First Vagabonds Church of God v. City of Orlando

• Decision Date: 12 April 2011
• Docket Number: No. 08–16788.,08–16788.
• Citation: 638 F.3d 756
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: FIRST VAGABONDS CHURCH OF GOD, an unincorporated association, Brian Nichols, Orlando Food Not Bombs, an unincorporated association, Ryan Scott Hutchinson, Benjamin B. Markeson, Eric Montanez, Adam Ulrich, Plaintiffs–Appellees–Cross Appellants,v.CITY OF ORLANDO, FLORIDA, Defendant–Appellant–Cross Appellee,National Law Center on Homelessness & Poverty, National Legal Foundation, Amicus.

638 F.3d 756

22 Fla. L. Weekly Fed. C 1978

FIRST VAGABONDS CHURCH OF GOD, an unincorporated association, Brian Nichols, Orlando Food Not Bombs, an unincorporated association, Ryan Scott Hutchinson, Benjamin B. Markeson, Eric Montanez, Adam Ulrich, Plaintiffs–Appellees–Cross Appellants,

v.CITY OF ORLANDO, FLORIDA, Defendant–Appellant–Cross Appellee,National Law Center on Homelessness & Poverty, National Legal Foundation, Amicus.

No. 08–16788.

United States Court of Appeals, Eleventh Circuit.

April 12, 2011.

Kathleen Maloney Skambis, The Skambis Law Firm, Martha Lee Lombardy, Office of Legal Affairs, City of Orlando, Mayanne Downs, King, Blackell, Downs & Zehnder, P.A., Orlando, FL, for City of Orlando, FL.Jacqueline Hilary Dowd, Legal Advocacy at Work, Inc., Orlando, FL, Randall C. Marshall, ACLU of Florida, Inc., Miami, FL, Glenn M. Katon, ACLU Foundation of Florida, Inc., Tampa, FL, for Plaintiffs–Appellees–Cross Appellants.Eric J. Hager, Conrad & Scherer, LLP, Washington, DC, for Amicus Curiae, Nat. Law Ctr. on Homelessness & Poverty.

Steven Werner Fitschen, Nat. Legal Found., Virginia Beach, VA, for Amicus Curiae, The Nat. Legal Found.Richard Hunt McDuff, Smith, Moore, Leatherwood, LLP, Greenville, SC, Jeffrey A. Simes, Goodwin Procter, LLP, New York City, Anaxet Y. Jones, Goodwin Proctor, Washington, DC, for Amicus Curiae, The Rutherford Institute.Appeals from the United States District Court for the Middle District of Florida.Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, CARNES, BARKETT, HULL, WILSON, PRYOR, MARTIN and BLACK, Circuit Judges.^*PRYOR, Circuit Judge:

This appeal presents the question whether a municipal ordinance that limits the number of feedings of large groups that any person or political organization can sponsor in centrally located parks violates the First Amendment. A political organization, Orlando Food Not Bombs, contends that an ordinance that, as applied, restricts the frequency of its feedings of homeless persons in any park within a two-mile radius of the City Hall of Orlando, Florida, violates the Free Speech Clause of the First Amendment. The City of Orlando enacted the ordinance to spread the burden that feedings of large groups have on parks and their surrounding neighborhoods. Orlando Food Not Bombs argues that it has a right under the First Amendment to conduct feedings of large groups in any park as often as it likes. We assume, without deciding, that the feeding of homeless persons by Orlando Food Not Bombs is expressive conduct protected by the First Amendment, but we uphold the ordinance of the City of Orlando both as a reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct. The judgment of the district court is affirmed in part and reversed in part, and the permanent injunction against enforcement of the ordinance is vacated.

I. BACKGROUND

Lake Eola Park, located in the heart of downtown Orlando, Florida, is the signature park of the City and is featured on the seal of the City. Lake Eola Park is also one of 42 parks located in the Greater Downtown Park District, which is the area within a two-mile radius of City Hall. Orlando, Fla., Code § 18A.01(24). Orlando has a total of 108 parks in the entire City.

In 2005, Orlando Food Not Bombs, a group of political activists dedicated to the idea that food is a fundamental human right, began distributing free food at Lake Eola Park every Wednesday at 5:00 p.m., and First Vagabonds Church of God, a religious organization of about 40 members, most of whom are homeless, began conducting weekly services that included group feedings at Lake Eola Park. The Church later moved its services to Langford Park, which is also in the Greater Downtown Park District. In 2008, Orlando Food Not Bombs added a second weekly feeding at Lake Eola Park on Mondays at 8:00 a.m. The free feedings ordinarily attracted between 50 and 120 people. After Orlando Food Not Bombs began distributing food at Lake Eola Park, residents of the surrounding neighborhoods complained to the City about the conduct of people who disbursed into the neighborhoods after the feeding events.

In response to the complaints, the City held public hearings and enacted an ordinance to regulate feedings of large groups at central public parks. The ordinance required sponsors of feedings of large groups within the Greater Downtown Park District to obtain a permit, and the ordinance limited the number of permits that a permittee could obtain for any one park to two a year. Id. § 18A.09–2. The ordinance defined a “large group feeding” as “an event intended to attract, attracting, or likely to attract twenty-five (25) or more people[ ] ... for the delivery or service of food.” Id. § 18A.01(23).

The Mayor of Orlando, John Hugh Dyer Jr., testified that the ordinance was enacted as an attempt to “be fair to individual neighborhoods” by distributing the large group feedings among the various city parks. A city official testified that the ordinance “was primarily intended to help broaden the burden across downtown,” and a city record established that the ordinance was enacted to make the burdens placed on public parks “more manageable with advance notice and regulation through a permit system.” Lisa Early, the Director of Families, Parks, and Recreation for the City, testified about the overuse of Lake Eola Park and explained that there were other parks with large green spaces that had the capacity to be used more often. Early also testified that the ordinance achieved the objective of lessening the burden placed on Lake Eola Park because it limited the number of large group feedings that any one group could sponsor and “[told] them, ‘We need to make use of all of our parks and facilities and spread the burden around.’ ”

Orlando Food Not Bombs and four of its members, Ryan Hutchinson, Benjamin Markeson, Eric Montanez, and Adam Ulrich, and the Church and its pastor, Brian Nichols, together filed in the district court a complaint against the City of Orlando that sought injunctive and declaratory relief and damages. The Church alleged that the ordinance, as applied, violated the Florida Religious Freedom Restoration Act, Fla. Stat. § 761.01 et seq.; and that the ordinance, both facially and as applied, violated the Free Exercise Clause of the First Amendment. The Church and Orlando Food Not Bombs both alleged that the ordinance, facially and as applied, violated the Free Assembly Clause of the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Orlando Food Not Bombs also alleged that the ordinance, facially and as applied, violated the Free Speech Clause of the First Amendment.

The district court granted summary judgment in favor of the City on the claims under the Due Process and Equal Protection Clauses, and the district court granted summary judgment against the facial challenge under the Free Speech Clause as without merit because the conduct regulated by the ordinance was not, on its face, expressive activity. After a two-day bench trial on the remaining issues, the district court granted a motion by the City for judgment on partial findings, Fed.R.Civ.P. 52(c), on the claims of the Church under the Florida Religious Freedom Restoration Act. The district court then entered judgment on the remaining claims in a written order. First Vagabonds Church of God v. City of Orlando, 578 F.Supp.2d 1353 (M.D.Fla.2008).

The district court ruled in favor of the Church on its claim under the Free Exercise Clause, in favor of Orlando Food Not Bombs on its as-applied claim under the Free Speech Clause, and in favor of the City on the claim under the Free Assembly Clause. Id. at 1362. The district court permanently enjoined the City from enforcing the ordinance. Id. The City, Orlando Food Not Bombs, and the Church appealed the respective rulings of the district court that were not in their favor with the exception of the Free Assembly claim, which was abandoned on appeal.

A panel of this Court affirmed in part, reversed in part, and vacated the injunction. First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274 (11th Cir.2010). The panel reversed judgment in favor of Orlando Food Not Bombs and the Church on the claims under the Free Speech and Free Exercise Clauses, and the panel affirmed the judgment in favor of the City on the claims under the Florida Religious Freedom Restoration Act and the Equal Protection and Due Process Clauses. Id. at 1285–92.

On August 31, 2010, we granted the petition for rehearing en banc filed by Orlando Food Not Bombs and vacated the panel opinion. First Vagabonds Church of God v. City of Orlando, 616 F.3d 1229 (11th Cir.2010). We directed Orlando Food Not Bombs and the City to brief one issue: whether the ordinance as applied to Orlando Food Not Bombs violated the Free Speech Clause of the First Amendment. We later heard oral argument on that issue.

II. STANDARD OF REVIEW

We review questions of law de novo. Gold Coast Publ'ns, Inc. v. Corrigan, 42 F.3d 1336, 1343 (11th Cir.1994). “[W]e review the core constitutional facts de novo, unlike historical facts, which are measured only for clear error.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.2011).

III. DISCUSSION

The resolution of this appeal does not require us to determine whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct entitled to protection under the First Amendment. We will assume, without deciding, that this conduct is expressive and entitled to some protection under the First Amendment. See Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068–69, 82 L.Ed.2d 221 (1984). But even when we assume that the feeding of homeless persons by Orlando Food Not Bombs is expressive conduct, we cannot conclude that the ordinance that regulates that conduct violates the Free Speech Clause of the First Amendment.

We...