Jim Gall Auctioneers, Inc. v. City of Coral Gables

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 27 2000
THOMAS K. KAHN
No. 99-11517 CLERK
________________________
D.C. Docket No. 97-03186-CV PAS
JIM GALL AUCTIONEERS, INC.
Plaintiff-Appellant,
versus
CITY OF CORAL GABLES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 27, 2000)
Before ANDERSON, Chief Judge, CARNES, Circuit Judge, and OAKES*,
Senior Circuit Judge.
OAKES, Senior Circuit Judge:
_______________
*Honorable James L. Oakes, Senior U.S. Circuit Judge for the Second Circuit,
sitting by designation.
Jim Gall Auctioneers, Inc. (“Gall”) appeals the district court’s award of
summary judgment to the defendant, the City of Coral Gables (“City”), in this
commercial speech case. Gall asks us to consider whether the City’s
regulations prohibiting auctions of non-homeowner goods at private residences
in Coral Gables and the advertising of same infringe on Gall’s First
Amendment rights. We agree with the district court that they do not.
BACKGROUND
Gall is a for-profit corporation that auctions real and personal property
in the Miami area and throughout Florida. In April 1996, the City issued
three citations to Gall for “conducting business from a residence” in
violation of a section of the City’s zoning code which prohibits non-
residential use within certain districts.1 The citations were issued in
response to a large three-day auction held at a private residence during
1
City of Coral Gables Zoning Code Section 3-1 states in pertinent part:
In single-family residence or R-Use [Residential Use] Districts no use shall
be permitted other than an R-Use and Family Day Care home. . . . In R-Use
Districts no buildings or premises shall be used . . . for a . . . C or M-Use as
defined herein.
“C or M-Use” is defined in the zoning code as commercial or mixed use. See Zoning Code
§§ 3-3 - 3-7. Additionally, the zoning code permits garage sales in residential areas,
provided that “only personal property owned by the seller and usual to a household may be
sold or offered for sale.” Zoning Code § 6-9.
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which goods from a variety of vendors were sold but the home itself was not
offered for sale. In June 1996, Gall arranged for a similar residential auction
where the personal property to be sold was not owned by the homeowner
hosting the auction. Gall’s advertising and promotion for this auction drew a
negative response from the City, and Gall ultimately moved the auction to
the Biltmore Hotel. In May 1997, the City sent an opinion letter to Gall
stating that an auction of real or personal property was a commercial activity
that could not be conducted on residential property.
Gall initiated this action on September 12, 1997, in state court,
making claims under the First and Fourteenth Amendments as well as the
state constitution. Gall simultaneously moved to enjoin the City from
interfering with a residential auction scheduled for the next day. In response
to this auction, the City had already issued four citations to Gall for
“advertising in a residential area” in violation of Section 18-12 of the Zoning
Code. At an emergency hearing on the motion, the state court enjoined the
City specifically from preventing the auction of the house itself on
September 13, 1997, and generally from removing signs advertising (within
regulated limits) the sale of residential properties. The court, however, did
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not enjoin the City from preventing the auction and advertising of vendors’
merchandise.
After removing the case to federal court, the City moved to dismiss
Gall’s claims and the district court granted the motion with respect to the
Fourteenth Amendment claim. The parties subsequently cross-moved for
summary judgment on the First Amendment claims. In May 1999, the
district granted summary judgment in favor of the City on the grounds that
the City’s prohibition of commercial auctions -- i.e., auctions of property not
owned by the homeowner -- and their advertising in residential areas was
narrowly tailored to achieve the City’s substantial interest in neighborhood
aesthetics and tranquility. This appeal followed.
Discussion
Gall challenges the decision of the district court on two fronts. First,
Gall contests its conclusion that the City’s prohibition of auctions of third-
party (non-homeowner) goods at a residence does not violate the First
Amendment. Second, Gall asserts that the First Amendment protects its
right to advertise for such third-party auctions. We review the district
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court’s decision de novo. See Watkins v. Ford Motor Co., 190 F.3d 1213,
1216 (11th Cir. 1999).
We can find no fault with the district court’s conclusion on Gall’s
First Amendment claims, assuming that auction activity is commercial
speech as contended by Gall. As the court recognized, Gall’s advertising
claim clearly presents an issue of commercial speech. As to Gall’s claimed
right to hold an auction, it is arguable whether the conducting of an auction
is also commercial speech, as found by the district court, or instead simply
commercial activity analyzed under a time, place, and manner test. See
A.B.C. Home Furnishings, Inc. v. Town of East Hampton, 947 F. Supp. 635,
643 (E.D.N.Y. 1996). However, we need not resolve the question because
even if the auction activity is treated as commercial speech, it cannot survive
the well-known test for the constitutionality of restrictions on commercial
speech set forth in Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n, 447 U.S. 557, 566 (1980). Applying Central Hudson, the district
court asked whether the City’s regulations (1) seek to implement a
substantial government interest; (2) directly advance the asserted
government interest; and (3) are narrowly tailored to serve that interest. Id.5
Finding the answers to all questions in the affirmative for both claims, the
court found no infringement of Gall’s commercial speech rights.
We see no reason to revisit the district court’s finding that the City has
a substantial interest in maintaining the aesthetics and tranquility of its
residential neighborhoods, as well as in regulating traffic flow. The
substantiality of these interests is fully supported by decisions of the
Supreme Court and of this Circuit. See Board of Trustees v. Fox, 492 U.S.
469, 475 (1989); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-
08 (1981); One World One Family Now v. City of Miami Beach, 175 F.3d
1282, 1288 (11th Cir. 1999); Sciarrino v. City of Key West, 83 F.3d 364,
367 (11th Cir. 1996); Supersign of Boca Raton v. City of Fort Lauderdale,
766 F.2d 1528, 1530 (11th Cir. 1985)(citing cases); cf. Village of Euclid v.
Ambler Realty Co., 272 U.S. 365, 394-95 (1926) (discussing generally goals
of zoning restrictions).
Additionally, Gall fails to mount a serious argument that the City’s
regulations are not directly related to these interests. Pointing to the fact that
the City permits garage sales and open houses, and limited advertising for
them, Gall contends that the allowance of some commercial activity in
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residential neighborhoods undermines the purpose of the regulations. This
argument has been roundly rejected in prior cases. See Sciarrino, 83 F.3d at369 n.7 (“The Supreme Court has conclusively indicated that a regulation
may ‘directly advance’ its asserted ends, though it strikes at less than the
entire problem”); Don’s Porta Signs, Inc. v. City of Clearwater, 829 F.2d
1051, 1053 (11th Cir. 1987) (“The Constitution does not require the City to
choose between curing all of its aesthetic problems or curing none at all.”).
The only remaining question under Central Hudson is whether the
City’s zoning regulations are narrowly tailored to serve the interests of
neighborhood aesthetics, tranquility, and traffic control. As we recently
reiterated, the regulations “need not be the ‘least restrictive or least intrusive
means’ of serving the City’s interest in order to qualify as ‘narrowly
tailored.’” Smith v. City of Fort Lauderdale, 177 F.3d 954, 957 (11th Cir.
1999) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 788-89 (1989);
see also One World One Family Now, 175 F.3d at 1288 (city’s ordinance
allowing restaurant but not vending tables on street was narrowly tailored
“[a]lthough there may be other ways to accomplish the city’s goals.”). Here,
the City permits the advertising and auctioning of third-party goods in non-
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residential areas, evincing a willingness to balance the commercial interests
of parties like Gall with the City’s interest in preserving the character of its
residential neighborhoods. We agree with the district court that this
balancing effort and the absence of any evidence in the record of less-
burdensome alternatives satisfies the requirement that the City’s regulations
be narrowly tailored. See Sciarrino, 83 F.3d at 370.
Gall, in its brief and at oral argument, raised the concern that the City
will in the future engage in selective enforcement of its regulations based on
whatever it decides are commercial activities. Gall believes that the district
court’s decision does not sufficiently clarify what Gall is and is not allowed
to do, and that an injunction in necessary to prevent the City from interfering
with Gall’s activities. From the record before us, we see no ambiguity in the
district court’s holding that auctions of third-party goods, and the advertising
of such auctions, are not permitted in residential neighborhoods. Moreover,
Gall has provided no evidence beyond sheer speculation of a need to enjoin
the future conduct of the City. We therefore dismiss these claims as without
merit.
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Because Gall has made no arguments in this appeal that require us to
correct either the reasoning or conclusions of the district court, we affirm the
decision below in its entirety.
AFFIRMED.
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