Camp Legal Defense Fund, Inc. v. City of Atlanta, No. 05-12114.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Pryor
• Citation: 451 F.3d 1257
• Parties: CAMP LEGAL DEFENSE FUND, INC., Plaintiff-Appellant, v. CITY OF ATLANTA, Greg Pridgeon, Defendants-Appellees.
• Docket Number: No. 05-12114.
• Decision Date: 13 June 2006

451 F.3d 1257 CAMP LEGAL DEFENSE FUND, INC., Plaintiff-Appellant,
v.
CITY OF ATLANTA, Greg Pridgeon, Defendants-Appellees. No. 05-12114. United States Court of Appeals, Eleventh Circuit. June 13, 2006.

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Ralph Goldberg, Decatur, GA, for Plaintiff-Appellant.

Kendric E. Smith, Rajan Bhandari, Deborah C. Wakefield, City of Atlanta Law Dept., Laura Sauriol, Kutak Rock, LLP, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before CARNES, WILSON and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

This appeal by the Coalition for the Abolition of Marijuana Prohibition of a judgment regarding the Atlanta Outdoor Festivals Ordinance of 2003 presents two threshold issues of justiciability, involving standing and mootness, and issues about whether the Festivals Ordinance violates constitutional guarantees of free speech. The key issue is whether, under the overbreadth doctrine, CAMP may challenge, under the free speech clause of the First Amendment, provisions of the Festivals Ordinance that do not either apply to or affect its activities. We recently confronted this issue en banc in Tanner Advertising Group v. Fayette County, but did not resolve it because all but one of the claims for relief in that appeal were rendered moot by a repeal of the challenged ordinance. 451 F.3d 777, No. 04-13210, 2006 WL 1567244 (11th Cir. June 9, 2006) (en banc). We left this "issue for another day." Id. at 791, 2006 WL 1567244, *14. That day has arrived.

The Festivals Ordinance requires an individual or organization to obtain a permit to hold an outdoor festival in Atlanta. Atlanta Outdoor Festivals Ordinance of 2003, Atlanta, Ga. Ord. §§ 138-186-138-209. An outdoor festival, in contrast with traditional parades or other assemblies in parks or streets, involves the erection of stages, barricades, tents, booths, or other temporary structures, and may include entertainment and sales of food and merchandise. Id. § 138-187. On January 2, 2003,

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CAMP was unable to apply for a permit because Atlanta imposed a moratorium on the issuance of permits from November 27, 2002, to January 13, 2003. CAMP filed a complaint that alleged that several provisions of the Festivals Ordinance violate its rights of free speech under the United States Constitution and Georgia Constitution. The district court granted partial summary judgments to both Atlanta and CAMP regarding several provisions and concluded, after a bench trial, that other provisions were constitutional.

In all, this appeal raises four issues: (1) whether CAMP has standing to challenge provisions of the Festivals Ordinance that do not affect its activities, (2) whether the challenge by CAMP to the moratorium on festival permits is moot because the moratorium has expired, (3) whether provisions of the Festivals Ordinance violate the First Amendment of the United States Constitution, see U.S. Const. Amend. I, and (4) whether provisions of the Festivals Ordinance violate the Georgia Constitution, see Ga. Const. art. 1 § 1 ¶ 5. Our review of these issues involving these parties is familiar territory. See CAMP v. City of Atlanta, 219 F.3d 1301, 1305 (11th Cir. 2000).

As to all but one of the provisions of the Festivals Ordinance before us, we either lack jurisdiction to consider the challenge by CAMP or affirm the judgment in favor of Atlanta. Because CAMP lacks standing to challenge provisions of the Festivals Ordinance that do not apply to its activities, see Festivals Ordinance §§ 138-205, -207(b)(7), (b)(8), and the overbreadth doctrine does not provide an exception to the requirements of constitutional standing, we vacate and remand with instructions to dismiss in part. We also conclude that the complaint of CAMP regarding the denial of its application for a permit during the moratorium is not moot, because CAMP requested damages for that alleged violation. As to six provisions, we affirm in part the judgment in favor of Atlanta: neither the ability of city officials to comment on the permit application, see id. §§ 138-201(21), -202, nor the ability of the Chief of Staff to impose special limitations on certain neighborhoods, see id. § 138-201A(d), grant unbridled discretion to city officials in violation of the First Amendment; and the ninety-day advance application requirement, see id. § 138-201, the liability insurance requirement, see id. § 138-205(e), and the moratorium do not impose prior restraints that violate either the United States Constitution or the Georgia Constitution. Because the remaining provisions regarding the exemption for city-sponsored events grant unbridled discretion to city officials, see id. § 138-187, -188, we reverse and remand in part.

I. BACKGROUND

To explain the context of this appeal, we address two matters. We first review the operation of relevant provisions of the Festivals Ordinance. We then review the litigation that led to this appeal.

A. The Festivals Ordinance

The Atlanta Outdoor Festivals Ordinance of 2003 governs the permits, location, size, and fees of public gatherings in the City of Atlanta. Festivals Ordinance §§ 138-186-138-209. The Festivals Ordinance requires "[a]ny person or organization desiring to hold an outdoor festival [to] make application for a permit to hold such event . . . no later than ninety [ ] days prior to the date of the festival." Id. § 138-201. Although the Festivals Ordinance does not "prevent members of the public from assembling in the parks or streets . . . without holding an outdoor festival permit," those without a permit may not "erect stages, barricades, utility poles,

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booths, tents or other temporary structures. . . ." Id. § 138-209. The Festivals Ordinance also exempts "city-sponsored events" from the permitting requirements. Id. § 138-188. A "[c]ity-sponsored event means a public event that is directly related to a recognized function of city government and which is in major part initiated, financed, and executed by the City." Id. § 138-187.

Under the Festivals Ordinance, the Chief of Staff of Atlanta decides whether to grant or deny a permit within 45 days of the date of application. Id. § 138-203(A). The Chief of Staff may consult with the Commissioner of Parks, Recreation and Cultural Affairs, and the Chief of Police and "designate certain Festival Districts as having special limitations . . . if in the opinion of the Chief of Staff there are special considerations . . . such as traffic, public safety," etc. Id. § 138-201A(d). Neighborhood Planning Units, city council members, the Departments of Police, Fire, Public Works, Parks, Recreation and Cultural Affairs, and the Bureau of Buildings may also submit comments about the proposed festival. Id. § 138-202.

The Chief of Staff considers several criteria when deciding whether to grant or deny a permit. Id. §§ 138-203(b), -204. For instance, the Chief of Staff "may deny a permit to an applicant who has failed to complete payment of any sums required for a previously permitted festival until such time as payment is received ...." Id. § 138-203(b)(7). The Chief of Staff also may "deny a permit to an applicant who has failed to substantially perform a cleanup plan which was made a condition of a previous permit . . . ." Id. § 138-203(b)(8). A permit may be denied if the "internal security plan" submitted by the applicant does not "show that all off-duty law enforcement personnel to be used for internal security will be POST-certified." Id. § 138-203(b)(5). The Festivals Ordinance does not define "POST-certified," but "POST-certified" refers to the requirements of the Peace Officer Standards and Training Act of Georgia. O.C.G.A. §§ 35-8-1 to 35-8-25.

The applicant must include 23 items to apply for the permit. Festival Ordinance §§ 138-201(1)-(23). One item is "[a] certification by [the] applicant that a Notice of Intent to Hold a Festival has been sent by registered mail or by hand delivery to all City Council members . . . and all Neighborhood Planning Units affected by the festival . . . ." Id. § 138-201(21). The Festivals Ordinance also requires that "[a]n applicant shall be required to furnish a fully paid public liability damage insurance policy procured from a company licensed to do business in Georgia" for outdoor festivals of over 10,000 estimated attendees. Id. § 138-205(e), see id. § 138-205(b). The amount of insurance required is "$1,000,000 bodily injury total," "$500,000 bodily injury to any one person," and "$100,000 property damage." Id. § 138-205(e).

The applicant is required to pay fees to hold a festival. The Festivals Ordinance imposes application and permit fees based upon the size of the festival and whether the festival is "commercial" or "noncommercial." Id. §§ 138-205(c), (d). Under the Festivals Ordinance, "[c]ommercial means any part of the net earnings of the outdoor festival inures to the benefit of any private shareholder, individual or for-profit corporation . . . ." Id. § 138-187. "Noncommercial means any festival organized and operated for charitable, religious, scientific, literary, or educational purposes . . . or where no part of the net earnings of which inures to the benefit of any private shareholder, individual or for-profit corporation . . . ." Id. § 138-187.

Since it enacted the first Festivals Ordinance in 1983, Atlanta has amended the

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Festivals Ordinance several times. When it amended the Festivals Ordinance in 2003, Atlanta imposed a moratorium on festival permit applications from November 27, 2002, until January 13, 2003, when the new ordinance would become effective.

B. The History of This Litigation

CAMP is a Georgia corporation that "endeavors to put on a political demonstration promoting the reform...