Chabad of Southern Ohio v. City of Cincinnati, No. C-1-02-840.

• Decision Date: 27 November 2002
• Docket Number: No. C-1-02-840.,No. C-1-02-880.
• Parties: CHABAD OF SOUTHERN OHIO & CONGREGATION LUBAVITCH Plaintiffs v. CITY OF CINCINNATI Defendant Peter Edward Ritchy et al. Plaintiffs v. City of Cincinnati Defendant
• Court: U.S. District Court — Southern District of Ohio

233 F.Supp.2d 975

CHABAD OF SOUTHERN OHIO & CONGREGATION LUBAVITCH Plaintiffs v. CITY OF CINCINNATI Defendant Peter Edward Ritchy et al. Plaintiffs v. City of Cincinnati Defendant

No. C-1-02-840.

No. C-1-02-880.

United States District Court, S.D. Ohio, Western Division.

November 27, 2002.

Marc David Mezibov, Sirken Pinales Mezibov & Schwartz-1, Cincinnati, CT, for Plaintiff.

Richard Ganulin, Assistant City Solicitor-1, Cincinnati, OH, for Defendant.

ORDER

DLOTT, District Judge.

This matter comes before the Court on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Case No. C-1-02-840, doc. # 2) and Plaintiffs' Motion for a Temporary Restraining Order (Case No. C-1-02-880, doc. # 2). Plaintiffs Chabad of Southern Ohio and Congregation Lubavitch (collectively, the "Chabad Plaintiffs") seek injunctive relief which 1) restrains the City of Cincinnati (the "City"), its agents and employees and all persons in active concert and participation with the City from enforcing, applying and implementing Ordinance No. 0122-2002 and the administrative scheme it enacted and 2) reinstates a permit issued by the City authorizing Plaintiffs to display a menorah on Fountain Square Plaza in Cincinnati, Ohio. Plaintiffs Peter Edward Ritchy and the Homeless Hotline of Greater Cincinnati (collectively, the "Homeless Hotline Plaintiffs") also ask the Court to enjoin enforcement of the administrative scheme enacted by Ordinance No. 0122-2002. Ordinance No. 0122-2002 modifies Chapter 713 of the Cincinnati Municipal Code to give exclusive use of Fountain Square to the City during the last two weeks of November, the month of December and the first week of January. Pursuant to Chapter 713, Fountain Square is open to public use, subject to a permit scheme, during the rest of the year. Having taken evidence in this matter at a November 25, 2002 hearing, the Court ENJOINS the City as set forth below, pending a trial on the merits.

I. FACTUAL FINDINGS

Fountain Square is an open public plaza in the City of Cincinnati, Ohio. The centerpiece of Fountain Square is the Tyler Davidson Fountain. The plaza also includes tables and chairs and a platform stage area. It is bounded on two sides by various shops, restaurants and office buildings, though pedestrians may freely access the plaza from any direction without walking through any of these closed structures. While some government buildings, including the Potter Stewart United States Courthouse, lie in the vicinity of Fountain Square, no government building borders the square. Historically, Fountain Square has been the subject of First Amendment litigation on multiple occasions, including an action by the Ku Klux Klan seeking to erect a Latin cross and several actions by Congregation Lubavitch and Rabbi Sholom Kalmanson seeking to erect a menorah on the Square.

Plaintiff Chabad of Southern Ohio is a Jewish organization which seeks to reach out to and educate both Jews and non-Jews. Plaintiff Congregation Lubavitch is a house of worship for Jewish religious services. Rabbi Sholom Kalmanson is the Executive Vice President of Chabad of Southern Ohio and the spiritual leader of Congregation Lubavitch. Beginning in 1985 and for the past seventeen holiday seasons, Chabad and Congregation Lubavitch have erected a menorah on Fountain Square during Chanukah.¹

On November 1, 2001, Rabbi Kalmanson filed a permit application with the City of Cincinnati Department of Public Services on behalf of the Chabad Plaintiffs. The application sought a permit to place a menorah on Fountain Square during the 2001 Chanukah holiday. Daryl B. Brock, the City's Director of Public Services, approved the permit. At that time, Mr. Brock told Rabbi Kalmanson that the City would be issuing permits for the 2002 holiday season on a first come, first served basis in an effort to prohibit the Ku Klux Klan from erecting a cross on Fountain Square during the holiday season. Thus, on that same day, Rabbi Kalmanson filed a permit application, again on behalf of the Chabad Plaintiffs, seeking to erect a menorah on Fountain Square during the 2002 Chanukah holiday. Mr. Brock verbally assured Rabbi Kalmanson that this permit application would be approved as well.

On April 17, 2002, the Cincinnati City Counsel unanimously passed without discussion Ordinance No. 0122-2002, which amended §§ 713-1 through 713-9 and § 713-99 of the Cincinnati Municipal Code ("C.M.C." or the "Code") pertaining to public use of Fountain Square. Ordinance No. 0122-2002 was subsequently signed by Charles Luken, the mayor of Cincinnati. Ordinance No. 0122-2002 purported to include safeguards to protect the rights of those who wish to use Fountain Square by providing for "spontaneous use permits" to be made available to those who cannot meet permit application deadlines because of events or occurrences which surface with little or no notice, a formal appeals process in the event of a denial or revocation of a permit, and a procedure for an applicant to enlist the services of the City in seeking an alternative location, date or time if its permit is denied because the maximum number of permits for Fountain Square has already been issued.

However, at the same time that the Ordinance purported to help protect the rights of speakers on Fountain Square during forty-five weeks of the year, it banned all organized private speech on the Square for the other seven:

It is further found and determined that in pursuit of these legitimate governmental interests, the City shall exercise its right to exclusive use during the last two weeks of November, the month of December, and the first week of January. This time period has the greatest financial impact upon businesses, such as department stores, specialty stores, restaurants, hotels and bars, many of which rely on the holiday season for the majority of their sales. In the past, holiday promotions have attracted approximately 300,000 people downtown to shop, eat, and enjoy seasonal activities. The City has an inherent right to control its property, which includes a right to close a previously open forum. During times of exclusive use by the City of Cincinnati, the City will bear the ultimate responsibility for the content of the display or event. No other party, other than the City of Cincinnati, may make decisions with regard to any aspect of the event and/or display. No private participation with regard to any aspect of the event and/or display will be permitted during this time. However, the City may accept donations or funds from other entities for the event and/or display which is the subject of the exclusive use. As a result of the sole responsibility, ownership, management and control by the City of Cincinnati during times of exclusive use, it is recognized that the City is engaging in government speech.

C.M.C. § 713-1. See also C.M.C. § 713-4(j); Rules and Regulations for the Use of Fountain Square 4(c)(3) and 8(a).

Ordinance No. 0122-2002 sets forth findings explaining the purpose of the "exclusive use" provision:

WHEREAS, in order to advance the City of Cincinnati's significant economic, development, safety, and equality interests, the regulations enacted by this ordinance contain provisions for the exclusive governmental use by the City during the last two weeks of November, the month of December, and the first week in January, which is the time period of the greatest financial impact upon downtown and regional businesses of all types. With exclusive control over its content and design, the City will be able to ensure the widest of audiences for purposes of supporting and promoting the City's specific governmental interests ....

The amended Code lists the "significant economic, development, safety, and equality interests" referenced in the above-quoted portion of the Ordinance:

(1) to better coordinate competing uses of Fountain Square;

(2) to ensure equal access to Fountain Square;

(3) to promote and develop tourism and recreation;

(4) to encourage, promote, stimulate, and assist in the development of the Cincinnati business economy;

(5) to maintain, develop, and increase employment opportunities for those who live, work, and may consider moving to Cincinnati and the Cincinnati region; and

(6) to pursue efforts to promote the expansion of the population residing within Cincinnati and to specifically encourage, stimulate, and develop an expanding downtown resident population.

C.M.C. § 713-1.

Except for the period reserved for the City's "exclusive use," permits for use of Fountain Square may be obtained on a first come, first served basis. See Rules and Regulations for the Use of Fountain Square 3. The Director of Public Services is permitted to issue up to three permits for less than full use of Fountain Square for the same date and time. See id. The Code also delineates the breadth of the permit requirement: "No person or group may erect a display, exhibit or structure, hold an event, protest, rally or meeting, or make any other use of Fountain Square without a permit issued by the director of public services in accordance with the rules and regulations for the use of Fountain Square." C.M.C. § 713-3(b). Section § 713-5 lists other uses of Fountain Square which are prohibited in the absence of a permit. The modifications promulgated by Ordinance No. 0122-2002 became effective on May 16, 2002.

In June 2002, the City Department of Public Services wrote to Rabbi Kalmanson explaining that his application for a permit to use Fountain Square Plaza from November 29 through December 8, 2002 was denied. The letter to Rabbi Kalmanson cited the newly-adopted "exclusive use" provision as the basis for the denial. The letter indicated that Rabbi Kalmanson might request an alternative location, date, or time for his proposed use of Fountain Square. Rabbi Kalmanson attempted to no avail to persuade City officials to incorporate a menorah into the City's plans for Fountain...