Honolulu Weekly, Inc. v. Harris
| Decision Date | 17 December 1999 |
| Docket Number | No. CIV. 99-00803SOM/LEK.,CIV. 99-00803SOM/LEK. |
| Citation | 79 F.Supp.2d 1186 |
| Parties | HONOLULU WEEKLY, INC., a Hawaii Corporation, Plaintiff, v. Jeremy HARRIS, Mayor of the City and County of Honolulu; Carol L. Costa, Director of the Department of Customer Services; City and County of Honolulu, Defendants. |
| Court | U.S. District Court — District of Hawaii |
James J. Bickerton, Scott Saiki, assisting, Bickerton Saunders Dang & Bouslog, Honolulu, HI, for plaintiff.
Jon M. Van Dyke, Gregory J. Swartz, Special Deputy Corporation Counsel, Deputy Corporation Counsel, City and County of Honolulu, Honolulu, HI, for defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
On November 19, 1999, this court issued a temporary restraining order in favor of Plaintiff Honolulu Weekly, Inc. ("Honolulu Weekly"), enjoining Defendants from holding two supplemental lotteries for newspaper dispensing racks in the Waikiki Special District. A more detailed written opinion (filed November 22, 1999) supplemented that order. The temporary restraining order held that, because the regulation at issue in this case, while content-neutral, was not a time, place, and manner restriction that was narrowly tailored to advance any significant governmental interest, Defendants were restrained from holding any lottery that was based on whether applicants required or did not require readers to deposit coins into coin-operated dispensers to obtain the applicants' publications.
The temporary restraining order, by its terms, remained in effect through 11:59 p.m. on November 29, 1999, but was extended by the parties' agreement through the disposition of the present motion for preliminary injunction (filed November 19, 1999). The court GRANTS the requested preliminary injunction because Defendants have failed to demonstrate that the ordinance in question is narrowly tailored to advance any significant government interest. In most respects, the present order repeats the earlier temporary restraining order, although new facts and new arguments presented by the parties have been addressed here, to the extent the court found those new matters relevant to its ruling.
FINDINGS OF FACT.
1. Waikiki is a recognized symbol of Hawaii, serving as an anchor for Hawaii's tourist industry.1 Revised Ordinances of Honolulu ("ROH") § 21-9.80(a). Waikiki was rapidly developed in the 1960s and 1970s. The creation of the Waikiki Special District was largely a response to this rapid development. Id. The Waikiki Special District is currently one of the most congested areas in the City and County of Honolulu ("Honolulu"). Ex. I (Ordinance 98-66 (December 17, 1998)). The Waikiki Special District was established, in part, to preserve, restore, maintain, enhance, and create natural, recreational, educational, historic, cultural, community and scenic resources. ROH § 21-9.80-1(b).
2. Regulation of dispensing racks is part of Honolulu's comprehensive plan to improve the aesthetic appearance of the streets and sidewalks in the Waikiki Special District in order to enhance the experience of visitors and residents. See Affidavit of Benjamin B. Lee (December 1, 1999) ¶ 3.
3. In 1989, Honolulu began regulating dispensing racks along Kalakaua Avenue, which is located within the Waikiki Special District. ROH § 29-11.1 et al.; see Ordinance 89-14. Honolulu set up two lotteries for dispensing racks along Kalakaua Avenue — one for coin-operated dispensing racks and one for non-coin-operated dispensing racks. See ROH § 29-11.1 et al.
4. A coin-operated dispensing rack offers a larger display for a publication than a non-coin-operated dispensing rack. See Exhibits A and B.
5. Honolulu Weekly is an Oahu-based newspaper of general circulation that was founded in 1991.2 It is distributed throughout Oahu and has limited distribution on the other Hawaiian islands. Declaration of Laurie Carlson (November 17, 1999) ("Carlson Decl. 1") ¶ 2; TR at 31:2; TR at 24:3-5 (). Although it occasionally covers national, international, financial, and sports matters, Honolulu Weekly's primary emphasis is on articles that refer to local matters with a mix of information and advocacy. Transcript 12/10/99 ("TR") at 31:6-32:8 (Testimony of Laurie Carlson); Carlson Decl. 1 ¶ 3. Honolulu Weekly is free to its readers. Its expenses are covered by subscriptions and advertising revenue. Carlson Decl. 1 ¶ 4.
6. On December 17, 1998, Mayor Jeremy Harris signed Ordinance No. 98-66, which regulates the dispensing racks outside of Kalakaua Avenue in the Waikiki Special District.3 Ex. I. That Ordinance became ROH § 29-15.1 et seq. Like the ordinance governing dispensing racks on Kalakaua Avenue, ROH § 29-15.1, et seq., distinguishes between coin-operated dispensing racks and non-coin-operated dispensing racks. ROH § 29-15.1, et seq., has three enumerated purposes: 1) protecting the health, safety, and welfare of pedestrians; 2) preserving the aesthetics of the Waikiki Special District; and 3) facilitating the distribution of publications.4 Ex. I; Exhibit O (Committee Report No. 507 (adopted October 14, 1998)) ("This bill is intended to reduce the number of such enclosures and devices on Waikiki sidewalks in order to promote public safety, aesthetics, and ADA compliance").5 Defendants now propose a fourth purpose for ROH § 29-15.1, et seq. — allowing time-sensitive publications to reach their intended audience more quickly. See Opposition at 7. This purpose appears to have been articulated solely to oppose the present motion. This asserted purpose is not mentioned in ROH § 29-15.1, et seq., or any of its legislative history and was not mentioned by Defendants even in connection with the recent temporary restraining order. It appears to be an invention born of litigation.
7. Two lotteries were conducted in April 1999 to allocate both coin-operated newsstand dispensing racks and non-coin-operated newsstand dispensing racks in the Waikiki Special District.6 Revised Ordinances of Honolulu ("ROH") § 29-15.5 (). Each permit granted as a result of those lotteries is valid for three years. ROH § 15-4(d) (). For each location covered by a permit, whether for a coin-operated or non-coin-operated dispensing rack, Defendants require payment of $90 for the three-year period. ROH § 29.15.4(e) (); Affidavit of Benjamin B. Lee (December 1, 1999) ¶ 11. It costs about $3,097 to $3,297 to construct each dispensing rack enclosure. Lee Aff. ¶ 11. The coin-operated dispensing racks are larger than the non-coin-operated dispensing racks. See Exhibits A and B.
8. Honolulu is still in the process of installing permanent dispensing rack enclosures in the Waikiki Special District. TR: 8-9 (Georgina Yuen testimony). Some enclosures appear to be made out of a substance similar to cement. See Ex. A-1, A-2, A-11, A-12, and A-13. Other enclosures appear to be composed of aluminum and stone. See Ex. B-3, B-4, B-9, B-10, B-11, B-14, B-15, B-16, B-17. The dispensing racks are placed into these permanent enclosures. See Ex. A-1, A-2, A-11, A-12, A-13, A-14, B-3, B-4, B-9, B-10, B-14, B-15, and B-16.
9. Four publishers, including Honolulu Weekly, applied for space in coin-operated dispensers during the lottery in April 1999. Lee Aff. ¶ 14. Honolulu Weekly initially applied for 72 permits in the original lottery for coin-operated newsstand dispensing racks conducted in April 1999. See Exhibit 10 (fourth to last page of exhibit) (Honolulu Weekly's Application for Publication Dispensing Racks). All four publishers received permits for all the locations they desired. Lee Aff. ¶ 14. In Honolulu Weekly's case, that number equaled 21, a revision of the 72 in which Honolulu Weekly initially expressed interest. Carlson Decl. 1 ¶ 20.
10. In the non-coin-operated lottery, 34 publishers applied, and 617 spaces were awarded. Sixty-three spaces were not awarded due to lack of interest. The maximum number of dispensing racks awarded to any one publisher in the non-coin-operated lottery was 34. Lee Aff. ¶ 14.
11. Blair Thorndike testified that his publication, Best of Oahu, was awarded roughly half of the top 25 spots that it desired in the non-coin-operated lottery. TR at 20:12-15. This demonstrates that the chances of receiving a permit were different in the April 1999 lotteries for coin and non-coin dispensing racks. For future lotteries, however, the chances may increase or decrease, depending on the number of applicants then applying as well as the number of spaces available.
12. When Honolulu Weekly applied for the permits before the April 1999 lottery, it was considering whether to charge for its publication. TR at 36:17-23 (Carlson testimony). Upon receipt of Honolulu Weekly's application, Defendants questioned whether Honolulu Weekly intended to charge the public for its publication. See Exhibit 1 to Opposition (letter from Roy K. Amemiya, Jr., to Rob Coltin (February 2, 1999)) ( ); Exhibit Q (letter from Laurie Carlson to Roy K. Amemiya, Jr. (February 8, 1999)). Honolulu Weekly responded that it would "use only the coin-operated racks in the Special District." Exhibit Q. Honolulu Weekly believed that it could use the coin-operated racks, but disengage the coin mechanism. See generally TR at 36 to 38.
13. Recognizing the ambiguity of...
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