Calvary Chapel Church v. Broward County, Fla.

• Decision Date: 23 December 2003
• Docket Number: No. 03-61927-CIV,03-61927-CIV
• Citation: 299 F.Supp.2d 1295
• Parties: CALVARY CHAPEL CHURCH, INC., Plaintiff, v. BROWARD COUNTY, FLORIDA, Board of County Commissioners, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

299 F.Supp.2d 1295

CALVARY CHAPEL CHURCH, INC., Plaintiff, v. BROWARD COUNTY, FLORIDA, Board of County Commissioners, et al., Defendants.

No. 03-61927-CIV

United States District Court, S.D. Florida.

December 23, 2003.

COPYRIGHT MATERIAL OMITTED

Richard H. McDuff, Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, FL, Paul R. Alfieri, Fort Lauderdale, FL, for Plaintiff.

Andrew J. Meyers, Florida Department of Labor & Employment Security, Tallahassee, FL, James D. Rowlee, Broward County Attorney's Office, Fort Lauderdale, FL, for Defendants.

PRELIMINARY INJUNCTION

ZLOCH, Chief Judge.

THIS MATTER is before the Court upon Plaintiff, Calvary Chapel Church Inc.'s Memorandum Of Law In Support Of Plaintiff's Motion For Preliminary Injunction (DE 2), which the Court construes as a Motion For Preliminary Injunction. An evidentiary hearing regarding this matter was held before the Court on November 14, 2003. The parties stipulate that the matter currently before the Court and at issue at the November 14, 2003 hearing is the issuance of a preliminary injunction, as opposed to a temporary restraining order or a permanent injunction. The Court has carefully considered said Motion, the entire court file and is otherwise fully advised in the premises.

I. Background

A. The Holiday Fantasy of Lights

The Holiday Fantasy of Lights (hereinafter the "HFL") is an annual event presented by Defendant, Broward County, Florida, Board of County Commissioners (hereinafter the "County") in conjunction with the winter holiday season. The event originated in 1993, when, under the direction of Defendant, Robert L. Harbin, Director of the Broward County Parks and Recreation Division (hereinafter "Harbin"), the County developed the idea of presenting a show to entertain the community through recognition of the various holidays that occur during the winter months (R. at 256-57), and by which the County could generate revenue. (R. at 254). The HFL is held in Tradewinds Park (hereinafter the "Park"), and runs approximately from immediately before Thanksgiving Day in November until just after New Year's Day in early January. (R. at 253). The Park is normally closed at sundown, but during these months a designated area in the northern part of the Park is reopened after dark for the purpose of presenting the event. (R. at 252). Roughly 250,000 people visit the show each year. (R. at 255).

Substantively, the HFL consists of lighted displays measuring up to twenty-four (24) feet wide and fifteen (15) feet high. DE 2, p. 2. The displays are set up on a two-mile path through the Park and visitors drive through the display area. DE 2, p. 2. Additionally, the County broadcasts music over a low wattage radio station which visitors may play over their car radios. One of the songs played over the radio regards playing with a dreidel. (R. at 237). Each year, a list of the lighted displays which will comprise the event is selected by a Committee of the Broward County Parks and Recreation Division (hereinafter the "Committee") with ultimate discretion over selection resting with Harbin. (R. at 258). The County's intent in selecting displays is to provide entertainment through fanciful, lighthearted or whimsical but non-serious depictions related to the entire winter holiday season. (R. at 257-60).

The County has two primary means of generating revenue through the HFL. The first is through ticket purchases of people wishing to see the show, and the second is through the sponsorship of the light displays. DE 13, Ex. 1, ¶ 5. Individuals and companies who sponsor displays are recognized at the HFL by a sign which identifies the sponsor in name and logo and is displayed next to the sponsor's chosen display. Id. Sponsors are also entitled to have their name and logo included in printed materials promoting the event. Id. In 2003, approximately sixty-three (63) displays will comprise the HFL, and seven (7) of those displays are presently sponsored. (R. at 235).

The County maintains a stated policy of not designing or accepting religious displays for exhibition in the HFL. (R. at 260). Until August of 2003, the County's policy dictated that sponsors could pick a display to sponsor from the list approved by the Committee, or, in the alternative, sponsors could submit a proposed display design. DE 13, Ex. 1, ¶ 7. On August 5, 2003, the County produced a written policy which states that a sponsor may choose a display from the Committee approved list, but may no longer propose a display. DE 13, Ex. 1, ¶ 12. According to the written policy, the Committee chooses displays which are "fanciful" and "based on a logical connection to the event's limited purpose of maximizing a light-hearted entertainment experience for people of all ages, but most particularly for children." DE 2, Ex. F, p. 2. The written policy further states: "Selected displays are consistent in scale and are compatible in theme and illumination with the event's purpose of a fun-filled, family-oriented entertainment experience." Id. The Court notes, however, that the written policy has not been consistently enforced, and that Harbin testified that he is not strictly bound to comply with it. (R. at 178). Accordingly, sponsors are still entitled to choose from one of the designs chosen by the Committee, and the possibility exists that were a sponsor to propose a design satisfactory to Harbin, that design would be included as well.

The County's policy of allowing sponsors to propose displays resulted in the approval and display of a design depicting an octopus holding presents in each of its tentacles. The design was proposed by a local company, Pino Tile, Inc., and is almost identical to the company's logo, which depicts an octopus holding tiles in its tentacles. This practice of adopting corporate logos for use in the HFL was also exhibited in the County's efforts to design displays intended to attract other sponsors. For example, a local Ford Dealership, uses an alligator as its logo. The County considered a design which would depict an alligator with a ribbon around his neck in an effort to gain the sponsorship of the Dealership. (R. at 233). The changes to these logos, whether actual or proposed, give the logos a visual association with the winter holiday themes of decoration and giving and receiving wrapped gifts.

The Committee also designed or approved a number of displays not depicting a corporate logo, but reflecting imagery associated with the winter holidays season, including the Christmas holiday. The Court notes that the 2003 Sponsorship Book (DE 13, Ex. A) makes available for sponsorship a forty (40) foot "Rainbow Tree" display, which appears in its shape and decoration to be a Christmas tree; a "Victorian Candy Shop," which depicts a house adorned with candy canes, holly, and bows; a display depicting "Victorian Carolers Singing"; a "Country Christmas Toboggan Scene"; a "Santa, Sleigh, and Reindeer Scene"; a scene depicting a "Country Tree Trimming"; a "Holiday Shopping Bag with Packages Scene" depicting toys and a candy cane emerging from a bag; a scene depicting "Santa Golfing"; and a display containing the words, "And to all a goodnight."

B. Calvary Chapel Church, Inc. and the Holiday Fantasy of Light

In 2002, Plaintiff, Calvary Chapel Church, Inc. (hereinafter "Calvary Chapel" or the "church") applied to sponsor the HFL and submitted a proposed display to the County composed of a Christmas star and the words, "Remember Him — Presented by Calvary Chapel Ft. Lauderdale." Citing the display's overtly religious message, the County declined to include it in the show. (DE 13, p. 4). Calvary Chapel and the County eventually came to an agreement that a display would be included in the show, sponsored by Calvary Chapel, with the Christmas star and the words, "God Bless America." (R. at 271, Pl.'s Ex. 15). According to Harbin, the County accepted the display for the show because they did not want to lose a sponsor, and because the display had a patriotic theme. (R. at 271).

On April 8, 2003, Calvary Chapel again submitted a proposed display to the County for inclusion in the HFL. The proposed display depicted a cross and the words, "Jesus is the Reason for the Season." Again objecting to the religious nature of its design, the County declined Calvary Chapel's proposed display. (DE 2, Ex. B). The parties discussed alternative designs, including ones not previously approved by the Committee but ultimately were not able to reach agreement. (R. at 277).

The above-styled cause was initiated on October 22, 2003. Calvary Chapel's Memorandum Of Law In Support Of Plaintiff's Motion For Preliminary Injunction (DE 2) requests that the Court issue an injunction requiring the County to permit Calvary Chapel to sponsor a display in the 2003 HFL consisting of a cross and the words, "Jesus is the Reason for the Season — Calvary Chapel Fort Lauderdale."

II. Preliminary Injunction Standard

The Court notes that in order to obtain a preliminary injunction Plaintiff must show that: (1) it has a substantial likelihood of success on the merits; (2) there is a substantial threat that it will suffer irreparable injury if the injunction is not granted; (3) the threatened injury to it outweighs the harm the injunction may do to Defendant; and (4) granting the injunction will not disserve the public interest. Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir.2001). The Court further notes that, in the Eleventh Circuit, a preliminary injunction is considered an extraordinary and drastic remedy that should not be granted unless Plaintiff can clearly establish the burden of persuasion as to each of the four elements. Café 207 v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir.1993).

A. Substantial Likelihood of Success

In determining whether a public entity's regulation of speech violates a speaker's First Amendment Freedom of Speech rights the Court must consider three issues....