Santa Monica Food Not Bombs v. Santa Monica

Decision Date16 June 2006
Docket NumberNo. 03-56621.,No. 03-56623.,03-56621.,03-56623.
Citation450 F.3d 1022
PartiesSANTA MONICA FOOD NOT BOMBS, an unincorporated association; International Answer/Los Angeles, an unincorporated association; Deborah Baxter; Moira La Mountain; Christine Schanes, Plaintiffs-Appellants, v. CITY OF SANTA MONICA, a municipal corporation; Susan E. McCarthy; James T. Butts, Defendants-Appellees. Santa Monica Food Not Bombs, an unincorporated association; International Answer/Los Angeles, an unincorporated association; Deborah Baxter; Moira La Mountain; Christine Schanes, Plaintiffs-Appellants, v. City of Santa Monica, a municipal corporation; Susan E. McCarthy; James T. Butts, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Carol A. Sobel, Law Office of Carol A. Sobel, Santa Monica, CA, for the appellants.

Barry A. Rosenbaum, Senior Land Use Attorney, Santa Monica, CA, for the appellees.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CV-03-00032-MLR.

Before KLEINFELD, WARDLAW, and BERZON, Circuit Judges.

Opinion and Partial Dissent by Judge BERZON; Partial Majority Opinion, Partial Concurrence, and Partial Dissent by Judge KLEINFELD; Concurrence by Judge WARDLAW.

BERZON, Circuit Judge, with whom Judge KLEINFELD concurs except as to Sections II.B.2.b.(1)(ii) and II.C, and Judge WARDLAW concurs except as to Section II.C.

We consider the facial constitutionality of ordinances enacted by the City of Santa Monica to regulate activity in its outdoor public spaces. During the pendency of this litigation, both these ordinances and Santa Monica's administrative interpretation of them have changed substantially. Appellants' persistent urging and Santa Monica's willingness to change its regulations have together produced a transformation in the applicable permitting scheme that—to the credit of all parties involved— provides significantly more opportunity for those who wish to make their views heard in public spaces to do so without first obtaining permits.

We review only the present version of the ordinance and implementing regulations and, of course, only those portions that appellants specifically challenge.1 Doing so, we hold that Santa Monica's Community Events Ordinance is, save a single provision, a content-neutral time, place, and manner restriction that does not violate the First Amendment. One provision of Santa Monica's administrative interpretation of the ordinance, however, is not constitutionally sound and cannot be enforced. Additionally, the facial challenges to other ordinances either are moot or fail on the merits.

A. Santa Monica and the Ordinances at Issue2

The City of Santa Monica ("Santa Monica" or the "City") is a vibrant beach community in southern California occupying less than eight square miles with a weekday population of 300,000 that swells to 500,000 on weekends. About eight percent of the land in Santa Monica is dedicated to public open space, of which 245 acres are dedicated to public parks. The limited public park space is occupied, in part, by tennis, basketball, and shuffleboard courts, a lawn bowling green, baseball and soccer fields, a gymnasium, a child care center, and senior and youth centers. The remaining public park space is used by large numbers of people for a variety of activities, both organized and spontaneous. For example, schools, companies, churches, and the City itself sponsor picnics, festivals, rallies, and demonstrations in the parks.

Santa Monica's downtown area accommodates fairly dense usage. It includes the popular Third Street Promenade, an outdoor pedestrian mall lined with shops, movie theaters, and restaurants and frequented by street performers. In the recent past, Santa Monica has seen demonstrations in public open spaces and in front of hotels and retail stores on issues concerning workers' rights, environmental protection, and the abolition of sweatshops.

Before the district court, appellants challenged the constitutionality of Santa Monica's (1) street banner ordinance, SANTA MONICA, CAL., MUN. CODE ("SMMC") §§ 4.08.490-.500; (2) community events ordinance, SMMC §§ 4.68.010-.220; and (3) food distribution ordinances, SMMC § 5.06.010 (concerning food distribution in public parks) and SMMC § 5.06.020 (concerning food distribution on public streets and sidewalks). Those aspects of these ordinances central to the resolution of the issues presented are set forth in detail in this section. Other provisions, not described immediately below, are set forth in later portions of this opinion as they become relevant.

1. The Community Events Ordinance

To manage competing uses of Santa Monica's public spaces, streets, and sidewalks while "protect[ing] the rights of people to engage in expressive activities in the City's public places," SMMC § 4.68.010, the Santa Monica City Council adopted Ordinance No.2008(CCS) § 1, adding Chapter 4.68 to the Santa Monica Municipal Code, on May 8, 2001. Chapter 4.68, known as the Community Events Ordinance (the "Events Ordinance"), establishes a permitting process for community events held in public spaces including parks, streets, and sidewalks. The Events Ordinance was amended on November 13, 2001, by Ordinance No.2024(CCS), and again on April 22, 2003, by Ordinance No.2073(CCS). The most recent amendment occurred after appellants had filed their complaint.

The Events Ordinance specifically provides that "[t]he City Manager, or his/her designee, shall adopt administrative regulations that are consistent with and that further the terms and requirements set forth within this Chapter." SMMC § 4.68.200. Pursuant to this provision, the City Manager issued Administrative Instruction No. II-4-4 (the "Instruction"),3 on June 7, 2001, to aid Santa Monica's staff in implementing the Events Ordinance. The Instruction has been amended three times, on July 7, 2003, on July 15, 2003, and, most recently, on February 8, 2005.

The Events Ordinance requires that permits be obtained for three categories of community events:

(a) A parade, procession, march or assembly consisting of persons, animals, vehicles, or any other combination thereof, which is to assemble or travel in unison on any public street, highway, alley, sidewalk or other City-designated public way and which either (1) may impede, obstruct, impair or interfere with free use of such public street, highway, alley, sidewalk, or other public way. . . or (2) does not comply with normal or usual traffic regulations or controls;

(b) Any activity or event involving one hundred fifty or more persons on City owned, controlled, or maintained property not subject to the requirements of subsection (a) of this Section;

(c) Any activity or event on public property which requires the placement of a tent, canopy, or other temporary structure if that placement requires a permit from the City Fire Department or Building and Safety Division.

SMMC § 4.68.040. As to subsection (a), the Instruction states that marches, processions, walks, runs, and assemblies on public sidewalks or park paths require a permit only if the event "is likely to . . . interfere with the free use of any public way by others . . . or not comply with traffic regulations." Instruction at 23 (Section V(4)). Further, the Instruction sets out a "safe harbor" provision which establishes that a march, procession, walk, run, or assembly "will not interfere with the free use by others," and does not require a permit, if the group consists of 500 or fewer people and the participants "[a]ssemble, march, walk, or run in groups of less than 50, 2 abreast (to create spacing between groups), and give way to others they encounter on the public way." Id. To avail itself of this safe harbor, the group must obey all traffic and park regulations and must not obstruct traffic flow. Id. As to subsection (b), the Instruction provides that "[f]or purposes of this subsection, any activity or event which the applicant intends to advertise in advance via radio, television and/or widely-distributed print media shall be deemed to be an activity or event of 150 or more persons" Id. at 5 (Section III(1)(b)).

The Instruction separates events into three categories, which do not track precisely the categories in the Events Ordinance: Category 1, which encompasses non-expressive events, and Categories 2 and 3, which include all expressive events. Id. at 5-6 (Section III(2)(a)-(c)).4 Category 2 events are "[e]vents not included within Category 1 . . . but which require a permit from Building and Safety and/or the Fire Department." Id. at 6 (Section III(2)(b)).5 Category 3 events are "[e]vents not included within Categories 1 and 2." Id. (Section III(2)(c)). Category 2 events require, at a minimum, three business days advance application to obtain a permit; Category 3 events, those most central to this case, require at least two days advance application. Id. at 11-12 (Section IV(1)(b)-(c)). Under the Events Ordinance, a permit is not required for "[s]pontaneous events which are occasioned by news or affairs coming into public knowledge less than forty-eight hours prior to such event[s]," if such events are conducted on the lawn of City Hall. SMMC § 4.68.040(g).

To receive a permit, one must submit an application that describes the event, the area, and the manner in which public property will be used and that also provides contact information for the event's organizers. Id. § 4.68.050. The Events Ordinance directs that "the Community Events Committee shall issue" a permit if certain enumerated criteria are met. Id. § 4.68.060 (emphasis added). The ordinance also specifies the bases upon which a permit shall be denied or revoked. Id. § 4.68.070. As required by the ordinance, the Instruction also spells out the timing of the review...

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