Coalition for the Abolition v. City of Atlanta ( 2000 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 27 2000
_______________
THOMAS K. KAHN
CLERK
No. 99-11385
_______________
D. C. Docket No. 96-00407-CV-1-JEC
COALITION FOR THE ABOLITION OF MARIJUANA
PROHIBITION, PAUL D. CORNWELL, II,
Plaintiffs-Appellants,
versus
CITY OF ATLANTA,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(July 27, 2000)
Before COX, BIRCH and BARKETT, Circuit Judges.
BIRCH, Circuit Judge:
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Festival Ordinance”), repealed by Atlanta Outdoor Festivals Ordinance of 2000,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.
BACKGROUND
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.
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.
2
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.
In 1995, the City of Atlanta requested that CAMP apply for an outdoor
festival permit.1 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.”2
1
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.
2
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.
3
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.
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
4
permit. Accordingly, the district court denied the request for a preliminary
injunction.
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.
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
5
within the definition of outdoor festival” when revising the 1994 Festival
Ordinance. Id. at 26 n. 13.
The district court next considered § 138-203 of the 1994 Festival Ordinance3
and determined that certain provisions within that section lacked sufficiently
objective and definite standards to limit the discretion of the chief of staff when
3
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.
6
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.
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
7
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.
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.
8
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
9
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.
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.
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
10
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.
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
138-205.4 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.
4
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
11
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).5 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.
DISCUSSION
I. JUSTICIABILITY
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).
A. Standing
5
Hereinafter, we will cite to the document as Ordinance No. 99-O-1040.
12
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).
B. Mootness
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
13
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).
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)
14
(quoting United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S. Ct. 448, 449,
64 L. Ed. 2d 808 (1920)).6 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
6
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.
15
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”).7 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)).
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.
7
Hereinafter, we will refer to this case as Northeastern Fla. Chapter.
16
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)).8 In order for the alterations to the 1994 Festival
8
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.
17
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:
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
18
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. 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.9
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
9
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.
19
portions of the 1994 Festival Ordinance which are challenged on appeal have not
been sufficiently altered so as to eliminate the issues raised. 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-
1040.10 Other than changes in grammar or word choice, the 2000 Festival
10
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
20
(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
21
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
22
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
sanitation deposit fee. , Such which fees shall be determined according to the following
schedule:
Application Permit Fee Sanitation Class Attendance Extra
Fee Deposit Fee Personnel
Hours
$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 50.00 75.00 20.00 E 100 - 2,000 3
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.
23
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
24
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.11
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
11
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.
25
features of the prior law.’”) (quoting Naturist Soc’y, 958 F.2d at 1520).12 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)).
C. Ripeness
12
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”).
26
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)))).
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
27
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.
II. CONSTITUTIONALITY
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,
28
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”).
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.”
29
Int’l Caucus of Labor Comm. v. City of Montgomery, 111 F.3d 1548, 1551 (11th
Cir. 1997).
A. Content-Neutrality
We first consider the appellants’ argument that the 2000 Festival Ordinance
is content-based.13 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
13
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.
30
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.
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, § 138-187.14
14
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”).
31
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. 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
32
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).
B. Narrowly Tailored
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
33
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.
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
34
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.
1. Section 138-187
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
35
“‘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).
2. Section 138-204
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
36
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.
C. Alternative Channels of Communication
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.
The City can satisfy the requirement that alternative channels of
communication remain open to CAMP even if those channels “may be less
37
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
38
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.
D. Section 138-205: Festival Permit Fees
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
39
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.
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
40
as the charge imposed does not exceed the administrative costs of regulating the
protected activity.” Id. at 36.
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.15 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.
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
15
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.
41
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.
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
42
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.
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
43
personnel required and, therefore, reduces the calculation of extra personnel hours
and the associated fee.
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).
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
44
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
45
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.
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
46
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”).
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
47
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).
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
48
fees imposed by the 2000 Festival Ordinance are nominal.16 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
16
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).
49
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
50
“imposed as a regulatory measure to defray the expenses of policing the activities
in question”).
III. SUPPLEMENTARY JURISDICTION
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. § 1367.17 As we
17
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.
51
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).
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 Judgement or
their Response to Defendants’ Motion For Summary Judgement. See R1-18 at 2
and 4-17; R1-22. After the district court denied both the appellants’ and the City’s
28 U.S.C. § 1367
52
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:
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.
ONE IS WE THINK THAT THE ORDINANCE ON ITS
FACE IS UNCONSTITUTIONAL BECAUSE OF THE IMMENSE
DISCRETION THAT IT GIVES.
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.
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. The appellants did not discuss their assertion that the 1994 Festival
Ordinance violated the Georgia Constitution during the two-day trial before the
53
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
54
properly treat as abandoned a claim alleged in the complaint but not even raised as
a ground for summary judgment”).
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).
CONCLUSION
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
55
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.
56
COX, Circuit Judge, concurring in part and dissenting in part:
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.
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.
57
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.1 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.
Also moot is CAMP’s argument that the 1994 Festival Ordinance’s fees
were unconstitutional because they were manipulable according to the content of
1
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.
58
the speech.2 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;3 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.4 In the absence of these challenged features,
CAMP’s claim that the fee provisions are unconstitutional appears to be moot.
2
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.
3
Ord. No. 99-O-1940, § 138-204(c)(2).
4
See Ord. No. 99-O-1940, § 138-187.
59
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.5 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
5
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.
60
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.
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.
61