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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
2
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
3
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
4
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 .
rr
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 .
rr
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
5
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
6
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.
7
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 .
rr
(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
8
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).
9
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
10
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
11
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
12
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.
13
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
14
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.
15
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.)
16
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
17
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
18
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,
19
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
20
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
21
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
22
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
23
"
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
24
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.
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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.
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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
27
DEAN D. PREGERSON
United States District Judge
1 comment:
Los Angeles City Shelter illegally euthanizes pet animals after four days of stay and charges pet owners 30$ to get rid of their animals. This is cruelty towards innocent animals and lack of consideration. I demand to put an end to illegal murders of animals by euthanasia and to keep animals alive for future adoptions.
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