Dimmitt v. City of Clearwater

• Decision Date: 12 November 1991
• Docket Number: No. 89-857-CIV-T-15A.,89-857-CIV-T-15A.
• Citation: 782 F. Supp. 586
• Parties: Lawrence H. DIMMITT, III and Dimmitt Chevrolet, Inc., a Florida corporation, Plaintiffs, v. The CITY OF CLEARWATER, a municipal corporation, and John D. Richter, individually and as Development Code Administrator of the City of Clearwater, Defendants.
• Court: U.S. District Court — Middle District of Florida

782 F. Supp. 586

Lawrence H. DIMMITT, III and Dimmitt Chevrolet, Inc., a Florida corporation, Plaintiffs, v.The CITY OF CLEARWATER, a municipal corporation, and John D. Richter, individually and as Development CodeAdministrator of the City of Clearwater, Defendants.

No. 89-857-CIV-T-15A.

United States District Court, M.D. Florida, Tampa Division.

November 12, 1991.

Joshua H. Magidson, for plaintiffs.

Milton Alvin Galbraith, for defendants.

ORDER

CHARLES R. WILSON, United States Magistrate Judge.

THIS CAUSE is before the Court upon Plaintiffs' Motion for Partial Summary Judgment(doc. 31) and Defendants' Motion for Summary Judgment(doc. 21).The Court, having considered the motions, the memoranda and affidavits in support thereof, and being otherwise fully advised in the premises, finds that summary judgment should be entered on behalf of Plaintiffs and against Defendants for the reasons set forth below.

STATEMENT OF THE CASE AND FACTS

This Court has jurisdiction pursuant to the Civil Rights Act,42 U.S.C. § 1983,28 U.S.C. § 1343, and the Declaratory Judgment Act, 28 U.S.C. § 2201.The parties have consented to resolution of this action by the undersigned Magistrate Judge.The Court adopts as its statement of facts paragraphs 1 through 21 of the Affidavit of John D. Richter(doc. 23), filed with the Court on November 8, 1990, and paragraphs 1 through 13 of the Affidavit of Lawrence Dimmitt, III(doc. 29), filed with the Court on November 28, 1990.The facts the Court relies upon in these affidavits are either undisputed or unrefuted by record evidence.

Plaintiffs seek in this action 1) damages against Defendants resulting from Defendants' deprivation under color of law of Plaintiffs' rights under the First and Fourteenth Amendments of the Constitution of the United States; 2) declaratory relief as to whether § 134.008(18) of the City of Clearwater's Sign Regulations of Title XI, Land Development Code¹(hereinafter referred to as "the ordinance" or "the Sign Code") is invalid and whether the Defendants' enforcement of the ordinance concerning Plaintiffs' flag display constitutes a denial of Plaintiffs' freedom of speech; and 3) injunctive relief in the event the Court determines that Plaintiffs' rights have been or are in danger of being violated.

Defendants have counterclaimed for declaratory and injunctive relief on a state law claim under the pendent or ancillary jurisdiction doctrine, claiming that the Plaintiffs' display of flags constitutes a violation of the ordinances of the City of Clearwater.

STANDARD OF REVIEW

This circuit holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the non-moving party.Sweat v. Miller Brewing Co.,708 F.2d 655(11th Cir.1983).All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party.Hayden v. First Nat'l Bank of Mt. Pleasant,595 F.2d 994, 996-97(5th Cir.1979),²quotingGross v. Southern R.R. Co.,414 F.2d 292(5th Cir.1969).Factual disputes preclude summary judgment.

The burden of establishing the absence of a genuine issue of material fact is on the moving party.Celotex Corp. v. Catrett,477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).Once this burden is met, the non-moving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial."Id. at 324, 106 S.Ct. at 2553.

DISCUSSION

The Court must first determine whether Plaintiffs' display of the flags constitutes expressive conduct.If so, plaintiffs may invoke the First Amendment to challenge the City's ordinance.Texas v. Johnson,491 U.S. 397, 403, 109 S.Ct. 2533, 2538, 105 L.Ed.2d 342(1989).If plaintiffs' conduct was expressive, the Court next decides if the City's ordinance is related to the suppression of free expression.Id.citingSpence v. Washington,418 U.S. 405, 414, 94 S.Ct. 2727, 2732, 41 L.Ed.2d 842(1974)andUnited States v. O'Brien,391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672(1968).If the City's ordinance is unrelated to expression, then the less stringent standard set forth in O'Brien applies.Id.

A.Whether display of the American flags in the context of this case is expressive conduct.

Plaintiffs claim that their act of displaying twenty-three flags at the automobile dealership is expressive conduct.They indicate that in late 1987George Hill, a Viet Nam veteran and owner of the A.B.C. Flag Company, approached Dimmitt Chevrolet regarding installation of a flag display on the property.(¶¶ 3-4, Dimmitt Affidavit).Mr. Hill has made creating patriotic flag displays his life's work.Id.Plaintiffs emphasize that they have never used the flag display in connection with sales, advertising or promotion, and that no commercial flags have ever been displayed on their property.Id.at ¶¶ 9, 11.They contend that the American flag display "is intended to be expressive and symbolic, in communicating the message of the American flag."Id.at ¶ 13.

The United States Supreme Court has held that conduct is to be considered expressive if 1) an intent to convey a particularized message accompanies the conduct; and 2) the likelihood is great that those viewing the conduct will understand the message.Spence,418 U.S. at 410-11, 94 S.Ct. at 2730.Several cases address expressive conduct relating to flags.SeeUnited States v. Eichman,496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287(1990);Texas v. Johnson, supra;Spence, supra;Smith v. Goguen,415 U.S. 566; 94 S.Ct. 1242, 39 L.Ed.2d 605(1974);West Virginia Bd. of Educ. v. Barnette,319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628;Stromberg v. California,283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117(1931).

Defendants contend that Plaintiffs' articulated intent for displaying the American flag, "to communicate the message of the American flag," is not sufficiently particularized to pass constitutional muster.They claim that the "message of the flag" is broad and sweeping, and that each viewer understands a different message when viewing the American flag.In short, Defendants maintain that Plaintiffs have not engaged in expressive conduct because they cannot articulate one message they seek to convey that all viewers will understand.

The Court, however, having carefully considered the caselaw set forth above, concludes that, under these circumstances, Plaintiffs engaged in expressive conduct by displaying the flags on their property.Plaintiffs, like the State of West Virginia in Barnette, have, at the very least, employed the flag "as a symbol of adherence to government as presently organized."319 U.S. at 633, 63 S.Ct. at 1183.By voluntarily displaying the flags on their property, Plaintiffs"communicate by sign their acceptance of the political ideas it thus bespeaks" just as if they were formally pledging allegiance to the flag.³Id.Whatever personal meaning a viewer attaches to these flags, the viewer must understand that the gist of the message Plaintiffs wish to convey is that they recognize and acknowledge their adherence to the government of the United States.⁴Although Plaintiffs may have intended to convey a far more complex and wide-ranging idea, the basic, inherent message of support for the government is sufficient to warrant First Amendment protection as expressive conduct.

B.Whether the City's Ordinance is Related or Unrelated to the Suppression of Expressive Conduct.

Having found that the Plaintiffs' display of the flags is expressive conduct, the Court next must determine if the governmental interests offered by the City as justification for the ordinance are related or unrelated to the suppression of that conduct.If the City seeks to prohibit the expressive conduct precisely because of its communicative attributes, the ordinance should be found unconstitutional.See, e.g., Barnes v. Glen Theatre, Inc.,___ U.S. ___, ___, 111 S.Ct. 2456, 2466, 115 L.Ed.2d 504(Scalia, J., concurring);Eichman, supra;Texas v. Johnson, supra.However, if the suppression of the communicative aspect of the conduct is merely an incidental effect of forbidding the conduct for other reasons, the ordinance should stand if it meets the requirements set forth in O'Brien.See391 U.S. at 377, 88 S.Ct. at 1679.

Having carefully reviewed the record, the Court finds that Defendants have cited three governmental interests for the two-flag limitation on non-residential properties: 1) to prevent commercialization of the flag (Admin. Hr'g Tr.at 37, 39, 80); 2) to avoid visual clutter and preserve the community aesthetics; and 3) to prevent distraction to motor vehicle operators, bicyclists or pedestrians.The Court shall focus on these respective governmental interests to ascertain if any of them sufficiently justify the City's ordinance.

1.Whether the City's interest in preventing the commercialization of the flag justifies its ordinance.

At the Administrative Hearing held on May 10, 1988, regarding whether PlaintiffLawrence H. Dimmitt, III was entitled to a variance to allow him to fly twenty-three American flags on his property, DefendantJohn Richter, Development Code Administrator for the City of Clearwater, Florida, testified that he, with the help of the Clearwater City Commission, had drafted the sign code (Admin. Hr'g Tr.at 36).When questioned regarding Section 134.008(18) of the Sign Code, which provides for the display of one governmental flag per residence and two governmental flags per nonresidence, Mr. Richter testified that his basis or rationale for the numbers set forth in this section was "to limit commercialization of the flag."⁵Id. at 37.Mr. Richter explained as follows:

The rationale is to allow everybody to express their allegiance by

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