Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach

• Decision Date: 19 March 1993
• Docket Number: B061264,Nos. B060704,s. B060704
• Court: California Court of Appeals Court of Appeals
• Parties: LONG BEACH LESBIAN AND GAY PRIDE, INC., et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH, Defendant and Appellant.

Page 861

17 Cal.Rptr.2d 861

14 Cal.App.4th 312

LONG BEACH LESBIAN AND GAY PRIDE, INC., et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH, Defendant and Appellant.

Nos. B060704, B061264.

Court of Appeal, Second District, Division 2, California.

March 19, 1993.

Rehearing Denied April 8, 1993.

Review Denied June 24, 1993.

William E. Weinberger, Jon W. Davidson, Paul L. Hoffman and Mark D. Rosenbaum, Los Angeles, for plaintiffs and appellants.

Robert L. Walker, San Francisco, and Eric Neisser, Montclair, N.J., as amici curiae on behalf of plaintiffs and appellants.

John R. Calhoun, City Atty., and Michael J. Mais, Deputy City Atty., for defendant and appellant.

FUKUTO, Associate Justice.

These appeals present numerous challenges to the constitutionality of the parade permit ordinance of the City of Long Beach (City), Long Beach Municipal Code Chapter 5.60 (hereafter cited by section and referred to as Chapter 5.60.) ¹ . The City, defendant below, appeals from the superior court's judgment insofar as it holds that section 5.60.030(C) of the ordinance imparts unconstitutionally broad administrative discretion over the grant or denial of parade permits, and that since that section cannot be severed from the rest, the ordinance is entirely invalid. In their cross-appeal, plaintiffs, Long Beach Lesbian and Gay Pride, Inc. (LBLGP) and certain of its taxpayer-members, challenge the judgment's further declaration that numerous other features and provisions of Chapter 5.60--most prominently, those requiring parade permittees to pay for City services and carry insurance--are constitutionally valid. LBLGP also seeks damages from the City on account of charges paid under these provisions.

We hold first that the superior court correctly determined that, as drafted, the ordinance's central provision governing the issuance of permits unconstitutionally grants unrestrained discretion whether to grant or deny them, and that the section cannot be severed from the rest of the ordinance, which therefore is unconstitutional. After explaining why this holding does not moot plaintiffs' further contentions, we hold that except for the insurance requirement and the provisions for the timing of permit applications, the other challenged aspects of Chapter 5.60 are valid.

I. THE FACTS

LBLGP is a nonprofit corporation devoted to producing an annual parade and "festival." ² The parade commemorates the lesbian and gay rights movement, publicly espouses such rights, and celebrates the participants' pride in their orientation while allowing them to enlighten the community about it. LBLGP has conducted the parade annually since 1984, on Sunday afternoons in May or June, along a 1.6-mile stretch of Ocean Boulevard, a main thoroughfare of the City. The parade includes both pedestrians and motor vehicles, some pulling floats; between 1984 and 1989 the approximate number of participants grew from 300 to 1000.

For each parade, LBLGP has been subject to the permit requirements of Chapter 5.60, or a predecessor chapter with similar provisions. Chapter 5.60 prohibits the conduct in the City of any parade, as defined in section 5.60.010(D), without first procuring a permit from the city manager or his designee. (§ 5.60.020(A).) The permit requirement also applies to defined "filming A permit applicant must file an application with the city manager, at least 30 working days before the event in the case of parades (3 days and 10 days, respectively, for filmings and block parties). (§ 5.60.030(A).) The city manager may issue the permit upon making certain findings (§ 5.60.030(C)), and may deny or revoke it for specified reasons (§ 5.60.060). Each permit includes an agreement by the permittee to defend, indemnify, and hold harmless the City against losses and liabilities incurred from the conduct of the permittee or its agents. (§ 5.60.070(A).) In addition, the permittee must procure a liability insurance policy covering the City and its agents, in amounts the city manager determines. (§ 5.60.070(B).) The city manager may waive this requirement if the event does not present a substantial liability exposure. (§ 5.60.070(C).) Finally, the permittee must pay the City for all actual costs ("departmental service charges") it incurs in connection with the event, as well as the cost of any City property damaged or destroyed "by reason of" the event. (§§ 5.60.010(A), 5.60.080(A).) A cash deposit for the estimated departmental service charges must be provided at least three days before the event. (§ 5.60.080(C).) Violation of the chapter is a misdemeanor. (§ 5.60.120.)

                activity" and "local special events."  (§§ 5.60.010(B), (C), 5.60.020(A).)   An exception is made for events specially licensed by the city council.  (§ 5.60.020(A).)
                

Between 1984 and 1989, in compliance with the chapter's requirements, LBLGP annually paid the City sums for departmental service charges ranging from about $5,600 to about $18,600. Although in most instances these amounts represented unsegregated totals attributable to the parade and the contemporaneous festival, the parade's charges for 1989 ran $12,537.40. In addition, LBLGP paid premiums, for the $1 million insurance coverage the City required for both events, ranging from $910 in 1984 to $11,430 in 1985.

Plaintiffs commenced this action in 1985. In 1986, LBLGP was unable to find an insurer willing to provide it coverage, and the City refused to waive or reduce that requirement. Just days before the May 1986 parade, plaintiffs obtained a preliminary injunction restraining the City from requiring insurance for it. In succeeding years after 1987, LBLGP did obtain insurance.

The matter proceeded to trial in 1990 and 1991. At the conclusion, the court rendered judgment declaring that Chapter 5.60 was void because the discretionary permit approval provision of section 5.60.030(C) violated the First Amendment to the United States Constitution and article I, section 2 of the California Constitution, and could not be severed from the rest of the chapter. However, the court further declared that the remaining challenged sections of Chapter 5.60 were not unconstitutional, facially or as applied. The judgment also denied recovery of LBLGP's insurance premiums and departmental service charges, except for $782.72 LBLGP had been charged in 1989 for removal of graffiti for which it was not responsible.

II. THE CITY'S APPEAL

The City's appeal contests both prongs of the trial court's holding that Chapter 5.60 is unconstitutional: first, that section 5.60.030(C), governing the granting of parade permits, violates the First Amendment, and second, that if thus unconstitutional the section cannot be severed from the rest of the chapter, resulting in its total invalidity. ³ We shall conclude that the trial court was correct in both respects.

Certain basic, settled principles frame resolution of the initial constitutional Perhaps the most fundamental and frequently invoked of these requirements is that permit laws must not confide overly vague, overly broad, or, a fortiori, unlimited discretion to officials entrusted with the grant or denial of permits. (Forsyth County, supra, 505 U.S. at p. ----, 112 S.Ct. at p. 2401, 120 L.Ed.2d at p. 111; Shuttlesworth, supra, 394 U.S. at p. 153, 89 S.Ct. at p. 940; Dillon v. Municipal Court (1971) 4 Cal.3d 860, 866-869, 94 Cal.Rptr. 777, 484 P.2d 945 [hereafter Dillon ].) Without precise governing standards, an administrator may freely pick and choose among the constitutionally protected events to be allowed. "The First Amendment prohibits the vesting of such unbridled discretion in a government official." (Forsyth County, supra, 505 U.S. at p. ----, 112 S.Ct. at p. 2403, 120 L.Ed.2d at p. 113, fn. omitted.)

issue, and also underlie consideration of plaintiffs' further constitutional claims. Parades such as LBLGP's, although not consisting entirely of "pure speech," do constitute activity squarely within the protection of the First Amendment's guarantees of freedom of speech and assembly. (Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 [hereafter Shuttlesworth ].) In the words of a recent United States Supreme Court decision, this means that "[t]he [Long Beach] ordinance requiring a permit and a fee before authorizing ... parades, or assemblies in 'the archetype of a traditional public forum' [citation], is a prior restraint on speech. [Citations.] Although there is a 'heavy presumption' against the validity of a prior restraint [citations], the Court has [14 Cal.App.4th 325] recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally. [Citation.] Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. Further, any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication." (Forsyth County v. Nationalist Movement (1992) 505 U.S. 123, ----, 112 S.Ct. 2395, 2401, 120 L.Ed.2d 101, 111 [hereafter Forsyth County ].)

The trial court found section 5.60.030(C) to be unconstitutional under the foregoing principles. Section 5.60.030(C) sets forth a number of criteria that must be satisfied before a permit may issue. The criteria pertain chiefly to traffic hazards; their particular validity is not at issue at this point, although it will be on plaintiffs' appeal. However, the section initially provides as follows: "The city manager or his designee may issue a permit under this chapter if it is determined that the following criteria have been met:...." (Emphasis added.) The trial court ruled that the section, "by using the word may as opposed to shall or some other imperative,...