Davenport v. City of Alexandria, Va., 81-1909

• Decision Date: 21 July 1982
• Docket Number: No. 81-1909,81-1909
• Parties: Lee DAVENPORT, Appellee, v. CITY OF ALEXANDRIA, VIRGINIA, Charles Strobel, Chief of Police, Douglas Harman, City Manager, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 853

683 F.2d 853

Lee DAVENPORT, Appellee, v. CITY OF ALEXANDRIA, VIRGINIA, Charles Strobel, Chief of Police, Douglas Harman, City Manager, Appellants.

No. 81-1909.

United States Court of Appeals Fourth Circuit.

Argued March 31, 1982.

Decided July 21, 1982.

Barbara P. Beach, Asst. City Atty., Alexandria, Va., for appellants.

Alan L. Cohen, Alexandria, Va. (Kenneth E. Labowitz, Labowitz & Labowitz, Alexandria, Va., on brief), for appellee.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and KISER ^*, District Judge.

CHAPMAN, Circuit Judge:

The City of Alexandria, Virginia, appeals from the order of the district court holding part of City Ordinance No. 2609 unconstitutional. The ordinance regulates the use of public sidewalks, walkways and other public property in the city's central business district for certain activities. Appellee, Lee Davenport, a street musician, challenges the ordinance as unreasonable in time, place and manner as a restriction of his First Amendment right of free expression. We reverse.

The central business district consists of 201 acres of Alexandria's total acreage of 9,880 acres. The narrow streets in this historic area are lined with shops and restaurants catering primarily to the tourist trade. In 1981 Alexandria's city council passed ordinance No. 2609 which prohibits display or sale of foodstuffs and merchandise and conduct of certain businesses and similar non-business activity on the sidewalks, walkways and other public property in the central business district. The activities prohibited are listed in § 20-82 of the city's code of laws, and include exhibitions and performances. Ordinance No. 2609 permits exhibitions and performances in eight "open spaces" ¹ within the district upon acquisition of a permit from the city manager. Performances are also allowed on sidewalks and walkways on certain civic holidays designated by city council. Permits are issued on a first-come, first-serve basis, and only three permits are issued per open space.

Lee Davenport is a bagpiper who has obtained a business license "to conduct the business of performing in the City of Alexandria." ² He wishes to perform his music and lecture on the history of bagpipes on the sidewalks and open areas of the central business district hoping that his audience will reward him for his efforts with contributions.

The cases dealing with reasonable time, place and manner restrictions set forth several conditions to their validity. Such restrictions and their enforcement cannot be based on the content of the speech thereby restricted. Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Erzonznik v. City of Jacksonville, 442 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). A compelling governmental interest unrelated to speech must be served by the restriction. Hickory Fire Fighters Assn. v. City of Hickory, N. C., 656 F.2d 917, 923 (4th Cir. 1981); Grayned v. City of Rockford, 408 U.S. 104, 117, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972). The ordinance containing restrictions on free expression ³ must be drawn with narrow specificity to be no more restrictive than necessary to secure those interests. Hickory Fire Fighters, ante, Grayned, ante.

Adequate alternative channels of communication must be left open by the restrictions. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Finally, reasonable time, place and manner restrictions may not vest in administrative officials' discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places. Poulos v. New Hampshire, 345 U.S. 395, 406, 73 S.Ct. 760, 767, 97 L.Ed. 1105 (1953).

The district court found (1) that the ordinance failed to provide specific standards under which permits would be issued or denied and (2) that it was not narrowly drawn to be no more restrictive than necessary to achieve the advanced governmental interest.

In finding that the challenged ordinance provided for too much administrative discretion in issuing permits, the court stated that Council had failed "to provide specific standards under which permits would be issued." Assuming that the ordinance vests the city manager with some discretion, a sufficient standard is found in subsection (a)(4) of the ordinance which provides for a straightforward first-come, first-serve system. As stated by the Supreme Court in Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981), such a system "is not open to the kind of arbitrary application that this court has condemned as inherently inconsistent with reasonable time, place and manner restriction. ..."

The issue of whether the ordinance is drawn with narrow specificity to be no more restrictive than necessary to secure a legitimate governmental interest is more difficult.

It is apodictic that the city advances a compelling interest where it seeks to protect "the safety and welfare of its citizens, including preservation of access to its public buildings and maintenance of vehicular and pedestrian traffic flow." Hickory Fire Fighters, ante. The district court is required to make an "independent evaluation, the crucial inquiry being 'whether the manner of expression is basically incompatible with the normal activities of a particular place at a particular time'. That inquiry in turn requires careful consideration of highly particularized facts, such as the length or lengths of city blocks, sidewalk widths and traffic patterns at various times and places in town." Id. at 924.

The district court may have undertaken such an inquiry in the present case, however, there are no findings of fact as to the particularized facts warranting striking the statute. The district court situated in Alexandria apparently took judicial notice of much of the factual information due to its familiarity with the area. The court concluded that the ordinance was overbroad in that its restrictions are not fitted to particular places and times.

It catches this plaintiff acting by himself, as well as a group composed of ten. It catches and prohibits the activity of this plaintiff and others regardless of the number of them that are in the block, regardless of the width of the sidewalk, and more importantly, regardless of whether they, by their activities, impede or deny public access to commercial buildings or impede the free flow of pedestrian traffic.

We find this case distinguishable from Hickory Fire Fighters in that the detailed approach of examining the width of every sidewalk in the central business district is not warranted. We do not hold that Alexandria's city council may disregard the requirement that its ordinances restricting speech must be limited to restrictions of expression basically incompatible with normal activities of a particular time at a particular place. We hold simply that performances and exhibitions are basically incompatible with the normal activities of the sidewalks in the central business district.

Hickory Fire Fighters involved a restriction on picketing rather than performances. The object of the picketer is not to draw a crowd but to engender sympathy for his position from passersby by publishing his message on placards. On the other hand, the primary purpose for performing on public sidewalks, indeed Davenport's purpose, is to draw a crowd that will reward...