McMahon v. City of Pan. City Beach, Case No. 5:16cv60-MW/GRJ

Decision Date12 April 2016
Docket NumberCase No. 5:16cv60-MW/GRJ
Citation180 F.Supp.3d 1076
Parties Richard McMahon, Plaintiff, v. City of Panama City Beach, Florida, et al., Defendants.
CourtU.S. District Court — Northern District of Florida

Nathan Wesley Kellum, Center for Religious Expression, Memphis, TN, for Plaintiff.

Zackery Aaron Scharlepp, Gwendolyn Palmer Adkins, Coppins Monroe Adkins etc. PA, Tallahassee, FL, for Defendants.

ORDER GRANTING PRELIMINARY INJUNCTION

Mark E. Walker, United States District Judge

If it looks like a duck, and it walks like a duck, and it quacks like a duck, then it's probably a duck.1

So thought Richard McMahon when he saw the Thunder Beach Motorcycle Rally event being held at Frank Brown Park in Panama City Beach, Florida. Thunder Beach, a large gathering of people interested in motorcycles, though organized by a private corporation, is free and open to the public and has no barriers limiting or restricting ingress and egress. McMahon saw that the event looked, walked, and quacked like a free event held in a public park, so he figured that he would enjoy the same rights to free speech that he enjoys in a public park.

McMahon is a Christian who chooses to exercise his free speech rights by passing out small pieces of literature called Gospel tracts. But when he began doing so at Thunder Beach, Thunder Beach officials asked him to stop, saying that they did not allow literature distribution at their event. McMahon said he believed it was a public park and he had a right to free speech, but no, they retorted, this was their private event, and he had to abide by their rules.

McMahon, undeterred, contacted the City of Panama City Beach, who owned the park, to see if he could distribute literature at Thunder Beach. After conferring with its attorney, the City told him that no, he could not. The permit that they gave to Thunder Beach, they told him, was for “exclusive use,” and that meant that Thunder Beach had the right to kick out whomever it wanted. McMahon asked what would happen if he passed out the literature anyway, and the City said that Thunder Beach could ask him to leave. McMahon asked what would happen if he continued anyway, and the City said that it would send an officer to arrest him for trespass. Not wanting to be arrested, McMahon stopped passing out Gospel tracts.

McMahon now sues the City and its officials, claiming that it violated his right to free speech, and seeks a preliminary injunction allowing him to exercise his rights at Thunder Beach.

After a searching review of the law and the limited record before it, this Court finds that the preliminary injunction must issue. The duck test governs: Thunder Beach looks like a public forum, and so is a public forum, and McMahon retains the rights to free speech that he would possess in any public forum. The words “exclusive use” in the permit agreement do not change this. And in any event, the City cannot grant Thunder Beach officials the unfettered discretion to call in trespass warnings against anyone whose speech it might find disagreeable.

McMahon is thus substantially likely to succeed on his claim of a First Amendment violation. His speech is constitutionally protected, he attempted to speak in a traditional public forum, and the City's threat to arrest him if Thunder Beach were to so request constitutes state action that is not a reasonable time, place, and manner restriction on his speech. McMahon has also shown irreparable harm, and the balance of equities and the public interest tilt in favor of issuing the injunction.

I

“At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is 'appropriate given the character and objectives of the injunctive proceeding.”'

Levi Strauss & Co. v. Sunrise Int'l Trading Inc. , 51 F.3d 982, 985 (11th Cir.1995) (quoting Asseo v. Pan Am. Grain Co. , 805 F.2d 23, 26 (1st Cir.1986) ). In so stating, it is important to note that some of the evidence presented in support of the motion for preliminary injunction may not be properly considered on summary judgment or admissible at trial.

Plaintiff Richard McMahon, a 67-year-old retired man living in Panama City Beach, Florida, is a born-again Christian. ECF No. 3-1 at 1. He seeks out opportunities to share his faith in public. Id. at 2. One way he shares his faith is by handing out pieces of literature called Gospel tracts. Id. He believes that leafleting through Gospel tracts allows him to easily share his views in detail with large numbers of people. Id.

Specifically, McMahon wants to share his faith at the Thunder Beach Motorcycle Rally, an event regularly held at the Festival Site of the Frank Brown Park in Panama City Beach, Florida. Id. at 2–3.

A

Frank Brown Park is maintained by the City of Panama City Beach Parks & Recreation Department. ECF No. 3-3. The Park contains [o]ver two hundred acres dedicated to outdoor recreation facilities including playgrounds, picnic areas, freshwater youth fishing lake, green ways and trails, which are open to the public year round.” Id.

Frank Brown Park. ECF No. 3-3.

Frank Brown Park includes among its recreational facilities a “22-acre festival site.” ECF No. 3-3.

The festival site is a “wide-open grassy area,” ECF No. 3-1 at 3, that can be seen in the bottom half of ECF No. 3-2:

Frank Brown Park, including Festival Site. ECF No. 3-2.

According to McMahon, the Festival Site is open to the public all year round, including when there are no events occurring. ECF No. 3-1 at 3.

On June 24, 2015, a day when no event was being held, McMahon visited the Festival Site and made a video recording of his experience. ECF No. 3-1 at 9. McMahon noticed several cars parked nearby, soccer goals set up, and a group of children practicing baseball. Id.

Frank Brown Park Festival Site. ECF No. 3-7 at 00:00.
Frank Brown Park Festival Site. ECF No. 3-7 at 00:50.
Frank Brown Park Festival Site. ECF No. 3-7 at 01:33.
Frank Brown Park Festival Site. ECF No. 3-7 at 00:12.

McMahon spoke with a Parks Department employee who was on site, and asked whether the field was free for anyone to use. ECF No. 3-1 at 9–10. The employee told him that the Festival Site was regularly used by the public for activities, and the public was allowed to walk on and use the Festival Site at any time. Id. McMahon later spoke with Park Coordinator Melissa Deese, who also told him that the general public was welcome to use the Festival Site for casual recreational activities without signing up or paying any fees. Id. at 10.

The festival site is enclosed by a small wooden fence with large closed gates, but the fence contains unobstructed, unmarked pedestrian-sized openings. ECF No. 3-7 at 02:24. There do not appear to be signs or other instructions not to use the park. Id.

Frank Brown Park Festival Site. ECF No. 3-7 at 02:24.

McMahon later returned to the Festival Site on a different day, and observed children and their parents using the Site and people playing soccer on the Site. ECF No. 3-1 at 10.

Frank Brown Park Festival Site. ECF No. 3-8.
Frank Brown Park Festival Site. ECF No. 3-9.

According to City Manager Mario Gisbert, the Festival Site is designated as a special event site. ECF No. 25-1 at 1.

The Festival Site grounds were improved beginning in early 2001 as part of a public-private partnership agreement between the City and private entities to provide “new and attractive venues for year-round special events of all types and sizes.” Id. at 2. The City began renting the Festival Site to private organizations through exclusive use contracts beginning in 2003. Id. A private citizen later donated additional funds to further improve the grounds to make them suitable for an annual horse show. Id.

The City regularly rents the grounds both to itself and private entities for events, some of which are free and open to the public, and some of which are not and require paid admission. Id. at 2–3. The special event agreement grants the entity exclusive use of the site during the time of the event. Id. at 3, 26–32.

The City's Frank Brown Park Map. ECF No. 25-7 at 3.

When the site is not rented, the City allows the Festival Site to be used by the public generally. ECF No. 25-1 at 1.

B

Thunder Beach Productions, Inc., is a for-profit private corporation. ECF No. 25-4 at 1. Thunder Beach Productions hosts two main events each year in Panama City Beach, Florida, called the Thunder Beach Motorcycle Rallies or “Thunder Beach.” Id.2 Thunder Beach's business model is to rent venue space, including the festival site, promote its event, then rent out space at its events to vendors who are able to benefit from the large audience that it attracts. ECF No. 25-4 at 1–4. It had more than 150 registered vendors for the Spring 2015 rally. Id. at 4. As part of its business model, the event is free and open to the public in order to attract the greatest audience for its vendors. Id. at 3.

Thunder Beach. ECF No. 25-7 at 4.
Thunder Beach. ECF No. 25-7 at 9.

McMahon has, for several years, attempted to pass out Gospel tracts at Thunder Beach. ECF No. 3-1 at 2–3. McMahon states that he passed out literature and spoke with people in wide open areas; he did not block pathways, litter, or encourage littering. Id. at 3–4.

McMahon states that he saw other people passing out fliers advertising local bars and night clubs, and that he assumed that literature distribution was permitted at the event. Id. at 4. Thunder Beach officials, however, deny that they would permit such conduct to occur, and claim that they have at times asked club promoters and timeshare vendors not to distribute information at their event without renting a booth. ECF No. 25-4 at 5; 25-6 at 1–2. They claim that they do not permit any individuals, except sometimes employees promoting other Thunder Beach events, to distribute any information to the crowds outside of a booth. Id. ; ECF No. 25-5 at 1. They claim that allowing this conduct...

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