public or counter-demonstrators, or
for traffic control, or for general law enforcement in the vicinity of the
festival." Ordinance No. 99-O-1940, §§ 138-204(a)and 138-203(b)(5).
Further, the 2000 Festival Ordinance provides that "no regard shall
be given to any estimate of the number of persons who may be anticipated
to be in the vicinity of the festival as counter-demonstrators or to show
hostility to any message the festival may be perceived as having" when
estimating the number of individuals expected to attend the festival and
directs the Chief of Staff to use the applicants' estimate of attendance
unless it "appear[s] to have been made in palpable bad faith or otherwise
grossly in error." Id. at § 138-204(c)(2). Therefore, we conclude that
the permit fees that festival organizers are required to pay by the 2000
Festival Ordinance are not content-based, nor are subject to manipulation
predicated on the content of a festival's perceived message. Cf. Stonewall
Union v. City of Columbus, 931 F.2d 1130, 1135 (6th Cir. 1991) (finding
that when an "ordinance contains objective standards related to traffic
control and not related to speculation about the potential for disturbances
based on the parade's content, . . . [then] the scheme for assessing the
costs of traffic control is not unconstitutional"). |
| [72] | The appellants also argue that the fees imposed by the 2000 Festival Ordinance
are more than nominal. In Nationalist Movement, 934 F.2d 1483, this court,
sitting en banc, reinstated the panel decision which refused to "stake
out the outer limits of a `nominal' charge," but held that a provision
requiring "a permit fee of up to $1,000 for each day that a parade
or rally takes place exceeds the constitutional requirement that such a
charge be at most nominal." Nationalist Movement, 913 F.2d at 891.
On appeal, the Supreme Court agreed that the fee provision of the ordinance
in question was unconstitutional because it was a content-based, prior restraint
on speech protected by the First Amendment, not because the $1,000 fee imposed
was more than nominal. See Forsyth County, Ga., 505 U.S. at 136, 112 S.
Ct. at 2405. The Court noted that "[a] tax based on the content of
speech does not become more constitutional because it is a small tax."
Id. The Supreme Court also discussed our interpretation of Murdock as requiring
that permit fees imposed on protected speech be "nominal" and
commented that the Supreme Court's language in Murdock "does not mean
that an invalid fee can be saved if it is nominal, or that only nominal
charges are constitutionally permissible." Id. at 137, 112 S. Ct. at
2405. The Chief Justice, in a dissent joined by Justices White, Scalia,
and Thomas, more explicitly explained that "[t]he use of the word `nominal'
in Murdock was . . . a mistaken characterization of the fee statute in Cox
. . . [and] that the Constitution does not limit a parade license fee to
a nominal amount." Id. at 139-140, 112 S. Ct. at 2406 (Renquist, C.J.
dissenting) (arguing that, because the lower court had not based its decision
upon the analysis adopted by the majority, the court should remand so that
the lower courts could first consider the issues presented). |
| [73] | We need not consider the impact of the Supreme Court's discussion of nominal
fees in Forsyth County, Ga. on our precedent requiring that the fees imposed
on constitutionally-protected speech be nominal because we hold that the
fees imposed by the 2000 Festival Ordinance are nominal. *fn16
The nominality of the fees imposed by the 2000 Festival Ordinance must be
considered in the context of the size of the festival to which they apply.
See Ordinance No. 99-01940 §§ 138-204(d) and 138-205(b) (imposing fees of
$95 for a festival where fewer than 2,000 persons are expected to attend
and which requires fewer than 3 extra personnel hours, $575 where expected
attendance is between 2,000 and 10,000 people and the extra personnel hours
required are between 3 and 25, $1,150 when estimated attendance is between
10,000 and 20,000 and 25 to 50 extra personnel hours are required, $2,300
when estimated attendance is between 20,000 and 50,000 people and the extra
personnel hours required is between 50 and 100, and $6,500 when more than
50,000 attendees are expected and between 100 and 300 extra personnel hours
are required). We conclude that the fees of imposed by the 2000 Festival
Ordinance are nominal when balanced against the size of the festival to
which they are applied. The fees are imposed based upon a sliding scale
considering the relevant factors which impact the City's expense in supporting
the event. The fees recoup the City's expenses in administering the 2000
Festival Ordinance and supporting the outdoor festival in question. The
parties do not contend that the fees exceed those expenses or serve as a
form of revenue tax. Additionally, applicants for an outdoor festival permit
have the opportunity to reduce the permit fees by entering a separate agreement
with the City whereby the applicant supplies some of the personnel which
the City would ordinarily utilize to support the festival. Similarly, the
sanitation portion of the permit fees is returned to the applicant if it
cleans up the public spaces utilized for the festival. Therefore, we conclude
that the fee schedule established by the 2000 Festival Ordinance is narrowly
tailored to serve the City's legitimate interest in covering the cost of
supporting the outdoor festival and, therefore, is constitutionally permissible.
See Murdock, 319 U.S. at 113-14, 63 S. Ct. at 875 (striking down a fee that
was not "imposed as a regulatory measure to defray the expenses of
policing the activities in question"). |
| [74] | III. SUPPLEMENTARY JURISDICTION |
| [75] | The appellants argue that the district court erred by not exercising supplementary
jurisdiction and discussing their state law claim that the 1994 Festival
Ordinance violated the Georgia Constitution. A court's exercise of supplemental
jurisdiction is statutorily controlled by 28 U.S.C. § 1367. *fn17
As we have previously held "whenever a federal court has supplemental
jurisdiction under section 1367(a), that jurisdiction should be exercised
unless section 1367(b) or (c) applies." Palmer v. Hosp. Auth. of Randolph
County, 22 F.3d 1559, 1569 (11th Cir. 1994) (remanding for the district
court to consider, in the first instance, whether it had to discretion under
18 U.S.C. § 1367(c) not to exercise supplemental jurisdiction over state
law claims). |
| [76] | The appellants' state law claims satisfy the "same case and controversy"
requirement of section 1367(a); therefore, the district court had the power
to consider the appellants' claim that the 1994 Festival Ordinance violated
the Georgia Constitution. However, after stating that the 1994 Festival
Ordinance violated Article 1, Section 1, Paragraph 9 of the Georgia Constitution,
see R1-1-3, and listing this alleged violation as one of the legal issues
to be tried in the Joint Preliminary Statement and Scheduling Order, see
R1-7-1, the appellants abandoned this argument. The appellants did not present
this argument in their motion for partial summary judgment, nor did they
cite any authority for this argument in their Brief in Support of Motion
for Partial Summary Judgment or their Response to Defendants' Motion For
Summary Judgment. See R1-18 at 2 and 4-17; R1-22. After the district court
denied both the appellants' and the City's motion for summary judgment,
the appellants did not raise their argument that the 1994 Festival Ordinance
violated the Georgia Constitution in any documents submitted to the district
court nor did they urge the issue upon the district court during the two-day
bench trial which it conducted. During his opening statement, counsel for
the appellants made the following statement regarding the scope of their
case: |
| [77] | I DON'T WANT TO REPEAT WHAT I'VE SAID IN MY MOTION FOR SUMMARY JUDGMENT
OR WHAT I HAVE SAID IN THE BRIEF THAT I FILED LAST WEEK. JUST SIMPLY WE
WANT TO MAKE THREE POINTS. |
| [78] | ONE IS WE THINK THAT THE ORDINANCE ON ITS FACE IS UNCONSTITUTIONAL BECAUSE
OF THE IMMENSE DISCRETION THAT IT GIVES. |
| [79] | SECOND OF ALL, WE THINK THAT THE THINGS THAT WERE ASKED FOR ORIGINALLY
AND ARE ASKED FOR IN OUR COMPLAINT IN TERMS OF STAGE AND LIGHTING AND ELECTRICITY
AND BARRICADES AND SO ON IS IMPORTANT SOLELY BECAUSE IT PROVIDES EFFECTIVE
ACCESS. AND AS I POINTED OUT IN MY BRIEF, WE ARE ENTITLED TO EFFECTIVE ACCESS
EVEN IF WE ARE NOT ENTITLED TO THE MOST EFFECTIVE ACCESS. |
| [80] | AND FINALLY I WANT TO POINT OUT THAT WHEN YOU HEAR, AS YOU HAVE HEARD
BEFORE, THE COMMENTS OF THE POLICE THAT YOU SIMPLY CANNOT BAR AN EVENT BECAUSE
OF PAST UNLAWFUL ACTIVITY EVEN, I MIGHT ADD, IF MY CLIENT WERE THE ONE WHO
HAD ADVOCATED THE PAST UNLAWFUL ACTIVITY, AND THERE IS NO EVIDENCE OF THAT.
R3 at 4-5. |
| [81] | The appellants did not discuss their assertion that the 1994 Festival
Ordinance violated the Georgia Constitution during the two-day trial before
the district court and never cited any authority in support of the argument
prior to this appeal. The appellants' failure to brief and argue this issue
during the proceedings before the district court is grounds for finding
that the issue has been abandoned. Fehlhaber v. Fehlhaber, 681 F.2d 1015,
1030 (5th Cir. 1982) (citing U.S. v. Indiana Bonding & Surety Co., 625
F,2d 26, 29 (5th Cir. 1980) (finding that "[e]ven though [an] issue
was listed as one of the defendant's contentions in the pretrial order,
and was thus presumably triable, [the defendant's] failure to present evidence
in support of the defense before the district court precludes our review
of it [on appeal]")). Cf. McMaster v. United States, 177 F.3d 936,
940-41 (11th Cir. 1999) (noting that a claim may be considered abandoned
when the allegation is included in the plaintiff's complaint, but he fails
to present any argument concerning this claim to the district court); Lyles
v. City of Riviera Beach, Fla., 126 F.3d 1380, 1388 (11th Cir. 1997) (noting
that "`the onus is upon the parties to formulate arguments; grounds
alleged in the complaint but not relied upon in summary judgment are deemed
abandoned'") (citation omitted), reh'g granted and vacated by, 136
F.3d 1295 (1998), reinstated by, 166 F.3d 1332, 1336 (11th Cir. 1999) (en
banc); Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp.,
10 F.3d 1563, 1568 (11th Cir. 1994) (concluding that a district court "could
properly treat as abandoned a claim alleged in the complaint but not even
raised as a ground for summary judgment"). |
| [82] | We conclude that, because the appellants effectively abandoned in the
district court their argument that the 1994 Festival Ordinance violated
the Georgia Constitution, there was no reason for the district court to
consider whether to exercise its discretion not to exercise supplemental
jurisdiction under section 1367 (b) or (c). Accordingly, the district court
did not err by failing to exercise supplementary jurisdiction and discussing
the appellants' claim that the 1994 Festival Ordinance violated the Georgia
Constitution. Similarly, because the issue was not appropriately raised
in the district court, we will not consider the appellants' arguments that
the 2000 Festival Ordinance violates the Georgia Constitution. See Narey
v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (discussing the general
rule that appellate courts do not consider issues or arguments not raised
in the district court and the five exceptions to that rule). |
| [83] | CONCLUSION |
| [84] | Reviewing the 2000 Festival Ordinance promulgated by the Atlanta City
Counsel in response to the district court's finding that portions of the
1994 Festival Ordinance were unconstitutional, we conclude that those portions
of the 2000 Festival Ordinance validated by the district court satisfy the
requirements of a constitutional time, place, manner restriction on constitutionally
protected speech. The 2000 Festival Ordinance is content-neutral, narrowly
tailored to serve a significant government interest, and leaves open ample
alternative channels of communication. We also conclude that the appellants
abandoned in the district court their argument that the 1994 Festival Ordinance
violated the Georgia Constitution. Therefore, the district court acted properly
in not exercising supplementary jurisdiction over this claim and we do not
consider it on appeal. Accordingly, we AFFIRM the holding of the district
court. COX, Circuit Judge, concurring in part and dissenting in part: |
| [85] | I join the part of the court's opinion that concludes that CAMP abandoned
in the district court its claims that the 1994 Festival Ordinance violated
the Georgia Constitution. But because it appears to me that the City of
Atlanta's repeal of the 1994 Festival Ordinance and adoption of the 2000
Festival Ordinance moots the claims that the 1994 Festival Ordinance violates
the Federal Constitution, I respectfully dissent. |
| [86] | As the majority observes, "a superseding statute or regulation moots
a case only to the extent that it removes challenged features of the prior
law. To the extent that those features remain in place, and changes in the
law have not so fundamentally altered the statutory framework as to render
the original controversy a mere abstraction, the case is not moot."
Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992). But
"[w]here a law is amended so as to remove its challenged features,
the claim for injunctive relief becomes moot as to those features."
Id. My comparison of the 1994 and 2000 ordinances and analysis of the parties'
arguments leads me to conclude that the superseding ordinance has materially
altered the City's approach to issuing festival permits, removing the challenged
features of the prior ordinance and mooting CAMP's claims for injunctive
relief. |
| [87] | First, CAMP's facial attack on the 1994 Festival Ordinance as content-based
appears to be moot. CAMP argued that § 138-187 of the 1994 Festival Ordinance
was impermissibly content-based because it distinguished between "political
demonstrations" and "entertainment, dancing, music, dramatic productions,
art exhibitions, [and] parades." As the majority notes, § 138-187 of
the 2000 Festival Ordinance (unlike that section in the 1994 Festival Ordinance)
does not distinguish between political demonstrations and other expressive
conduct. *fn18 Furthermore,
the 2000 Festival Ordinance explicitly forbids the City's Chief of Staff
from basing a permitting decision on the content of the speech or the message
to be conveyed by the festival. See Ord. No. 99-O-1940, § 138-204. Accordingly,
the 2000 Festival Ordinance removed CAMP's content-based challenge insofar
as CAMP argued that the 1994 Festival Ordinance distinguished between political
demonstrations and other expressive conduct. |
| [88] | Also moot is CAMP's argument that the 1994 Festival Ordinance's fees were
unconstitutional because they were manipulable according to the content
of the speech. *fn19
CAMP argued that the City could manipulate both the estimated attendance
and the number of police officers required at a festival based on the content
of the message to be delivered. The 2000 Festival Ordinance removes these
challenged attributes in four ways: (1) the Chief of Staff is directed to
be guided by the applicant's estimated attendance for classification of
the festival, unless the estimate was "made in palpable bad faith or
otherwise grossly in error," and the Chief of Staff must provide written
reasons for declining to adopt the applicant's estimate; (2) the Chief of
Staff is directed not to consider counter-demonstrators in his evaluation
of anticipated attendance; (3) the Chief of Staff is directed not to consider
the content of any speech or message to be conveyed by a festival permit
applicant; *fn20 and
(4) the personnel hours worked by police officers are excluded from the
definition of "extra personnel hours" to be billed to those who
receive festival permits. *fn21
In the absence of these challenged features, CAMP's claim that the fee provisions
are unconstitutional appears to be moot. |
| [89] | Finally, CAMP claimed that the 1994 Festival Ordinance's permitting requirements
for "outdoor festivals" were not narrowly tailored to serve a
significant governmental interest and leave open ample alternative channels
of communication. The 2000 Festival Ordinance is more narrowly tailored
and provides additional alternative channels of communication; therefore,
the original controversy between the parties is no longer before us. The
2000 Festival Ordinance narrows the definition of "outdoor festival"
in two ways. First, an "outdoor festival" includes events that
require "the erection of stages, barricades, utility poles, booths,
tents, or other temporary structures, or the use of parked vehicles or of
permanent structures," in addition to meeting the 1994 Festival Ordinance's
definition. Ord. No. 99-O-1940 § 138-187. Second, any event with a scheduled
duration of three hours or less does not fall within the new "outdoor
festival" definition. *fn22
See id. This second narrowing of the "outdoor festival" definition
also permits additional alternative means of communication. The 2000 Festival
Ordinance also requires any time, place, and manner restrictions imposed
by the City's Chief of Staff to be based on constitutional criteria. See
Ord. No. 99-O-1940 § 138-204(a). The ordinance has been "sufficiently
altered so as to present a substantially different controversy from the
one the district court originally decided." Northeastern Fla. Chapter
of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508
U.S. 656, 671, 113 S. Ct. 2297, 2306 (1993) (O'Connor, J., dissenting).
I would therefore conclude that this claim is moot as well. |
| [90] | There must, of course, be a "present, live controversy in order to
avoid advisory opinions on abstract propositions of law." Church of
Scientology Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d 598, 604
(11th Cir. 1985) (internal citation omitted). Because the 2000 Festival
Ordinance removed the challenged features of the 1994 Festival Ordinance,
the original controversy has been rendered a mere abstraction. See Naturist
Soc'y, 958 F.2d at 1520. Accordingly, I would dismiss as moot CAMP's appeal
challenging the district court's conclusion that certain aspects of the
1994 Festival Ordinance are constitutional. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [91] | *fn1 The City had
determined in 1991 that the Pot Festival should have been treated as an
outdoor festival within the scope of the festival ordinance and requested
that CAMP apply for a festival permit. CAMP refused and brought the matter
before a Fulton County Court. That court allowed the event to proceed without
a festival permit. The City did not request that CAMP apply for a festival
permit again until 1995. |
| [92] | *fn2 The 1994 Festival
Ordinance defined "outdoor festival" under § 138-187 as the following:
an outdoor public celebration or gathering which involves the use either
of public parks or public streets and which includes entertainment, dancing,
music, dramatic productions, art exhibits, parades or the sale of merchandise,
food or alcohol or any combination of such and which of necessity requires
for its successful execution the provision and coordination of municipal
services to a degree significantly over and above that which the city routinely
provides under ordinary everyday circumstances. The definition of outdoor
festival does not include events which are solely parades, footraces or
political demonstrations unless such parade, footrace or political demonstration
is proposed as an integral part of a larger festival. R1-3-Ex. A at 1-2. |
| [93] | *fn3 Section 138-203
of the1994 Festival Ordinance provides: (a) The chief of staff shall be
charged with the responsibility of determining whether or not a particular
applicant shall be granted an outdoor festival permit pursuant to this article,
in consultation with the special events coordinator. (b) In determining
whether to grant or deny a particular permit application, the chief of staff
shall take into account the effect the proposed special events will have
upon the environment and the public health and safety. The chief of staff
shall also take into account the frequency with which such events are held
and the convenience of the public in relation thereto. Permits granted pursuant
to this article shall not authorize more than ten calendar days of special
events for any particular applicant per calendar year. (c) In addition to
the criteria in subsections (a) and (b) of this section, in making the decision
whether to grant the permit, the chief of staff shall take into account
whether: (1) The history, if any, of the particular applicants, insofar
as it can be determined, indicates their capability or incapability of executing
the planned festival; (2) Any inconvenience which may be suffered by the
general public is outweighed by the potential benefit to the community as
a whole; (3) Budgetary considerations at the time of the application create
such a heavy burden upon the city's financial resources that it would not
be practical to hold the proposed festival at the time requested; (4) The
holding of the festival as planned would create an undue burden upon the
personnel resources of the city; and (5) The public safety would be compromised
substantially. Atlanta City Code, § 138-203; R1-2-Ex.A at 3. |
| [94] | *fn4 The district
court refused to determine whether § 138-203(c)(1) was "unconstitutionally
vague." R2-37-32. However, it also did not specifically find that subsection
138-203(c)(1) was constitutional. Therefore, we do not include this subsection
as a part of the appellant's challenge to the district court's determination
that portions of the 1994 Festival Ordinance passed constitutional muster.
Accordingly, we do not consider whether subsection 138-203(c)(1), as revised,
is constitutional. Similarly, the district court cautioned the City that
§ 138-205's requirement regarding the use of off-duty police officers as
a part of the festival applicants' security could confer improper discretion
of the Police Department to determine the amount of police support required
for a festival; however, the appellants do not raise this portion of the
ordinance on appeal. Therefore, we do not consider the revised requirements
for a security plan in the 2000 Festival Ordinance and express no opinion
regarding their constitutionality. We leave it to the appellants, if they
so desire, to challenge these provisions in the district court |
| [95] | *fn5 Hereinafter,
we will cite to the document as Ordinance No. 99-O-1040. |
| [96] | *fn6 We note that
the considerations that compelled our conclusion that the case in Church
of Scientology I was moot, see 777 F.2d at 604-06, are not present in this
case. In Church of Scientology I the entire challenged ordinance was repealed
and replaced with a new ordinance prior to consideration by the district
court. Despite receiving timely notice of this change, the district court
proceeded to declare the repealed ordinance unconstitutional and enjoined
its enforcement. Therefore, we determined that the issue of the repealed
ordinance's constitutionality was moot at the time that the district court
considered it. We noted that "[t]he proper course of action would have
been to allow the plaintiffs to amend their complaints and proceed to litigate
the ordinance then in effect." Id. at 605-06. See also id. at 606 n.
22 (noting that "[t]here are numerous cases illustrating the principle
that where a challenged ordinance is amended during litigation the appropriate
course is to proceed to a consideration of the amended ordinance").
In this case, by contrast, the challenged ordinance was not replaced until
after the district court issued its order, and the new ordinance maintains,
in substantial part, those portions of the ordinance challenged on appeal
by the plaintiff. |
| [97] | *fn7 Hereinafter,
we will refer to this case as Northeastern Fla. Chapter. |
| [98] | *fn8 The concerns
Justice O'Connor voiced in her dissent in Northeastern Fla. Chapter regarding
the repeal of the challenged ordinance and enactment of new legislation
are not applicable here. Justice O'Connor asserted that the majority should
have found the controversy moot because when a statute which has been declared
invalid by a lower court has been replaced with more narrowly drawn legislation
and the plaintiff seeks only prospective relief, then an appellate court
could not be certain how the statutory changes would affect the plaintiff's
claims and while "[t]he new law ultimately may suffer from the same
legal defect as the old, . . . the statute may be sufficiently altered so
as to present a substantially different controversy." Northeastern
Fla. Chapter, 508 U.S. at 672-73, 113 S. Ct. at 2306-07 (O'Connor, J. dissenting).
In this case, we are only dealing with portions of the 1994 Festival Ordinance
that were declared valid by the district court. Therefore, any minor alteration
of these portions of the 1994 Festival Ordinance which may slightly narrow
the scope of the 2000 Festival Ordinance, do not alter the controversy from
that which the district court originally considered. Compare Atlanta Outdoor
Festival Ordinance of 1994, Atlanta, Ga., Code §§ 138-187 - 138-208 (1994)
with Atlanta Outdoor Festival Ordinance of 2000, Ordinance No. 99-O-1040. |
| [99] | *fn9 The City contends
that this appeal is moot because there is no reasonable expectation of recurring
constitutional violations because the district court's final order prevents
enforcement of the unconstitutional portions of the 1994 Festival Ordinance,
the 2000 Festival Ordinance does not contain the unconstitutional language,
and there is no reason to expect the City to reinsert the unconstitutional
language in the 2000 Festival Ordinance. This argument misconstrues the
issues presented on appeal. The appellants do not challenge the district
court's findings regarding those portions of the 1994 Festival Ordinance
which it found to be unconstitutional. Rather, the appellants argue that
the district court erred in finding that some portions of the 1994 Festival
Ordinance did pass constitutional muster. As such, the appellants specifically
challenge the district court's finding that the 1994 Festival Ordinance
was content neutral, as well as the conclusion that §§ 138-187, 138-204,
and 138-205 were constitutional. |
| [100] | *fn10 The following
"red-lined" version of the 2000 Festival Ordinance provides a
comparison of the challenged portions of the 1994 Festival Ordinance and
the 2000 Festival Ordinance. Those portions of the 1994 Ordinance which
have been deleted from the 2000 Festival Ordinance have been struck out
and language added in the 2000 Festival ordinance has been underlined. Section
138-187. Definitions. Extra personnel hours means the total of the number
of all hours worked by all city employees in the particular departments
or areas under consideration for classification purposes in connection with
the production of the special events in question festival which is the subject
of the application, to the extent that such hours exceed the total number
of hours which would have been worked by those same city employees in the
same location had the festival not taken place. Excluded from this definition
are the personnel hours worked by the sSpecial eEvents cCoordinator or by
a city employee designated to fulfill the function of special events coordinator
on any particular occasion, the personnel hours worked by any person of
the level of bureau director or higher, and the personnel hours worked by
police officers. Outdoor Festival means an outdoor public celebration or
gathering which involves either the use either of public parks belonging
to the City or public streets and which includes entertainment, dancing,
music, dramatic productions, art exhibitions, parades or the sale of merchandise,
food, or alcohol, or any combination of such the foregoing, and which requires
the erection of stages, barricades, utility poles, booths, tents, or other
temporary structures, or the use of parked vehicles or of permanent structures,
and which of necessity requires for its successful execution the provision
and coordination of municipal services to a degree significantly over and
above that which the city routinely provides under ordinary everyday circumstances.
The definition of outdoor festival does not include events which are solely
parades, footraces or political demonstrations unless such parade, footrace
or political demonstration is proposed as an integral part of a larger broader
outdoor festival. Also excluded from the definition of "outdoor festival"
herein is any event with a scheduled duration of three (3) hours or less.
Section 138-204. Classification and approval (a) After reviewing the comments
of all the other departments and the or bureaus of buildings submitting
them, the cChief of sStaff shall approve, deny, approve with modifications
or upon conditions as set forth in Section 138-203. or reject the application
for the permit for an outdoor festival. If the application is approved,
the cChief of sStaff, in consultation with the heads of affected departments,
shall also impose any necessary restrictions or conditions as to time, manner
and place to be observed in accordance with the public safety, environmental
and administrative considerations involved in the particular application
which appear based upon the application, provided that such considerations
shall not include any consideration of the content of any speech or message
which may be conveyed by such festival, nor by any considerations concerning
the identity of associational relationships of the applicant, nor to any
assumptions or predictions as to the amount of hostility which may be aroused
in the public by the content of speech or message conveyed by the festival.
[Beginning of a new paragraph in the 2000 Festival Ordinance] Except as
provided in subsection (b) of this section, under no circumstances shall
the cChief of sStaff approve the any permit if the which allows the applicant
proposes to limit the use of public streets by pedestrians using the streets
to move from location to location or if the applicant proposes to limit
the use of the public parks when use of the parks by the general public
shall not unreasonably disturb the activities of the planned festival. Nothing
in this section shall be construed to prohibit the imposition of reasonable
restrictions on the movement of the general public which are necessary for
the carrying out of the festival; however, such restrictions shall not bar
the admission of any member of the public on the grounds of race, color,
religion, gender, gender identity, sexual orientation, age, disability or
national or ethnic origin. (b) Streets may be closed, portions of streets
and parks may be gated, and an admission fee may be charged by the applicant
in connection with an outdoor festival at the discretion of the cChief of
sStaff after consultation with the Chief of Ppolice chief, the fFire cChief
and cCommissioners of pPublic wWorks and of pParks, rRecreation and cCultural
affairs, as may be appropriate, having due regard being given to for the
public safety and environmental effects of such closing, provided that all
reasonable steps are taken to minimize the adverse effect such closings
may have upon the public. In no event, however, shall Peachtree Street or
Peachtree Road or any portion thereof which lies within the cCity be closed
by the cChief of sStaff, without the approval of Council by resolution ;
authority for the closing of any portion of the Peachtree Corridor must
be by resolution of the city council. In the event that an event is gated,
no person shall be barred from entering the gated area on the grounds of
race, color, religion, gender, gender identity, sexual orientation, age,
disability or national or ethnic origin. (c) For classification purposes,
the cChief of sStaff shall evaluate the application by the following criteria:
(1) The anticipated amount of extra personnel hours [extra personnel hours
is italicized in the 2000 Festival Ordinance], as defined in this article,
which shall be required to be furnished by the cCity in order to accomplish
the necessary public safety and sanitation administrative, sanitary, and
oversight components of the festival. By agreement, as endorsed upon the
permit or in a separate contract, the applicant may furnish some of the
personnel to required;, in which event and the anticipated calculation of
the extra personnel hours [extra personnel hours is italicized in the 2000
Festival Ordinance] may be requirements for classification purposes shall
be considered as reduceds accordingly. (2) The type and amount of city services
required other than extra personnel hours. (2)(3) The anticipated number
of persons attending the event over the entire period of the festival. In
estimating this number, no regard shall be given to any estimate of the
number of persons who may be anticipated to be in the vicinity of the festival
as counter-demonstrators or to show hostility to any message the festival
may be perceived as having. Nor shall there be any consideration of the
content of any speech or message which may be conveyed by such festival,
nor by any considerations concerning the identity or associational relationships
of the applicant, nor to any assumptions or predictions as to the amount
of hostility which may be aroused in the public by the content of speech
or message conveyed by the festival. Unless such estimate shall appear to
have been made in palpable bad faith or otherwise grossly in error, the
Chief of Staff shall be guided by the estimate provided by the applicant.
If the Chief of Staff determines not to adopt the estimate given by the
applicant, he shall state the reasons in writing on the permit. (d) The
classes of outdoor festival permits and the evaluated factors of for each
class shall be as follows: (1) Class A permit. For a festival which will
require between 100 and 300 extra personnel hours and for which the attendance
is anticipated to be in excess of 50,000 persons over the entire period
of the festival. (2) Class B permit. For a festival which will require between
50 and 100 extra personnel hours and for which the attendance is anticipated
to be between 20,000 and 50,000 persons over the entire period of the festival.
(3) Class C permit. For a festival which will require between 25 and 50
extra personnel hours and for which the attendance is anticipated to be
between 10,000 and 20,000 persons over the entire period of the festival.
(4) Class D permit. For a festival which will require between three 3 and
25 extra personnel hours and for which the anticipated attendance is anticipated
to be between 2,000 and 10,000 persons over the entire period of the festival.
(5) Class E permit. For a festival which will require between fewer than
three 3 extra personnel hours and for which the attendance is anticipated
to be between 100 and fewer than 2,000 persons over the entire period of
the festival. Section 138-205. Permit fees. [The 2000 Festivals Ordinance
does not present the fee schedule in tabular form. Rather than reproducing
the new format of the 2000 Festivals Ordinance fee schedule we have noted
the changes in the tabular format utilized in the 1994 Festivals Ordinance.]
(a) The application fee for each classification of permit shall be as follows:
. . . (b)If After the chief of staff approves the issuance of the permit,
as provided in section 138-204, the applicant may obtain such permit by
agreeing to accept the classification and conditions imposed by the chief
of staff in accordance with this article and by paying the applicable permit
fee and sanitation deposit fee. , Such which fees shall be determined according
to the following schedule: ---------------------------------------------------------------------------
Application Permit Sanitation Deposit Fee Class Attendance Extra Fee Fee
Personnel ---------------------------------------------------------------------------
$50.00 $6,000.00 $500.00 A 50,000 + 100-300 ---------------------------------------------------------------------------
50.00 2,000.00 300.00 B 20,000 - 50-100 50,000 ---------------------------------------------------------------------------
50.00 1,000.00 150.00 C 10,000 - 25-50 20,000 ---------------------------------------------------------------------------
50.00 500.00 75.00 D 2,000 - 3- 25 10,000 ---------------------------------------------------------------------------
20.00 75.00 20.00 E 100 - 3 50.00 2,000 3 ---------------------------------------------------------------------------
(b) (c) To the extent that aAny festival may requireing in excess of the
extra personnel hours [italicized in the 2000 Festival Ordinance] and city
services in excess of those anticipated in the application and endorsed
upon the permit, the applicant shall be required to reimburse the city for
the cost of such additional extra excess personnel hours [excess personnel
hours is italicized in the 2000 Festival Ordinance] and services in addition
to the initial permit fee to the extent that they exceed the sum of $500.00,
and only to such extent, provided that the Chief of Staff, in order to impose
such additional amount, must mail or deliver an invoice for such additional
amount to the applicant no later than sixty (60) days after the last date
of such festival (c) (d) Upon satisfactory completion of the sanitation
deposit agreement, and provided that no further amount to due as set forth
in subsection (c) above, the sanitation deposit fee shall be refunded to
the applicant. |
| [101] | *fn11 We note that
the 2000 Festival Ordinance's specific directive for applicants not to consider
potential counter-demonstrators when estimating attendance and the removal
of the hours worked by police officers from the extra personnel hours component
of the fee schedule make it more difficult for the City to manipulate the
fees based on the content of a festival's message and eliminates a portion
of the appellants' arguments regarding the constitutionality of the fees;
however, they do not satisfy all the appellants' challenges against this
portion of the ordinance. Therefore, we conclude that the gravamen of the
appellants' complaint remains unaffected. |
| [102] | *fn12 Additionally,
we note that a finding on our part that the provisions of the 1994 Festival
Ordinance challenged on appeal are unconstitutional would provide the appellants
relief from those alleged constitutional deprivations that they have suffered
and presumably will continue to endure under the 2000 Festival Ordinance
despite the district court's earlier finding that other portions of the
1994 Festival Ordinance were unconstitutional. The ability of this court
to provide such relief further indicates that this appeal is not moot. See
City of Erie, 120 S. Ct. at 1390 (concluding that "the availability
of . . . relief is sufficient to prevent the case from being moot"). |
| [103] | *fn13 Although the
appellants make all their arguments with regard to the 1994 Festival Ordinance,
because we are required to review the 2000 Festival Ordinance when considering
the issues presented on appeal and because they remain substantially unchanged,
we will apply the appellants' arguments to the 2000 Festival Ordinance. |
| [104] | *fn14 We note that
the "savings clause" added to the 2000 Festival Ordinance effectively
excludes political demonstrations from the ambit of the ordinance in the
same way that the exclusion of political demonstrations from the definition
of an Outdoor Festival did in the 1994 Festival Ordinance. Compare 1994
Festival Ordinance § 138-187 (excluding political demonstrations from the
definition of an Outdoor Festival and defining a political demonstration
as "a public gathering, procession or parade, the primary purpose of
which is the exercise of the rights of assembly and free speech as guaranteed
by the first amendment to the Constitution of the United States") with
2000 Festival Ordinance § 138-209 (stating that "[n]othing in this
article shall be construed to prevent members of the public from assembling
in the parks or streets for the purpose of making any speech or conveying
any message to the public or government without holding an outdoor festival
permit pursuant to this article"). |
| [105] | *fn15 CAMP specifically
argued that the police could clearly manipulate their estimate of the number
of police officers required for the festival. This specific argument is
no longer relevant in the context of the 2000 Festival Ordinance because
the 2000 Festival Ordinance excludes the hours worked by police officers
from the total number of extra personnel hours expended by the City on a
particular festival. Therefore, we consider their argument in the context
of the larger question of whether the extra personnel hours charged to a
festival by the City is manipulable according to the message a festival
might seek to convey. |
| [106] | *fn16 While we do
not specifically address the impact of the Supreme Court's holding in Forsyth
County, Ga. to our precedent, we note that the majority of our sister circuits
have interpreted Forsyth County, Ga. as making it constitutionally permissible
for an ordinance regulating constitutionally protected activity to impose
a permit fee which is more than nominal so long as the permit fee is reasonably
related to "the expense incident to the administration of the act and
to the maintenance of public order in the matter licensed." Cox v.
State of New Hampshire, 312 U.S. 569, 577, 61 S. Ct. 762, 766, 85 L. Ed.
2d 1049 (1941). See American Target Advertising, Inc. v. Giani, 199 F.3d
1241, 1249 (10th Cir. 2000) (upholding an act imposing a registration fee
on constitutionally protected activity that "does no more than defray
reasonable administration costs"); Northeast Ohio Coalition for the
Homeless v. City of Cleveland, 105 F.3d 1107, 1110 (6th Cir. 1997) (holding
that "a more than nominal permit fee is constitutionally permissible
so long as the fee is `reasonably related to the expenses incident to the
administration of the ordinance and to the maintenance of public safety
and order'"); MacDonald v. Chicago Park Dist., 132 F.3d 355, 362-63
(7th Cir. 1997) (finding it unlikely that a plaintiff could show that the
fee provision of a ordinance was facially unconstitutional when the fees
were set according to a content-neutral schedule); Nat'l Awareness Found.
v. Abrams, 50 F.3d 1159, 1165 (2nd Cir. 1995) (holding that "fees that
serve not as revenue taxes, but rather as means to meet the expenses incident
to the administration of a regulation and to the maintenance of public order
in the matter regulated are constitutionally permissible"); Center
for Auto Safety, Inc. v. Athey, 37 F.3d 139, (4th Cir. 1994) (upholding
a statute imposing fees on protected speech because the fees were narrowly
tailored to further a legitimate government purpose and the revenues raised
by the fees do not exceed the costs of administering the Statute). |
| [107] | *fn17 The relevant
portions of § 1367 provide the following: (a) Except as provided in subsections
(b) and (c) or as expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims
that are so related claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of
the United States Constitution. Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional parties. (b)
In any civil action of which the district courts have original jurisdiction
founded solely on section 1332 of this title, the district courts shall
not have supplemental jurisdiction under subsection (a) over claims by plaintiffs
against persons made parties under Rule 14, 19, 20, or 24 of the Federal
Rules of Civil Procedure, or over claims by persons proposed to be joined
as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs
under Rule 24 of such rules, when exercising supplemental jurisdiction over
such claims would be inconsistent with the jurisdictional requirements of
section 1332. (c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if - (1) the claim raises
a novel or complex issue of State law, (2) the claim substantially predominates
over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction. 28 U.S.C. § 1367 |
| [108] | *fn18 As noted by
the majority, § 138-209 of the 2000 Festival Ordinance effectively excludes
purely political speech from coverage. CAMP has not argued, however, that
§ 138-209 of the 2000 Festival Ordinance is impermissibly content-based,
and this section provides a different mechanism for excluding purely political
speech. |
| [109] | *fn19 CAMP also
argued that under the 1994 Festival Ordinance the permit fees were unconstitutional
because they were "not nominal," since they included the costs
of additional police protection. CAMP's "not nominal" challenge
to the fees is intertwined with its content-based challenge. Therefore,
I conclude that all of CAMP's fee challenges are moot. |
| [110] | *fn20 Ord. No. 99-O-1940,
§ 138-204(c)(2). |
| [111] | *fn21 See Ord. No.
99-O-1940, § 138-187. |
| [112] | *fn22 Although the
majority correctly notes that there has been no alteration in § 138-204's
requirement that the Chief of Staff deny any application where the applicant
proposes to limit the use of public streets and parks under certain conditions,
CAMP has not challenged on appeal this attribute of the ordinance. |
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