Blog Los Angeles: 2010

o GO TO http://LACityNews.com for full coverage on this FEDERAL 1st Amendment Court Order Against the City of Los Angeles. Plaintiffs now ready to file for MASSIVE damages. Contact LACityNews@Gmail.com.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF C~LIFORNIA

MATTHEW DOWD; PETER DAMIAN:

EDWARD LA GROSSA; ANTHONY

BROWN; NATHAN PINO, WILLIE

LEE TURNER; DAVID ZUMA DOGG

SALTSBURG; THOMAS BURRUMl

JNR; MARVIN SIMS; JESSE

BROWN; LOUIE GARCIA; RENK

CASTRO,

Plaintiffs,

CITY OF LOS ANGELES, a

municipal corporation,

Defendant.

I . BACKGROUND

Case No. CV 09-06731 DOP (SSxl

ORDER (1) GRANTING IN PART AND

DENYING IN PART DEFENDANT'S

MOTION TO DISMISS AND (2)

GRANTING IN PART AND DENYING IN

PART PLAINTIFFS' MOTION FOR

PRELIMINARY INJUNCTION

[Motions filed on october 8,

2009, and October 16, 2009]

The Venice Beach Boardwalk is a major tourist attraction in

the City of Los Angeles. LAMC § 42.15 {A) (1) (a).

It is

historically significant as a traditional public forum for its

performance and visua artists, as well as other free speech

activity." Id. During the summer and on weekends, the Boardwalk

is filled with street performers, including “instrumental

musicians, singers, jugglers, acrobats, mimes, comics, magicians,

prophets, fortune tellers, and other assorted entertainers."

City of Los Angeles Dep't of Recreation & Parks,

http://www.laparks.org/venice/venice.htm (last visited Nov. 8,

2009). Plaintiffs, appearing pro se, are thirteen street

performers and artists who make their living on the Venice Beach

Boardwalk by, among other things, dancing, singing, painting,

unicycling, playing music, as well as selling or accepting

donations for items related to their performances, such as CDs,

works of art, and T-shirts.

Over the years, the defendant the City of Los Angeles (the

"City"), has adopted and amended a number of versions of Los

Angeles Municipal Code ("LAMC") § 42.15, in order to address its

concern that unregulated vending negatively effects the

character, safety, and economic vitality of the Venice Beach

Boardwalk and in response to litigation.

In 2005, the City

suspended the 2004 version of § 42.15, in response to the legal

challenge raised in Venice Food Not Bombs v. City of Los Angeles,

No. CV 05-04998 DDP (SS) (C.D. Cal. 2005), and later adopted an

amended version of the ordinance as part of a settlement

agreement in 2006. The settlement agreement was the culmination

of intensive meetings and negotiations between the parties and

community stakeholders, with the aid of the Court, in an effort

to draft an ordinance that would address the City's concerns

about unregulated vending while protecting the rights of those

who engage in activities protected by the First Amendment on

Venice Boardwalk.

The City's adoption of the 2006 version of § 42.15 did not

end all controversy concerning the vending ordinance and further

litigation ensued. On January 14, 2009, this Court ruled in Hunt

v. City of Los Angeles, 601 F. Supp. 2d 1158, 1170-72 (C.D. Cal.

2009), that the 2004 version of LAMC § 42.15(C) was

unconstitutionally vague, because the exception to the vending

ban for "merchandise constituting, carrying or making a religious

political, philosophical, or ideological message or statement

which is inextricably intertwined with merchandise," presented "a

real risk of arbitrary and discriminatory enforcement because it

fail[ed] to provide sufficient guidance to those who would

enforce it." The Court did not reach the merits of the

plaintiffs' facial void-for-vagueness challenge to a similar

provision in the 2006 version of the ordinance, finding that the

plaintiffs lacked standing to raise the claim. Hunt, 601 F.

Supp. 2d at 1175.

In the face of such litigation, the City again amended §

42.15, with the latest draft taking effect on May 19, 2008. In

enacting the 2008 version of LAMC § 42.15 , the City found that

(1) tourists are deterred from visiting the Boardwalk because

they are harassed by unregulated vendors, (2) the limited amount

of space on the Boardwalk should be assigned in order to avoid

frequent altercations, (3) vendors and their equipment impede the

ingress and egress of emergency and public safety vehicles, and

(4) unregulated vending creates excessive and annoying noise on

the Boardwalk that negatively affects nearby workers, visitors,

and residents. Id.§ 42.15(A) (1) (b) (i)-(vii).

In response to

these findings, LAMC § 42.15 (2008) provides that "[e]xcept as

specifically allowed in this section, no person shall engage in

vending" along the Venice Beach Boardwalk. Id.§ 42.15 (A) .

The latest version of the ordinance divides much of the

available space in the heart of the Boardwalk into individual

spaces designated as P-Zone spaces and I-Zone spaces. Id.§

42.15(2). In the P-Zone spaces, "persons can perform, engage in

traditional expressive speech, and petitioning activities, and

vend the following expressive items: newspapers, leaflets,

pamphlets, bumper stickers, patches, buttons, or books created by

the vendor or recordings of the vendor's own performances.

Id.§ 42.15(2) (a).

In the I-Zone spaces, "persons may engage

in activities permissible in the P-Zone, and also engage in

vending of expressive items created by the vendor, or the vending

of expressive items that are inextricably intertwined with the

vendor's message.

Id.§ 42.15(2) (b).

With certain limited exceptions, anyone wishing to use a P-

Zone or I-Zone space during Peak Season must apply for an annual

permit and enter into a lottery system by which spaces are

assigned each day. Program Rules at pp. 2-3. The person to whom

the space is assigned has priority to use the space. But, after

12:00 p.m., anyone (with or without a permit) may use any

unoccupied space, so long as she engages only in activities

approved for the P-Zones and relinquishes the space to the

permit-holder if she returns.

Outside of the P and I-Zones, anyone may engage in any

activity permitted in the P-Zones and vend expressive items

"inextricably intertwined with the vendor's message," so long as

she does not "set up a display table, easel, stand, equipment, or

other furniture, use a pushcart or other vehicle .

Id.§

42.15(D) (1) (a). On the West side of the Boardwalk, outside of

the P and I-Zones, anyone can engage in any permitted P-Zone

activity as long as it is "not vending and does not substantially

impede or obstruct pedestrian or vehicular traffic, subject to

reasonable size and height restrictions on any table, easel, or

other furniture .

Id.§ 42.15 (D) (1) (b) .

The ordinance and Program Rules also include noise

regulations. LAMC § 42.15(F) (1) provides that noise levels must

not exceed seventy-five decibels when measured at a distance of

twenty-five feet away or ninety-six decibels when measured from

one foot away between nine o'clock in the morning and sunset.

Furthermore, LAMC § 42.15(F) (4) bans the use of amplified sound

anywhere on the Boardwalk except in specially designated P-Zone

spaces between 17th Avenue and Horizon Avenue and between Breeze

Avenue and Park Avenue. The Program Rules clarify that amplified

sound "is permitted only in the designated spaces in the P-Zones

in the locations specified in Section 42.15 between 9:00 a.m. and

sunset, and is prohibited after sunset and before 9:00 a.m."

Program Rules at p. 4.

Following the City's adoption of the 2008 version of §

42.15, the Ninth Circuit decided Berger v. City of Seattle, 569

F.3d 1029 (9th Cir. 2009) (en banc) , holding that a similar

designated-performance-space and permitting system established by

the City of Seattle for the Seattle Center was facially

unconstitutional under the First Amendment. In so holding, the

court noted that the Supreme Court "has repeatedly concluded that

single-speaker permitting requirements are not a constitutionally

valid means of advancing [the government's] interests because,

typically (1) they sweep too broadly, (2) they only marginally

advance the government's asserted interests, and (3) the

government's interests can be achieved by less intrusive means."

Id.at 1038

(internal citations omitted). While acknowledging

that such Supreme Court decisions involved permitting

requirements for door-to-door solicitation, the court held that

"it stands to reason that such [single-speaker permitting]

requirements would be at least as constitutionally suspect when

applied to speech in a public park, where a speaker's First

Amendment protections reach their zenith, than when applied to

speech on a citizen's doorstep where substantial privacy

interests exist." Id. at 1039. As a result, the court stated

that it was "not surprising that we and almost every other

circuit to have considered the issue have refused to uphold

registration requirements that apply to individual speakers or

small groups in a public forum." Id.

Shortly after the Ninth Circuit published its decision in

Berger, 569 F.3d at 1039, Plaintiffs filed this lawsuit raising

facial and as-applied challenges to the 2008 version of LAMC §

42.15 and its implementing Public Expression Permit Program Rules

("Program Rules") (revised April 2, 2008), arguing that they

violate the First and Fourteenth Amendments.l The facial

challenges to the 2008 ordinance at issue here appear to be

threefold: First, Plaintiffs argue that the permitting and

designated performance space system is not a reasonable time,

place and manner restriction and grants unbridled discretion to

licensing authorities. Second, Plaintiffs assert that the

ordinance's use of the phrase "inextricably intertwined" renders

it unconstitutionally vague. Third, Plaintiffs claim that the

amplified sound ban is not a reasonable time, place, and manner

restriction.

In order to voice their concerns over the ordinance and its

enforcement, Plaintiffs Dowd and Saltsburg began attending Los

Angeles City Council meetings and speaking during public comment

sessions. Plaintiffs Dowd and Saltsburg raise facial and as-

applied challenges to the City Councilis Rules of Decorum. With

Several Plaintiffs also claim that the

enforcement of the prior version of LAMC § 42.15 (2006)

violated their constitutional rights. However, this

aspect of the Complaint is not at issue with respect to

either motion.

respect to their facial challenge, Plaintiffs argue that the

Rules-- which prohibit making "personal, impertinent, unduly

repetitive, slanderous, or profane remarks" and "utter[ing] loud,

threatening, personal or abusive language"-- "are content based,

vague, and thus do provide for discretionary enforcement based on

subjective analysis by the City Council members." (Compl. ~ 58.)

With respect to his as-applied claim, Plaintiff Dowd claims that

the City violated his First Amendment rights by ejecting him from

a meeting after he stated during a public comment session that

the President Pro Tempore was "pathetic and hopeless and is not

doing a very good job" and complained about the "inextricably

intertwined" language in the ordinance because "there's no

guidelines for what that fucking means."

(Leung Decl. ~ 7.)

Similarly, Saltsburg raises an as-applied claim because he was

ejected from the same meeting after stating during public comment

that one member of the Council was "one of the most shadiest,

most troublesome, problematic council members in the history of

the city itself .

(Id. )

II. MOTION TO DISMISS

On October 8, 2009, the City filed a motion to dismiss the

facial challenges to LAMC § 42.15 (2008) on the grounds that the

ordinance is constitutional on its face. For the reasons

discussed further below with respect to Plaintiffs' motion for a

preliminary injunction, the Court concludes that Plaintiffs'

facial challenges to the permitting system and the amplified

sound ban have merit. Therefore, the motion to dismiss is DENIED

with respect to those claims. However, because Plaintiffs' lack

standing to raise a facial challenge to the vending ban on

vagueness grounds, the Court GRANTS the motion to dismiss with

respect to that claim.

A. Legal Standard

A complaint will survive a motion to dismiss when it

"contain[s] sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face." Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009)

Twombly, 550 U.S. 544, 570 (2007)).

(quoting Bell Atl. Corp. v.

When considering a 12(b) (6)

motion, a court must "accept as true all allegations of material

fact and must construe those facts in the light most favorable to

the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000). Although a pleading need not include "detailed factual

allegations," it must be "more than an unadorned, the-defendant-

unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949.

Conclusory allegations or allegations that are no more than a

statement of a legal conclusion "are not entitled to the

assumption of truth." Id. at 1950. Where, as here, the

plaintiff is proceeding pro se, the Court applies the motion to

dismiss standard against the backdrop of the general rule that

courts liberally construe the pleadings of pro se litigants. See

Haines v. Kerner, 404 U.S. 519, 520 (1972).

B. Facial Void-for-Vagueness Challenge

The City moves to dismiss Plaintiffs' facial, void-for-

vagueness challenge to LAMC § 42.15(C)'s vending ban. Plaintiffs

appear to challenge the vending ban on the grounds that its

exception for expressive items that are "inextricably

intertwined" with the speaker's message renders the regulation

unconstitutionally vague.

"A government regulation may be unconstitutionally vague for

two reasons. First, the regulation may fail to give persons of

ordinary intelligence adequate notice of what conduct is

proscribed; second, it may permit or authorize 'arbitrary and

discriminatory enforcement.'" G.K. Ltd. Travel v. City of Lake

Oswego, 436 F.3d 1064, 1084 (9th Cir. 2006) (citation omitted).

"'[T]hese vagueness concerns are more acute when a law implicates

First Amendment rights and, therefore, vagueness scrutiny is more

stringent.'" Id. (quoting Cal. Teachers Ass'n v. State Bd. of

Educ., 271 F.3d 1141, 1150 (9th Cir. 2001)).

In order to satisfy the Article III case or controversy

requirement, a plaintiff must establish that it has suffered a

constitutionally cognizable injury-in-fact. Lujan v. Defenders

of Wildlife, 504 u.S. 555, 560-61 (1992) (stating that the

"irreducible constitutional minimum of standing contains three

elements: (1) injury-in-fact, (2) causation, and (3) a likelihood

that a favorable decision will redress plaintiff's injury"). It

is true that with respect to laws that implicate First Amendment

rights, "[iJn an effort to avoid the chilling effect of sweeping

restrictions, the Supreme Court has endorsed what might be called

a 'hold your tongue and challenge now' approach rather than

requiring litigants to speak first and take their chances with

the consequences." Cal. Pro-Life Council, Inc. v. Getman, 328

F.3d 1088, 1094 (9th Cir. 2003) (quotation marks and citation

omitted). Thus, a plaintiff will have standing to challenge a

vague statute if she has "suffered the constitutionally

recognized injury of self-censorship." Id.at 1095.

But, the Ninth Circuit has not "suggest [ed] that any

plaintiff may challenge the constitutionality of a statute on

First Amendment grounds by nakedly asserting that his or her

speech was chilled by the statute. The self-censorship door to

standing does not open for every plaintiff." Id.Rather, "[t]he

potential plaintiff must have 'an actual and well-founded fear

that the law will be enforced against him or her. ,,, Id.

(internal citation and alteration omitted). "In the free speech

context, such a fear of prosecution will only inure if the

plaintiff's intended speech arguably falls within the statute's

reach." Id.

Here, the Court concludes that Plaintiffs lack standing to

challenge the vending ban as void for vagueness.

First, the

Plaintiffs engage in activities that do not fall within the ambit

of the anti-vending regulations, as they are street performers

who engage in traditional expressive speech, vend expressive

items they have created, and sell recordings of their own

performances.

In fact, none of the Plaintiffs claims to have

been chilled from performing or vending any items based on the

anti-vending regulations; rather, they all claim to have been

chilled by discriminatory enforcement of other provisions of the

ordinance not at issue here.

(See, e.g.Comp I . <]I 47 ("Saltsburg

has quit performing at Venice Beach" after being "harassed by the

police for performing on a street"); id.'j[ 48 ("Demian has been

forced to quit his expression at times, because upon arrival at

the Boardwalk, he finds spaces filled, and the queue of waiting

performers would stretch beyond sunset, whereupon his performance

would be in violation of the rules").)

Insofar as the Plaintiffs allege they have suffered any

injury at all based on the ordinance's use of the phrase

"inextricably intertwined," they complain that the City "has

oversubscribed the I zone lottery, with vendors who mayor may

not qualify as 'intertwined, '" and that, as a result, "many of

the more traditional vendors who sell

. photos and paintings,

have moved back into the P zone, into the P zone lottery, and are

taking spaces which are amplifier only blocks."

(Compl. 'j[ 25.)

In other words, Plaintiffs have not claimed that they are chilled

from engaging in expressive activity because they fear that the

vending ban will be enforced against them. Rather, they

apparently fear that it is not being enforced with sufficient

frequency against others, which results in increased competition

for the P-Zone spaces they seek to use. This is not the type of

injury that would permit Plaintiffs to challenge the vending ban

on vagueness grounds. Therefore, the Court GRANTS the City's

motion to dismiss Plaintiffs' facial void-for-vagueness challenge

to the vending ban and its exception for expressive items

"inextricably intertwined" with the speaker's message.2

II. MOTION FOR PRELIMINARY INJUNCTION

A. Legal Standard

The Supreme Court recently set forth the standard for

assessing a motion for a preliminary injunction in Winter v.

Natural Resources Defense Council, Inc., - - - U.S. - - - 129 S.

Ct. 365, 376 (2008). "Under Winter, plaintiffs seeking a

preliminary injunction must establish that (1) they are likely to

succeed on the merits; (2) they are likely to suffer irreparable

harm in the absence of preliminary relief; (3) the balance of

equities tips in their favor; and (4) a preliminary injunction is

in the public interest." Sierra Forest Legacy v. Rey, 577 F.3d

lOIS, 1021 (9th Cir. 2009).

Following the Supreme Court's decision in Winter, the Ninth

Circuit has re-affirmed the vitality of the "serious questions"

approach to preliminary injunctions. Alliance for Wild Rockies

v. Cottrell, - - - F.3d - - -, 2010 WL 2926463 (9th Cir. 2010).

"In other words, 'serious questions going to the merits' and a

However, insofar as the Plaintiffs argue that

the permitting scheme grants unbridled discretion to

licensing officials because of its incorporation of the

"inextricably intertwined" standard, that claim survives

,the City's motion to dismiss.

hardship balance that tips sharply toward the plaintiff can

support issuance of an injunction, assuming the other two

elements of the Winter test are also met." Id.at *4.

When the plaintiff seeks to enjoin a law or regulation that

violates the First Amendment, the courts recognize that "[t]he

loss of First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury." Elrod v.

Burns, 427 U.S. 347, 373 (1976). In addition, the Ninth Circuit

has "consistently recognized the significant public interest in

upholding free speech principles, as the ongoing enforcement of

the potentially unconstitutional regulations would infringe not

only the free expression interests of the plaintiffs, but also

the interests of other people subjected to the same

restrictions." Klein v. City of San Clemente, 584 F.3d 1196,

1208 (9th Cir. 2009). Therefore, if a plaintiff demonstrates

that she is likely to succeed on her claim that the challenged

law or regulation violates the First Amendment, a preliminary

injunction should issue.

A. Rules of Decorum

Plaintiff's seek a preliminary injunction "to enjoin

enforcement of Rule 12 of the Los Angeles City Council Rules of

Decorum" because it "contain[s] vague and impermissible terms,

making [it] facially unconstitutional, and allow[s] for

discretionary and arbitrary enforcement. " (PIs.' Mot.

5:19-21.) Plaintiffs argue that Rule 12 is facially

unconstitutional because it is overbroad and vague.

The Court denies the motion for preliminary injunction

because Plaintiffs are unlikely to succeed on the merits of their

facial challenge to Rule 12.3 In White v. City of Norwalk, 900

F.2d 1421, 1424-25 (9th Cir. 1990), the Ninth Circuit upheld

identical city council rules of decorum against a facial attack.

Although the rules prohibited making "personal, impertinent,

slanderous or profane remarks," the court construed the rules

narrowly to permit removal only "when someone making a proscribed

remark is acting in a way that actually disturbs or impedes the

meeting," and held that "[s]o limited, we cannot say that the

ordinance on its face is substantially and fatally overbroad."

Id.at 1424, 1426. In addition, the court held that "[the same

narrowing construction defeats the plaintiffs' contention that

the terms 'personal, impertinent, slanderous, or profane' are

unconstitutionally vague." rd. at 1426 n.6.

Because Plaintiffs' facial challenge to the rules of decorum

is unlikely to succeed on the merits, a preliminary injunction is

not warranted.

B. Amplified Sound Ban

Plaintiffs also seek a preliminary injunction enjoining the

amplified sound ban. The use of a sound amplification device is

protected by the First Amendment. Saia v. New York, 334 u.s.

Plaintiffs Saltsburg and Dowd also raise as-

applied challenges based on two incidents in which they

were ejected from City Council meetings, and the Court

expresses no opinion on the merits of those claims.

558, 561 (1948). Although Plaintiffs bear "the general burden of

establishing the elements necessary to obtain injunctive relief,

the City has the burden of justifying the restriction on speech."

Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir.

2009). In order for a regulation of amplified sound to comport

with the First Amendment, it must (1) be "'justified without

reference to the content of the regulated speech,'" (2) be

"'narrowly tailored to serve a significant government interest,'"

and (3) "'leave open ample alternative channels for communication

of the information.'" Ward v. Rock Against Racism, 491 u.S. 781,

791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468

u.S. 288, 293 (1984)).

In this case, LAMC § 42.15(F) (4) and the Program Rules ban

the use of amplified sound anywhere on the Boardwalk except in

specially designated P-Zone spaces between 17th Avenue and

Horizon Avenue and between Breeze Avenue and Park Avenue.

Plaintiffs assert that LAMC § 42.15 and the Program Rules "den[y]

the use of amplifiers on twelve out of seventeen blocks on the

Boardwalk."

(Compl. ~ 19.)

"The eight most northern blocks of

(Id.)

Venice Boardwalk have a complete ban on amplified music."

Because "all of the five 'amplifier allowed' blocks are

designated within the P zone, all musicians and performers who

use an amplifier must vie for space within those five blocks."

(Id.) Only fifty-six spaces out of the 205 total spaces on the

Boardwalk permit the use of amplified sound. (rd. ~ 21.)

Plaintiffs argue those fifty-six spaces do not provide ample

alternatives because, "[m]any of the amplifier prohibition blocks

contain .

cafes where Plaintiffs were performing with permits

issued by the City prior to May 2008."

(Id. 'IT 19.)

The Court concludes that Plaintiffs are likely to succeed on

the merits of their claim that the amplified sound ban is

overbroad. The amplified sound ban is content-neutral on its

face. But, even assuming that it leaves open ample alternative

channels for communication, it is not "narrowly tailored to serve

a significant government interest." Ward, 491 u.s. at 791

(internal quotation marks and citation omitted).

The government has an interest in protecting its citizens

from excessive noise that constitutes a public nuisance. Kovacs

v. Cooper, 336 u.s. 77, 87 (1949). Furthermore, the government

has a "significant interest in protecting the integrity of the

home and a person' 5 feelings of well-being, tranquility, and

privacy.'" United States v. Doe, 968 F.2d 86, 88-89 (D.C. Cir.

1992) (quoting Frisby v. Shultz, 487 u.S. 474, 477 (1988)). And

yet, nothing in the Supreme Court's decisions concerning the

government's interest in promoting tranquility "remotely suggests

the existence of any generalized government interest in

maintaining the same level of quiet in all public spaces." Id.

at 89. "Indeed, the very concept of a situs being designated as

a 'public forum' for First Amendment purposes presupposes that

the situs has 'been used for purposes of assembly, communicating

thoughts between citizens and discussing public questions.'" Id.

(quoting Hague v. CIO, 307 U.S. 496, 515-16 (1939)).

The City asks the Court to take judicial notice of the fact

that the portions of Venice Boardwalk subject to the amplified

sound ban are adjacent to residential areas, and argues that it

has a significant interest in "ensuring the safety and enjoyment

of its residents." (Def. 's Opp'n 17:3-8.) In support of its

position, the City cites Kovacs, 336 U.S. at 87, in which the

Court upheld a restriction on amplified sound emanating from

trucks insofar as such sound was loud and raucous. The Court is

not convinced that the government's interest in regulating noise

is a significant interest when it comes to a traditional public

forum like Venice Boardwalk. But, even assuming for the sake of

argument that protecting residents from excessive noise emanating

from the Boardwalk is a significant interest, the total ban on

amplified sound at all hours on the Boardwalk is not narrowly

tailored to serve that interest.

The ban on amplified sound on the Boardwalk does not appear

to materially advance the City's interest in protecting

neighboring residents from unwelcome noise. Plaintiffs argue

that the locations in which they are banned from using amplified

sound "are still noisy because the bars, cafes and shops along

those blocks employ live music or blare out prerecorded music

(Pls.' Mot. 16:20-24.)

Indeed, it appears that the

ordinance applies to public beach lands, beach properties

adjoining the waterfront, and immediately adjacent boardwalks,

sidewalks or public ways, LAMC § 42.15(A), but not to the stores

and restaurants that are located on or near the Boardwalk.

Furthermore, within the residential areas themselves, the

operation of sound amplification equipment for noncommercial

purposes is only prohibited between 4:30 p.m. and 9:00 a.m. LAMC

§ 115.02. As a result, while the plaintiffs would be perfectly

free to actually enter the residential neighborhoods at issue and

use sound amplification equipment prior to 4:30 p.m., they would

be prohibited from using the same equipment farther away at the

Boardwalk. For these reasons, the amplified sound ban on the

Boardwalk bears little relation to the stated purpose of

protecting neighboring residents from excessive noise.

At the same time, the amplified sound ban "burdens

substantially more speech than is necessary" to further the

government's stated interest. Ward, 491 u.s. at 799. The ban

applies at all times, even during the day when many residents are

likely at work or otherwise out of their homes. In addition, the

City already has several other, more narrowly tailored

regulations of excessive noise that would apply in the absence of

the amplified sound ban on the boardwalk.

41.57 (regulating loud and raucous noise).

See, e.g., LAMC §

The City has offered

no explanation for why the existing regulations are not

sufficient to protect nearby residents from excessive noise and,

if they are not, why the total ban on amplified sound on the

Boardwalk is narrowly tailored to achieve that end.

Other courts have struck down amplified sound restrictions

less sweeping than the total ban on amplified sound on the Venice

Boardwalk. See, e.g., Deegan v. City of Ithaca, 444 F.3d 135 (2d

Cir. 2006) (holding noise regulation as applied to prohibit any

sound that could be heard 25 feet from its source in downtown

pedestrian mall was not narrowly tailored); Doe, 968 F.2d at 89

(holding regulation prohibiting operating an audio device in a

manner exceeding 60 decibels at 50 feet was not narrowly tailored

as applied to Lafayette Park because "[b]y no reasonable measure

does Lafayette Park display the characteristics of a setting in

which the government may lay claim to a legitimate interest in

maintaining tranquility"); Beckerman v. City of Tupelo, Miss.,

664 F.2d 502, 516 (5th Cir. 1981) (holding ban on amplified sound

in residential zones overbroad because "the ordinance extends its

total and non-discretionary prohibition to areas which have not

been shown to be incompatible with sound equipment"); Reeves v.

McConn, 631 F.2d 377, 384 (5th Cir. 1980) (holding amplified sound

ban in downtown business district was not narrowly tailored

because "there is probably no more appropriate place for

reasonably amplified free speech than the streets and sidewalks

of a downtown business district"); Burbridge v. Sampson, 74 F.

Supp. 2d 940, 951 (C.D. Cal. 1999) (Collins, J.) (granting

preliminary injunction against rule banning amplified sound on

community college campus except in three "preferred areas"

because the defendants "failed to rebut Plaintiffs' claim that

the 'preferred areas' do not meet the 'ample alternatives for

communications' requirement for reasonable content-neutral, time

place, and manner regulation"); Lionhart v. Foster, 100 F. Supp.

2d 383 (E.D. La. 1999) (holding that law "regulat[ing] the

production of sound in excess of 55 decibels within 10 feet of

hospitals or churches during posted services" was "unreasonably

overbroad in the context of normal activities on public streets

and in public parks") .

Of course, even in a traditional public forum, reasonable

restrictions on the use of amplified sound are permitted, so long

as they are narrowly tailored to serve a significant government

interest. But, because "streets, sidewalks, parks and other

similar public places are so historically associated with the

exercise of First Amendment rights . access to them for the

purpose of exercising such rights cannot constitutionally be

denied broadly and absolutely." Hudgens v. NLRB, 424 u.s. 507,

515 (1976) (quotation marks and citation omitted). The Cit:y's

absolute ban on the use of amplified sound twenty-four hours per

day on the Boardwalk except in a limited number of specially

designated spaces simply sweeps too broadly and does not

materially advance the City's proffered interest.

Because Plaintiffs are likely to succeed on their claim that

the amplified sound ban is facially overbroad (and because, as

mentioned earlier, the balance of hardships and the public

interest weigh in favor of enjoining regulations that violate the

First Amendment), the Court GRANTS Plaintiffs' motion for

preliminary injunction with respect to LAMC § 43.15 (F) (5).

c. Permit and Lottery System

Plaintiffs seek to enjoin the permit and lottery system on

the grounds that it is an unconstitutional prior restraint.

Plaintiffs argue that the permitting system (1) grants unbridled

authority to "issue permits under the vague term 'inextricably

intertwined' which lacks guidance for issuance, denial and

enforcement," (Pis.' Mot. 13:5-7) and (2) violates Plaintiffs'

right to engage in anonymous and spontaneous speech, (id. 18:15-

20) .

The Ninth Circuit recently struck down a similar, though not

identical, permit system employed by the Seattle Civic Center in

Berger, 569 F.3d at 1029. In 2002, the Seattle Center issued

rules requiring street performers to obtain permits before

performing at the Center and to wear a badge displaying the

permit while performing, as well as a rule limiting street

performances to sixteen designated locations, available on a

first come first served basis. The Court noted that "[t]he

presumptive invalidity and offensiveness of advance notice and

permitting requirements stem from the significant burden that

they place on free speech," in terms of procedural hurdles, as

well as limitations on anonymous and spontaneous speech. rd. at

1037-38. Further, the Court observed that "the Supreme Court has

consistently struck down permitting systems that apply to

individual speakers- as opposed to large groups- in the one

context in which they have been put in place with some

regularity: solicitation of private homes." rd.at 1038. Thus,

"[a]lthough the Supreme Court has not addressed the validity of

single-speaker permitting requirements for speech in a public

forum," the Ninth Circuit held that "it stands to reason that

such requirements would be at least as constitutionally suspect

when applied to speech in a public park, where a speaker's First

Amendment protections reach their zenith, than when applied to

speech on a citizen's doorstep, where substantial privacy

interests exist." rd.at 1039.

The court held that the Center's permitting requirement

failed the narrow tailoring requirement for several reasons. rd.

at 1041. The court rejected the argument that the permitting

system promoted the government's interests in (1) deterring

wrongful conduct by threatening the loss of a permit and (2)

identifying rulebreakers and notifying them of alleged

violations. The Court held that such goals could be accomplished

just as effectively by requiring a person observed violating the

rules to identify herself and an after-the-fact penalty, such as

the loss of the right to perform or a fine. The court held that

the permitting system was an impermissible prior restraint

because the "state could achieve its purported goal of protecting

its citizens from wrongful conduct by punishing only actual

wrongdoers, rather than screening potential speakers .

Id. at 1044.

The Court noted, however, that "[aJlthough we do not uphold

the Center's designation of sixteen performance locations in the

present record .

. we also hold that the delineation of

performance areas, particularly in the most sought-after locales,

might pass constitutional muster on a more developed factual

record." Id. at 1045.

"If so, a valid designated-location plan,

in combination with the City's existing first-come-first-served

rule, would achieve the same improvements in the coordination of

multiple uses without a permitting system as it would with one."

Id. "Conversely, if the designation of performance locations is

not constitutionally valid, then the permitting scheme cannot be

justified as enhancing the enforcement of an invalid

designation." Id.

The permitting and lottery system in this case differs in

several respects from the system struck down in Berger. First,

street performers may still perform anywhere else on the

Boardwalk, although they are limited in terms of what items they

can use (i.e., push-carts and tables). Second, the lottery

system assigns spaces to a particular person (or large

performance group) for a particular day. However, after 12:00

p.m. each day any person, with or without a permit, may use an

unoccupied p-zone space and any person with an I-zone permit may

use an unoccupied I-zone space, so long as she relinquishes the

space should the lottery winner return. Third, insofar as an

applicant seeks an I-zone permit, she is required to disclose (1)

her name and mailing address, (2) a description of the goods or

merchandise for which she seeks a permit, and (3) a declaration

that the goods or merchandise are expressive items inextricably

intertwined with the applicant's message.

In light of the Ninth Circuit's ruling in Berger, the Court

concludes that Plaintiffs are likely to establish that the

permitting system is not narrowly tailored to promote a

significant government interest. The Court is mindful of the

fact that the City has made significant efforts to bring the

ordinance into compliance with the First Amendment, and the Court

has been involved in that process through settlement negotiations

in prior litigation. However, intervening authority makes it

likely that the permitting system fails constitutional muster.

The Ninth Circuit in Berger expressly rejected the City's

argument that the permitting system advances its interest in

deterring wrongful conduct and identifying wrongdoers. Id. at

1043-44. The purposes of the permitting requirement are to (1)

"regulate the use of the limited space on the Boardwalk to

prevent conflicting claims for the space and to allocate the

limited space available fairly to all who desire to use it for

lawful purposes," and (2) address a multitude of problems

associated with unregulated commercial vending on the Boardwalk.

LAMC § 42.15(A) (1) (a)-(b). But, as the Ninth Circuit observed in

Berger, 569 F.3d at 1045, "a valid designated-location plan, in

combination with [a] first-come-first-served rule, would achieve

the same improvements in the coordination of multiple uses

without a permitting system as it would with one." This is

especially so in light of the fact that anyone (with or without a

permit) is entitled to use an empty p-zone space on a first-come-

first-served basis after 12:00 p.m., so long as she relinquishes

the space to the permit holder if she returns. There is no

explanation as to why this system manages conflicting claims to

limited space any more effectively than a simple first-come-

first-served rule. Insofar as the City wishes to deter

unregulated vending, "the City need not rely on a pre-

registration scheme to determine the identity and addresses of

problematic" vendors, nor would a system of after-the-fact

enforcement of the anti-vending regulations be any less effective

than a pre-screening requirement. Id.at 1044-45.

In light of the Ninth Circuit's decision in Berger, 569 F.3d

at 1044-45, the Court concludes that the permit requirement is

likely to violate the First Amendment and that, as a result,

Plaintiffs are entitled to a preliminary injunction enjoining the

permit requirement. The Court therefore need not address

Plaintiffs' alternative argument, that the permitting scheme

grants unbridled discretion to licensing officials.

500. MISCELLANEOUS PROVISIONS

Plaintiffs seek to enjoin various other provisions of LAMC §

42.15, including the prohibition on setting up or taking down in

a designated space before 9:00 a.m. and after sunset, the

prohibition on using items over a certain height within the

performance spaces, and the provision that groups in the large

act performance spaces may be rotated every hour. Plaintiffs

have not demonstrated, at this stage, that they are likely to

succeed on the merits of their facial challenges to those

provisions and therefore DENIES the motion for preliminary

injunction as to them.

III. CONCLUSION

For the foregoing reasons, the City's motion is GRANTED IN

PART and DENIED IN PART and Plaintiffs' motion for preliminary

injunction is GRANTED IN PART AND DENIED IN PART. The Court

dismisses Plaintiffs' claim that LAMe §42.15(C)'s vending ban is

void for vagueness because Plaintiffs lack standing to raise such

a claim. The Court GRANTS Plaintiffs' motion for preliminary

injunction with respect to (1) the amplified sound ban and (2)

the permitting and lottery system. The Court orders Defendant to

submit a proposed preliminary injunction consistent with this

Order forthwith.

IT IS SO ORDERED.

Dated: October 21, 2010

DEAN D. PREGERSON

United States District Judge

Blog Los Angeles

Monday, October 25, 2010

MEDIA ALERT: 12 Venice Beach performers beat City of L.A. in FEDERAL COURT over illegal Venice Beach ordinance. 1st Amendment ruling.

Friday, October 22, 2010

IT IS SO ORDERED: Federal Court Order Against The City of Los Angeles (Injuncting Their First Amendment FEDERAL Violations) ATTORNEYS....READ ENTIRE FEDERAL COURT ORDER HERE

BREAKING NEWS: Federal Judge Issues Injunction Over L.A. City's Venice Beach Ordinance Banning Amplified Sound & Entire Lottery and Permit System (STUNNING FEDERAL DEFEAT FOR L.A. CITY HALL!)

Saturday, August 21, 2010

Los Angeles City News for Saturday, August 21, 2010

Sunday, July 25, 2010

MUSIC VIDEO: "Take Back The City, Clean Sweep City Hall" (Politcal Action, Get Out The Vote Song)

Wednesday, February 17, 2010

New York Attorney General Andrew Cuomo "In The Matter of WETHERLY CAPITAL" (24 Page INVESTIGATION Document)

Contributors

Blog Archive