Hunt v. City of Los Angeles

• Decision Date: 14 January 2009
• Docket Number: Case No. CV 06-04691 DDP (SSx).
• Citation: 601 F.Supp.2d 1158
• Parties: Michael HUNT and Matthew Dowd, Plaintiffs, v. CITY OF LOS ANGELES, a municipal corporation, Defendant.
• Court: U.S. District Court — Central District of California

601 F.Supp.2d 1158

Michael HUNT and Matthew Dowd, Plaintiffs, v. CITY OF LOS ANGELES, a municipal corporation, Defendant.

Case No. CV 06-04691 DDP (SSx).

United States District Court, C.D. California.

January 14, 2009.

COPYRIGHT MATERIAL OMITTED

Stephen F. Rohde, Rohde & Victoroff, Los Angeles, CA, for Plaintiffs.

Todd T. Leung, Office of the City Attorney, Los Angeles, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

[Cross-Motions for Summary Judgment filed on October 27, 2008]

DEAN D. PREGERSON, District Judge.

This case is another in the line of cases challenging, on First Amendment grounds, ordinances regulating vending on the Venice Beach Boardwalk. Asserting an action under 42 U.S.C. § 1983, Plaintiffs seek damages for First Amendment violations of three now-inactive Los Angeles City Ordinances: LAMC § 42.15 (2004), LAMC § 42.15 (2006), and LAMC § 63.44(B)(3), (7), (22) & (23). The parties filed Cross-Motions for Summary Judgment on the constitutionality of these ordinances. After reviewing the materials submitted by the parties and hearing oral argument, the Court grants Plaintiffs' Motion as to the 2004 version of § 42.15 because the ordinance was unconstitutionally vague, and grants Defendant's Motion as to the 2006 version of § 42.15 because Plaintiffs were not engaged in protected speech. Because Plaintiffs agreed at oral argument that their suit centers on the two versions of § 42.15, the Court does not address the challenged provisions of LAMC § 63.44(B).

I. BACKGROUND

Plaintiffs Michael Hunt ("Hunt") and Matthew Dowd ("Dowd") (collectively, "Plaintiffs") have brought suit against the City of Los Angeles ("City"), facially challenging various provisions of the Los Angeles Municipal Code.

A. Los Angeles Municipal Code §§ 42.15 (2004) & 42.15 (2006)

Speech and vending regulation on the Venice Beach Boardwalk has an extensive litigation history. As City ordinances have recognized, "the Boardwalk at Venice Beach is world-famous for its free performances and public expression activities." Leung Decl. Ex. 1 at 1 (LAMC § 42.15 (2004)). In addition to the cases on the topic that have come before this Court, the Ninth Circuit has considered prior versions of Los Angeles Municipal Code § 42.15, the ordinance at issue here. See Perry v. Los Angeles Police Dep't, 121 F.3d 1365 (9th Cir.1997). This case challenges two versions of that ordinance.¹ In general, both versions of LAMC § 42.15 at issue here regulate vending on the west side of Venice Beach Boardwalk.

1. LAMC § 42.15 (2004)

In 2004, City amended a prior version of § 42.15. As amended, § 42.15 (2004) prohibited persons from "hawk[ing], peddl[ing], vend[ing] or sell[ing], or request[ing] or solicit[ing] donations for, any goods, wares, merchandise, foodstuff or refreshments" on the Boardwalk. LAMC § 42.15(A). It contained an exception, however. Section 42.15(C) provided:

Nothing in this section shall be construed to prohibit the sale . . . of newspapers, magazines, periodicals, or other printed matter commonly sold or disposed of by news vendors. . . .

This section shall not prohibit the sale of merchandise constituting, carrying or making a religious, political, philosophical or ideological message or statement which is inextricably intertwined with the merchandise. Nor shall the provisions of this section prohibiting sales or soliciting of donations apply to any performer or musician engaging in constitutionally protected activities, or to any painter, sculptor or photographer, provided the painter, sculptor or photographer is displaying his or her own original creations and/or limited editions.

LAMC § 42.15(C).

Additionally, LAMC § 42.15 (2004) set up a permit process and expression "spaces" for sales of exempted items. Subdivision (D) provided that "[n]o person shall receive any payment or accept any donation in connection with any activities not otherwise prohibited by this section unless that person holds a valid `Public Expression Participant Permit.'" LAMC § 42.15(D). Permit holders were required to remain in their allotted permit space and prohibited from "conduct[ing] any activities requiring a permit outside the boundaries of the permitted space." Id.

2. LAMC § 42.15 (2006)

In August 2005, City suspended the 2004 version after a group of plaintiffs filed a lawsuit against the City captioned Venice Food Not Bombs v. City of Los Angeles, No. CV 05-04998 DDP (SS) (C.D.Cal. 2005).² Between September 2005 and January 2006, the City held three televised public hearings to take testimony regarding proposed amendments to the suspended ordinance. On January 30, 2006, the Los Angeles City Council amended section 42.15; the new ordinance took effect on March 25, 2006. According to the City, the Council modeled the amended ordinance on two court decisions, Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir.2006), and People v. Foote, 91 Cal. App.4th Supp. 7, 110 Cal.Rptr.2d 260 (2001).

The 2006 version of § 42.15 provided that "[n]o person shall engage in vending activity" upon the Venice Beach Boardwalk. Leung Decl. Ex. 2 (LAMC § 42.15 (2006)). It exempts the following:

(1) Any individual or organization vending newspapers, leaflets, pamphlets, bumper stickers or buttons;

(2) Any individual or organization that vends the following items, which have been created, written or composed by the vendor: books, cassette tapes, compact discs, digital video discs, paintings, photographs, sculptures or any other item that is inherently communicative and has nominal utility apart from its communication;

Although an item may have some expressive purpose, it will be deemed to have more than nominal utility apart from its communication if it has a common and dominant non-expressive purpose. Examples of items that have more than nominal utility apart from their communication and thus may not be vended under the provisions of this section, include, but are not limited to, the following: housewares, appliances, articles of clothing, sunglasses, auto parts, oils, incense, perfume, lotions, candles, jewelry, toys, and stuffed animals;

(3) Performances by performing artists and musicians.

LAMC § 42.15(c)

Under section 42.15(e), any person engaging in exempt activities on the Venice Beach Boardwalk first was required to obtain a "Public Expression Participant Permit" issued pursuant to the Venice Beach Boardwalk Public Expression Permit Program adopted by the Board of Recreation and Parks Commission.

Permit holders were not guaranteed space on the Boardwalk, however. The Program Rules set up a lottery system to allocate the spaces among permit holders. The permittee to whom the space was assigned pursuant to the program rules had priority to use the space. § 42.15(e). After 12:00 p.m. daily, any person or organization could use any unoccupied space for the remainder of the day "for activities specifically exempted ... by Subsection (C)," whether or not they held a permit, so long as they relinquished the space upon arrival of a permit holder assigned to the space. Id.

In passing the 2006 version of § 42.15, the City Council adopted a statement of "findings and purpose." It found, inter alia, that unregulated vending "adversely affects the historic character of the Venice Beach Boardwalk by deterring tourists from visiting and shopping along the Boardwalk resulting in an economic and cultural loss to the City"; that it "impedes the orderly movement of pedestrian traffic and may make the Boardwalk unsafe for pedestrians by limiting the City's ability to effect crowd management and control"; that it "may impede the ingress and egress of emergency and public safety vehicles by creating physical obstacles to emergency response and administration of aid to those in need of immediate medical attention and to victims of criminal activity"; that it "undermine[s] the Boardwalk's commercial life by reducing sales from local merchants thereby eroding the City's tax revenues due to unfair competition, and by offering additional opportunity for the sale of stolen, defective or counterfeit merchandise"; and that it "causes visual clutter/blight along the Boardwalk, impeding views of the beach and the Pacific Ocean threatening the City's ability to attract tourists and preserve businesses along the Boardwalk." LAMC § 42.15(a).

In the wake of litigation, City amended § 42.15. The new version took effect on May 19, 2008.

B. Plaintiffs Michael Hunt and Matthew Dowd

Hunt and Dowd sell or solicit donations for merchandise on the Venice Beach Boardwalk as a way of making income. Hunt and Dowd both obtained "Public Expression Permits" under LAMC § 42.15 (2004). Upon applying for the permits, they signed a copy of the "Venice Beach Boardwalk Public Expression Permit Program Rules (rev. 7/13/05)," certifying that they had read and agreed to abide by the rules and LAMC § 42.15. The permits had no expiration date and were lifetime permits unless revoked or lost. Permit holders who did not comply with City laws or the public expression permit program rules were subject to revocation of their permit. A permit could be revoked following three violations of the Program Rules, § 42.15, or a combination thereof.

Hunt is known as "The Butter Man" on the Venice Beach Boardwalk, where he has promoted shea butter for several years. Hunt Decl. ¶¶ 4-5. According to Hunt, shea butter "has healing powers and health benefits derived from an ancient African nut extract"; it "originates from West Africa and is distributed by Muslim mosques." Id. ¶ 4. He sets up his shea butter stand with three different tables, with tablecloths and roses "to make it the Garden of Eve and really just make it really look nice and smell good, as if I was in heaven." Leung Decl., Ex. 5 ("Hunt Depo."), at 12:21-13:2. Hunt has developed a "script" he uses on the...