News and Sun-Sentinel Co. v. Cox
| Decision Date | 19 December 1988 |
| Docket Number | No. 88-6271-Civ.,88-6271-Civ. |
| Citation | 702 F. Supp. 891 |
| Parties | NEWS AND SUN-SENTINEL COMPANY, a Delaware corporation, d/b/a Fort Lauderdale News and Sun-Sentinel, Plaintiff, v. Robert O. COX, Douglas H. Danziger, Sheila Harrigan, Carlton Moore, Jim Naugle, individually as the Mayor and City Commissioners, respectively, of the City of Fort Lauderdale, and collectively as the Fort Lauderdale City Commission, the governing body of the City of Fort Lauderdale; the City of Fort Lauderdale, a municipal corporation and political subdivision of the State of Florida; and Joseph C. Gerwens, as the Police Chief of the City of Fort Lauderdale, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Wilton L. Strickland, Fort Lauderdale, Fla., for plaintiff.
Dennis Lyles, City Atty., Fort Lauderdale, Fla., for defendants.
THIS CAUSE was tried to the Court, sitting without a jury, on October 25 and 26, 1988. After considering the testimony of witnesses, the documentary and physical evidence, the Court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
1. Plaintiff, News and Sun-Sentinel Company, (hereinafter "NSS") is the publisher of both the Fort Lauderdale News and the Sun-Sentinel.
2. Defendant, Robert O. Cox, is the Mayor and a commissioner of the City of Fort Lauderdale. Defendants, Douglas H. Danziger, Sheila Harrigan, Carlton Moore and Jim Naugle are members of the Fort Lauderdale City Commission and Joseph C. Gerwens, the Chief of Police of the City of Fort Lauderdale. NSS has also brought suit against the Fort Lauderdale City Commission and the City of Fort Lauderdale (hereinafter collectively as "Defendants").
3. In March 1984, NSS instituted a "news vendor program", designed to sell newspapers and provide jobs to persons who have difficulty maintaining steady work, such as individuals from missions, probation programs, and labor pools. Those persons employed through the vendor program sell NSS newspapers to motorists on Fort Lauderdale public streets, including state-maintained roads.
4. On October 1, 1984, the Florida legislature passed Florida Statute sec. 337.406 (1987) ( Fla.Stat. sec. 339.301 (1983)), to provide:
For almost four years since its effective date, none of the Defendants took any action to implement enforcement of Fla.Stat. sec. 337.406.
5. The eleven state-maintained roadways in the City of Fort Lauderdale are listed below.
Intersection Roadway
Commercial Boulevard ............ State Road 870
Oakland Park Boulevard .......... State Road 816
Sunrise Boulevard ............... State Road 838
U.S. 1 .......................... State Road 5
Broward Boulevard, West of Federal
Highway ....................... State Road 842
SW 12th Street (Davie Boulevard)
West of Federal Highway ....... State Road 736
SW 24th Street, West of Federal
Highway ....................... State Road 84
ELO East of SE 17th Avenue ...... State Road 842
SE 17th Street, East of U.S. 1 .. A-1-A
A-1-A itself
NW 9th Avenue, North of Sunrise
Boulevard ..................... State Road 845
See, Affidavit of Joseph C. Gerwens, April 18, 1988.
6. The following series of events triggered this lawsuit. On March 31, 1988, a general notice of a City Commission meeting scheduled for April 5, 1988 was posted on the bulletin board outside Fort Lauderdale City Hall. Also on March 31, 1988, Assistant City Attorney Lindsey A. Payne sent a letter informing counsel for NSS that the regulation of newspaper vendors and newsracks was to be discussed at that meeting.4 During that City Commission meeting, several Fort Lauderdale residents voiced their opinions regarding street vendors, in particular, newspaper vendors. Those residents, as well as the Defendants, urged the enforcement of Fla.Stat. sec. 337.406.5 The Commission decided in favor of immediate enforcement of the state statute.6
7. On April 11, 1988, pursuant to the Commission's direction, Fort Lauderdale Police began enforcement of the statute. That same day, Officer Richard P. Schulze ticketed Gerald Lewis, a NSS employee. The citation charged Mr. Lewis with a violation of Fla.Stat. sec. 337.406, for selling newspapers from the median at the eastern intersection of Broward Boulevard and Federal Highway in the City of Fort Lauderdale, also known as State Road 842. See Plaintiff's Trial Exhibit 3.
8. NSS immediately filed the Complaint presently before this Court on April 11, 1988, accompanied by a motion for temporary restraining order. Pursuant to a hearing held on April 19, 1988, this Court temporarily restrained the enforcement of Fla.Stat. sec. 337.406.
9. Six days later, on April 25, 1988, pursuant to Fed.R.Civ.P. 65(b), this Court held an evidentiary hearing on NSS's motion for preliminary injunction. After considering the evidence presented and argument of counsel, the motion for injunctive relief was granted. See, University of Texas v. Camenisch, 451 U.S. 390, 392, 101 S.Ct. 1830, 1832, 68 L.Ed.2d 175 (1981) (citing Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir.1974)).7 That injunction is presently in effect. NSS now requests that the Defendants be permanently enjoined from enforcing Fla.Stat. sec. 337.406 against its news vendors.
10. Defendants answered the Complaint on June 2, 1988. After seeking leave of Court, NSS filed an amended complaint on August 3, 1988. See, Fed.R.Civ.P. 15(a).
11. NSS's Amended Complaint contains the following eight counts.
a. Count I seeks a declaration that the citation issued to the newspaper vendor by the Fort Lauderdale Police Department is invalid because the Defendants' actions regarding the enforcement of Fla.Stat. sec. 337.406 violated Florida's Sunshine Act, Fla.Stat. secs. 286.0105 (1987) and 286.011 (1987). NSS contends that the City Commission's decision to enforce Fla.Stat. sec. 337.406 was improper because it was made without benefit of appropriate public notice. NSS also requests an award of attorneys' fees and costs.
b. Count II requests temporary injunctive relief which NSS obtained on April 19, 1988.8
c. Count III alleges a violation of NSS's First Amendment right to freedom of speech as applied to the states by the Fourteenth Amendment. NSS seeks costs, damages and attorneys' fees incurred in bringing this suit d. Count IV alleges a violation of NSS's due process rights as guaranteed by the Fourteenth Amendment of the United States Constitution resulting from Defendants' failure to post adequate notice of the Commission's decision to enforce Fla.Stat. sec. 337.406. NSS also seeks costs, attorneys' fees and damages.
e. Count V alleges a violation of NSS's Equal Protection Rights pursuant to the Fourteenth Amendment of the United States Constitution. NSS requests costs, attorneys' fees and damages.
f. Count VI alleges a violation of NSS's civil rights under Title 42 U.S.C. sec. 1983 (1983) and seeks costs, attorneys' fees and damages.
g. Count VII claims a violation of NSS's rights to freedom of the press under Article I, Section 4 of the Florida Constitution and seeks costs, damages and attorneys' fees.
h. Count VIII alleges tortious interference with NSS's contractual rights pursuant to an agreement with independent contractors to distribute its newspapers. NSS requests costs, attorneys' fees and damages.
12. On August 18, 1988, Defendants answered the Amended Complaint and raised several affirmative defenses. Defendants claim that the City cannot be held liable for merely enforcing a state statute; that a declaratory action brought pursuant to 28 U.S.C. sec. 2201 does not automatically provide this Court with jurisdiction; that the claim regarding the state's Sunshine Law is moot because a public hearing was conducted; and that the Defendants have absolute immunity for the acts alleged.9
13. On September 28, 1988, this Court issued a scheduling order setting this cause for trial. Pre-trial matters were considered on October 25, 198810 and a two-day bench trial immediately followed.11
1. The Court has jurisdiction pursuant to 28 U.S.C. secs. 1331, 1343(a)(3) (1983), and pendant jurisdiction over the state claims.
2. Although NSS elected to proceed with its constitutional challenges against the City of Fort Lauderdale and several of its public officers, it did provide notice to the State of Florida by notifying the state attorney of the 17th Judicial Circuit in and for Broward County, Florida, pursuant to Rule 9 B, Local Rules for the Southern District of Florida and Fla.Stat. sec. 86.091 (1987).12See, First Amended Complaint...
To continue reading
Request your trial
-
Bischoff v. Florida, 6:98CV583-ORL-28JGG.
...640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), citing Grayned, 408 U.S. at 109, 92 S.Ct. 2294; see also News and Sun-Sentinel Co. v. Cox, 702 F.Supp. 891, 900 (S.D.Fla.1988) ("It requires neither towering intellect nor an expensive `expert' study to conclude that mixing pedestrians and te......
-
Warren v. Fairfax County
...Ass'n of Community Organizations for Reform Now v. St. Louis County, 930 F.2d 591, 593, 594 (8th Cir. 1991); News & Sentinel Co. v. Cox, 702 F. Supp. 891, 899 (S.D. Fla. 1988). The majority does not cite to even one of these cases. In each of these cases, restrictions that affected an indiv......
-
Hansen v. Williamson
...Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); News and Sun-Sentinel Co. V. Cox, 702 F.Supp. 891, 898-899 (S.D.Fla.1988)). However, Plaintiff acknowledges that the government is not obligated to allow the unfettered exercise of pr......
-
Warren v. Fairfax County
...Ass'n of Community Organizations for Reform Now v. St. Louis County, 930 F.2d 591, 593, 594 (8th Cir.1991); News & Sun-Sentinel Co. v. Cox, 702 F.Supp. 891, 899 (S.D.Fla.1988). The majority does not cite to even one of these cases. In each of these cases, restrictions that affected an indiv......