INTERN. CAUCUS OF LABOR COM. v. Dade County, Fla.

• Citation: 724 F. Supp. 917
• Decision Date: 17 October 1989
• Docket Number: No. 85-3575-CIV.,85-3575-CIV.
• Parties: INTERNATIONAL CAUCUS OF LABOR COMMITTEES and Robert Robinson, Plaintiffs, v. METROPOLITAN DADE COUNTY, FLORIDA, R.H. Judy, Director of Operations, Aviation Department of Dade County, Florida, Robert Diaz, Jr., Chief of Terminal Operations, Department of Aviation, Dade County, Florida, Janet Reno, State Attorney, Dade County, Florida, and Bobby Jones, Sheriff, Metropolitan Dade County, Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

724 F. Supp. 917

INTERNATIONAL CAUCUS OF LABOR COMMITTEES and Robert Robinson, Plaintiffs, v. METROPOLITAN DADE COUNTY, FLORIDA, R.H. Judy, Director of Operations, Aviation Department of Dade County, Florida, Robert Diaz, Jr., Chief of Terminal Operations, Department of Aviation, Dade County, Florida, Janet Reno, State Attorney, Dade County, Florida, and Bobby Jones, Sheriff, Metropolitan Dade County, Defendants.

No. 85-3575-CIV.

United States District Court, S.D. Florida.

October 17, 1989.

Howard C. Rubin, Dallas, Tex., Linton R. Lovett, Howard, Brawner, Lovett & DePozgay, Miami, Fla., for plaintiffs.

Thomas P. Abbott, Asst. County Atty., Miami, Fla., for defendants, Dade County, Judy, Aviation Dept., Diaz and Jones.

George N. Ayleworth, Police Legal Advisor, Miami, Fla., for defendants, Dade County and Jones.

Shirley A. Walker, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendant Reno.

FINAL ORDER OF DISMISSAL

ZLOCH, District Judge.

THIS MATTER is before the Court upon the Plaintiffs, International Caucus of Labor Committees and Robert Robinson's, Motion for Preliminary Injunction (DE 18). An extensive evidentiary hearing was held by the Court. Near the close of said hearing, Defendants moved for consolidation of the hearing for a preliminary injunction with a trial on the merits pursuant to Rule 65(a)(2), Fed.R.Civ.P. Plaintiffs waived their opposition to Defendants' Motion and agreed that the case should be considered on the merits. Furthermore, in a telephonic status conference held thereafter, the parties stated that there was no need to file any further evidence, but the Court nevertheless permitted the parties an additional twenty (20) days to supplement the record if desired, and stated that the Court would consider the issues in thirty (30) days (pp. 4-5, DE 44). The Court has thus given "notice to the parties that their final day in court has come." Hollis v. Itawamba County Loans, 657 F.2d 746, 749 (5th Cir. Unit A 1981) (citation omitted).

Plaintiff, International Caucus of Labor Committees (hereinafter ICLC), is an organization dedicated to promoting policies of international monetary reform, a strong American defense program, the international development of nuclear energy sources, the elimination of the international drug trade and other political issues (DE 1). Plaintiffs promote these policies by selling literature and soliciting contributions. Since 1981, Plaintiffs have attempted to promote these policies at the Miami International Airport (hereinafter MIA), utilizing the designated First Amendment areas.

In the designated First Amendment zones at the MIA, Plaintiffs argue that they should be permitted to set up a small table, solicit donations, take subscriptions and even place a credit card device on the table for those persons wanting to charge their subscription, book or donation (Tr. 5, 115-16, DE 42). The gravamen of their claims, however, focus on the MIA's prohibition of the use of tables and semi-fixed signs in the First Amendment zones, a policy applied to all groups and organizations (Tr. 90, DE 42). The Court notes that this prohibition policy is not explicitly mentioned in the ordinance, but is an unwritten policy. Plaintiffs state that the purpose of the signs is "to amplify in a certain manner of speaking their views, their message to the public and in certain cases also to make, to distinguish them from any other group that may be in the same public forum" (Tr. 11-12, DE 42). They state that the purpose of the card table is to place copies of their books, magazines, and other literature on it for open visual display (Tr. 12, DE 42). Plaintiffs argue that "without the table and signs, there is no means by which the public is able to, in passing by, know who they are." (Tr. 31-32, DE 42). Notwithstanding any constitutional infirmities, to be discussed infra, the Court finds this statement wholly without merit.

Before addressing Plaintiffs' specific allegations, the Court finds it helpful to first lay the foundation behind the MIA's "no table/signs" policy. George H. Spofford, III, Deputy Director, Dade County Aviation Department, "responsible for the day-to-day coordination and functioning of the Department, the implementation of policy established by the Director, the County Manager and County Commissioners" (Tr. 40-41, DE 42), stated:

The Department made a conscious decision when analyzing the terminal facilities with regard to whether we could proceed as several other airports had with regard to establishing fixed booths offline or allowing those individuals who wish to exercise First Amendment rights having direct interface with the passengers and users of the terminal. We therefore identified the number of areas, as shown on this exhibit see picture of Miami International Airport, Second Floor — Terminal Building, attached hereto as Exhibit A, which interject the individual exercising that right into the movement and flow of passengers and by its very nature require that there be no fixed or permanent facilities whether it either be a stack of books or some of the Krishna, I believe, who use baggage carts with books on them. We require them to put them back behind them to get them out of the flow.

(Tr. 42, DE 42). Ronald D. Gunther, Chief of airside operations, Aviation Department, responsible for the safe and efficient facilitation of arriving and departing of domestic and international passengers at the MIA, stated:

Essentially, when we made the decision that free exercise areas would be as close to major passenger flows as possible to allow the various permittees access to the large passenger flows, it was necessary to restrict the policy to ensure that there were no permanent or unmovable or even semi-permanent barriers which would inhibit passenger flows during peak periods which occur daily.

(Tr. 67-68, DE 42).

Plaintiffs attack the constitutionality of the MIA officials' actions and Chapter 25 of the Dade County Code by alleging the following violations: the "no-table" policy violates the First Amendment; the "no-signs" policy violates the First Amendment; Sections 25-2.2(a), 25-2.2(c) and 25-2.2(g) vest too much discretion with the airport officials who enforce these regulations thus violating the First Amendment; Sections 25-2.2(c), 25-2.2(d) and 25-2.7 are void for vagueness; Sections 25-2.2(d), 25-2.7 and 25-2.9 are substantially overbroad; Section 25-2.2(f) restricts the selling of items in violation of the First Amendment; and Chapter 25 of the Dade County Code fails to include the necessary due process procedures and is not rationally related to a valid legislative purpose in violation of the Fourteenth Amendment. Plaintiffs request the Court to declare the aforementioned actions and statutory provisions unconstitutional and to issue a permanent injunction to prevent Defendants from arresting Plaintiffs and others who violate these provisions.

To issue a permanent injunction, the Court must determine whether such actions or statutory provisions violate the Constitution. Plaintiffs must then show that irreparable injury would continue absent an injunction and show that there exists no adequate remedy at law. Newman v. State of Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983).

I. FIRST AMENDMENT VIOLATION

In determining whether the MIA's policy of "no tables/signs" violates the First Amendment of the Constitution, this Court must first decide whether Plaintiffs' use of the tables and signs constitutes speech protected by the First Amendment, for, if it is not, the Court need go no further. Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985). If protected speech, the Court must determine the nature of the forum and then assess "whether the justifications for exclusion from the relevant forum satisfy the requisite standard." Id. at 797, 105 S.Ct. at 3446.

The law is well settled that the distribution of literature is a type of speech protected by the First Amendment. United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983). Similarly, the use of signs to communicate speech has been classified as expressive conduct protected by the First Amendment. Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). However, this Court finds that the use of tables is not expressive conduct protected by the First Amendment. See International Society for Krishna Consciousness, Inc. v. Rochford, 585 F.2d 263, 270 (7th Cir.1978) ("Because Section 3(E), which prohibits the erection of a table, chair, or other structure in areas other than leased space does not facially restrict the exercise of guaranteed rights, we do not find it is constitutionally impermissible."); International Caucus of Labor Committees v. City of Chicago, 816 F.2d 337, 339 (7th Cir.1987). Nevertheless, the Court, in an abundance of caution, will analyze the MIA's policy of prohibiting tables (non-protected speech) with the MIA's policy of prohibiting fixed or semi-fixed signs (protected speech) in its constitutional analysis herein. This will thus remedy any defect in the event a reviewing court either rejects this Court's reliance on Rochford, 585 F.2d at 270, and City of Chicago, 816 F.2d at 339, or adopts Plaintiffs' argument that the card tables in this context should be given full First Amendment protection in the same manner as newsracks. See Gannett Satellite Information Network, Inc. v. Town of Norwood, 579 F.Supp. 108, 114 (D.Mass.1984).

The right to use government-owned property for public speech is not absolutely protected by the First Amendment. Cornelius, 473 U.S. at 799-800, 105 S.Ct. at 3447-3448....