Mardi Gras/San Luis Obispo v. City/San Luis Obispo

• Decision Date: 11 February 2002
• Docket Number: No. CV 02-323 ABC (BQRX).,CV 02-323 ABC (BQRX).
• Citation: 189 F.Supp.2d 1018
• Parties: MARDI GRAS OF SAN LUIS OBISPO, Plaintiff, v. CITY OF SAN LUIS OBISPO, Defendant.
• Court: U.S. District Court — Central District of California

Page 1018

189 F.Supp.2d 1018

MARDI GRAS OF SAN LUIS OBISPO, Plaintiff, v. CITY OF SAN LUIS OBISPO, Defendant.

No. CV 02-323 ABC (BQRX).

United States District Court, C.D. California.

February 11, 2002.

Mark Rosenbaum, Esq., ACLU Foundation of So. California, Los Angeles, CA, Carol Sobel, Esq., Yvonne Simon, Esq., Santa Monica, CA, for Plaintiff/Petitioner/Appellant.

Thomas Winfield, Esq., Brown Winfield & Canzoneri, Los Angeles, CA, for Defendant/Respondent/Appellee.

ORDER RE: PLAINTIFF'S APPLICATION FOR PRELIMINARY INJUNCTION

COLLINS, District Judge.

Plaintiff's application for a preliminary injunction (the "Application") came on regularly for hearing before this Court on February 5, 2002. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Plaintiff's application is GRANTED.

I. Background

Mardi Gras of San Luis Obispo ("MGSLO") claims that since 1978, it has sponsored a parade in the City of San Luis Obispo (the "City") to celebrate "Fat Tuesday," a religious holiday marking the beginning of Lent.¹ MGSLO claims that the parade, which is substantially similar from year to year, is held over a one mile span of Marsh Street in the center of the City and generally lasts for one to two hours. See Declaration of Connie Anderson ("Anderson Decl.") at ¶ 2.

The license and permit requirements and regulations concerning parades and special events in the City of San Luis Obispo are codified in the San Luis Obispo Municipal Code ("SLOMC") Chapter 5.76 et seq.²

On November 6, 2001, the City Council adopted Resolution No. 9251 (2001 Series) (the "Resolution") which, among other things, eliminated a cap of $10,000 on sponsor-paid costs for non-commercial events above a $1,000 deductible. The Resolution further provided that permitees for noncommercial activities must pay for "Sponsor Paid Costs,"³ including City police and any outside law enforcement agencies with whom the city contracts for services. The Resolution does not provide standards to determine how these costs are assessed and what factors are to be used to determine how many law enforcement officers and/or other city staff are to be assigned to an event. See Application, Exh. 2.

On May 25, 2001, MGSLO met with City administrators to discuss the Mardi Gras parade planned for 2002. MGSLO asserts that it was informed by the City officials that a permit would not be approved for 2002. See Application at 5. On June 7, 2001, a City administrator sent a letter to MGSLO discussing the City's concerns with the parade and the application that might be submitted by MGSLO. See Opposition ("Opp'n."), Exh. 1. The City's concerns included the fact that during the last several years, "the crowds drawn to the Mardi Gras parade have grown increasingly large and more difficult to control." See Declaration of Kenneth Hampian ("Hampian Decl.") ¶ 3. In addition, the City noted that the number of arrests made both during and immediately after the parade had increased. Id.

On January 11, 2002, Plaintiff filed a complaint against Defendant seeking declaratory and injunctive relief for alleged violations of the First Amendment of the United States Constitution, 42 U.S.C. § 1983, and the California Constitution: Article I, Sections 2 and 3. Plaintiff also filed an application for a temporary restraining order ("TRO") and an order to show ("OSC") cause why a preliminary injunction should not issue. Plaintiff argued that Defendant should be enjoined from enforcing San Luis Obispo Municipal Code Chapter 5.76, et seq. On January 17, 2002, the Court granted the request for a TRO and set the application for a preliminary injunction on calendar.

On January 18, 2001, MGSLO submitted a special event permit application to the City to hold the "24th Annual Mardi Gras Parade" on February 9, 2002 in downtown San Luis Obispo. The application states that the event will last approximately twenty-five minutes. See Reply, Exh. 7. On January 24, 2002, the City approved the application and noted, among other things, that MGSLO must, by February 7, 2002, either provide the City with a Certificate of Insurance for the festival showing property damage and public liability in the amount of $2,000,000 and an Endorsement naming the City as an additional insured or provide an indemnity agreement.⁴

On January 25, 2002, Defendant filed its opposition to the application for a preliminary injunction and Plaintiff replied on January 30, 2002.

II. Discussion

A. Standing

As a threshold matter, the Court must examine whether Plaintiff has standing to raise its facial challenges. Article III standing contains three elements: (1) "an injury in fact"; (2) "a causal connection between the injury and the conduct complained of'; and (3) likelihood that the injury will be "`redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 563, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The first element of the standing inquiry—the injury in fact—is "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) `actual or imminent', not `conjectural' or `hypothetical.'" Id. at 560, 112 S.Ct. 2130 (citations omitted). A plaintiff must show that "`he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.'" 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1111-12 (9th Cir. 1999) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). "Thus, a `plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" Id. at 1112 (quoting Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) ("Munson")).

When a case concerns a challenge that a statute or ordinance is, on its face, unconstitutional, particularly in the First Amendment context, the type of facial challenge at issue affects the standing analysis. While the plaintiff must still demonstrate an injury in fact, plaintiff may assert not just his own constitutional rights, but also the constitutional rights of others. Id.

A statute may be facially unconstitutional if (1) "`it is unconstitutional in every conceivable application'" or (2) "`it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad.'" Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).⁵ The first type of facial challenge involves a plaintiff who argues that the statute "could never be applied in a valid manner because it is unconstitutionally vague or it impermissibly restricts a protected activity." Id. In such a case, courts apply the general rule that a plaintiff has standing only to vindicate his own constitutional rights, rights that have been, or are in imminent danger of, being invaded by the government's implementation or enforcement of that statute. See id.; FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 220-21, 237, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) ("There can be little question that the motel owners have `a live controversy against enforcement of [a] statute'" that regulates adult motels and other "sexually oriented businesses.").

However, an exception to the traditional standing rule applies in the First Amendment context when a plaintiff raises the second type of facial challenge. Foti, 146 F.3d at 635. In this type of challenge, "the plaintiff argues that the statute is written so broadly that it may inhibit the constitutionally protected speech of third parties." Id.; accord Munson, 467 U.S. at 956-57, 104 S.Ct. 2839. In such a case, the general limitation on standing is relaxed because there exists "a danger of chilling free speech" in society as a whole. See Munson, 467 U.S. at 956-57, 104 S.Ct. 2839. Thus, so long as the plaintiff himself satisfies the injury in fact requirement, he has standing to argue that a law is facially overbroad as it relates to the expressive activities of others, whether or not he also challenges the law's overbreadth as it relates to his own expressive activities. See id. (a for-profit professional fund raiser who contracts with charitable organizations has standing to challenge a statute that prohibits charitable organizations from paying or agreeing to pay as expenses more than 25 percent of the amount raised in connection with any fundraising activity); see also S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1142-43 (9th Cir.), amended on other grounds, 160 F.3d 541 (9th Cir.1998) (plaintiff, whose First Amendment activities are directly impacted by the new ordinance, has standing to challenge the impact of the overbroad ordinance on behalf of itself and others not before the court). The "prior restraint" cases, in which one who is subject to the law alleges that a licensing statute vests unbridled discretion in the decision-maker over whether to permit or deny the expressive activity, fall into this category. See Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (discussing cases where a plaintiff has standing to bring facial overbreadth challenges, including prior restraint and unreasonable time, place and manner claims, "not because his own rights have been violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression"); see also Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) ("In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or...