Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta , 219 F.3d 1301 ( 2000 )

0653
COALITION FOR THE ABOLITION OF MARIJUANA PROHIBITION, Paul D. Cornwell, II,
Plaintiffs-Appellants,
v.
CITY OF ATLANTA, Defendant-Appellee.
No. 99-11385.
United States Court of Appeals,
Eleventh Circuit.
July 27, 2000.
Appeal from the United States District Court for the Northern District of Georgia.(No. 96-00407-CV-1-JEC),
Julie E. Carnes, Judge.
Before COX, BIRCH and BARKETT, Circuit Judges.
BIRCH, Circuit Judge:
The Coalition for the Abolition of Marijuana Prohibition ("CAMP") and its national coordinator, Paul
D. Cornwell, II, (collectively, the appellants) appeal the district court's judgment finding the City of Atlanta
Outdoor Festivals Ordinance of 1994, codified at Atlanta. Ga., Code §§ 138-186 through 138-208 (1994),
(the "1994 Festival Ordinance"), repealed by Atlanta Outdoor Festivals Ordinance of 2000, Atlanta, Ga.Code
§ 99-O-1020 (2000), to be, in part, facially unconstitutional and enjoining the future application of those
unconstitutional portions of the ordinance. The appellants appeal the district court's determination that
portions of the festival ordinance were constitutional. For the reasons that follow, we AFFIRM the holding
of the district court.
BACKGROUND
CAMP is a non-profit organization focused primarily on forming alliances and associating with other
groups concerned with marijuana issues. Additionally, CAMP sponsors the Great Atlanta Pot Festival (the
"Pot Festival"), a direct action event advocating changes in the laws governing marijuana.
CAMP held the Pot Festival in Atlanta's Piedmont Park from 1990 through 1995. Prior to 1995, the
appellants erected a stage with a cover, stage lights and barricades for the use of speakers and musical
performers during the Pot Festival. During the Pot Festival, CAMP distributed printed information regarding
the uses of marijuana and the hemp plant and advocating the repeal of all laws prohibiting the use of
marijuana. CAMP also sold products, such as t-shirts, bearing messages about marijuana. Other vendors sold
food and drinks.
In 1995, the City of Atlanta requested that CAMP apply for an outdoor festival permit.1 The City
explained that, because the Pot Festival had evolved into a larger, more commercial event, attracting
approximately 30,000 attendees and featuring concerts, political speeches, and vendors selling food and
merchandise, it now fell within the 1994 Festival Ordinance's definition of an "outdoor festival."2 When the
appellants complied with the City's request and applied for a festival permit, their application was denied
because the City determined that " 'the previous history of this event indicates to a reasonable certainty that
public safety would be compromised substantially.' " R2-37-5 (quoting Labovitz Dep., Ex. 1, Letter of
February 14, 1995, from Steven Labovitz to Paul Cornwell at 1). The mayor's chief of staff explained that
1
The City had determined in 1991 that the Pot Festival should have been treated as an outdoor festival
within the scope of the festival ordinance and requested that CAMP apply for a festival permit. CAMP
refused and brought the matter before a Fulton County Court. That court allowed the event to proceed
without a festival permit. The City did not request that CAMP apply for a festival permit again until 1995.
2
The 1994 Festival Ordinance defined "outdoor festival" under § 138-187 as the following:
an outdoor public celebration or gathering which involves the use either of public parks or
public streets and which includes entertainment, dancing, music, dramatic productions, art
exhibits, parades or the sale of merchandise, food or alcohol or any combination of such and
which of necessity requires for its successful execution the provision and coordination of
municipal services to a degree significantly over and above that which the city routinely
provides under ordinary everyday circumstances. The definition of outdoor festival does not
include events which are solely parades, footraces or political demonstrations unless such
parade, footrace or political demonstration is proposed as an integral part of a larger festival.
R1-3-Ex. A at 1-2.
2
the permit was denied based on the recommendation of the Atlanta Police Department. The police department
had estimated that in 1994 at least half of the Pot Festival attendees openly smoked marijuana in blatant
defiance of the law and therefore, "[i]n the opinion of police officials monitoring this event, any attempt to
enforce the law on such an occasion would require unusually large numbers of police officers and would be
likely to provoke a civil disturbance." Id.
Upon denial of their application for a festival permit, the appellants exhausted the administrative
appeals process defined in § 138-208 of the 1994 Festival Ordinance. The appellants then filed for a
preliminary injunction, requiring the City of Atlanta to grant them a festival permit. The district court
determined that the appellants' First Amendment rights were not being infringed because they could hold a
political demonstration and concert without a festival permit. Accordingly, the district court denied the
request for a preliminary injunction.
After the 1995 Pot Festival, the appellants filed suit alleging that the 1994 Festival Ordinance was
unconstitutional on its face and as applied to the Pot Festival. Specifically, the appellants argued that the
1994 Festival Ordinance was unconstitutional on its face because it provided unfettered discretion to the
mayor's chief of staff and other public officials when deciding whether to issue a festival permit. After
conducting a two-day trial on the issues, the district court held that "while parts of the Festival Ordinance pass
constitutional muster, other parts, on their face, constitute an impermissible prior restraint on First
Amendment expression." Id. at 6-7.
The district court determined that the 1994 Festival Ordinance was a prior restraint on protected
speech, but was content-neutral on its face. The district court then assessed each section of the 1994 Festival
Ordinance individually to determine whether it passed constitutional muster. First, the district court found
that the definition of an outdoor festival found in § 138-187 did not grant unfettered discretion, was narrowly
tailored to serve a significant government interest, and, therefore, was constitutional. Nonetheless, the district
3
court ordered the City "to set out more specifically those attributes that would bring an event within the
definition of outdoor festival" when revising the 1994 Festival Ordinance. Id. at 26 n. 13.
The district court next considered § 138-203 of the 1994 Festival Ordinance3 and determined that
certain provisions within that section lacked sufficiently objective and definite standards to limit the
discretion of the chief of staff when issuing festival permits. Thus, the district court concluded that "[b]y
allowing the individual charged with enforcing the Festival Ordinance to balance or assign various weights
to this list of subjective, imprecise criteria, § 138-203 fails to restrict the decision-maker's discretion and thus
leaves open the door to unconstitutional, content based discrimination." Id. at 33. Particularly, the district
3
Section 138-203 of the 1994 Festival Ordinance provides:
(a) The chief of staff shall be charged with the responsibility of determining whether or not
a particular applicant shall be granted an outdoor festival permit pursuant to this article, in
consultation with the special events coordinator.
(b) In determining whether to grant or deny a particular permit application, the chief of staff
shall take into account the effect the proposed special events will have upon the environment and the
public health and safety. The chief of staff shall also take into account the frequency with which
such events are held and the convenience of the public in relation thereto. Permits granted pursuant
to this article shall not authorize more than ten calendar days of special events for any particular
applicant per calendar year.
(c) In addition to the criteria in subsections (a) and (b) of this section, in making the decision
whether to grant the permit, the chief of staff shall take into account whether:
(1) The history, if any, of the particular applicants, insofar as it can be determined, indicates their
capability or incapability of executing the planned festival;
(2) Any inconvenience which may be suffered by the general public is outweighed by the potential
benefit to the community as a whole;
(3) Budgetary considerations at the time of the application create such a heavy burden upon the city's
financial resources that it would not be practical to hold the proposed festival at the time requested;
(4) The holding of the festival as planned would create an undue burden upon the personnel resources
of the city; and
(5) The public safety would be compromised substantially.
Atlanta City Code, § 138-203; R1-2-Ex.A at 3.
4
court noted that the following subsections of § 138-203 set forth criteria which allow the chief of staff to
exercise an impermissible degree of discretion when approving applications for outdoor festival permits: §
138-203(b) requires the chief of staff to "take into account the effect the proposed special events will have
upon the environment and the public health and safety" and provides for balancing "the convenience of the
public in relation to the frequency with which an event is held," § 138-203(c)(2) requires the chief of staff
to consider whether "[a]ny inconvenience which may be suffered by the general public is outweighed by the
potential benefit to the community as a whole," and § 138-203(c)(5) provides for consideration of whether
"[t]he public safety would be compromised substantially." Id. at 29-30.
The district court also considered the criteria in § 138-203(c)(1) requiring consideration of whether
"[t]he history, if any, of the particular applicants, insofar as it can be determined, indicates their capability
or incapability of executing the planned festival." R2-37-31. The district court found that "it is a much closer
question whether this provision fails to provide definite and precise standards on which to condition the grant
of a festival permit." Id. Therefore, it "d[id] not determine ... whether or not this provision is
unconstitutionally vague," but, nonetheless, suggested that the City should make this provision more precise
when it revised the 1994 Festival Ordinance. Id. at 32.
Turning to §§ 138-204(a) and (b), the district court found that the requirement that the chief of staff
"deny an application if the applicant 'proposes to limit the use of public street by pedestrians using the streets
to move from location to location or if the applicant proposes to limit the use of public parks when use of the
parks by the general public shall not unreasonably disturb the activities of the planned festival,' " id. at 34,
was "neither overbroad nor vague; indeed, its permit requirement is linked to a practical justification and is
narrowly tailored to meet this justification." Id. at 35. The district court also noted that the section's
provision granting the chief of staff authority to regulate street closings applied only after an applicant's
permit had been approved and, thus was not unconstitutional on its face. Therefore, the district court found
that § 138-204 passed constitutional muster.
5
The district court then analyzed § 138-205 which requires an applicant to pay a permit fee and
sanitation deposit in order to obtain an outdoor festival permit. These fees are calculated based on a sliding
scale utilizing the applicant's estimate of the anticipated attendance and the city's estimate of the extra
personnel hours it will expend to accommodate the festival. Section 138-205 also requires the applicant to
reimburse the City for the cost of excess man hours and services actually provided by the city in support of
the event which exceed those covered by the initial permit fee. The district court concluded that "the
imposition of fees by § 138-205 does not unconstitutionally burden the free expression of speech. A
municipality can impose a reasonable fee on certain kinds of expressive activities to recover its costs, so long
as the charge imposed does not exceed the administrative costs of regulating the protected activity." Id. at
36. While the district court found that § 138-205's fee schedule was "reasonable and content neutral," id. at
38, it did caution the city that requiring the chief of police to approve the applicant's security plan for the
event, including the number of off-duty police officers the applicant will hire to provide security for the event,
"could confer improper discretion to the Police Department to determine the amount of police support a
festival sponsor must retain prior to the event," id. at 40 n. 19. The district court "advise[d] the City to
address in greater detail the content-neutral bases by which the security supervisor and a festival sponsor
should structure their discussions about the scope of security required for an event, if and when the City
re-evaluates the 1994 Festival Ordinance." Id. at 40-41 n. 19.
Finally, the district court determined that § 138-208 was facially unconstitutional. This section
requires that the mayor make a final decision regarding the grant of a festival permit to an applicant at least
five days before the event's scheduled date. The district court found that this deadline allowed the City to
effectively " 'kill' the event by its inaction on the administrative appeal." Id. at 43. Therefore, the district
court concluded that the administrative appeal mechanism provided by § 138-208 does not provide adequate
procedural safeguards and does not guarantee prompt, final judicial review.
6
The district court also considered whether the 1994 Festival Ordinance had been unconstitutionally
applied to the Pot Festival, but determined that the question was moot because the court was striking down
the provisions in question as facially unconstitutional. Finally, the district court issued a permanent
injunction preventing the City from applying those provisions of the 1994 Festival Ordinance which it had
found to be unconstitutional. The injunction allowed the city to continue to use those portions of the 1994
Festival Ordinance that remained valid; however, because the ordinance remaining after striking the
unconstitutional portions was jumbled and difficult to understand, the district court ordered the City to enact
a new festival ordinance prior to December 31, 1999. This deadline was subsequently extended through
March 1, 2000.
Prior to the enactment of a new festival ordinance, the appellants filed this appeal. They contest the
district court's conclusion that portions of the 1994 Festival Ordinance are constitutional, specifically sections
138-187, 138-204, and 138-205.4 The appellants argue that the 1994 Festival Ordinance is content-based,
does not allow effective access to public fora, and is not the least restrictive means for regulating the
appellant's First Amendment conduct. The appellants also argue that the permit fees required by the 1994
Festival Ordinance are not nominal and are manipulated to accomplish content-based restriction of First
Amendment activity. Finally, the appellants contend that the district court erred by failing to exercise
supplementary jurisdiction over their Georgia Constitutional claims.
4
The district court refused to determine whether § 138-203(c)(1) was "unconstitutionally vague." R2-37-
32. However, it also did not specifically find that subsection 138-203(c)(1) was constitutional. Therefore,
we do not include this subsection as a part of the appellant's challenge to the district court's determination that
portions of the 1994 Festival Ordinance passed constitutional muster. Accordingly, we do not consider
whether subsection 138-203(c)(1), as revised, is constitutional. Similarly, the district court cautioned the City
that § 138-205's requirement regarding the use of off-duty police officers as a part of the festival applicants'
security could confer improper discretion of the Police Department to determine the amount of police support
required for a festival; however, the appellants do not raise this portion of the ordinance on appeal.
Therefore, we do not consider the revised requirements for a security plan in the 2000 Festival Ordinance and
express no opinion regarding their constitutionality. We leave it to the appellants, if they so desire, to
challenge these provisions in the district court.
7
While this appeal was pending, the Mayor of Atlanta, on March 9, 2000, signed a new outdoor
festival ordinance, Ordinance Number 99-O-1040. See Letter Brief of the Defendant-Appellee dated March
31, 2000 (with copy of Ordinance Number 99-O-1040).5 This new ordinance, styled the Atlanta Outdoor
Festival Ordinance 2000 (the "2000 Festival Ordinance"), repealed the 1994 Festival Ordinance and purported
to correct those portions of it that the district court found unconstitutional and make clearer the remaining
portions of the festival ordinance.
DISCUSSION
I. JUSTICIABILITY
As an initial matter we must address the question of justiciability. Article III of the Constitution
requires an actual case or controversy to support the exercise of judicial power. "Three strands of
justiciability doctrine—standing, ripeness, and mootness—play an important role in the determination of
whether the plaintiff-appellants' case against the [City] presents an Article III case or controversy." Socialist
Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir.1998).
A. Standing
Citing City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-56, 108 S. Ct. 2138, 2143,
100 L. Ed. 2d 771 (1988) and United States v. Gilbert, 130 F.3d 1458, 1462 (11th Cir.1997), the district court
found that the appellants had standing to bring a facial challenge against the 1994 Festival Ordinance because
they were subject to the licensing ordinance, they alleged that it provided the government unbridled
discretion, and the ordinance could lead to content-based discrimination of constitutionally protected speech.
Similarly, we agree with the district court that the appellants have proper standing to launch a facial challenge
against the 2000 Festival Ordinance because the appellants seek to engage in constitutionally protected speech
that the 2000 Festival Ordinance attempts to restrict. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
504, 105 S. Ct. 2794, 2802, 86 L. Ed. 2d 394 (1985).
5
Hereinafter, we will cite to the document as Ordinance No. 99-O-1040.
8
B. Mootness
There must be a "present, live controversy in order to 'avoid advisory opinions on abstract
propositions of law.' " Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater ("Church of
Scientology I"), 777 F.2d 598, 604 (11th Cir.1985) (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S. Ct. 200, 201-
02, 24 L. Ed. 2d 214 (1969) (per curiam)). " '[W]hen the issues presented are no longer "live" or the parties
lack a legally cognizable interest in the outcome,' " the case has become moot. County of Los Angeles v.
Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979) (quoting Powell v. McCormack, 395
U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969)). As the Supreme Court recently noted, "[t]he
underlying concern is that, when the challenged conduct ceases such that ' "there is no reasonable expectation
that the wrong will be repeated," ' then it becomes impossible for the court to grant ' "any effectual relief
whatever" to [the] prevailing party.' " City of Erie v. Pap's A.M, --- U.S. ----, 120 S. Ct. 1382, 1390, 146
L. Ed. 2d 265 (2000) (citations omitted) (alteration in original). When a case has become moot, we do not
consider the merits presented, but instead vacate the judgments below with directions to dismiss even if a
controversy did exist at the time the district court rendered its decision. See United States v. Munsingwear,
Inc., 340 U.S. 36, 39-40, 71 S. Ct. 104, 106-07, 95 L. Ed. 36 (1950).
When a subsequent law brings the existing controversy to an end " 'the case becomes moot and
should be treated accordingly.' " Church of Scientology I, 777 F.2d at 605 (concluding that the issue of an
ordinance's validity was moot when the ordinance had been repealed by the enactment of new ordinance prior
to the district court's consideration of the challenged, repealed ordinance and the district court reviewed the
repealed ordinance rather than the newly enacted ordinance) (quoting United States v. Alaska S.S. Co., 253
U.S. 113, 116, 40 S. Ct. 448, 449, 64 L. Ed. 808 (1920)).6 Generally, when an ordinance is repealed any
6
We note that the considerations that compelled our conclusion that the case in Church of Scientology
I was moot, see 777 F.2d at 604-06, are not present in this case. In Church of Scientology I the entire
challenged ordinance was repealed and replaced with a new ordinance prior to consideration by the district
court. Despite receiving timely notice of this change, the district court proceeded to declare the repealed
ordinance unconstitutional and enjoined its enforcement. Therefore, we determined that the issue of the
9
challenges to the constitutionality of that ordinance become moot. See Church Scientology Flag Serv., Org.,
Inc. v. City of Clearwater ("Church of Scientology II"), 2 F.3d 1509, 1511 (11th Cir.1993) (explaining that
we vacated a district court's order concluding that a former municipal ordinance was facially unconstitutional
and enjoining its enforcement because it analyzed only the prior ordinance, which had been repealed and
replaced by a currently effective ordinance). Nonetheless, when an ordinance is repealed by the enactment
of a superseding statute, then the "superseding statute or regulation moots a case only to the extent that it
removes challenged features of the prior law. To the extent that those features remain in place, and changes
in the law have not so fundamentally altered the statutory framework as to render the original controversy
a mere abstraction, the case its not moot." Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th
Cir.1992) (holding that amendments to challenged regulations did not moot the plaintiff's request for
injunctive relief). Accord Northeastern Fla. Chapter of Associated Gen. Contractors of America v. City of
Jacksonville, Fla., 508 U.S. 656, 661-62, 113 S. Ct. 2297, 2300-01, 124 L. Ed. 2d 586 (1993) (holding that
repeal of a challenged ordinance and enactment of a replacement statute after the Supreme Court granted
certiorari, but before it issued a decision did not render the case moot because the new statute disadvantaged
the plaintiffs "in the same fundamental way").7 Therefore, in order to determine whether the controversy
presented on appeal is moot, we must " 'stop, look, and listen' to determine the impact of changes in the law."
Naturist Soc'y, Inc., 958 F.2d at 1520 (quoting Kremens v. Bartley, 431 U.S. 119, 135, 97 S. Ct. 1709, 1718,
52 L. Ed. 2d 184 (1977)).
repealed ordinance's constitutionality was moot at the time that the district court considered it. We noted that
"[t]he proper course of action would have been to allow the plaintiffs to amend their complaints and proceed
to litigate the ordinance then in effect." Id. at 605-06. See also id. at 606 n. 22 (noting that "[t]here are
numerous cases illustrating the principle that where a challenged ordinance is amended during litigation the
appropriate course is to proceed to a consideration of the amended ordinance"). In this case, by contrast, the
challenged ordinance was not replaced until after the district court issued its order, and the new ordinance
maintains, in substantial part, those portions of the ordinance challenged on appeal by the plaintiff.
7
Hereinafter, we will refer to this case as Northeastern Fla. Chapter.
10
Here, the 1994 Festival Ordinance has been repealed by the enactment of the 2000 Festival
Ordinance. Accordingly, we must review the 2000 Festival Ordinance to ascertain whether it " 'satisfies all
the principles sought in an attack on the prior statute.' " Naturist Soc'y, Inc., 958 F.2d at 1520 (quoting
Johnson v. State, 586 F.2d 387, 388 (5th Cir.1978)). If the 2000 Festival Ordinance "leaves objectionable
features of the prior law substantially undisturbed, the case is not moot." Id. Additionally, we must determine
whether any of the challenged portions of the statute have been " 'sufficiently altered so as to present a
substantially different controversy from the one the District Court originally decided.' " Northeastern Fla.
Chapter, 508 U.S. at 662 n. 3, 113 S. Ct. at 2301 n. 3 (quoting id. at 671, 113 S.Ct. at 2306 (O'Connor, J.
dissenting) (agreeing that when the challenged statute is repealed but replaced by new legislation the analysis
requires the court to consider whether the changes in the statute sufficiently alter the challenged portions of
the ordinance so as to render the case moot, but disagreeing with the majority regarding the materiality of the
changes to the challenged ordinance)).8 In order for the alterations to the 1994 Festival Ordinance to satisfy
this requirement and moot the issues presented on appeal the "gravamen of petitioner's complaint" must have
been changed in some fundamental respect. Northeastern Fla. Chapter, 508 U.S. at 662, 113 S.Ct. at 2301
(reviewing a decision by this court where the City defendant repealed the challenged ordinance and replaced
it with a new ordinance while the appeal was pending before the Supreme Court and noting that, although
the new ordinance differed from the repealed ordinance in three principal respects the case was not moot).
8
The concerns Justice O'Connor voiced in her dissent in Northeastern Fla. Chapter regarding the repeal
of the challenged ordinance and enactment of new legislation are not applicable here. Justice O'Connor
asserted that the majority should have found the controversy moot because when a statute which has been
declared invalid by a lower court has been replaced with more narrowly drawn legislation and the plaintiff
seeks only prospective relief, then an appellate court could not be certain how the statutory changes would
affect the plaintiff's claims and while "[t]he new law ultimately may suffer from the same legal defect as the
old, ... the statute may be sufficiently altered so as to present a substantially different controversy."
Northeastern Fla. Chapter, 508 U.S. at 672-73, 113 S.Ct. at 2306-07 (O'Connor, J. dissenting). In this case,
we are only dealing with portions of the 1994 Festival Ordinance that were declared valid by the district
court. Therefore, any minor alteration of these portions of the 1994 Festival Ordinance which may slightly
narrow the scope of the 2000 Festival Ordinance, do not alter the controversy from that which the district
court originally considered. Compare Atlanta Outdoor Festival Ordinance of 1994, Atlanta, Ga., Code §§
138-187—138-208 (1994) with Atlanta Outdoor Festival Ordinance of 2000, Ordinance No. 99-O-1040.
11
The Supreme Court explained its holding regarding the repeal of challenged statutory language set forth in
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 1074-75, 71 L. Ed. 2d 152
(1982) (holding that a government defendant's repeal of objectionable language from a challenged ordinance
does not render the case moot because the defendant's "repeal of the objectionable language would not
preclude it from reenacting precisely the same provision if the District Court's judgment were vacated") as
follows:
This is an a fortiori case. There is no mere risk that Jacksonville will repeat its allegedly wrongful
conduct; it has already done so. Nor does it matter that the new ordinance differs in certain respects
from the old one. City of Mesquite does not stand for the proposition that it is only the possibility
that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule,
a defendant could moot a case by repealing the challenged statute and replacing it with one that
differs only in some insignificant respect. The gravamen of petitioner's complaint is that its members
are disadvantaged in their efforts.... The new ordinance may disadvantage them to a lesser degree
than the old one, but ... it disadvantages them in the same fundamental way.
Id. at 662, 113 S. Ct. at 2301. Therefore, we must determine if the changes enacted in the 2000 Festival
Ordinance alter the appellants' argument that the ordinance is content-based, is not narrowly-tailored to serve
a significant government interest, and imposes fees on expression of protected speech which are more than
nominal and manipulated according to the content of the speech.9
In order to make this assessment, we must review the portions of the 1994 Festival Ordinance
challenged on appeal to determine whether they have been substantially altered in the 2000 Festival
Ordinance. The City does not suggest that the portions of the 1994 Festival Ordinance which the district
court found to be constitutional have been materially changed or corrected in the 2000 Festival Ordinance.
9
The City contends that this appeal is moot because there is no reasonable expectation of recurring
constitutional violations because the district court's final order prevents enforcement of the unconstitutional
portions of the 1994 Festival Ordinance, the 2000 Festival Ordinance does not contain the unconstitutional
language, and there is no reason to expect the City to reinsert the unconstitutional language in the 2000
Festival Ordinance. This argument misconstrues the issues presented on appeal. The appellants do not
challenge the district court's findings regarding those portions of the 1994 Festival Ordinance which it found
to be unconstitutional. Rather, the appellants argue that the district court erred in finding that some portions
of the 1994 Festival Ordinance did pass constitutional muster. As such, the appellants specifically challenge
the district court's finding that the 1994 Festival Ordinance was content neutral, as well as the conclusion that
§§ 138-187, 138-204, and 138-205 were constitutional.
12
Likewise, our review of the 2000 Festival Ordinance indicates that the portions of the 1994 Festival
Ordinance which are challenged on appeal have not been sufficiently altered so as to eliminate the issues
raised. Compare Atlanta Outdoor Festival Ordinance of 1994, Atlanta, Ga., Code §§ 138-187-138-208
(1994) with Atlanta Outdoor Festival Ordinance of 2000, Ordinance No. 99-O-1040.10 Other than changes
10
The following "red-lined" version of the 2000 Festival Ordinance provides a comparison of the
challenged portions of the 1994 Festival Ordinance and the 2000 Festival Ordinance. Those portions of the
1994 Ordinance which have been deleted from the 2000 Festival Ordinance have been struck out and
language added in the 2000 Festival ordinance has been underlined.
Section 138-187. Definitions.
Extra personnel hours means the total of %(the number of%( all hours worked by all city
employees in the particular departments or areas under consideration for classification purposes in
connection with the production of the %(special events in question%( festival which is the subject
of the application, to the extent that such hours exceed the total number of hours which would have
been worked by those same city employees in the same location had the festival not taken place.
Excluded from this definition are the personnel hours worked by the %(s%(Special %(e%(Events
%(c%(Coordinator %(or by a city employee designated to fulfill the function of special events
coordinator on any particular occasion%(, the personnel hours worked by any person of the level of
bureau director or higher, and the personnel hours worked by police officers.
Outdoor Festival means an outdoor public celebration or gathering which involves either the
use either of public parks belonging to the City or public streets and which includes entertainment,
dancing, music, dramatic productions, art exhibitions, parades or the sale of merchandise, food%(,%(
or alcohol, or any combination of %(such%( the foregoing, and which requires the erection of stages,
barricades, utility poles, booths, tents, or other temporary structures, or the use of parked vehicles
or of permanent structures, and which of necessity requires for its successful execution the provision
and coordination of municipal services to a degree significantly over and above that which the city
routinely provides under ordinary everyday circumstances. The definition of outdoor festival does
not include events which are solely parades, %(footraces or political demonstrations%( unless such
parade%(, footrace or political demonstration%( is proposed as an integral part of a %(larger%(
broader outdoor festival. Also excluded from the definition of "outdoor festival" herein is any event
with a scheduled duration of three (3) hours or less.
Section 138-204. Classification and approval
(a) After reviewing the comments of all the %(other%( departments %(and%( %(the%( or
bureaus %(of buildings%( submitting them, the %(c%(Chief of %(s%(Staff shall approve, deny,
approve with modifications or upon conditions as set forth in Section 138-203. %(or%( %(reject the
application for the permit for an outdoor festival.%( If the application is approved, the %(c%(Chief
of %(s%(Staff, in consultation with the heads of affected departments, shall also impose any
necessary restrictions or conditions as to time, manner and place to be observed in accordance with
the public safety, environmental and administrative considerations %(involved in the particular
13
application%( which appear based upon the application, provided that such considerations shall not
include any consideration of the content of any speech or message which may be conveyed by such
festival, nor by any considerations concerning the identity of associational relationships of the
applicant, nor to any assumptions or predictions as to the amount of hostility which may be aroused
in the public by the content of speech or message conveyed by the festival. [Beginning of a new
paragraph in the 2000 Festival Ordinance] Except as provided in subsection (b) of this section, under
no circumstances shall the %(c%(Chief of %(s%(Staff approve %(the%( any permit %(if the%( which
allows the applicant %(proposes%( to limit the use of public streets by pedestrians using the
street%(s%( to move from location to location or %(if the applicant proposes%( to limit the use of
the public parks when use of the park%(s%( by the general public shall not unreasonably disturb the
activities of the %(planned%( festival. Nothing in this section shall be construed to prohibit the
imposition of reasonable restrictions on the movement of the general public which are necessary for
the carrying out of the festival; however, such restrictions shall not bar the admission of any member
of the public on the grounds of race, color, religion, gender, gender identity, sexual orientation, age,
disability or national or ethnic origin.
(b) Streets may be closed, portions of streets and parks may be gated, and an admission fee
may be charged %(by the applicant%( in connection with an outdoor festival at the discretion of the
%(c%(Chief of %(s%(Staff after consultation with the Chief of P%(p%(olice chief, the %(f%(Fire
%(c%(Chief and c%(C%(ommissioners of %(p%(Public %(w%(Works and of %(p%(Parks,
%(r%(Recreation and %(c%(Cultural affairs, as may be appropriate, %(having%( due regard being
given to %(for%( the public safety and environmental effects of such closing, provided that all
reasonable steps are taken to minimize the adverse effect such closings may have upon the public.
In no event, however, shall Peachtree Street or Peachtree Road or any portion thereof which lies
within the %(c%(City be closed by the %(c%(Chief of %(s%(Staff, without the approval of Council
by resolution %(; authority for the closing of any portion of the Peachtree %(%(Corridor must be
by resolution of the city council%(. In the event that an event is gated, no person shall be barred
from entering the gated area on the grounds of race, color, religion, gender, gender identity, sexual
orientation, age, disability or national or ethnic origin.
(c) For classification purposes, the %(c%(Chief of %(s%(Staff shall evaluate the application
by the following criteria:
(1) The anticipated amount of extra personnel hours [extra personnel hours is italicized in
the 2000 Festival Ordinance], as defined in this article, which shall be required to be furnished by
the %(c%(City in order to accomplish the necessary %(public safety and%( %(sanitation %(
administrative, sanitary, and oversight components of the festival. By agreement, as endorsed upon
the permit or in a separate contract, the applicant may furnish some of the personnel %(to%(
required%(;%(, in which event %(and%( the anticipated calculation of the extra personnel hours
[extra personnel hours is italicized in the 2000 Festival Ordinance] may be %(requirements for
classification purposes shall be considered as %(reduced%(s%( accordingly.
%((2) The type and amount of city services required other than extra personnel hours.%(
(2) %((3)%(The anticipated number of persons attending the event over the entire period of
the festival. In estimating this number, no regard shall be given to any estimate of the number of
persons who may be anticipated to be in the vicinity of the festival as counter-demonstrators or to
14
show hostility to any message the festival may be perceived as having. Nor shall there be any
consideration of the content of any speech or message which may be conveyed by such festival, nor
by any considerations concerning the identity or associational relationships of the applicant, nor to
any assumptions or predictions as to the amount of hostility which may be aroused in the public by
the content of speech or message conveyed by the festival. Unless such estimate shall appear to have
been made in palpable bad faith or otherwise grossly in error, the Chief of Staff shall be guided by
the estimate provided by the applicant. If the Chief of Staff determines not to adopt the estimate
given by the applicant, he shall state the reasons in writing on the permit.
(d) The classes of outdoor festival permits and the evaluated factors %(of%( for each class
shall be as follows:
(1) Class A permit. For a festival which will require between 100 and 300 extra personnel
hours and for which the attendance is anticipated to be in excess of 50,000 persons over the entire
period of the festival.
(2) Class B permit. For a festival which will require between 50 and 100 extra personnel
hours and for which the attendance is anticipated to be between 20,000 and 50,000 persons over the
entire period of the festival.
(3) Class C permit. For a festival which will require between 25 and 50 extra personnel
hours and for which the attendance is anticipated to be between 10,000 and 20,000 persons over the
entire period of the festival.
(4) Class D permit. For a festival which will require between %(three%( 3 and 25 extra
personnel hours and for which %(the anticipated%( attendance is anticipated to be between 2,000
and 10,000 persons over the entire period of the festival.
(5) Class E permit. For a festival which will require between fewer than %(three%( 3 extra
personnel hours and for which the attendance is anticipated to be %(between%( %(100 and%( fewer
than 2,000 persons over the entire period of the festival.
Section 138-205. Permit fees.
[The 2000 Festivals Ordinance does not present the fee schedule in tabular form. Rather than
reproducing the new format of the 2000 Festivals Ordinance fee schedule we have noted the changes
in the tabular format utilized in the 1994 Festivals Ordinance.]
(a) The application fee for each classification of permit shall be as follows: ... (b) %(If%(
After the chief of staff approves the issuance of the permit%(, as provided in section 138-204,%( the
applicant may obtain such permit by agreeing to accept the classification and conditions imposed
%(by the chief of staff%( in accordance with this article and by paying the applicable permit fee and
sanitation deposit fee%(.%(, %(Such%( which fees shall be determined according to the following
schedule:
Appli- Permit Sani- Class Atten- Extra
15
cation Fee tation dance Per-
Fee Deposit sonnel
Fee Hours
$50.00 $6,000.00 $500.00 A 50,000+ 100-
300
50.00 2,000.00 300.00 B 20,000! 50-
50,000 100
50.00 1,000.00 150.00 C 10,000! 25-50
20,000
50.00 500.00 75.00 D 2,000! 3-25
10,000
20.0050.00 75.00 20.00 E 100! 3
2,000 3
%((b)%( (c) To the extent that a%(A%(ny festival may require %(ing in excess of the
%(extra personnel hours [italicized in the 2000 Festival Ordinance] %(and city services%( in excess
of those %(anticipated in the application and%( endorsed up on the permit, the applicant shall be
required to reimburse %( the city for%( the cost of such additional extra %(excess%( personnel
hours [excess personnel hours is italicized in the 2000 Festival Ordinance]%(and services in addition
to the initial permit fee %( to the extent that they exceed the sum of $500.00, and only to such extent,
provided that the Chief of Staff, in order to impose such additional amount, must mail or deliver an
invoice for such additional amount to the applicant no later than sixty (60) days after the last date
of such festival
%((c)%( (d) Upon satisfactory completion of the sanitation deposit agreement, and provided
16
in grammar or word choice, the 2000 Festival Ordinance differs from the 1994 Festival Ordinance in the
following respects: it (1) specifically excludes the hours of police officers from the definition of extra
personnel hours, (2) adds to the definition of outdoor festival the explanation that such a festival "requires
the erection of stages, barricades, utility poles, booths, tents, or other temporary structures, or the use of
parked vehicles or of permanent structures," 2000 Festival Ordinance, § 138-187, (3) removes the exclusion
of political demonstrations from the definition of an outdoor festival, (4) excludes from the definition of an
outdoor festival any event with a scheduled duration of less than three hours, (5) requires that any time, place,
manner restrictions imposed by the chief of staff for the issuance of a permit be based upon constitutional
criteria, (6) adds additional bases—color, gender identity, and disability—upon which festival applicants are
forbidden from discriminating, (7) specifically directs the applicant not to include counter-demonstrators in
their estimate of the anticipated attendance, (8) directs the chief of staff to utilize the applicant's estimated
attendance for classification of the festival unless the estimate was made in bad faith, and (9) establishes a
deadline by which the City must bill the applicant for excess extra personnel hours expended on the festival.
These changes do narrow the scope of events which will be governed by the 2000 Festival Ordinance;
however, they do not substantially alter the appellants' argument that the ordinance is content-based because
it discriminates against various messages based upon the size of crowd gathered and the manner in which the
message is conveyed. The appellants' argument that the narrow-tailoring requirement is not satisfied because
the City does not have a legitimate interest in its stated purpose of assuring security and public safety and
avoiding scheduling conflicts is not affected by the changes incorporated in the 2000 Festival Ordinance.
Similarly, the appellants' argument that the 1994 Festival Ordinance does not leave open adequate alternative
channels of communication is not impacted by the 2000 Festival Ordinance because it neither opens nor
closes any additional channels of communication. Finally, the appellants' arguments that the fee schedule
in the 1994 Festival Ordinance is unconstitutional because the fees imposed are more than nominal and the
that no further amount to due as set forth in subsection (c) above, the sanitation deposit fee shall be
refunded to the applicant.
17
fees are content-based are unaffected because the fees imposed remain almost completely identical and
continue to be calculated based upon a sliding scale considering estimated attendance in the 2000 Festival
Ordinance.11
Accordingly, we conclude that the issues presented on appeal have not been made moot by the repeal
of the 1994 Festival Ordinance and simultaneous enactment of the 2000 Festival Ordinance. See Crosby v.
Hosp. Auth. of Valdosta and Lowndes County, 93 F.3d 1515, 1534 (11th Cir.1996) (" 'Thus a superseding
statute or regulation moots a case only to the extent that it removes challenged features of the prior law.' ")
(quoting Naturist Soc'y, 958 F.2d at 1520).12 It is reasonable to expect that the alleged constitutional
violations resulting from the enforcement of the provisions of the 1994 Festival Ordinance validated by the
district court will continue with the enforcement of the 2000 Festival Ordinance. Therefore, we must consider
the merits of the appellants' arguments by reviewing the 2000 Festival Ordinance. See Naturist Society, 958
at 1519-20 (explaining that "[w]here a statute is amended after the entry of judgment in the trial court, but
before the decision of the appellate court, the appellate court must 'review the judgment of the district court
in light of [the] law as it now stands, not as it stood when the judgment below was entered.' ") (quoting
Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414, 92 S. Ct. 574, 575, 30 L. Ed. 2d
567 (1972) (alteration in original)).
11
We note that the 2000 Festival Ordinance's specific directive for applicants not to consider potential
counter-demonstrators when estimating attendance and the removal of the hours worked by police officers
from the extra personnel hours component of the fee schedule make it more difficult for the City to
manipulate the fees based on the content of a festival's message and eliminates a portion of the appellants'
arguments regarding the constitutionality of the fees; however, they do not satisfy all the appellants'
challenges against this portion of the ordinance. Therefore, we conclude that the gravamen of the appellants'
complaint remains unaffected.
12
Additionally, we note that a finding on our part that the provisions of the 1994 Festival Ordinance
challenged on appeal are unconstitutional would provide the appellants relief from those alleged constitutional
deprivations that they have suffered and presumably will continue to endure under the 2000 Festival
Ordinance despite the district court's earlier finding that other portions of the 1994 Festival Ordinance were
unconstitutional. The ability of this court to provide such relief further indicates that this appeal is not moot.
See City of Erie, 120 S. Ct. at 1390 (concluding that "the availability of ... relief is sufficient to prevent the
case from being moot").
18
C. Ripeness
Like mootness, "[t]he ripeness doctrine 'prevent[s] the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements.' " Wilderness Soc'y v. Alcock, 83 F.3d
386, 390 (11th Cir.1996) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18
L. Ed. 2d 681 (1967)) (second alteration in the original). Nonetheless, our conclusion that the issues presented
on appeal are not moot does not automatically suggest that the appeal is ripe for adjudication. To determine
whether a claim is ripe we must " 'evaluate both the fitness of the issues for judicial decision and the hardship
to the parties of withholding court consideration.' " Id. Specifically we " must examine ' " 'whether there is
sufficient injury to meet Article III's requirement of a case or controversy, and if so, whether the claim is
sufficiently mature, and the issues sufficiently defined and concrete to permit effective decision-making by
the court.' " ' " Georgia Advocacy Office, Inc. v. Camp, 172 F.3d 1294, 1298-99 (11th Cir.1999) (quoting
Socialist Workers Party, 145 F.3d at 1244 (quoting Digital Properties, Inc. v. City of Plantation, 121 F.3d
586, 589 (11th Cir.1997) (quoting Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir.1995)))).
We acknowledge that changes to the 1994 Festival Ordinance enacted by the City in the 2000
Festival Ordinance have not been reviewed by the district court. We leave it for the appellants to challenge
the constitutionality of those provisions which have been substantially altered by the 2000 Festival Ordinance
in the district court. The district court should review those provisions in the first instance and determine
whether the City's changes to the ordinance comport with the requirements of the district court's order and
whether those provisions, as amended, pass constitutional muster. However, the provisions of the 1994
Festival Ordinance challenged on appeal—those found by the district court to be constitutional—remain
predominantly unchanged by the enactment of the 2000 Festival Ordinance. Therefore, we conclude that the
alleged injury suffered by the appellants via the validated provisions satisfies Article III's requirement of a
case or controversy, their claim is sufficiently mature, and the issues presented on appeal are sufficiently
defined and concrete to permit effective decision-making by the court. Accordingly, the issues presented by
19
the appellants are ripe for our review despite the fact that it remains the province of the district court to review
the material changes enacted by the 2000 Festival Ordinance.
II. CONSTITUTIONALITY
Turning to the merits of the appeal, we review the district court's determination of the "constitutional
facts" in a First Amendment case de novo. Falanga v. State Bar of Ga., 150 F.3d 1333, 1335 (11th Cir.1998).
Additionally, we consider the appellants' arguments that the 1994 Festival Ordinance is unconstitutional by
analyzing the 2000 festival ordinance. See Naturist Soc'y, 958 at 1519-20 ("Where a statute is amended after
the entry of judgment in the trial court, but before the decision of the appellate court, the appellate court must
'review the judgment of the district court in light of [the] law as it now stands, not as it stood when the
judgment below was entered.' ") (quoting Diffenderfer, 404 U.S. at 414, 92 S.Ct. at 575 (alteration in
original)); see also Crosby, 93 F.3d at 1533-34 (reviewing the "current statute as amended" to consider the
issue presented on appeal); Church of Scientology I, 777 F.2d at 606 n. 22. (noting that "[t]here are numerous
cases illustrating the principle that where a challenged ordinance is amended during litigation the appropriate
course is to proceed to a consideration of the amended ordinance").
Like the 1994 Festival Ordinance, the 2000 Festival Ordinance imposes a prior restraint on conduct
protected by the First Amendment. Therefore, in order to be considered constitutional, the 2000 Festival
Ordinance must meet the requirements for reasonable time, place and manner restrictions of protected speech
in public fora. As such, the 2000 Festival Ordinance must be "(1) ... content neutral, (2) ... narrowly tailored
to serve a significant governmental interest, and (3) leave open ample alternative channels for communication
of the information." Int'l Caucus of Labor Comm. v. City of Montgomery, 111 F.3d 1548, 1551 (11th
Cir.1997).
A. Content-Neutrality
20
We first consider the appellants' argument that the 2000 Festival Ordinance is content-based.13 See
Nationalist Movement v. City of Cumming, Forsyth County, Ga., 913 F.2d 885, 888 (11th Cir.) ("Our method
of determining the constitutionality of the ordinance depends initially on whether it regulates expressive
activity on the basis of content."), vacated and reh'g granted by, 921 F.2d 1125 (1990), reinstated on reh'g,
934 F.2d 1482 (1991), aff'd on other grounds by, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992). The
appellants argued that the 1994 Festival Ordinance is content-based and point to the festival ordinance's
distinction between "political demonstrations" and "entertainment, dancing, music, dramatic productions, art
exhibitions, [and] parades" as support for their argument. R1-2-Ex. A, § 138-187. According to the
appellants, because dancing, music, dramatic productions, art exhibitions, and parades are all expressive
activities protected by the First Amendment just as is the expressive conduct associated with a political
demonstration, the 1994 Festival Ordinance's distinction between these forms of expressive conduct equates
to disparate treatment of protected conduct on the basis of its content.
This argument is not relevant to the 2000 Festival Ordinance because it does not make a distinction
between political demonstrations and other forms of expressive conduct. The 1994 Festival Ordinance
defined an outdoor festival in § 138-187 to exclude "events which are solely parades, footraces or political
demonstrations unless such parade, footrace or political demonstration is proposed as an integral part of a
larger festival." The 2000 Festival Ordinance, however, only excludes from the definition of an outdoor
festival those "events which are solely parades, unless such parade is proposed as an integral part of a broader
outdoor festival. Also excluded from the definition of 'outdoor festival' herein is any event with a scheduled
duration of three (3) hours or less." Ordinance No. 99-O-1040, § 138-187.14
13
Although the appellants make all their arguments with regard to the 1994 Festival Ordinance, because
we are required to review the 2000 Festival Ordinance when considering the issues presented on appeal and
because they remain substantially unchanged, we will apply the appellants' arguments to the 2000 Festival
Ordinance.
14
We note that the "savings clause" added to the 2000 Festival Ordinance effectively excludes political
demonstrations from the ambit of the ordinance in the same way that the exclusion of political demonstrations
21
Like the district court, we conclude that, upon examining the intent behind the 2000 Festival
Ordinance, it is evident that the City adopted the ordinance in an effort to manage effectively and efficiently
the use of the City's parks and other resources by the sponsors of large festivals, not because of a
disagreement with the message conveyed by any particular festival. See Ward v. Rock Against Racism, 491
U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661 (1989). The 2000 Festival Ordinance applies equally
to all festivals of any kind without regard to the content of any message the festival sponsor might convey.
The 2000 Festival Ordinance only distinguishes between various festivals or similar gatherings on the basis
of physical attributes, not content. The 2000 Festival Ordinance defines an Outdoor Festival as an event
including various forms of expressive conduct "and which requires the erection of stages, barricades, utility
poles, booths, tents, or other temporary structures, or the use of parked vehicles or of permanent structures."
Ordinance No. 99-O-1940, § 138-187. These criteria attempt to identify those outdoor events which will
require additional municipal services. It does not attempt to create distinctions based upon the content of the
speech and the 2000 Festival Ordinance specifically forbids the Chief of Staff from basing the decision to
grant a festival permit on the content of speech or message conveyed by the festival. See Ordinance No. 99-
O-1940, § 138-203. By distinguishing events which require additional city resources based upon their
physical attributes, the City can schedule and coordinate the municipal services required to ensure public
safety and otherwise accommodate these large public gatherings. Therefore, because the 2000 Festival
Ordinance "serves purposes unrelated to the content of expression" and is " 'justified without reference to the
content of the regulated speech,' " we, like the district court, conclude that it is content-neutral. Ward v. Rock
Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661 (1989) (citations omitted).
from the definition of an Outdoor Festival did in the 1994 Festival Ordinance. Compare 1994 Festival
Ordinance § 138-187 (excluding political demonstrations from the definition of an Outdoor Festival and
defining a political demonstration as "a public gathering, procession or parade, the primary purpose of which
is the exercise of the rights of assembly and free speech as guaranteed by the first amendment to the
Constitution of the United States") with 2000 Festival Ordinance § 138-209 (stating that "[n]othing in this
article shall be construed to prevent members of the public from assembling in the parks or streets for the
purpose of making any speech or conveying any message to the public or government without holding an
outdoor festival permit pursuant to this article").
22
B. Narrowly Tailored
The appellants also argue that the 2000 Festival Ordinance is not narrowly tailored to serve a
significant governmental interest. The appellants question the legitimacy of the city's stated purposes of
assuring security and public safety, as well as avoiding scheduling conflicts. "To demonstrate the
significance of its interest, the City is not required to present detailed evidence ...,[but] is 'entitled to advance
its interests by arguments based on appeals to common sense and logic.' " International Caucus of Labor
Comm., 111 F.3d at 1551 (quoting Multimedia Publishing Co. of S. Carolina, Inc. v. Greenville-Spartanburg
Airport, 991 F.2d 154, 160 (4th Cir.1993)). Taking a common sensical approach, we find it obvious that the
City has a significant interest in regulating the use of its parks and streets by large groups. Certainly, the City
needs advance notice and the cooperation of organizers to plan the services, such as security, sanitation, and
traffic control, that are required for an event which, like the Pot Festival, attracts approximately 30,000
participants. It is only logical that a framework is needed for the City to work with the organizers of a large,
multi-faceted event in order to coordinate the City's resources to successfully accommodate the event. The
2000 Festival Ordinance provides such a framework.
Since we conclude that the City's stated purposes for the 2000 Festival Ordinance are legitimate and
significant interests of the City, we must determine whether there is a "reasonable fit" between those interests
and the 2000 Festival Ordinance, as the City's chosen means for serving them. City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 416, 113 S. Ct. 1505, 1510, 123 L. Ed. 2d 99 (1993). In this analysis, the City
bears the burden of demonstrating a "logical and practical relationship between the restriction and [its]
interests, so that [we] may determine whether the restriction is substantially broader than is necessary to
achieve those ends." Nationalist Movement, 913 F.2d at 890. However, the City need not prove that the 2000
Festival Ordinance is the least restrictive means of serving them, see Jim Gall Auctioneers, Inc. v. City of
Coral Gables, 210 F.3d 1331, 1333 (11th Cir.2000) (quoting Smith v. City of Fort Lauderdale, Fla., 177 F.3d
954, 957 (11th Cir.1999)); "[t]he requirement of narrow tailoring is satisfied 'so long as the ... regulation
23
promotes a substantial government interest that would be achieved less effectively absent the regulation.' "
Rock Against Racism, 491 U.S. at 799, 109 S.Ct. at 2758 (alteration in original) (citation omitted). The
district court determined that portions of the 1994 Festival Ordinance were not narrowly tailored to meet the
City's interests because they granted the chief of staff unfettered discretion. The appellants challenge the
conclusion that other portions of the 2000 Festival Ordinance satisfy the narrow tailoring requirement.
1. Section 138-187
After reviewing the 2000 Festival Ordinance, we conclude that the district court properly determined
that § 138-187 is narrowly tailored to exclude those events which do not require additional governmental
services and therefore do not logically fit within the scope of the City's interests. We note that the addition
of the description of events "requir[ing] the erection of stages, barricades, utility poles, booths, tents, or other
temporary structures, or the use of parked vehicles or of permanent structures," Ordinance No. 99-O-1940,
§ 138-187, in the 2000 Festival Ordinance further limits the universe of events that will fall within the
parameters of the 2000 Festival Ordinance regulations and, thus, does not burden " 'substantially more speech
than is necessary to further the government's legitimate interest.' " Smith, 177 F.3d at 956 (quoting One
World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1287 (11th Cir.1999)) (second citation
omitted).
2. Section 138-204
The district court also determined that § 138-204(a) and (b) was not unconstitutional because it
primarily granted the Chief of Staff the authority to impose restrictions on the applicants after their festival
permit had been approved. The district court did note that § 138-204 required the chief of staff to deny any
application where the applicant "proposes to limit the use of public streets by pedestrians using the streets to
move from location to location or if the applicant proposes to limit the use of public parks when use of the
parks by the general public shall not unreasonably disturb the activities of the planned festival," but concluded
that this restriction was "narrowly tailored to meet its justification." R2-37 at 34-35. This restriction remains
24
in force in the 2000 Festival Ordinance. We, likewise, conclude that this restriction does not overburden
festival permit applicants because, as the Supreme Court has noted "[m]unicipal authorities, as trustees for
the public, have the duty to keep their communities' streets open and available for the movement of people
and property, the primary purpose to which the streets are dedicated." Schneider. v. State of New Jersey,
Town of Irvington, 308 U.S. 147, 160, 60 S. Ct. 146, 150, 84 L. Ed. 155 (1939). See also Clark v. Community
for Creative Non-Violence, 468 U.S. 288, 296, 104 S. Ct. 3065, 3070, 82 L. Ed. 2d 221 (1984) (recognizing
the government's "substantial interest in maintaining the parks ... in an attractive and intact condition, readily
available to the millions of people who wish to see and enjoy them)." Therefore, we conclude that the district
court properly determined that the above provisions satisfied the requirement of being narrowly tailored to
serve the City's significant interests.
C. Alternative Channels of Communication
The appellants also contend that the 2000 Festival Ordinance does not provide effective access to
alternative avenues for communication of their message. The appellants assert that use of the city park for
the Pot Festival is "absolutely essential" for them to convey their message to the intended audience.
Appellants' Brief at 19. Additionally, the appellants argue that they absolutely require lighting, electricity,
barricades, and stage covers to effectively convey their message.
The City can satisfy the requirement that alternative channels of communication remain open to
CAMP even if those channels "may be less effective than [CAMP] would prefer." ISKCON Miami, Inc. v.
Metropolitan Dade County, 147 F.3d 1282, 1290 (11th Cir.1998). As the district court found when it denied
CAMP's request for a preliminary injunction, CAMP may hold a political demonstration and concert in a city
park without a festival permit. See R2-37 at 6. Therefore, CAMP still has the opportunity to communicate
its message advocating changes in the marijuana laws without a festival permit. Section 138-209 of the 2000
Festival Ordinance specifically limits the application of the 2000 Festival Ordinance and provides that
"[n]othing in this article shall be construed to prevent members of the public from assembling in the parks
25
or streets for the purpose of making any speech or conveying any message to the public or to the government
without holding an outdoor festival permit." Ordinance No. 99-O-1940, § 138-209. Those individuals who
organize an assembly without an outdoor festival permit are only limited in the sense that they are not
"entitled to the benefits of [the new festival ordinance], including but not limited to, the right to erect stages,
barricades, utility poles, booths, tents, or other temporary structures, or the use of parked vehicles or of
permanent structures, or to the assistance of city personnel in carrying out their event." Id. Lighting, stage
covers, electricity, barricades, or any of the other benefits conferred by an outdoor festival permit are not
essential to CAMP's message, rather they are convenient mechanisms for increasing the efficiency with which
CAMP might choose to communicate its message. Accordingly, we conclude that ample alternatives remain
available to CAMP for communicating its message despite the restrictions created by the 2000 Festival
Ordinance.
D. Section 138-205: Festival Permit Fees
The appellants argue that the fees required for the grant of a festival permit are unconstitutional
because the required fees are manipulated according to the content of the speech and they are more than
nominal. The Supreme Court has authorized a municipality to charge "fees for the use of the public streets
only when such fees are both nominal and related to the expenses incidental to the policing of the event" Cent.
Fla. Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1522 (11th Cir.1985) (interpreting Murdock v. Com.
of Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943)). In § 138-205, the 2000 Festival
Ordinance requires the each applicant for a festival permit to pay a $50 application fee. Upon approval, each
applicant is required to pay a permit fee and sanitation deposit fee. The total amount of these fees ranges
from $6,500 to $95, based upon a sliding scale which considers the number of persons expected to attend the
event and the number of extra personnel hours which the City will expend on the festival, excluding the hours
spent on the festival by the City's Special Events Coordinator, police officers, and any person with a ranking
of bureau director or higher. Applicants have the opportunity to reduce the fee by supplying some of the
26
personnel required when calculating the extra personnel hours for which the City anticipates paying.
Additionally, the sanitation deposit fee will be returned to the applicant after they have completed the
sanitation deposit agreement by cleaning the festival area of litter and debris and restoring parks and streets
damaged in connection with the festival. The applicant is also required to reimburse the City for the cost of
any extra personnel hours which exceed those provided for in the festival permit fee.
The district court, reviewing the markedly similar fee provisions of the 1994 Festival Ordinance,
found that the initial fee schedule was "both reasonable and content neutral." R2-37 at 38. Additionally, the
district court concluded that the fees satisfied the requirement of being nominal because they "actually reflect[
] administrative costs." Id. at 41 n. 20. Therefore, the district court concluded that the imposition of fees as
provided in § 138-205 "does not unconstitutionally burden the free exercise of speech ... [because a]
municipality can impose a reasonable fee on certain kinds of expressive activities to recover its costs, so long
as the charge imposed does not exceed the administrative costs of regulating the protected activity." Id. at
36.
We agree with the district court that the fees assessed under § 138-205 are content neutral. CAMP
argues that the fees are content-based because (1) they are based on anticipated attendance at the festival and,
thus, discriminate against festivals which attract larger crowds and (2) the number of extra personnel hours
charged to the festival can be manipulated so as to accomplish content-based discrimination.15 The fees are
calculated based upon a sliding scale where the variables only include the extra personnel hours the City will
expend and the anticipated number of individuals who will attend the festival.
15
CAMP specifically argued that the police could clearly manipulate their estimate of the number of
police officers required for the festival. This specific argument is no longer relevant in the context of the
2000 Festival Ordinance because the 2000 Festival Ordinance excludes the hours worked by police officers
from the total number of extra personnel hours expended by the City on a particular festival. Therefore, we
consider their argument in the context of the larger question of whether the extra personnel hours charged to
a festival by the City is manipulable according to the message a festival might seek to convey.
27
When determining the anticipated attendance for the festival, "the Chief of Staff shall be guided by
the estimate provided by the applicant, ... [u]nless such estimate shall appear to have been made in palpable
bad faith or otherwise grossly in error." Ordinance No. 99-O-1940, § 138-204(c)(2). "If the Chief of Staff
determines not to adopt the estimate given by the applicant, he shall state the reasons in writing on the
permit." Id. Further, the 2000 Festival Ordinance makes clear that "no regard shall be given to any estimate
of the number of persons who may be anticipated to be in the vicinity of the festival as counter-demonstrators
or to show hostility to any message the festival may be perceived as having." Id. These provisions assure that
the estimate of anticipated attendance is not manipulated in order to burden unconstitutionally speech based
upon its content.
Moreover, CAMP's argument that the fee schedule is content-based because higher fees are charged
for those festivals where the anticipated attendance is larger contradicts the reasoning of the Supreme Court
in Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049 (1941). There, the Court, considering
a parade licensing fee which was adjusted to consider the comparatively greater expense of "policing" an
expansive event, rejected the notion that a municipality should charge a flat fee for all parades and explained
that the court "perceived no constitutional ground for denying to local governments that flexibility of
adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the
liberty sought." Id. at 577, 61 S.Ct. at 766. Similarly, in Murdock v. Pennsylvania, 319 U.S. 105, 113-14,
63 S. Ct. 870, 875, 87 L. Ed. 1292 (1943), the Supreme Court found a local ordinance charging a flat fee per
day for a license to canvass or solicit within the locality to be unconstitutional because "the license tax [wa]s
fixed in amount and unrelated to the scope of the activities of petitioners or their realized revenues." It is only
logical that the City's costs for supporting a festival will be increased in some proportion to the number of
individuals attending the festival. Therefore, we conclude that fees based upon a sliding scale considering
the anticipated attendance of the festival are not content-based but, instead, are reasonably related to "the
expenses of policing the activities in question." Murdock, 319 U.S. at 113-14, 63 S.Ct. at 875.
28
Under the 2000 Festival Ordinance, the number of extra personnel hours required for a festival is
determined by the Chief of Staff. After a completed application has been submitted to the City's Special
Events Coordinator, copies of the application are forwarded to the Departments of Police, Fire, Public Works,
Parks, Recreation and Cultural Affairs, the Bureau of Buildings, and the affected Neighborhood Planning
Unit. These departments each estimate the number of extra personnel hours that will be required by their
department for the festival in question. The definition of extra personnel hours excludes the personnel hours
worked by the City's Special Events Coordinator, any City employee at the level of bureau director or higher,
and all police officers. The applicant may enter a separate contract with the City whereby the applicant
furnishes some of the personnel required and, therefore, reduces the calculation of extra personnel hours and
the associated fee.
While the 2000 Festival Ordinance does not provide the various department heads specific criteria
for determining the number of extra personnel hours that will be required by their department to support a
particular festival, section 138-203(b)(3) provides the admonition that "no consideration may be given to the
message of the festival, nor to the content of speech, nor the identity or associational relationships of the
applicant, nor to any assumptions or predictions as to the amount of hostility which may be aroused in the
public by the content of speech or message conveyed by the festival." Ordinance No. 99-O-1940, § 138-
203(b)(3). Further, § 138-203(b)(5) provides that "[n]o applicant for, or recipient of, an outdoor festival
permit shall be required to provide for, or pay for the cost of, public safety personnel necessary to provide
for the protection of a festival and its attendees from hostile members of the public or counter-demonstrators,
or for traffic control, or for general law enforcement in the vicinity of the festival." Ordinance No. 99-O-
1940, § 138-203(b)(5).
These provisions avoid the problem created by the ordinance which the Supreme Court found to be
facially unconstitutional in Forsyth County, Ga., 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101. That
ordinance authorized the county administrator to assess a fee covering " ' "the expense incident to the
29
administration of the Ordinance and to the maintenance of public order in [the parade, procession, of open
air public meeting] licensed." ' " Id. at 126-127, 112 S.Ct. at 2399 (citations omitted). The county's intent
was for the fee to also cover " 'the cost of necessary and reasonable protection of persons participating in or
observing said ... activit[y].' " Id. at 134, 112 S.Ct. at 2403 (quoting App. to Pet. for Cert. 100) (alteration
in original). The Supreme Court found that this fee scheme was an impermissible content-based restriction
on speech because "[t]he fee assessed will depend on the administrator's measure of the amount of hostility
likely to be created by the speech based on its content." Id. The Supreme Court noted that "[s]peech cannot
be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile
mob." Id. at 134-135, 112 S.Ct. at 2404. See also Cent. Fla. Nuclear Freeze Campaign, 774 F.2d at 1525
(concluding that the presence of out-of-town demonstrators and the potential for hostile counter activity are
factors that "cannot be considered in fixing the costs of protection to those asking to exercise their First
Amendment rights" ). Additionally, the festival applicant's ability to negotiate the number of extra personnel
hours assessed to the festival and enter a separate contract with the City whereby they agree to supply some
of the personnel required in the City's calculation of the extra personnel hours it will expend supporting the
festival strongly mitigates against the danger of any content-based discrimination creeping into the City's
analysis of the number of extra personnel hours required for a festival.
The 2000 Festival Ordinance is not a content-based prior restriction on speech. Not only does the
new festival ordinance specifically direct the chief of staff not to consider "the amount of hostility which may
be aroused in the public by the content of speech or message conveyed by the festival" when determining
where the festival should be classified on the fee scale and what the amount of the resulting permit fee should
be, but it also excludes from the calculation of the permit fee those extra personnel hours expended by the
city for police or other "public safety personnel necessary to provide for the protection of a festival and its
attendees from hostile members of the public or counter-demonstrators, or for traffic control, or for general
law enforcement in the vicinity of the festival." Ordinance No. 99-O-1940, §§ 138-204(a)and 138-203(b)(5).
30
Further, the 2000 Festival Ordinance provides that "no regard shall be given to any estimate of the number
of persons who may be anticipated to be in the vicinity of the festival as counter-demonstrators or to show
hostility to any message the festival may be perceived as having" when estimating the number of individuals
expected to attend the festival and directs the Chief of Staff to use the applicants' estimate of attendance
unless it "appear[s] to have been made in palpable bad faith or otherwise grossly in error." Id. at § 138-
204(c)(2). Therefore, we conclude that the permit fees that festival organizers are required to pay by the 2000
Festival Ordinance are not content-based, nor are subject to manipulation predicated on the content of a
festival's perceived message. Cf. Stonewall Union v. City of Columbus, 931 F.2d 1130, 1135 (6th Cir.1991)
(finding that when an "ordinance contains objective standards related to traffic control and not related to
speculation about the potential for disturbances based on the parade's content, ... [then] the scheme for
assessing the costs of traffic control is not unconstitutional").
The appellants also argue that the fees imposed by the 2000 Festival Ordinance are more than
nominal. In Nationalist Movement, 934 F.2d at 1483, this court, sitting en banc, reinstated the panel decision
which refused to "stake out the outer limits of a 'nominal' charge," but held that a provision requiring "a
permit fee of up to $1,000 for each day that a parade or rally takes place exceeds the constitutional
requirement that such a charge be at most nominal." Nationalist Movement, 913 F.2d at 891. On appeal, the
Supreme Court agreed that the fee provision of the ordinance in question was unconstitutional because it was
a content-based, prior restraint on speech protected by the First Amendment, not because the $1,000 fee
imposed was more than nominal. See Forsyth County, Ga., 505 U.S. at 136, 112 S.Ct. at 2405. The Court
noted that "[a] tax based on the content of speech does not become more constitutional because it is a small
tax." Id. The Supreme Court also discussed our interpretation of Murdock as requiring that permit fees
imposed on protected speech be "nominal" and commented that the Supreme Court's language in Murdock
"does not mean that an invalid fee can be saved if it is nominal, or that only nominal charges are
constitutionally permissible." Id. at 137, 112 S.Ct. at 2405. The Chief Justice, in a dissent joined by Justices
31
White, Scalia, and Thomas, more explicitly explained that "[t]he use of the word 'nominal' in Murdock was
... a mistaken characterization of the fee statute in Cox ... [and] that the Constitution does not limit a parade
license fee to a nominal amount." Id. at 139-140, 112 S.Ct. at 2406 (Rehnquist, C.J. dissenting) (arguing that,
because the lower court had not based its decision upon the analysis adopted by the majority, the court should
remand so that the lower courts could first consider the issues presented).
We need not consider the impact of the Supreme Court's discussion of nominal fees in Forsyth
County, Ga. on our precedent requiring that the fees imposed on constitutionally-protected speech be nominal
because we hold that the fees imposed by the 2000 Festival Ordinance are nominal.16 The nominality of the
fees imposed by the 2000 Festival Ordinance must be considered in the context of the size of the festival to
which they apply. See Ordinance No. 99-01940 §§ 138-204(d) and 138-205(b) (imposing fees of $95 for a
festival where fewer than 2,000 persons are expected to attend and which requires fewer than 3 extra
personnel hours, $575 where expected attendance is between 2,000 and 10,000 people and the extra personnel
hours required are between 3 and 25, $1,150 when estimated attendance is between 10,000 and 20,000 and
16
While we do not specifically address the impact of the Supreme Court's holding in Forsyth County, Ga.
to our precedent, we note that the majority of our sister circuits have interpreted Forsyth County, Ga. as
making it constitutionally permissible for an ordinance regulating constitutionally protected activity to impose
a permit fee which is more than nominal so long as the permit fee is reasonably related to "the expense
incident to the administration of the act and to the maintenance of public order in the matter licensed." Cox
v. State of New Hampshire, 312 U.S. 569, 577, 61 S. Ct. 762, 766, 85 L. Ed. 1049 (1941). See American
Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1249 (10th Cir.2000) (upholding an act imposing a
registration fee on constitutionally protected activity that "does no more than defray reasonable administration
costs"); Northeast Ohio Coalition for the Homeless v. City of Cleveland, 105 F.3d 1107, 1110 (6th Cir.1997)
(holding that "a more than nominal permit fee is constitutionally permissible so long as the fee is 'reasonably
related to the expenses incident to the administration of the ordinance and to the maintenance of public safety
and order' "); MacDonald v. Chicago Park Dist., 132 F.3d 355, 362-63 (7th Cir.1997) (finding it unlikely
that a plaintiff could show that the fee provision of a ordinance was facially unconstitutional when the fees
were set according to a content-neutral schedule); Nat'l Awareness Found. v. Abrams, 50 F.3d 1159, 1165
(2nd Cir.1995) (holding that "fees that serve not as revenue taxes, but rather as means to meet the expenses
incident to the administration of a regulation and to the maintenance of public order in the matter regulated
are constitutionally permissible"); Center for Auto Safety, Inc. v. Athey, 37 F.3d 139, (4th Cir.1994)
(upholding a statute imposing fees on protected speech because the fees were narrowly tailored to further a
legitimate government purpose and the revenues raised by the fees do not exceed the costs of administering
the Statute).
32
25 to 50 extra personnel hours are required, $2,300 when estimated attendance is between 20,000 and 50,000
people and the extra personnel hours required is between 50 and 100, and $6,500 when more than 50,000
attendees are expected and between 100 and 300 extra personnel hours are required). We conclude that the
fees of imposed by the 2000 Festival Ordinance are nominal when balanced against the size of the festival
to which they are applied. The fees are imposed based upon a sliding scale considering the relevant factors
which impact the City's expense in supporting the event. The fees recoup the City's expenses in administering
the 2000 Festival Ordinance and supporting the outdoor festival in question. The parties do not contend that
the fees exceed those expenses or serve as a form of revenue tax. Additionally, applicants for an outdoor
festival permit have the opportunity to reduce the permit fees by entering a separate agreement with the City
whereby the applicant supplies some of the personnel which the City would ordinarily utilize to support the
festival. Similarly, the sanitation portion of the permit fees is returned to the applicant if it cleans up the
public spaces utilized for the festival. Therefore, we conclude that the fee schedule established by the 2000
Festival Ordinance is narrowly tailored to serve the City's legitimate interest in covering the cost of
supporting the outdoor festival and, therefore, is constitutionally permissible. See Murdock, 319 U.S. at 113-
14, 63 S. Ct. at 875 (striking down a fee that was not "imposed as a regulatory measure to defray the expenses
of policing the activities in question").
III. SUPPLEMENTARY JURISDICTION
The appellants argue that the district court erred by not exercising supplementary jurisdiction and
discussing their state law claim that the 1994 Festival Ordinance violated the Georgia Constitution. A court's
exercise of supplemental jurisdiction is statutorily controlled by 28 U.S.C. § 1367.17 As we have previously
17
The relevant portions of § 1367 provide the following:
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so related
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. Such supplemental
33
held "whenever a federal court has supplemental jurisdiction under section 1367(a), that jurisdiction should
be exercised unless section 1367(b) or (c) applies." Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559,
1569 (11th Cir.1994) (remanding for the district court to consider, in the first instance, whether it had to
discretion under 18 U.S.C. § 1367(c) not to exercise supplemental jurisdiction over state law claims).
The appellants' state law claims satisfy the "same case and controversy" requirement of section
1367(a); therefore, the district court had the power to consider the appellants' claim that the 1994 Festival
Ordinance violated the Georgia Constitution. However, after stating that the 1994 Festival Ordinance
violated Article 1, Section 1, Paragraph 9 of the Georgia Constitution, see R1-1-3, and listing this alleged
violation as one of the legal issues to be tried in the Joint Preliminary Statement and Scheduling Order, see
R1-7-1, the appellants abandoned this argument. The appellants did not present this argument in their motion
for partial summary judgment, nor did they cite any authority for this argument in their Brief in Support of
Motion for Partial Summary Judgement or their Response to Defendants' Motion For Summary Judgement.
jurisdiction shall include claims that involve the joinder or intervention of additional parties.
(b) In any civil action of which the district courts have original jurisdiction founded solely
on section 1332 of this title, the district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20,
or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be
joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under
Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332.
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367
34
See R1-18 at 2 and 4-17; R1-22. After the district court denied both the appellants' and the City's motion for
summary judgment, the appellants did not raise their argument that the 1994 Festival Ordinance violated the
Georgia Constitution in any documents submitted to the district court nor did they urge the issue upon the
district court during the two-day bench trial which it conducted. During his opening statement, counsel for
the appellants made the following statement regarding the scope of their case:
I DON'T WANT TO REPEAT WHAT I'VE SAID IN MY MOTION FOR SUMMARY
JUDGMENT OR WHAT I HAVE SAID IN THE BRIEF THAT I FILED LAST WEEK. JUST
SIMPLY WE WANT TO MAKE THREE POINTS.
ONE IS WE THINK THAT THE ORDINANCE ON ITS FACE IS UNCONSTITUTIONAL
BECAUSE OF THE IMMENSE DISCRETION THAT IT GIVES.
SECOND OF ALL, WE THINK THAT THE THINGS THAT WERE ASKED FOR
ORIGINALLY AND ARE ASKED FOR IN OUR COMPLAINT IN TERMS OF STAGE AND
LIGHTING AND ELECTRICITY AND BARRICADES AND SO ON IS IMPORTANT SOLELY
BECAUSE IT PROVIDES EFFECTIVE ACCESS. AND AS I POINTED OUT IN MY BRIEF, WE
ARE ENTITLED TO EFFECTIVE ACCESS EVEN IF WE ARE NOT ENTITLED TO THE MOST
EFFECTIVE ACCESS.
AND FINALLY I WANT TO POINT OUT THAT WHEN YOU HEAR, AS YOU HAVE
HEARD BEFORE, THE COMMENTS OF THE POLICE THAT YOU SIMPLY CANNOT BAR
AN EVENT BECAUSE OF PAST UNLAWFUL ACTIVITY EVEN, I MIGHT ADD, IF MY
CLIENT WERE THE ONE WHO HAD ADVOCATED THE PAST UNLAWFUL ACTIVITY,
AND THERE IS NO EVIDENCE OF THAT.
R3 at 4-5. The appellants did not discuss their assertion that the 1994 Festival Ordinance violated the Georgia
Constitution during the two-day trial before the district court and never cited any authority in support of the
argument prior to this appeal. The appellants' failure to brief and argue this issue during the proceedings
before the district court is grounds for finding that the issue has been abandoned. Fehlhaber v. Fehlhaber,
681 F.2d 1015, 1030 (5th Cir.1982) (citing U.S. v. Indiana Bonding & Surety Co., 625 F.2d 26, 29 (5th
Cir.1980) (finding that "[e]ven though [an] issue was listed as one of the defendant's contentions in the
pretrial order, and was thus presumably triable, [the defendant's] failure to present evidence in support of the
defense before the district court precludes our review of it [on appeal]")). Cf. McMaster v. United States, 177
F.3d 936, 940-41 (11th Cir.1999) (noting that a claim may be considered abandoned when the allegation is
35
included in the plaintiff's complaint, but he fails to present any argument concerning this claim to the district
court); Lyes v. City of Riviera Beach, Fla., 126 F.3d 1380, 1388 (11th Cir.1997) (noting that " 'the onus is
upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary
judgment are deemed abandoned' ") (citation omitted), reh'g granted and vacated by, 136 F.3d 1295 (1998),
reinstated by, 166 F.3d 1332, 1336 (11th Cir.1999) (en banc ); Road Sprinkler Fitters Local Union No. 669
v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (concluding that a district court "could properly
treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment").
We conclude that, because the appellants effectively abandoned in the district court their argument
that the 1994 Festival Ordinance violated the Georgia Constitution, there was no reason for the district court
to consider whether to exercise its discretion not to exercise supplemental jurisdiction under section 1367(b)
or (c). Accordingly, the district court did not err by failing to exercise supplementary jurisdiction and
discussing the appellants' claim that the 1994 Festival Ordinance violated the Georgia Constitution.
Similarly, because the issue was not appropriately raised in the district court, we will not consider the
appellants' arguments that the 2000 Festival Ordinance violates the Georgia Constitution. See Narey v. Dean,
32 F.3d 1521, 1526-27 (11th Cir.1994) (discussing the general rule that appellate courts do not consider
issues or arguments not raised in the district court and the five exceptions to that rule).
CONCLUSION
Reviewing the 2000 Festival Ordinance promulgated by the Atlanta City Counsel in response to the
district court's finding that portions of the 1994 Festival Ordinance were unconstitutional, we conclude that
those portions of the 2000 Festival Ordinance validated by the district court satisfy the requirements of a
constitutional time, place, manner restriction on constitutionally protected speech. The 2000 Festival
Ordinance is content-neutral, narrowly tailored to serve a significant government interest, and leaves open
ample alternative channels of communication. We also conclude that the appellants abandoned in the district
court their argument that the 1994 Festival Ordinance violated the Georgia Constitution. Therefore, the
36
district court acted properly in not exercising supplementary jurisdiction over this claim and we do not
consider it on appeal. Accordingly, we AFFIRM the holding of the district court.
COX, Circuit Judge, concurring in part and dissenting in part:
I join the part of the court's opinion that concludes that CAMP abandoned in the district court its
claims that the 1994 Festival Ordinance violated the Georgia Constitution. But because it appears to me that
the City of Atlanta's repeal of the 1994 Festival Ordinance and adoption of the 2000 Festival Ordinance moots
the claims that the 1994 Festival Ordinance violates the Federal Constitution, I respectfully dissent.
As the majority observes, "a superseding statute or regulation moots a case only to the extent that it
removes challenged features of the prior law. To the extent that those features remain in place, and changes
in the law have not so fundamentally altered the statutory framework as to render the original controversy
a mere abstraction, the case is not moot." Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th
Cir.1992). But "[w]here a law is amended so as to remove its challenged features, the claim for injunctive
relief becomes moot as to those features." Id. My comparison of the 1994 and 2000 ordinances and analysis
of the parties' arguments leads me to conclude that the superseding ordinance has materially altered the City's
approach to issuing festival permits, removing the challenged features of the prior ordinance and mooting
CAMP's claims for injunctive relief.
First, CAMP's facial attack on the 1994 Festival Ordinance as content-based appears to be moot.
CAMP argued that § 138-187 of the 1994 Festival Ordinance was impermissibly content-based because it
distinguished between "political demonstrations" and "entertainment, dancing, music, dramatic productions,
art exhibitions, [and] parades." As the majority notes, § 138-187 of the 2000 Festival Ordinance (unlike that
section in the 1994 Festival Ordinance) does not distinguish between political demonstrations and other
expressive conduct.1 Furthermore, the 2000 Festival Ordinance explicitly forbids the City's Chief of Staff
1
As noted by the majority, § 138-209 of the 2000 Festival Ordinance effectively excludes purely political
speech from coverage. CAMP has not argued, however, that § 138-209 of the 2000 Festival Ordinance is
impermissibly content-based, and this section provides a different mechanism for excluding purely political
37
from basing a permitting decision on the content of the speech or the message to be conveyed by the festival.
See Ord. No. 99-O-1940, § 138-204. Accordingly, the 2000 Festival Ordinance removed CAMP's
content-based challenge insofar as CAMP argued that the 1994 Festival Ordinance distinguished between
political demonstrations and other expressive conduct.
Also moot is CAMP's argument that the 1994 Festival Ordinance's fees were unconstitutional because
they were manipulable according to the content of the speech.2 CAMP argued that the City could manipulate
both the estimated attendance and the number of police officers required at a festival based on the content of
the message to be delivered. The 2000 Festival Ordinance removes these challenged attributes in four ways:
(1) the Chief of Staff is directed to be guided by the applicant's estimated attendance for classification of the
festival, unless the estimate was "made in palpable bad faith or otherwise grossly in error," and the Chief of
Staff must provide written reasons for declining to adopt the applicant's estimate; (2) the Chief of Staff is
directed not to consider counter-demonstrators in his evaluation of anticipated attendance; (3) the Chief of
Staff is directed not to consider the content of any speech or message to be conveyed by a festival permit
applicant;3 and (4) the personnel hours worked by police officers are excluded from the definition of "extra
personnel hours" to be billed to those who receive festival permits.4 In the absence of these challenged
features, CAMP's claim that the fee provisions are unconstitutional appears to be moot.
Finally, CAMP claimed that the 1994 Festival Ordinance's permitting requirements for "outdoor
festivals" were not narrowly tailored to serve a significant governmental interest and leave open ample
speech.
2
CAMP also argued that under the 1994 Festival Ordinance the permit fees were unconstitutional because
they were "not nominal," since they included the costs of additional police protection. CAMP's "not nominal"
challenge to the fees is intertwined with its content-based challenge. Therefore, I conclude that all of CAMP's
fee challenges are moot.
3
Ord. No. 99-O-1940, § 138-204(c)(2).
4
See Ord. No. 99-O-1940, § 138-187.
38
alternative channels of communication. The 2000 Festival Ordinance is more narrowly tailored and provides
additional alternative channels of communication; therefore, the original controversy between the parties is
no longer before us. The 2000 Festival Ordinance narrows the definition of "outdoor festival" in two ways.
First, an "outdoor festival" includes events that require "the erection of stages, barricades, utility poles,
booths, tents, or other temporary structures, or the use of parked vehicles or of permanent structures," in
addition to meeting the 1994 Festival Ordinance's definition. Ord. No. 99-O-1940 § 138-187. Second, any
event with a scheduled duration of three hours or less does not fall within the new "outdoor festival"
definition.5 See id. This second narrowing of the "outdoor festival" definition also permits additional
alternative means of communication. The 2000 Festival Ordinance also requires any time, place, and manner
restrictions imposed by the City's Chief of Staff to be based on constitutional criteria. See Ord. No. 99-O-
1940 § 138-204(a). The ordinance has been "sufficiently altered so as to present a substantially different
controversy from the one the district court originally decided." Northeastern Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 671, 113 S. Ct. 2297, 2306, 124 L. Ed. 2d 586
(1993) (O'Connor, J., dissenting). I would therefore conclude that this claim is moot as well.
There must, of course, be a "present, live controversy in order to avoid advisory opinions on abstract
propositions of law." Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d 598, 604
(11th Cir.1985) (internal citation omitted). Because the 2000 Festival Ordinance removed the challenged
features of the 1994 Festival Ordinance, the original controversy has been rendered a mere abstraction. See
Naturist Soc'y, 958 F.2d at 1520. Accordingly, I would dismiss as moot CAMP's appeal challenging the
district court's conclusion that certain aspects of the 1994 Festival Ordinance are constitutional.
5
Although the majority correctly notes that there has been no alteration in § 138-204's requirement that
the Chief of Staff deny any application where the applicant proposes to limit the use of public streets and
parks under certain conditions, CAMP has not challenged on appeal this attribute of the ordinance.
39