Gold Coast Publications, Inc. v. Corrigan

• Decision Date: 30 December 1994
• Docket Number: No. 92-4764,92-4764
• Citation: 42 F.3d 1336
• Parties: 23 Media L. Rep. 1353 GOLD COAST PUBLICATIONS, INCORPORATED, a Delaware corporation d/b/a Exito!, Plaintiff-Appellee-Cross-Appellant, New Times Newspaper of Florida, Intervenor-Plaintiff, v. George M. CORRIGAN, individually as the Mayor of the City of Coral Gables, James Barker, individually as Vice Mayor of the City of Coral Gables, William H. Kerdyk, individually as City Commissioner of the City of Coral Gables, Bob Hildreth, individually as City Commissioner of the City of Coral Gables, Wayne "Chip" Withers, individually as City Commissioner of the City of Coral Gables, City of Coral Gables, a municipal corporation and political subdivision of the State of Florida, Alan L. Richman, as Code Enforcement Officer of the City of Coral Gables, Coral Gables City Commission, the governing body of the City of Coral Gables, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1336

42 F.3d 1336

23 Media L. Rep. 1353

GOLD COAST PUBLICATIONS, INCORPORATED, a Delaware corporation d/b/a Exito! Plaintiff-Appellee-Cross-Appellant New Times Newspaper of Florida, Intervenor-Plaintiff, v. George M. CORRIGAN, individually as the Mayor of the City of Coral Gables, James Barker, individually as Vice Mayor of the City of Coral Gables, William H. Kerdyk, individually as City Commissioner of the City of Coral Gables, Bob Hildreth individually as City Commissioner of the City of Coral Gables, Wayne "Chip" Withers, individually as City Commissioner of the City of Coral Gables, City of Coral Gables, a municipal corporation and political subdivision of the State of Florida, Alan L. Richman, as Code Enforcement Officer of the City of Coral Gables, Coral Gables City Commission, the governing body of the City of Coral Gables Defendants-Appellants, Cross-Appellees.

No. 92-4764.

United States Court of Appeals, Eleventh Circuit.

Dec. 30, 1994.

Esther E. Galicia, Coral Gables, FL, for appellant.

Stanford Bohrer, Miami, FL, for intervenor.

Joanne Fanizza, Ft. Lauderdale, FL, for appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and RONEY, Senior Circuit Judge.

TJOFLAT, Chief Judge:

This case involves a challenge to the constitutionality of a municipal ordinance regulating the placement of newsracks on public rights-of-way in the City of Coral Gables, Florida ("the City"). A newspaper publisher contends that the Ordinance is a facially invalid abridgment of the newspaper's rights of free speech and free press under the First Amendment of the United States Constitution and comparable provisions of the Florida Constitution, as well as a due process and equal protection violation under both the Federal and Florida Constitutions. The City asserts that the Ordinance represents valid place or manner restrictions that further the City's aesthetic and safety interests.

In ruling on Gold Coast's motion for a preliminary injunction, the district court concluded that the Ordinance was facially valid except for three provisions that require the use of a particular make and model of newsrack or its "equivalent," require a uniform color for all newsracks, and specify the size of lettering on the newsracks. The district court enjoined the enforcement of these three provisions, but allowed the enforcement of the other regulations in the Ordinance. Whether viewed as potential prior restraints, limitations on commercial speech, or restrictions on noncommercial speech, the disputed provisions of the Ordinance do not violate the First Amendment. Thus, we conclude that the district court erred in enjoining the enforcement of portions of the Ordinance. Accordingly, we reverse the district court's grant of injunctive relief regarding the provisions on equivalent newsracks, uniform color, and size of lettering, and we affirm the district court's denial of injunctive relief regarding the remaining provisions of the Ordinance.

I.

A.

Following its adopted motto, "the City Beautiful," the City of Coral Gables has emphasized aesthetics in planning development and promoting the City. During the 1980s, a task force ¹ studied methods of improving the appearance of the City's business district. As one aspect of its work, the task force reviewed alternatives for regulating the proliferation of newsracks in the downtown area. After studying the condition of newsracks in the City, as well as other cities' restrictions on newsracks, the task force developed a proposed Ordinance to regulate newsracks and revised its proposal several times based on input from newspaper publishers and public hearings. Following review by the Planning and Zoning Department, the Public Works Department, the Chamber of Commerce, the City Attorney, and the City Manager, the draft Ordinance was adopted by the City Commission in 1987. A subsequent version of the Newsrack Ordinance is at issue in this case, Ordinance 2911, adopted on May 15, 1990, as amended by Ordinance 2984, adopted on March 31, 1992. Coral Gables, Fla., Code ch. 22, art. VII (1992) [hereinafter collectively "the Newsrack Ordinance" or "the Ordinance"].

The various provisions of the Newsrack Ordinance prescribe the procedure for obtaining permits to place newsracks on public rights-of-way throughout the City as well as specific regulations regarding the location, design, lettering, and color of newsracks. Some of the purposes of the Ordinance, as set forth in Section 22-157, ² are to: (1) "[p]rovide for pedestrian and driving safety and convenience"; (2) "[r]estrict unreasonable interference with the flow of pedestrian or vehicular traffic"; (3) "[p]rovide for public and property safety during hurricane conditions"; (4) "[p]rovide reasonable access for the use and maintenance of poles, posts, traffic signs or signals, hydrants, [and] mailboxes"; (5) "[r]elocate and/or replace newsracks which result in a visual blight"; and (6) "[m]aintain and protect the values of surrounding properties."

Section 22-159 describes the application procedure for obtaining certificates of compliance, including the City officials responsible for approval and compliance with specific provisions, and the required supporting documents, such as a map showing the location of all newsracks belonging to a particular publisher or distributor. Section 22-160 requires that a publisher obtain a certificate of insurance and pay a one-time refundable bond deposit, which is calculated based on the number of newsracks displayed. Section 22-161 sets forth fees, including a one-time fifty dollar per publisher certificate of compliance fee, a ten dollar per newsrack certification fee, and a five dollar reinspection fee for all failed inspections, which are all calculated to defray administrative costs with any excess revenues returned to publishers. Section 22-162, covering appeals from certification denials, provides for a hearing by the City Commission within thirty days of filing "or at the next regularly scheduled agenda, whichever is sooner," and for judicial review under Florida law.

Section 22-163, governing the general placement of newsracks, specifies that the newsracks must be placed parallel to the curb between eighteen and twenty-four inches from the edge of the curb or parallel to a building not more than six inches from the building's wall. In addition, Section 22-166 sets forth specific prohibitions on placing newsracks within certain distances of crosswalks, bus stops, benches, fire hydrants, emergency call boxes, driveways, display windows, street signs, parking meters, street lamps, or utility poles.

Section 22-164(a) requires publishers to use a particular make and certain models of newsracks (Shorack TK-80PM or K-80PM), or if demand warrants, a newsrack that holds more newspapers (Shorack TK-80 or K-80) "or equivalent." Although Ordinance 2911 did not define equivalent, Section 22-156(c) states that " '[e]quivalent' newsrack means any newsrack which is of the same size, dimensions and style of the specified newsrack." Similarly, Ordinance 2911 did not mention modification of newsracks to hold tabloid-style ³ newspapers, but Section 22-164(a) stipulates that "[m]anufactured modifications to the door, window, and cabinetry for the above-described newsracks to accommodate vertically-formatted, 'tabloid-type' newspaper display and distribution are acceptable." Regarding the color of the newsracks, Section 22-164(b) mandates that "[n]ewsracks shall have gloss brown pedestals, gloss beige sides and door and gloss brown coin box." Section 22-164(c) prohibits card holders or advertisements on newsracks, but allows the name of the newspaper to be displayed on the sides, front, and back of the newsrack provided that the lettering is no larger than 1 3/4 inches in height and centered at fifteen inches from the top of the cabinet. Whereas Ordinance 2911 did not adjust these specifications for tabloid-style newspapers, Section 22-164(c) indicates that "[t]he above fifteen inch (15"') dimension may be adjusted on the door by the manufacturer to accommodate modifications for vertically-formatted, 'tabloid-style' newsracks."

B.

In November 1991, appellee Gold Coast Publications, Inc. ("Gold Coast") began publishing Exito!, ⁴ a tabloid-style, weekly Spanish-language newspaper directed at young, educated Hispanic professionals. Exito! is distributed free of charge in the City of Coral Gables, and throughout Dade County, solely by means of newsracks; home delivery is not available. To attract readers to its new and relatively unknown publication, the newsracks carrying Exito! were painted deep purple and prominently displayed the unique Exito! logo in lime green, bright orange, or hot pink. ⁵ In addition, the newsracks were specifically designed to hold tabloid-style newspapers. By February 1992, Exito!'s circulation had reached approximately 75,000, compared to 50,000 for its first issue.

On November 26, 1991, Alan L. Richman, Code Enforcement Officer for the City, notified Exito!'s distributor by certified letter that newsracks displaying Exito! did not comply with the Code, that the newsracks must be brought into compliance, and that if the newsracks were not in compliance upon reinspection thirty days later, the City would confiscate them. After receiving this notice, Gold Coast obtained a fifteen-day extension of the deadline for compliance; Gold Coast was unsuccessful, however, in obtaining an exemption from the uniform size, color, and design requirements that was granted to another publisher, New Times, Inc., based on an injunction entered in a separate state court action challenging the Newsrack Ordinance. On January 17, 1992, the City confiscated six of Exito!'s newsracks ⁶ and subsequently informed Exito!'s distributor that the newsracks would be released upon payment of fifty dollars per newsrack.

1.

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