Jacobsen v. Crivaro

• Decision Date: 23 August 1988
• Docket Number: No. 87-1004,87-1004
• Citation: 851 F.2d 1067
• Parties: 15 Media L. Rep. 1958 Harlan L. JACOBSEN, d/b/a Solo RFD and Single Scene, Appellant, v. Pete CRIVARO, Mayor of City of Des Moines, Iowa, City of Des Moines, Iowa, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1067

851 F.2d 1067

15 Media L. Rep. 1958

Harlan L. JACOBSEN, d/b/a Solo RFD and Single Scene, Appellant, v. Pete CRIVARO, Mayor of City of Des Moines, Iowa, City of Des Moines, Iowa, Appellees.

No. 87-1004.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1987.

Decided July 13, 1988.

Rehearing and Rehearing En Banc Denied Aug. 23, 1988.

Robert A. Hirschfeld, Phoenix, Ariz., for appellant.

James E. Nervig, Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, HEANEY and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

I. INTRODUCTION

Harlan L. Jacobsen (Jacobsen), a newspaper publisher, appeals the district court's ¹ refusal to enjoin enforcement of local ordinances regulating the size and placement of newspaper vending machines (newsracks), and providing for a $10.00 annual licensing fee per newsrack, which Jacobsen claims violates his First Amendment rights. He also appeals the district court's entry of summary judgment in favor of the Mayor and the City of Des Moines, Iowa (collectively, Des Moines or City), holding that the ordinance regulating the placement of newsracks was a constitutional time, place and manner restriction, and that the ordinance assessing annual fees was constitutional because the fees do not exceed the administrative costs of the licenses.

II. BACKGROUND

Jacobsen publishes newspapers in a number of cities in the Midwest under the trade names SOLO RFD and SINGLE SCENE. These newspapers are primarily distributed in newsracks. Des Moines has passed ordinances regulating the placement of newsracks on public property. Under the ordinances, any party wishing to locate a newsrack on city property is required to file an application for a license with the City Director of Traffic and Transportation (Director). Des Moines Municipal Code Secs. 22-32, 22-33 (DMMC). The applicant is also required to pay an annual license fee of $10.00 per newsrack. DMMC Sec. 23-44. In addition to these requirements, the applicant must also comply with restrictions relating to the size and location of the newsrack. ² Once a licensing application has been filed and the fee paid, the ordinance requires the Director to grant the license if the placement of the newsrack conforms to the size and location restrictions. DMMC Sec. 23-36. The Director has no discretion to deny the license on the basis of a publication's content, or on the basis of any criteria other than those listed in the ordinances.

In the event a newsrack is placed on city property without a proper license having been secured, the Director is required to give written notice to the owner of the newsrack advising that the newsrack will be removed by the City after ten days, unless the newsrack is brought into compliance with the ordinance and is licensed or the owner requests a hearing before the City Council. DMMC Sec. 23-41. If there is no such request, the Director is authorized to remove the newsrack after the expiration of the ten-day period. ³ Id.

Jacobsen placed newsracks on property belonging to the City, without having applied for the license or having paid the license fee required by the City's ordinances.

On December 18, 1985, the City sent Jacobsen a letter advising him that his newsracks were in violation of the City's ordinances and were subject to removal. The letter further advised Jacobsen of his right to a hearing before the City Council.

On January 17, 1986, Jacobsen filed a complaint and motion for preliminary injunction against the Mayor and the City, alleging that the City's newsrack ordinances were unconstitutional, both facially and as applied to him. The defendants resisted the motion for preliminary injunction and filed a motion for summary judgment. The City agreed not to remove Jacobsen's newsracks unless and until a judgment adverse to Jacobsen was rendered by the district court.

Notwithstanding the City's agreement not to remove any of Jacobsen's newsracks during the pendency of this lawsuit, on October 9, 1986, after receiving several complaints concerning safety hazards caused by the placement of Jacobsen's newsracks at two specific locations, the City notified Jacobsen that those newsracks were in violation of DMMC Sec. 23-35(b)(7), which states that "[n]o newsracks shall be located [o]n the right-of-way of any street where parking is prohibited on both sides for all or any portion of the day or within 50 feet of such street on the right-of-way of any intersecting street, except that this provision shall not apply to 'C-3' Central Business District Commercial District zoned areas." Because of the danger caused by the placement of the newsracks at these two locations, the City ordered Jacobsen to remove them by October 27, 1986. The City stated that if Jacobsen failed to comply with the removal order, the newsracks would be removed by the City. The City informed Jacobsen that he would have an opportunity for a hearing before the City Council, prior to removal of the newsracks. Jacobsen declined the opportunity for a hearing and failed to remove the newsracks. Accordingly, on November 3, 1986, the City removed three newsracks from the two locations designated in the removal order. ⁴ The City advised Jacobsen of the removal action and the procedures for return of the newsracks.

On November 10, 1986, the City advised Jacobsen by letter that a public hearing on the subject of the removal of the three newsracks had been scheduled before the City Council at 5:30 p.m. on Monday, December 1, 1986. Jacobsen did not appear at this hearing.

After a hearing was held in the district court on Jacobsen's motion for a preliminary injunction and defendants' motion for summary judgment, the district court denied Jacobsen's motion for a preliminary injunction and granted the City's motion for summary judgment. This appeal followed.

III. DISCUSSION

The Supreme Court, in City of Lakewood v. Plain Dealer Publishing Co., --- U.S. ----, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), recently considered the propriety of city ordinances which restrict the placement of newsracks. The Court held unconstitutional an ordinance of the City of Lakewood, Ohio, which vested the Mayor of Lakewood with unbridled discretion over which publishers could place newsracks on public property. Lakewood, --- U.S. at ----, 108 S.Ct. at 2150-2152. The Court made clear, however, that a city may enact licensing procedures for conduct commonly associated with expression, so long as the city "establish[es] neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered." Lakewood, --- U.S. at ----, 108 S.Ct. at 2145. We have carefully reviewed the ordinances challenged by Jacobsen, and we hold that they represent constitutional, non-discretionary, and content-neutral time, place or manner restrictions, which are narrowly tailored to serve significant public safety interests of the City. See Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).

Jacobsen next argues that material issues of fact as to the specific application of the ordinances to his newsracks precluded the entry of summary judgment. "[T]he plain language of [Fed.R.Civ.P.] 56(c) mandates the entry of summary judgment * * * against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the City informed the district court that there were no issues of material fact which precluded the entry of summary judgment, it became Jacobsen's "burden to set...