Occupy Fort Myers v. City of Fort Myers

• Decision Date: 15 November 2011
• Docket Number: Case No. 2:11–cv–00608–FtM–29DNF.
• Citation: 882 F.Supp.2d 1320
• Parties: OCCUPY FORT MYERS, Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, and Justin Valo, Plaintiff, v. CITY OF FORT MYERS, Defendant.
• Court: U.S. District Court — Middle District of Florida

882 F.Supp.2d 1320

OCCUPY FORT MYERS, Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, and Justin Valo, Plaintiff,

v.CITY OF FORT MYERS, Defendant.

Case No. 2:11–cv–00608–FtM–29DNF.

United States District Court,

M.D. Florida,

Fort Myers Division.

Nov. 15, 2011.

Jennifer Lucas Keesler, Jennifer L. Keesler, Cape Coral, FL, for Plaintiffs.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This matter comes before the Court on Plaintiffs' Amended Emergency Motion for a Preliminary Injunction and Request for Expedited Hearing (Doc. # 10) filed on October 26, 2011. Plaintiffs, Occupy Fort Myers, Cindy Banyai, Stephanie Darst, Christopher Faulner, F. Frank Gubasta, Zachary Kuh, Hilary Mains, Matt McDowell, Michelle Meyer, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, and Justin Valo (collectively, “plaintiffs” or “Occupy Fort Myers”), seek to enjoin the defendant, the City of Fort Myers (“defendant” or “City”), its officers, employees, and agents, from enforcing certain provisions of the Fort Myers City Code of Ordinances and from issuing additional criminal penalties to plaintiffs based upon violations of these ordinances. Plaintiffs assert that the challenged city ordinances on their face violate plaintiffs' rights to free speech, assembly, and association under the First Amendment to the United States Constitution and/or their substantive due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiffs filed a Verified Complaint (Doc. # 1) which attached a number of affidavits, a Memorandum of Law (Doc. # 5), and an exhibit (Doc. # 30) in support of their request for a preliminary injunction.

The City opposes the preliminary injunction, filing a Response (Doc. # 29), various affidavits in opposition (Docs. # 23, 24, 25, 31), and exhibits (Docs. # 27, 28). The Court heard oral argument on October 31, 2011. The City thereafter filed supplemental authority (Doc. # 36) as requested by the Court during oral argument, and several additional exhibits (Docs. 35, 37). Plaintiffs filed a Response (Doc. # 38) to the additional filings. At the request of the Court, the City then filed a Response (Doc. # 42) to one of the issues raised at oral argument.

I.

According to the Complaint, Occupy Fort Myers (“Occupy Fort Myers” or “OFM”) is an unincorporated association of individuals who have gathered in Fort Myers, Florida “to bring visibility to the influence of private money into the nation's political process” (Doc. # 1, ¶ 4) and “attempt to bring visibility to the insidious influence of money into the U.S. political process, and to inform members of the general public on political issues such as social justice and economic equality.” (Doc. # 1, ¶ 19). “A core purpose of [Occupy Fort Myers] is to bring awareness to the concerns about the U.S. political process and economic policy through symbolic, around-the-clock, peaceful protests referred to as ‘occupations.’ ” (Doc. # 1, ¶ 4.)

Prior to a planned rally, Occupy Fort Myers contacted the Fort Myers Police Department (FMPD) to inquire about obtaining a permit for the rally and march in downtown Fort Myers. Occupy Fort Myers was told it could rally and march on October 15, 2011, if it did not use a megaphone, march in the street, or include vulgar language on signs. ( Id. at ¶ 21). As to the symbolic occupation of Centennial Park, the FMPD advised Occupy Fort Myers to contact the City's Recreation Division for a permit for overnight occupation. Occupy Fort Myers held a noon rally and march on October 15, 2011, and began “occupying” Centennial Park that evening without a permit. From October 15, 2011, through October 19, 2011, members of Occupy Fort Myers were allowed to “occupy” Centennial Park overnight without a permit. ( Id. at ¶ 24.)

On October 18, 2011, the City provided Occupy Fort Myers with a “Special Events” pamphlet (Doc. # 30) which included information and an application for a permit to remain in the City parks overnight. Occupy Fort Myers completed the permit application and submitted it to the City's Recreation Division on the same day. ( Id. at ¶ 25.)

On October 19, 2011, the City informed Occupy Fort Myers that before its permit application could be reviewed it was necessary for it to obtain a $1 million liability insurance policy and bring the insurance certificate to the City. Occupy Fort Myers was informed that the City intended to enforce the ordinance which prohibits setting up tents and overnight camping in a park beyond closing hours if Occupy Fort Myers did not comply with the insurance requirement. Under that ordinance, city parks are open from 6:00 a.m. until 10:30 p.m. Although the City initially required insurance from Occupy Fort Myers by October 18, 2011, at 3:00 p.m., the City extended the time to comply until October 19, 2011. ( Id. at ¶¶ 26–27.)

On October 19, 2011, Occupy Fort Myers informed the City that it could not comply with the insurance requirement. The City gave Occupy Fort Myers the names of three insurance companies and agreed to allow an additional day for Occupy Fort Myers to obtain insurance. ( Id. at ¶ 27.) Later on October 19, Occupy Fort Myers informed the City that the three insurance companies would not provide an insurance policy, and that Occupy Fort Myers could not comply with the insurance requirement. ( Id. at ¶ 28). In any event, Occupy Fort Myers asserts it has no funds to pay for insurance even if it was available. ( Id. at ¶ 29). The City also informed Occupy Fort Myers that it would be required to obtain another permit and an insurance policy every ten days. ( Id.) Occupy Fort Myers asserts that there are no procedures to appeal the City's denial of their request for a waiver of insurance or the denial of the permit. ( Id.)

On October 20, 2011, Occupy Fort Myers continued to negotiate with the City for a permit, but the City would neither issue a permit nor identify any procedure for requesting either waiver or appeal. ( Id. at ¶ 30.) Accordingly, on the evening of October 20, 2011, at approximately 10:45 p.m., the FMPD began issuing citations to individuals for violating City ordinances. According to the Complaint, eleven of the twelve individual plaintiffs have received at least one $135 citation between October 20 and 22, 2011, for their involvement in “symbolic First Amendment-protected speech.” ( Id. at ¶¶ 5–16.) ¹ The twelfth individual plaintiff, while not cited, participates and assists in OFM activities, and feels that his and others' speech rights have been hindered and chilled by the alleged unconstitutional ordinances. ( Id. at ¶ 17.)

Plaintiffs filed a four-count Complaint (Doc. # 1) pursuant to 42 U.S.C. § 1983. Count One asserts that Ordinances §§ 2–271 through 2–273 (the “Special Events Advisory Board Ordinance”) and Ordinance § 58–156 (the “Park Regulations Ordinance”) are unconstitutional on their face as “viewpoint discrimination” in violation of the First Amendment. Count Two asserts that the Special Events Advisory Board Ordinance, Ordinance § 86–153 (the “Parades and Processions Ordinance”), and the Park Regulation Ordinance are unconstitutionally overbroad on their face. Count Three asserts that the Park Regulation Ordinance is impermissibly vague and unconstitutional on its face. Count Four alleges that the Park Regulation Ordinance and the Parades and Processions Ordinance on their face violate plaintiffs' Fourteenth Amendment liberty interests to lounge on public benches and places “according to their inclination” and to “meet” with others in “open air” places within the City limits. Plaintiffs correctly assert the Court has jurisdiction pursuant to 28 U.S.C §§ 1331 and 1343(a), and incorrectly allege jurisdiction pursuant to 28 U.S.C. § 2201 and § 2202.²

II.

A federal court has inherent authority to issue an injunction to remedy a violation of constitutional rights. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir.2004). “The purpose of the preliminary injunction is to preserve the positions of the parties as best we can until a trial on the merits may be held.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.2011). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Eleventh Circuit has described the four “well known” prerequisites for such a preliminary injunction as follows:

A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc). The burden of persuasion for each of the four requirements is upon the party seeking the preliminary injunction. Siegel, 234 F.3d at 1176. These same standards apply in cases involving the First Amendment. E.g., Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1217 (11th Cir.2009); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1253 n. 3 (11th Cir.2005). “[A] preliminary injunction in advance of trial is an extraordinary remedy.” Bloedorn, 631 F.3d at 1229.

III.

The overarching issue is whether plaintiffs have satisfied all four prerequisites to obtain a preliminary injunction as to any of the challenged ordinances. The Court discusses each requirement in turn.

A. Substantial Likelihood of Success on...