Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta

• Decision Date: 27 July 2000
• Docket Number: DEFENDANT-APPELLEE,No. 99-11385,PLAINTIFFS-APPELLANTS,99-11385
• Citation: 219 F.3d 1301
• Parties: (11th Cir. 2000) COALITION FOR THE ABOLITION OF MARIJUANA PROHIBITION, PAUL D. CORNWELL, II,, v. CITY OF ATLANTA,
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1301

219 F.3d 1301 (11th Cir. 2000)

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.

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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 Ga., Code §§ 138-186 through 138-208 (1994), (the "1994 Festival Ordinance"), repealed by Atlanta Outdoor Festivals Ordinance of 2000, Atlanta, Ga.Code § 99-O-1020 (2000), to be, in part, facially unconstitutional and enjoining the future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 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 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 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.

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...