Gold Coast Publications, Inc. v. Corrigan

• Decision Date: 09 July 1992
• Docket Number: No. 92-0826-CIV.,92-0826-CIV.
• Citation: 798 F. Supp. 1558
• Parties: GOLD COAST PUBLICATIONS, INC., a Florida corporation d/b/a Exito!, Plaintiff, v. George M. CORRIGAN, James Barker, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

798 F. Supp. 1558

GOLD COAST PUBLICATIONS, INC., a Florida corporation d/b/a Exito!, Plaintiff, v. George M. CORRIGAN, James Barker, et al., Defendants.

No. 92-0826-CIV.

United States District Court, S.D. Florida.

July 9, 1992.

COPYRIGHT MATERIAL OMITTED

Ray Ferrero, Jr., Fort Lauderdale, Fla., for plaintiff Exito.

Sanford L. Bohrer, Miami, Fla., for intervenor New Times.

Charles K. George, Coral Gables, Fla., for defendants.

ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

MORENO, District Judge.

This case arises from a dispute over the regulation of newsracks in the city of Coral Gables, Florida. After city officials seized its newsracks, Gold Coast Publications, as publisher of a new tabloid newspaper, Exito, filed suit against the city of Coral Gables and its officials, alleging that the city's ordinance regulating newspaper racks is facially unconstitutional.¹

The ordinance requires uniform color, size and design for the racks. It also provides that the newsracks must have pedestals and be secured to the sidewalk. Additionally, the ordinance contains limits as to the size of the lettering on the sides of the newsracks and their location on the public right of way.² The plaintiff further claims that the requirements of rack uniformity violate its trademark Exito, with its unique purple and green colors.

The city and its officials maintain that the Coral Gables newsrack regulations do not regulate the content or any other speech aspect of newspapers, but simply the racks used for distribution. The city claims that the regulations are permissible time, place or manner regulations that serve the safety and aesthetic interests of its citizens.

There is no dispute that safety and aesthetics are significant governmental interests. Thus, the court's inquiry revolves around whether the ordinance is narrowly tailored to serve those interests and the availability of alternative channels of communication. The court finds that, with the exception of the regulations on color of the racks, size of the lettering, and the use of the term "equivalent", the ordinance is constitutionally valid. Those sections are stricken and severed as unconstitutional. If the Coral Gables city commission passes a new ordinance, the court is confident that it will consider the words of Thomas Jefferson:

The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.³

FINDINGS OF FACT

The court held an evidentiary hearing on plaintiff's request for declaratory and preliminary injunctive relief, pursuant to 28 U.S.C. § 2201 and Rule 65, Fed.R.Civ.P., over a period of several days. At this hearing, both sides presented several witnesses.

Edward McHale, a trademark attorney, provided uncontroverted testimony as to the ability of Exito to obtain federal trademark protection for its three dimensional logo and design. Exhibits were introduced showing Exito's application for federal trademarks.

Alfredo Duran, the publisher of Exito, testified that the type of audience targeted by Exito included young upwardly mobile Hispanics, constituting a large cross-section of the Coral Gables population. Duran further testified as to the marketing purpose for the unique design and color of Exito. He also opined that the required beige rack gives the impression of a bland publication. The Court finds this testimony credible.

There is also no question that Exito is not available through home subscription or delivery, and that its only form of distribution is through the newsracks. The Court also accepts the testimony that Exito's circulation substantially increased in Coral Gables when its six racks were confiscated. The Court further finds that Exito's newsracks, by their trademark dress and color scheme, cause the publication to stand out from the rest.

James Bustraan, an executive in charge of circulation and distribution for Exito, described the seized newsracks as ones constructed to accommodate tabloid-style newspapers. He further testified that concrete blocks on the inside bottom of the racks would avoid tippage and prevent injury. He conceded that vandals could move the racks, but testified that it is important for a new publication to have the ability to move racks frequently from one location to another in order to increase circulation.

George Kingsbury, the Coral Gables newsrack project manager, provided a history of the ordinances. He stated that Coral Gables is known as the "City Beautiful" for its constant concern for safety and aesthetics. He reiterated that those interests moved the city commission to pass the challenged ordinance.

Kingsbury reasoned that the bolting of newsracks to the sidewalks prevented their movement by vandals or weather conditions. He testified that the limits on rack location, improved unimpeded ingress and egress from buildings, widened access for handicapped persons' mobility and prevented any other blockage of pedestrian traffic. Kingsbury noted a possible greater safety concern for unmarked crosswalks, due to a higher degree of straying by pedestrians in those unmarked crosswalks as opposed to marked crosswalks.⁴

Kingsbury was also recalled by the City to provide testimony and conduct a demonstration as to the adaptability of a seized Exito newsrack into one mounted on a pedestal. The demonstration revealed that the confiscated newsrack could be conformed to the requirements of the ordinance, yet continue to allow for tabloid-style newspapers.

Ewell Johnson, Fort Lauderdale Sun Sentinel's chief of circulation, was called by Exito to demonstrate the costly burdens of modifying existing Exito racks into ordinance-conforming pedestal mounts. Donald Saxon, a Caspar Wireworks Sho-rack employee, provided a fuller explanation of these costs.

The city's witnesses included Maria Albero, a project engineer for the Public Works Department, who testified as to the manner of collecting and handling of newsrack licensing fees.

The Coral Gables city attorney, Robert Zahner, delineated the safety and aesthetics concerns shared by the various entities of the city including the Public Works Department, Zoning Board and the Architectural Board. Zahner provided a brief history of the challenged ordinance. He also explained the distinct functions of the various city departments and boards.

City planning director Diana Wheeler narrated descriptively the city's aesthetic and safety reasons for the establishment of the newsrack ordinance. The court accepts as credible the entire testimony of these three Coral Gables city employees.

Alan Richman, the code enforcement officer who is named as a defendant along with the City and its commissioners, testified that he picked up six newsracks. He clarified that none were taken from private property.

The two intervenor witnesses credibly testified as to the negative effect on circulation caused by the forced use of generic newsracks.

CONCLUSIONS OF LAW

Prerequisites to injunctive relief

Rule 65 of the Federal Rules of Civil Procedure authorizes the district court to grant preliminary injunctive relief at its discretion. United States v. Lambert, 695 F.2d 536 (11th Cir.1983); Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328 (5th Cir.1981).

In exercising its discretion, the court must consider and balance the four recognized prerequisites to preliminary injunctive relief as enunciated by the Eleventh Circuit Court of Appeals: (1) a substantial likelihood that the movant will prevail on the underlying merits of the case, (2) a substantial threat that the moving party will suffer irreparable damage if relief is denied, (3) a finding that the threatened injury to the movant outweighs the harm the injunction may cause defendant, and (4) a finding illustrating the extent to which granting the preliminary injunction will disserve the public interest. Lucero v. Operation Rescue, 954 F.2d 624 (11th Cir.1992); Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018 (11th Cir.1989).

The plaintiffs have the burden of persuasion on all four preliminary injunctive standards. United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983). The court is always guided by the underlying premise that "a preliminary injunction is an extraordinary and drastic remedy." Canal Authority v. Callaway, 489 F.2d 567, 573 (5th Cir.1974). In the free speech context, the questions of irreparable harm and likelihood of success on the merits are necessarily subsumed into a First Amendment inquiry. Gannett Satellite Information Network, Inc. v. Township of Pennsauken, 709 F.Supp. 530 (D.N.J.1989).

If the City of Coral Gables is abridging First Amendment rights, Exito is likely to succeed on the merits. Additionally, it is well-settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Cate v. Oldham, 707 F.2d 1176 (11th Cir.1983). If the ordinance violates the First Amendment rights of Exito and the public, the balance of equities will not rescue the defendants. Therefore, the issuance of a preliminary injunction in the context of free speech turns solely on whether the challenged ordinance violates the First Amendment.

Prior restraint and procedural due process

Initially, this Court must decide whether it is appropriate for Exito to challenge the newsrack ordinance on its face. The court acknowledges that the law does not generally favor facial attacks on the validity of ordinances, but prefers to review their constitutionality as applied to individual litigants. See Sentinel Communications Co. v. Watts, 936 F.2d 1189 (11th Cir.1991). The United States Supreme Court recently addressed the issue of facial...