First Vagabonds Church Of God v. City Of Orlando ( 2010 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 06, 2010
No. 08-16788 JOHN LEY
________________________ CLERK
D. C. Docket No. 06-01583-CV-ORL-31-KRS
FIRST VAGABONDS CHURCH OF GOD,
an unincorporated association,
BRIAN NICHOLS,
ORLANDO FOOD NOT BOMBS,
an unincorporated association,
RYAN SCOTT HUTCHINSON,
BENJAMIN B. MARKESON,
ERIC MONTANEZ,
ADAM ULRICH,
Plaintiffs-Appellees-Cross Appellants,
versus
CITY OF ORLANDO, FLORIDA,
Defendant-Appellant-Cross Appellee,
NATIONAL LAW CENTER ON
HOMELESSNESS & POVERTY,
Amicus.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(July 6, 2010)
Before EDMONDSON, BARKETT and BALDOCK,* Circuit Judges.
EDMONDSON, Circuit Judge:
This case is about a local government regulating the manner in which some
of its parks are used. We decide whether the City of Orlando’s Large Group
Feeding Ordinance, as applied to First Vagabonds Church of God and Orlando
Food Not Bombs, violates the First and Fourteenth Amendments to the United
States Constitution. We also decide whether the ordinance, as applied to First
Vagabonds Church of God, violates the Florida Religious Freedom Restoration
Act. We conclude that, in the circumstances of this case, the ordinance does not
offend the United States Constitution or violate the Florida Religious Freedom
Restoration Act. We affirm the district court’s judgment in part and reverse it in
part. We vacate the district court’s permanent injunction that barred enforcement
of the ordinance.
*
Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
2
I. BACKGROUND
Plaintiff First Vagabonds Church of God is a Christian church; Plaintiff
Brian Nichols is the church’s pastor.1 The Church’s congregation consists of
approximately forty members, most of whom are homeless. Because the Church
has no building, Pastor Nichols holds services every Sunday at Langford Park in
Orlando. The Church serves food to its members as a part of its religious services.
Plaintiff Orlando Food Not Bombs is a loosely structured organization of
political activists who share the view that society has a responsibility to provide
food to all of its members; Plaintiffs Ryan Hutchinson, Eric Montanez, Benjamin
Markeson, and Adam Ulrich are members of the organization.2 OFNB conducts
food-sharing events at Lake Eola Park, Orlando’s signature park, where OFNB
provides free food to hungry and homeless persons.
Defendant is the City of Orlando (“the City”). After getting complaints
about large numbers of homeless people disbursing from Lake Eola Park into
neighborhoods after feeding events, the City enacted the Large Group Feeding
Ordinance (the “Ordinance”).3 The Ordinance requires anyone conducting a “large
1
We refer to the church and its Plaintiff-pastor collectively as “the Church.”
2
We refer to the organization and its Plaintiff-members collectively as “OFNB.”
3
A copy of the Ordinance appears in the appendix of this opinion.
3
group feeding” within the Greater Downtown Park District (“GDPD” or “the
District”) to obtain a permit first.4 The District is the area within a two-mile radius
around Orlando’s City Hall and encompasses fewer than half of the City’s parks.
A “large group feeding” is defined as an “event intended to attract, attracting, or
likely to attract 25 or more people, including distributors and servers, in a park or
park facility owned or controlled by the City, including adjacent sidewalks and
rights-of-way in the GDPD, for the delivery or service of food.”5
The Ordinance limits the number of permits a person, group, or organization
can obtain for a single park within the District to two per consecutive 12-month
period. Because both Lake Eola Park and Langford Park are located in the District,
the Ordinance affected the activities of both OFNB and the Church. To comply
with the Ordinance and continue to serve food in Orlando’s parks regularly, both
groups will need to rotate their events among the parks in the District or move to a
park outside of the District.
In federal court, the Plaintiffs brought six claims against the City. The
Church alleged that the Ordinance, as applied to them, violates the Florida
Religious Freedom Restoration Act (“FRFRA”), Fla. Stat. § 761.01 et seq., and
4
Violations of the Ordinance are punishable by a fine of up to $500 or 60 days of
imprisonment.
5
The Ordinance excludes the “activities of City licensed or contracted concessionaires,
lessees, or licensees” from this definition.
4
that the Ordinance, facially and as applied to them, violates the First Amendment’s
Free Exercise Clause. OFNB alleged that the Ordinance, both facially and as
applied to them, violates the First Amendment’s Free Speech Clause.6 Both
Plaintiffs alleged that the Ordinance, facially and as applied to them, violates their
rights under the First Amendment’s Free Assembly Clause and the Fourteenth
Amendment’s Due Process and Equal Protection Clauses.7
The district court granted the City summary judgment on both the due
process and equal protection claims. In its summary judgment order, the district
court also rejected OFNB’s facial free speech claim because “the conduct regulated
by the ordinance is not, on its face, an expressive activity.”8 The district court,
6
Both OFNB and the Church alleged a free speech claim in their complaint; but before
trial, the parties filed a joint stipulation clarifying that only OFNB was bringing a free speech
claim.
7
Some confusion exists in this case about whether Plaintiffs also asserted a claim that the
City violated their rights to expressive association under the First Amendment. The only
reference to a First Amendment right of association in the pertinent Amended Complaint is in
the context of a broader, single paragraph in the Facts section. That paragraph states that the
City has “deprived Plaintiffs of their constitutional rights to free speech, free assembly and
association, free exercise of religion, equal protection under the law and due process.” The
Amended Complaint’s Causes of Action section does not list a cause of action for a violation of
the right to expressive association, but does list a cause of action for each of the other
constitutional rights at issue in this case. Given the subtlety of how this issue was put to the
district court in the pleadings, briefing, and otherwise, the district court did not err in concluding
that no expressive association claim was being seriously pressed by the parties; and we will not
decide the claim for the first time now on appeal. Cf. Davis v. Coca-Cola Bottling Co. Consol.,
516 F.3d 955, 972-75 (11th Cir. 2008); Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.
2001) (“[D]iscrete claims should be plead in separate counts.”).
8
OFNB does not challenge this determination on appeal.
5
without a jury, then held a two-day trial on the remaining issues. At the close of
the Plaintiffs’ case, the City made a motion for a judgment on partial findings
pursuant to Fed. R. Civ. P. 52(c); the district court declined then to render
judgment on that motion.
Shortly after trial, the district court granted the City’s Rule 52(c) motion for
judgment on the FRFRA claim. Later, the district court entered an opinion and
order ruling in favor of the Church on its free exercise claim, in favor of OFNB on
its as-applied free speech claim, and in favor of the City on the Plaintiffs’ free
assembly claims.9 The district court permanently enjoined the City from enforcing
the Ordinance against Plaintiffs. The City appeals the district court’s conclusions,
after trial, on the free speech and free exercise claims, and the resulting permanent
injunction prohibiting the enforcement of the Ordinance against Plaintiffs. Both
the Plaintiffs appeal the district court’s grant of summary judgment to the City on
their due process (void-for-vagueness) claims. The Church appeals the district
court’s grant of summary judgment in favor of the City on its equal protection
claim, as well as the district court’s conclusion, under Rule 52(c), that the
Ordinance does not violate the FRFRA.
9
Although the Church mentions its free assembly claim in its reply brief, neither Plaintiff
discusses that claim in their initial briefs to this court. The issue is therefore abandoned. See
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 n.1 (11th Cir. 2001).
6
II. DISCUSSION
A. Free Speech Clause
The City appeals the district court’s conclusion that the Ordinance violates
the Free Speech Clause, as applied to OFNB; the district court thought that the
Ordinance regulates expressive conduct but does not further a substantial
government interest. In the circumstances of this case, the feeding Ordinance
regulates no protected expressive conduct; we cannot agree with the district court’s
decision.
We review the district court’s determinations of historical fact for clear
error, but review de novo its conclusions of law and determinations of
“constitutional fact.” See Flanigan’s Enterprises, Inc. of Georgia v. Fulton County,
Ga., 596 F.3d 1265, 1275-76 (11th Cir. 2010). OFNB claims that the Ordinance is
unconstitutional because it requires a permit to engage in large group feedings --
conduct which OFNB claims is sufficiently expressive to count as speech under the
First Amendment -- and limits the maximum number of permits that a person or
organization can obtain to two per year per park. OFNB wishes to conduct
feedings in a single park located in the District more often than the Ordinance will
7
allow.
Conduct that is expressive comes within the First Amendment’s protection.
See Texas v. Johnson, 109 S. Ct. 2533, 2538 (1989). All conduct is not expressive.
Nor is conduct presumptively expressive; the party invoking the First
Amendment’s protection has the burden to prove that it applies. Clark v.
Community for Creative Non-Violence, 104 S. Ct. 3065, 3069 n.5 (1984). To
determine “whether particular conduct possesses sufficient communicative
elements to bring the First Amendment into play,” we have traditionally asked two
things: (1) whether the person seeking the First Amendment’s protection had an
“intent to convey a particularized message”; and (2) whether “the likelihood was
great that the message would be understood by those who viewed it.” Johnson,
109 S. Ct. at 2539 (internal quotation marks omitted). A “narrow, succinctly
articulable message is not a condition of constitutional protection.” Hurley v.
Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338, 2345
(1995). Instead, “in determining whether conduct is expressive, we ask whether
the reasonable person would interpret it as some sort of message, not whether an
observer would necessarily infer a specific message.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004). This inquiry is an objective one.
See id.8
Just because the First Amendment does not require expression delivered via
conduct to meet a level of specificity or clarity does not mean “that an apparently
limitless variety of conduct can be labeled ‘speech’ whenever the person engaging
in the conduct intends thereby to express an idea.” See United States v. O’Brien,
88 S. Ct. 1673, 1678 (1968). The First Amendment only protects “inherently
expressive” conduct; when conduct is “inherently expressive,” it will be
“overwhelmingly apparent” to a reasonable observer that he is viewing a form of
symbolic speech. See Rumsfeld v. Forum for Academic and Institutional Rights,
Inc. (“FAIR”), 126 S. Ct. 1297, 1310-11 (2006). When the objective reasonable
observer is deciding whether he is viewing a form of expression, he is given to
understand factual context and environment.10 Spence v. Washington, 94 S. Ct.
2727, 2730 (1974) (prosecution under statute prohibiting flag desecration: hanging
a flag upside down, with peace symbols made of tape attached to it on both sides,
contemporaneously with the Vietnam War’s Cambodian incursion was protected
expressive conduct). The observer, however, is deaf and blind to explanatory
speech -- T-shirts, buttons, banners, speaking, and so on -- accompanying the
conduct. See FAIR, 126 S. Ct. at 1311 (“If combining speech and conduct were
10
Context and environment mean that the objective reasonable observer has some
awareness of current events, common community practices, the significance of particular
locations, and so on. See, e.g., Johnson, 109 S. Ct. at 2536-37, 2540 (burning flag at political
demonstration during the Republican National Convention is constitutionally protected).
9
enough to create expressive conduct, a regulated party could always transform
conduct into ‘speech’ simply by talking about it.”).
At trial, OFNB asserted that by holding food-sharing events, it intends to
convey the message that society can and should provide food for all of its
members. The district court determined that OFNB’s message is likely to be, and
in fact is, understood by the public based on the following things: (1) Orlando’s
Mayor testified that he personally believed OFNB provided food to the homeless
only to convey its political message; (2) in a video presented by OFNB, a police
officer noted that he realized that the feeding was being held mainly for political
purposes; (3) the testimony at trial established that the likelihood of OFNB’s
message being received is enhanced by its use of signs, T-shirts, and buttons at the
feedings. The district court then concluded that the Ordinance furthers no
substantial government interest.
We accept that OFNB had the requisite expressive intent, but we believe that
the feedings in this case present at most an ambiguous situation to an objective
reasonable observer; the expressive nature of the conduct is not “overwhelmingly
apparent.” We therefore cannot conclude that the likelihood is great that a
reasonable observer would understand OFNB’s conduct of simply feeding people
10
to be truly communicative.11
The circumstances underlying the Supreme Court’s FAIR decision provide
an apt illustration of conduct that, like the conduct here, is too ambiguous to
11
Because this inquiry is an objective one, the video of the police officer and testimony of
the Mayor, relied upon by the district court, are not very helpful. In some circumstances,
evidence about what some people subjectively thought might tend to show what an objective
reasonable observer would think. But this case underscores the potential problem with relying
on evidence of an individual observer’s subjective impressions. Here, the district court relied
upon video evidence of one police officer commenting on the political nature of the feedings.
The video shows this scene: A police officer arrived at a park where a feeding event was
occurring and at which several people with cameras (still and video) and other equipment --
some with media insignia -- were present. As the officer entered the park, he was met by the
chapter president of the ACLU (who identified himself in just that way). The Officer
commented: “It’s really not a big deal. I understand this is more of a political statement than
anything else. I just need to get the names of the groups.” But the record is devoid of evidence
showing why the officer believed that the groups were making a political statement. Did the
officer witness food being served and know by that conduct alone that OFNB was attempting to
convey a political message? Did the officer assume it was a political statement because of the
presence of media? The ACLU? Because of the presence of signs, buttons, or special T-shirts?
What information was he given by his supervisors beyond what he saw at the scene?
The testimony of Mayor Dyer likewise does not help us determine whether an objective
reasonable person would understand the expressive nature of OFNB’s conduct from observing
the conduct. The Mayor testified as follows:
Q: You have stated publicly that you don’t view Orlando Food, Not Bombs, as an
organization that does a service for the homeless; is that right?
A: I don’t know what I’ve said publicly in that regard. I do not consider them homeless
advocates, no.
Q: You – actually, you believed that Orlando Food, Not Bombs, uses the homeless to
serve its political purposes?
A: That’s correct.
This testimony only reflects the Mayor’s subjective view of OFNB as an organization
and, perhaps, OFNB’s intent in participating in the feedings. But the record does not reflect that
the Mayor formed this view as a result of just viewing OFNB’s conduct of feeding people.
11
receive constitutional protection as a form of speech. FAIR involved an
association of law schools and law faculties that sought “to restrict military
recruiting on their campuses because they object[ed] to the policy Congress had
adopted with respect to homosexuals in the military.” 126 S. Ct. at 1302.
Congress reacted to the recruiting restrictions by enacting the Solomon
Amendment, which denied federal funds to educational institutions that did not
provide military recruiters with access equal to that provided to other recruiters.
Id. at 1302.
In FAIR, the schools then claimed, among other things, that the Solomon
Amendment prohibited them from engaging in (according to them) expressive
conduct: treating military recruiters differently with the intent to show disapproval.
Id. at 1310. Before the Solomon Amendment, some “schools ‘expressed’ their
disagreement with the military” by requiring military interviews to take place on
the schools’ undergraduate campuses when other interviews took place on their
law school campuses. Id. at 1310-11. But even though the schools intended to
convey a message of disapproval by placing the military recruiters at a different
location, the Supreme Court unanimously12 concluded that the Solomon
Amendment did not regulate constitutionally protected expressive conduct. Id. at
12
Justice Alito took no part in the decision.
12
1311. The conduct was not protected because, unless a school accompanied its act
with explanatory speech, “[a]n observer who sees military recruiters interviewing
away from the law school has no way of knowing whether the law school is
expressing its disapproval of the military, all the law school’s interview rooms are
full, or the military recruiters decided for reasons of their own that they would
rather interview someplace else.” Id. at 1311.
Like the ambiguous conduct in FAIR, just feeding people in the park is
conduct too ambiguous to allow us to conclude that a great likelihood exists that an
objective reasonable observer would understand that the feeders are trying to
convey a message. Without the assistance of explanatory speech (T-shirts, buttons,
banners, and so on), an objective reasonable observer would not know whether the
group feeding was a family having a reunion, a church intending to engage in a
purely charitable act, a restaurant distributing surplus food for free instead of
throwing it away, or an organization trying to engage in a form of political speech.
See FAIR, 126 S. Ct. at 1311 (“The expressive component of [the conduct] is not
created by the conduct itself but by the speech that accompanies it.”).
The district court here noted: “[T]he testimony at trial established that the
likelihood of the OFNB Plaintiffs’ message being received is enhanced by their use
of signs, T-shirts and buttons.” We accept that finding, but the explanatory speech
13
is actually “strong evidence that the conduct at issue here is not so inherently
expressive that it warrants protection.” Id. We do not say today that the act of
feeding can never, as a matter of law, be sufficiently expressive to receive
constitutional protection (this appeal presents an as-applied challenge); but in the
circumstances of this case, we are unpersuaded that the conduct of simply feeding
people -- the only conduct regulated by the Ordinance -- is expressive for First
Amendment purposes.
B. Free Exercise Clause
The City appeals the district court’s conclusion that the Ordinance, as
applied to the Church, violates the Free Exercise Clause. The Ordinance is a
neutral law of general applicability that serves a rational basis; we cannot approve
the district court’s conclusion to the contrary.
We review de novo the district court’s ultimate conclusion that the
Ordinance violates the Free Exercise Clause. See King v. Richmond County, Ga.,
331 F.3d 1271, 1275 (11th Cir. 2003). “[A] law that is neutral and of general
applicability need not be justified by a compelling governmental interest even if
the law has the incidental effect of burdening a particular religious practice.”
14
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217, 2226
(1993). That the Ordinance is neutral and generally applicable in its restrictions on
feeding is undisputed; the Ordinance therefore needs only to survive rational basis
review. See Combs v. Homer-Center School Dist., 540 F.3d 231, 242-43 (3d Cir.
2008). Under rational basis review, the Ordinance is presumed constitutional.
Deen v. Egleston, 597 F.3d 1223, 1230-31 (11th Cir. 2010). The burden is on
Plaintiffs to prove that the Ordinance is not rationally related to a legitimate
government interest. Id. at 1230. The district court concluded that the Ordinance
lacks a rational basis because “[n]one of the legitimate interests proffered by the
City are served by [the] Ordinance” and “the Ordinance does much more than
incidentally burden Nichols’ congregation.”13
The City contends that the Ordinance furthers its legitimate interest in
improved preservation and management of its parks, including distributing among
parks and their adjacent neighborhoods the impacts of large group feedings. We
accept that the City’s asserted interests are legitimate ones for a municipality. See
Clark, 104 S. Ct. at 3070 (discussing “the Government's substantial interest in
13
The district court appears to have been mistaken about the meaning of the word
“incidental.” By definition, neutral laws of general applicability do not more than incidentally
burden a religious practice. See 7 Oxford English Dictionary 794 (2d ed. 1989) (defining
incidental as “[o]ccurring or liable to occur in fortuitous or subordinate conjunction with
something else of which it forms no essential part; casual”); The Random House Dictionary of
the English Language 966 (2d ed. 1987) (defining incidental as “happening or likely to happen in
an unplanned or subordinate conjunction with something else”).
15
maintaining the parks . . . in an attractive and intact condition”); Sciarrino v. City
of Key West, Fla., 83 F.3d 364, 367-68 (11th Cir. 1996). Although the district
court did not expound on its conclusions in its written order, the record reveals
that the court was unconvinced that distributing the impact of large group feedings
to different parks really advanced the legitimate interest; instead of lessening the
burden on the City’s parks, the district court indicated a belief that the City was
just moving the problem around. And the district court stressed all the potential
park-use problems the Ordinance failed to fix.
But it is far from irrational for the City to conclude that an overall reduction
in the wear and tear of its park resources will result from rotating the park’s
frequent large users among all available parks in the District. Although more
effective means might be available to the City to accomplish its goal of park
preservation, it is not for federal courts to judge the wisdom or effectiveness of an
ordinance on rational basis review; we must uphold the law even if there is an
“imperfect fit between means and ends.” See Egleston, 597 F.3d at 1230-31.
Other legitimate grounds might support an ordinance like this one, but just one
such ground will do. The Ordinance does not fail the rational basis test.
C. Fourteenth Amendment’s Due Process Clause / Void-for-vagueness
16
In their complaint, Plaintiffs raised both a facial and as-applied vagueness
challenge. The district court concluded that the Ordinance was not vague, but did
not specify whether it was addressing the facial or as-applied challenge. Plaintiffs
also do not clearly specify which kind of challenge they are pursuing on appeal.
We review de novo the district court’s conclusion that the Ordinance was
not unconstitutionally vague. United States v. Duran, 596 F.3d 1283, 1290 (11th
Cir. 2010). Because the district court decided this claim on summary judgment, we
take the evidence before the district court at that time in the light most favorable to
Plaintiffs. Chapman v. AI Transport, 229 F.3d 1012, 1026-27 (11th Cir. 2000) (en
banc); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008).
A law is unconstitutionally vague only if it “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so standardless that it authorizes
or encourages seriously discriminatory enforcement.” United States v. Williams,
128 S. Ct. 1830, 1845 (2008).
Language has limits and precision is rarely possible. An ordinance cannot
be expected to address specifically every set of potential facts; a law need not be a
book in length. When passing on the vagueness of a law, we must remember that,
because we are “[c]ondemned to the use of words, we can never expect
mathematical certainty from our language.” Grayned v. City of Rockford, 92 S.
17
Ct. 2294, 2300 (1972). With that in mind, we turn first to Plaintiffs’ as-applied
challenge.
The Ordinance makes it “unlawful to knowingly sponsor, conduct, or
participate in the distribution or service of food at a large group feeding at a park.”
A large group feeding is defined as “an event intended to attract, attracting, or
likely to attract twenty-five (25) or more people.” Plaintiffs contend that applying
the Ordinance to an event that is “likely to attract twenty-five (25) or more people”
fails to give fair notice and encourages discriminatory enforcement. Plaintiffs
produced some evidence that for them to estimate how many people will show up
at a food-sharing event is difficult.
Even if the Plaintiffs are correct that the “likely” provision fails to provide
fair notice on its own, the potential vagueness -- if any -- is cured by the
Ordinance’s “knowingly” scienter requirement. See Hill v. Colorado, 120 S. Ct.
2480, 2498 (2000); United States v. Starks, 157 F.3d 833, 839-40 (11th Cir. 1998).
Under Florida’s rules of statutory interpretation applicable to criminal laws, the
Ordinance provides no liability for a sponsor or participant that is surprised in
good faith about the number of feeding participants at an event: a defendant’s
knowledge that the event is likely -- that is, may be reasonably expected to happen
-- to attract twenty-five or more people is an essential element of the offense. See
18
Polite v. State, 973 So. 2d 1107, 1111-13 (Fla. 2007) (interpreting a criminal law
applicable to “[w]hoever knowingly and willfully resists, obstructs, or opposes any
officer” and concluding that knowledge of the officer’s status is an essential
element of the offense). Put differently, the Ordinance requires the City to prove to
the pertinent fact finder in a trial that the defendant knew that it was probable that
an event would attract twenty-five people or more. That knowledge may
sometimes be hard for the City to prove, but that difficulty does not make the
Ordinance unconstitutionally vague.
Plaintiffs contend that two other provisions of the Ordinance encourage, and
have resulted in, arbitrary and discriminatory enforcement. Their first objection is
to applying the Ordinance to the park’s “adjacent sidewalks and rights-of-way.” In
their complaint, Plaintiffs alleged that they conducted feedings in areas close to,
but not adjacent to, parks on at least six occasions. Plaintiffs produced some
evidence that on one of these occasions, when they were serving food from a
parking space approximately one block away from Lake Eola Park, a police officer
informed them that they were in violation of the Ordinance because they were
“adjacent” to the park.
In most cases, the plain meaning of the word “adjacent” leaves no doubt
about which areas are covered by the Ordinance. See 1 Oxford English Dictionary
19
155 (2d ed. 1989) (defining adjacent as “[l]ying near or close (to); adjoining;
contiguous, bordering”); The Random House Dictionary of the English Language
25 (2d ed. 1987) (defining adjacent as “lying near, close, or contiguous; adjoining;
neighboring”). We suppose that, in a situation like the one described by Plaintiffs,
it might be debatable whether an area one block away from a park is “adjacent” to
the park (although we question whether the Ordinance goes so far). But that a
police officer may have some difficulty applying the Ordinance on the margins
does not nearly establish that the Ordinance delegates to the officers “a virtually
unrestrained power to arrest and charge persons with a violation.” Kolender v.
Lawson, 103 S. Ct. 1855, 1860 (1983) (quoting Lewis v. City of New Orleans, 94
S. Ct. 970, 973 (1974) (Powell, J., concurring)). An ordinance’s constitutionality
does not hang on whether every police officer would understand the ordinance in
the same way in every conceivable factual circumstance. Absolute clarity is too
much to expect from the drafters of laws, and perfect knowledge of the fullest
reach of the laws is too much to expect of even the most reasonable police officers.
The term adjacent provides a sufficiently clear and definite standard to police
officers and prosecutors. See Grayned v. City of Rockford, 92 S. Ct. 2294, 2300-
01 (1972) (“adjacent” to school not impermissibly vague); Cox v. Louisiana, 85 S.
Ct. 476, 482-483 (1965) (“near” the courthouse not impermissibly vague).
20
Plaintiffs second objection -- also anecdotally based -- must suffer a similar
fate. Plaintiffs produced some evidence that, on at least one occasion, police
seemed to operate with the view that the Ordinance was inapplicable if there was a
unique sponsor for every twenty-five people participating in an event. The City
did not operate under this interpretation, however, when it later arrested Plaintiff
Montanez for noncompliance with the Ordinance.14 The Ordinance makes it
unlawful to “sponsor, conduct, or participate” in a large group feeding without a
permit; and it defines a large group feeding as an event attracting twenty-five or
more people. Under the plain language of the Ordinance, therefore, the number of
sponsors per event is not important. Briefly stated, as long as a sponsor conducts a
separate event and fewer than twenty-five people participate in that particular
feeding event, the Ordinance is not triggered. The plain language of the Ordinance
does not prohibit more than one event from occurring at the same time in a park.
For us, this point is the important one about these historic-fact-based
arguments: that an ordinance may have been occasionally misinterpreted or
misunderstood by a few police officers or that different officers had different
interpretations does not render the ordinance unconstitutionally vague. Laws are
not constitutionally infirm simply because a particular police officer’s subjective
14
Plaintiff Montanez was acquitted at trial.
21
opinion about the law turns out to be incorrect. See Joel v. City of Orlando, 232
F.3d 1353, 1360 (11th Cir. 2000) (“We do not find the evidence which Joel
submitted indicating that the ordinance is subject to varying interpretations by City
police officers problematic.”); State v. Raffield, 515 So. 2d 283, 285 (Fla. 1st Dist.
Ct. App. 1987) (“If the statutory language is sufficiently clear, the fact that officials
place different interpretations on the statute does not make the statute void for
vagueness.”).
Here, we suppose that in some cases it may be, in fact, difficult for
enforcement officers to distinguish multiple sponsors holding simultaneous
different feeding events from a single larger event with multiple sponsors: two
different sets of factual circumstances with different legal consequences. “The
problem that [circumstance] poses is addressed, not by the doctrine of vagueness,
but by the requirement of proof beyond a reasonable doubt.” Williams, 128 S. Ct.
at 1846. “What renders a statute vague is not the possibility that it will sometimes
be difficult to determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of precisely what that fact is.” Id. Whether a
sponsor’s event had the requisite number of participants at its event to trigger the
Ordinance is a pure question of fact for a given case, well within the competency
of finders of fact at trial. See id.22
We therefore conclude that Plaintiffs have failed to demonstrate that the
Ordinance is vague as applied to them. About the facial challenge, those kinds of
challenges are disfavored; the general rule is that they are without merit unless a
plaintiff can demonstrate that the law is unconstitutionally vague in all of its
applications, Village of Hoffman Estates, 102 S. Ct. at 1191, or that the law
regulates a substantial amount of conduct protected by the First Amendment,
Williams, 128 S. Ct. at 1845. See also Duran, 596 F.3d at 1290. We have already
concluded that the law is capable of at least one constitutional application because
we have determined that it is not unconstitutionally vague as applied to Plaintiffs.
We have likewise already concluded that the Ordinance does not infringe
Plaintiffs’ First Amendment rights. The Ordinance, on its face, does not regulate a
substantial amount of conduct protected by the First Amendment.15 Plaintiffs’
15
This case is different from Konikov, relied upon by Plaintiffs. Konikov involved a
facial vagueness challenge to a zoning ordinance that, on its face, implicated the core of the First
Amendment by requiring a special use permit to operate a “religious organization” in a
residential zone. 410 F.3d at 1320. Despite directly regulating constitutionally protected
religious conduct, it was unclear to whom the ordinance applied because the ordinance provided
no definition of “religious organization. ” Id. at 1325, 1329-30. There, the plaintiff produced
evidence that two members of the department responsible for enforcing the zoning ordinance --
one of whom was the department’s manager -- differed in their view about how many times a
religious group would need to meet in a week to trigger the ordinance’s applicability. Id. at
1330-31. Because of the core First Amendment values implicated by that case, we concluded
that the plaintiff’s claim showing that the ordinance carried a risk of discriminatory enforcement
should survive summary judgment. Id. at 1330-31. This case does not directly involve the
same sort of core First Amendment concerns; so we should not conduct the same sort of
searching facial review. Konikov does not -- and practically could not -- stand for the
proposition that laws are unconstitutional whenever enforcement officers get confused or
disagree about the precise factual scope of the law.
23
facial challenge must fail.
D. Equal Protection Clause
The Church appeals the district court’s determination on summary judgment
that the Ordinance does not violate the Equal Protection Clause by exempting from
the definition of “Large Group Feeding” the “activities of City licensed or
contracted concessionaires, lessees, or licensees.” We review de novo the district
court’s decision. See United States v. Johns, 984 F.2d 1162, 1163 (11th Cir.
1993). “The Equal Protection Clause requires the government to treat similarly
situated persons in a similar manner.” Leib v. Hillsborough County Pub. Transp.
Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009).
As the Church notes in its brief, because the distinction drawn by the law
(those with City licenses or contracts, and those without them) does not involve a
suspect classification, the rational basis test applies. Id. at 1306. Even if we accept
for the sake of discussion that the exempted vendors and the general public are
otherwise similarly situated, a rational basis exists for distinguishing between the
two classes consistent with the City’s asserted interests: the City could rationally
conclude that it can more effectively regulate the vendors’ conduct in parks
24
directly through the contracts or licenses. The vendor exemption does not violate
the Equal Protection Clause.
E. Florida Religious Freedom Restoration Act
The Church appeals the district court’s conclusion that the Ordinance does
not violate state law: the FRFRA. The district court determined that the Church
shares food during religious services pursuant to a sincerely held religious belief,
but concluded that the Ordinance does not substantially burden the Church’s
exercise of that practice. We agree with the district court that the Ordinance
imposes no substantial burden on the Church.
We review the district court’s factual findings for clear error, Mitchell v.
Hillsborough County, 468 F.3d 1276, 1282 (11th Cir. 2006); but we review de
novo its ultimate conclusion about whether the Ordinance violates the FRFRA, see
Lawson v. Singletary, 85 F.3d 502, 511-12 (11th Cir. 1996) (discussing the
standard of review applicable under a similar federal statute).
“The protection afforded to the free exercise of religiously motivated
activity under the FRFRA is broader than that afforded by” the United States
Constitution. Warner v. City of Boca Raton, 887 So. 2d 1023, 1032 (2004). Under
25
the FRFRA, a neutral law of general applicability must satisfy strict scrutiny when
it “substantially burden[s] a person’s exercise of religion.” Id. An “exercise of
religion” is “an act or refusal to act that is substantially motivated by a religious
belief, whether or not the religious exercise is compulsory or central to a larger
system of religious belief.” Id. A burden on religious exercise is only substantial
if a person is prohibited from engaging in protected religious conduct (or, if the
exercise of religion is a refusal to act, the person is compelled to act). See id. at
1033. Laws that merely inconvenience the exercise of religion do not create a
substantial burden. See id. at 1035. The party claiming a violation of the FRFRA
“bears the initial burden of showing that a regulation constitutes a substantial
burden on his or her exercise of religion.” Id. at 1034.
The district court determined that, to comply with the Ordinance, the Church
would need to limit its services to twice per year, or rotate the services among
parks in the District, or move the services to a park outside of the District.16
Although the district court’s order is not entirely clear to us, the court appeared to
focus on the feasibility of the Church rotating its services among parks within the
16
At trial, the City contended that the Church could also serve food at Sylvia Lane, a site
(apparently a converted parking lot with portable bathrooms) set aside within the District at
which the restrictions of the Ordinance do not apply. The district court determined that this
location was unsuitable. We need not and do not determine whether the district court’s
assessment of Sylvia Lane was correct.
26
District when deciding that the Ordinance imposed no substantial burden. The
Church argued (and produced some evidence) that, if the services had to be moved,
it is possible that some homeless members of the congregation would have
difficulty learning of and traveling to the new location. But the district court found
that the evidence at trial established that: (1) communication with the homeless is
possible (by word-of-mouth); and (2) that the homeless have means of
transportation available (bus service or walking). The district court considered the
burden on the Church and its members “significant,” but not “substantial.” On
appeal, the Church contends that the district court’s factual findings about the
feasability of communication and the availability of transportation are clearly
erroneous in the light of the record.
Even if the Church is correct (which we doubt) that the district court’s two
factual findings are clearly erroneous, we would still conclude that the Church has
not carried its burden under the FRFRA: the ability of the Church to rotate its
services among the District parks is only minimally pertinent to the Ordinance’s
validity. The FRFRA does not provide the Church with a right to conduct its
services at any location it desires; it does not guarantee access to the City’s most
desirable park (or, for that matter, any park at all).17 At most, what the FRFRA
17
The Church seems to acknowledge this principle. The Church makes the following two
concessions in its appellate brief: (1) “Although the facilities at Langford Park suit the needs of
27
does is ensure that the City may not, without a compelling interest, affirmatively
forbid the Church from feeding its members as part of its religious services.18
We assume only for the sake of argument that a congregation of indigents
might present a unique problem under the FRFRA because, if no public space is
available to conduct religious services, a law may have the result, in fact, of
prohibiting the congregation’s religious exercise. But, in such a circumstance, the
FRFRA at most might require the City to provide some alternative public place
where religiously motivated feeding can occur that is “minimally suitable” to that
function. See Abbott v. City of Fort Lauderdale, 783 So. 2d 1213, 1214-15 (Fla.
4th Dist. Ct. App. 2001) (concluding that the trial judge, after determining that a
park rule that prohibited feeding the homeless violated the FRFRA and ordering
the city to provide an alternative space on public property where the feeding could
occur, had the authority to determine whether the alternative space was “minimally
suitable for the purposes intended”). The record in this case reveals that several
parks outside of the District -- where the Ordinance is inapplicable -- contain
FVCG and Nichols well, they do not contend that by using another park with fewer amenities
they would, by definition, be subjected to a substantial burden within the meaning of the
FRFRA”; (2) “FVCG and Nichols are not claiming that the City must build new facilities at its
parks to accommodate their religious worship.”
18
The Church does not contend that Langford Park is of particular religious significance.
28
amenities that make those parks at least minimally suitable for feeding.19
Conducting services at one fixed location outside of the District should
alleviate the Church’s concern about the communication difficulties associated
with informing its indigent members of frequent location changes. And while using
one of the nearby parks outside the District might result in some extra transit time
for the Church’s members (including requiring extra walking if transportation is, in
fact, unavailable), we have earlier said that needing to travel some extra distance is
insufficient to establish a substantial burden.20 The record shows that several
others parks are close to Langford Park. The Church does not contend, nor did the
19
From the record, we conclude that it is an undisputed fact that parks exist outside the
District that are, at least, minimally suited for food service. And we can infer that factual finding
from the record because it is consistent with the district court’s FRFRA decision. See United
States v. Robertson, 493 F.3d 1322, 1334-35 (11th Cir. 2007). Orlando’s Director of Families,
Parks and Recreation, gave testimony about the amenities available at various parks in Orlando -
- both inside and outside the District. Plaintiffs did not attempt to rebut, and the district court
appears to have relied on, that part of the Director’s testimony.
20
In Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1218-19 (11th Cir.
2004), we addressed a challenge by two synagogues to a zoning ordinance under the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”). RLUIPA and FRFRA use equivalent
“substantial burden” standards. See Westgate Tabernacle, Inc. v. Palm Beach County, 14 So. 3d
1027, 1031 (Fla. 4th Dist. Ct. App. 2009). In Midrash, the challenged ordinance established
eight zoning districts, but permitted churches and synagogues in only one (and even then, only if
the church or synagogue obtained a conditional use permit). 366 F.3d at 1219. Because the
members of the synagogues adhered strictly to Orthodox Judaism, they were unable to use cars
or others means of transportation during the Sabbath. Id. at 1221. We rejected the synagogues’
claim that forcing them to locate in the permissible district would substantially burden their
members, even though the extra distance might mean that “congregants who are ill, young or
very old” would be unable to attend services. Id. at 1227-28. We reached this result even
though the synagogues suggested “that the significant decrease in attendance would require them
to cease operations altogether.” Id. at 1227.
29
district court find, that these parks are not at least minimally suitable for the
Church’s services.
The Ordinance does not forbid the Church and its members from engaging
in their religious exercise; at most, the Ordinance imposes some inconvenience by
requiring relocation outside the District. The district court was therefore correct to
conclude that the Ordinance imposes no substantial burden, within the meaning of
the FRFRA, on the Church.
III. CONCLUSION
The Ordinance is constitutional, particularly as applied to both OFNB and
the Church. The Ordinance also does not violate the FRFRA as applied to the
Church. Because the Ordinance is enforceable, the permanent injunction against
its enforcement must be vacated.
AFFIRMED IN PART, REVERSED IN PART, INJUNCTION VACATED.
30
APPENDIX
Sec. 18A.01. Definitions.
The following terms, when used in this Chapter shall have the meanings
respectively ascribed to them in this section:
...
(23) Large Group Feeding is defined as an event intended to attract, attracting, or
likely to attract twenty-five (25) or more people, including distributors and servers,
in a park or park facility owned or controlled by the City, including adjacent
sidewalks and rights-of-way in the GDPD, for the delivery or service of good.
Excluded from this definition are activities of City licensed or contracted
concessionaires, lessees, or licensees.
(24) Greater Orlando Park District (GDPD) is defined as an area within the limits
of the City of Orlando, Florida, extending out a two (2) mile radius in all directions
from City Hall and including all of the parks and park facilities owned or
controlled by the City touched by that radius, in their entirety.
Sec. 18A.09-2. Large Group Feeding in Parks and Park Facilities Owned or
Controlled by the City in the Greater Downtown Park District (GDPD).
Except for activities of a governmental agency within the scope of its
governmental authority, or unless specifically permitted to do so by a permit or
approval issued pursuant to this Chapter or by City Council:
(a) It is unlawful to knowingly sponsor, conduct, or participate in the distribution
or service of food at a large group feeding at a park or park facility owned or
controlled by the City of Orlando within the boundary of the Greater Downtown
Park District without a Large Group Feeding Permit issued by the City Director of
Families, Parks and Recreation or his/her designee.
31
(b) It is unlawful to fail to produce and display the Large Group Feeding Permit
during or after a large group feeding, while still on site, to a law enforcement
officer upon demand. It is an affirmative defense to this violation if the offender
can later produce, to the City Prosecutor or the Court, a Large Group Feeding
Permit issued to him/her, or the group, which was valid at the time of the event.
(c) The Director of Families, Parks and Recreation or his/her designee shall issue a
Large Group Feeding Permit upon application and payment of the application fee
as established by the City. Not more than two (2) Large Group Feeding Permits
shall be issued to the same person, group, or organization for large group feedings
for the same park in the GDPD in a twelve (12) consecutive month period.
(d) Any applicant shall have the right to appeal the denial of a Large Group
Feeding Permit pursuant to appeal procedure in Section 18A.15 with written notice
to the Director of Families, Parks and Recreation and with a copy to the City Clerk.
32
BARKETT, Circuit Judge, dissenting:
The members of Orlando Food Not Bombs (“Food Not Bombs”)1 began
conducting weekly demonstrations in 2005 at a public park located in the heart of
downtown Orlando in order to draw attention to society’s failure to provide food to
all and express their opposition to war. They did so by displaying signs and
wearing buttons and t-shirts with the Food Not Bombs’ logo and anti-war
messages while simultaneously distributing free food to hungry and homeless
persons. Under well-established Supreme Court precedent, Food Not Bombs has
readily demonstrated that this conduct constitutes expressive conduct entitled to
First Amendment protection and, therefore, I dissent.
The majority correctly notes that, to determine “whether particular conduct
possesses sufficient communicative elements to bring the First Amendment into
play, we [ask] whether an intent to convey a particularized message was present,
and whether the likelihood was great that the message would be understood by
those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (internal
quotation marks and alterations omitted). The majority also correctly answers the
first question in the affirmative, concluding that Food Not Bombs established the
1
Orlando Food Not Bombs is an association of political activists affiliated with the
international Food Not Bombs movement. It is undisputed that its members are opposed to war
and violence and share the core belief that food is a right which society has a responsibility to
provide to all.
33
requisite intent to convey a particularized message. However, the majority then
answers the second question – whether the “likelihood was great that the message
would be understood by those who viewed it” – in the negative. I believe this is an
erroneous conclusion because it can only be reached by ignoring integral parts of
Food Not Bombs’ conduct and all the relevant Supreme Court precedent.
The majority claims that Rumsfeld v. Forum for Academic and Institutional
Rights, Inc. (“FAIR”), 547 U.S. 47 (2006), requires that we look only to the act of
distributing food and must be “deaf and blind” to the plaintiffs’ buttons, t-shirts,
and signs that would indicate to a reasonable observer that Food Not Bombs was
expressing a message. But nowhere in FAIR does the Court hold, say, or even
imply that the aspects of the conduct that includes words – the banners, signs, or t-
shirts – cannot be considered in determining whether conduct is expressive under
the First Amendment. Indeed, FAIR did not involve banners, signs, buttons, t-
shirts, words, or any other external object at all that would convey the message.
The conduct at issue in FAIR consisted of a military officer conducting interviews
on the undergraduate campus, period.2 There was simply no way an observer
could tell by seeing the recruiter on an undergraduate campus that the law school
2
The law schools in FAIR wanted to “restrict military recruiting on their campuses
because they object[ed] to the policy Congress ha[d] adopted with respect to homosexuals in the
military” by having military recruiters interview on undergraduate campuses instead of on law
school campuses. FAIR, 547 U.S. at 52-53.
34
was attempting to send a message by excluding military recruiters from the law
school campus while permitting others to recruit there. As the Supreme Court
noted, the expressive purpose of law schools requiring military recruiters to
interview off-campus was not “overwhelmingly apparent” because “[a]n observer
who sees military recruiters interviewing away from the law school has no way of
knowing whether the law school is expressing its disapproval of the military, all
the law school’s interview rooms are full, or the military recruiters decided for
reasons of their own that they would rather interview someplace else.” FAIR, 547
U.S. at 66 (emphasis added and internal quotation marks omitted).
FAIR did nothing to change the clearly established law that the First
Amendment requires us to consider conduct as a whole and in “the factual context
and environment in which it was undertaken . . . .” Spence v. Washington, 418
U.S. 405, 410 (1974).3 Rather, the FAIR Court’s discussion of explanatory speech
clarifies that conduct cannot be turned into protected expressive conduct if its
message must be explained at a separate time and distance from the conduct itself.
The totality of the conduct in FAIR was considered and found wanting.
To reach its result, the majority deconstructs the expressive conduct and
strips it of every component save the act of handing out food; but the Supreme
3
This is because “the context in which a symbol is used for purposes of expression is
important, for the context may give meaning to the symbol.” Spence, 418 U.S. at 410.
35
Court has told us that we must analyze whether conduct is expressive by viewing
what is observable as a whole – not by dividing and isolating it into parts. To use
the Supreme Court’s example: the only way to differentiate a parade or a march –
both clearly protected expressive conduct under the First Amendment – from a
group of people heading to work or simply walking on the street is that a parade or
march involves “[s]pectators line the streets; people march in costumes and
uniforms, carrying flags and banners with all sorts of messages . . . .” Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 591
(1995). Under the majority’s view, the Court in Hurley would have ruled the
parade unprotected because the only relevant conduct was walking, and walking is
not protected expressive conduct. Obviously, that is not the law as Hurley
expressly demonstrates.
Indeed, in every case posing the question of whether conduct is protected
under the First Amendment, the Supreme Court has viewed observable conduct as
a whole, rather than in isolated parts. In Edwards v. South Carolina, 372 U.S. 229,
235 (1963), the Court considered not only that a group of people were marching
but also that they were singing the Star Spangled Banner when it recognized that
their actions “reflect[ed] an exercise of [] basic constitutional rights.” Similarly,
theater is not analyzed as a person or group of people moving and talking or
36
singing, but is understood as drama – and protected by the First Amendment –
when the conduct is viewed as a whole. Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 557-58 (1975). Likewise, in Schacht v. United States, 398 U.S. 58(1970), in which the Court struck down a conviction for unauthorized use of a
military uniform, the Court looked at not just the fact that a person was wearing a
military uniform but also that he was doing so in a theatrical production criticizing
the war in Vietnam.
Here, in “the factual context and environment in which [the conduct was]
undertaken,” a reasonable person viewing Food Not Bombs’ demonstrations would
observe that they (1) take place every week,4 (2) at a centrally located public park,5
(3) in an affluent neighborhood,6 (4) are visibly run by a group whose name itself,
4
In 2005, to draw attention to “society’s failure to provide food and housing to each of
its members and to reclaim public space,” Food Not Bombs began conducting public feedings
every Wednesday at 5:00 p.m. in Lake Eola Park.
5
Lake Eola Park, the chosen location by Food Not Bombs for its events, contributes
significantly to the expression of its message. The district court, therefore, rightly recognized
that Lake Eola Park “is a meaningful location which, from time immemorial, has been the
traditional public forum for free speech.” The City does not dispute that Lake Eola Park, which
is represented on the City’s seal, is its “signature park.”
6
The park is located in a middle- and upper-middle class neighborhood of condominiums
and businesses comprised of the very people Food Not Bombs wishes to reach with its message
– the fortunate or privileged. As a Food Not Bombs member declared, “sharing food with those
who have so little in the midst of those who have so much except concern and compassion for
the least fortunate among them” is a way of sending a message to the fortunate about the social,
economic and political inequalities that pervade society. Cf. Hurley, 515 U.S. at 568 (noting that
parades are “public dramas of social relations” whose “dependence on watchers is so extreme
that . . . if a parade or demonstration receives no media coverage, it may as well not have
happened”) (citation and quotation omitted).
37
Food Not Bombs, conveys an unmistakable message, (5) include activists holding
signs or banners and wearing t-shirts and buttons to reinforce the group’s central
Food Not Bombs message, and (6) involve the distribution of food to the hungry
and homeless in accordance with Food Not Bombs’ purpose. Given the totality of
the activity taking place at the park, a reasonable observer would understand the
intended message that society should use its resources to feed the poor rather than
to fund wars. Thus, it is hardly likely that a reasonable observer might think that
the conduct at issue could be viewed as a “family having a reunion, a church
intending to engage in a purely charitable act, [or] a restaurant distributing surplus
food,” as the majority suggests.7
The conduct at issue in this case is not ambiguous. The message conveyed
by Food Not Bombs’ is “overwhelmingly apparent” to a reasonable observer and
therefore Food Not Bombs’ conduct is protected by the First Amendment.8
7
Furthermore, without any explanation, the majority dismisses the act of sharing food as
one that has no history of symbolic expression. However, sharing food has significant meaning
both in this country’s history (e.g., Thankgiving) and in major world religions (e.g., Passover in
the Jewish tradition, Communion in the Christian tradition).
8
Having determined that the conduct of Food Not Bombs is protected by the First
Amendment, I also agree with the reasoning and conclusion of the district court, reached after
conducting a trial, that the ordinance does not further a substantial government interest. See
First Vagabonds Church of God v. City of Orlando, Fla., 578 F. Supp. 2d 1353, 1360-61 (M.D.
Fla. 2008).
38