Snowden v. Town of Bay Harbor Islands, Florida
| Citation | 358 F.Supp.2d 1178 |
| Decision Date | 15 December 2004 |
| Docket Number | No. 04-23012-CIV-ALTONAGA/BANDSTRA.,04-23012-CIV-ALTONAGA/BANDSTRA. |
| Parties | Sandra SNOWDEN, Plaintiff, v. TOWN OF BAY HARBOR ISLANDS, FLORIDA; Isaac Salver, Mayor of Bay Harbor Islands; and Greg Tindle, Town Manager of Bay Harbor Islands, Defendants, |
| Court | U.S. District Court — Southern District of Florida |
Edward Lawrence White, III, Thomas More Law Center, Ann Arbor, MI, Dina Vittoria Cellini, Bal Harbour, FL, for plaintiff.
Craig Barry Sherman, Frank Christopher Simone, Sherman Law Offices, Edmund Bruce Johnson, Tamara M. Scrudders, Johnson Anselmo Murdoch Burke Piper & McDuff, Fort Lauderdale, FL, for defendants.
ORDER ON PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER OR, IN THE ALTERNATIVE, MOTION FOR PRELIMINARY INJUNCTION
THIS CAUSE came before the Court for a hearing on December 7, 2004, on Plaintiff, Sandra Snowden's (hereinafter "Snowden") Motion for Temporary Restraining Order or, in the Alternative, Motion for Preliminary Injunction, (D.E. 2) filed on December 2, 2004. The Court has carefully considered the written submissions of the parties and the arguments and authorities presented.
Plaintiff has sued Defendants, Town of Bay Harbor Islands, Florida (hereinafter the "Town"), Isaac Salver, its Mayor, in his personal and official capacities (hereinafter the "Mayor"), and Greg Tindle, the Town Manager (hereinafter the "Manager"), also in his personal and official capacities, as a result of denials of her requests to be permitted to display Nativity scenes on public property. Plaintiff's Complaint for Damages, Declaratory and Injunctive Relief (D.E. 1) alleges three claims for relief: the first claim is for violation of freedom of speech, the second claim is for violation of the Establishment Clause, and the third is for violation of equal protection. In her prayer for relief, Plaintiff seeks a declaration that Defendants have violated her constitutional rights, injunctive relief enjoining Defendants from enforcing a policy and practice regarding the display of religious and holiday symbols, and the award of her nominal damages and attorney's fees.
The following facts have been presented in support of Plaintiff's request for a temporary restraining order or preliminary injunctive relief. The Town, consisting of approximately 5,000 residents and 2,300 registered voters, owns Causeway Island, upon which there is a grassy area approximately 760 feet long by 140 feet wide dividing State Road 922. The Island is surrounded by Broad Causeway, a road upon which motor vehicles travel at moderate1 rates of speed because of the presence of a toll booth at the entrance of the Causeway. While there are no public parking spaces adjoining the grassy area,2 there is parking associated with nearby toll booths and a nearby gas station.
Plaintiff maintains that the grassy area or median dividing Causeway Island (that grassy area hereinafter being referred to as "Causeway Island") is public, and has been used by the public to walk on, ride bicycles on and fly kites. Indeed, there are no signs on Causeway Island indicating that people or pets may not be present. The Town disputes that Causeway Island is a park or public forum as it has never been designated as such by the Town, and it has no public parking spaces, no sidewalks, no benches, no bathrooms, and no recreational facilities. The Town maintains that the grassy area has never been freely open to the public because of the danger posed from vehicular traffic to persons who would seek to enter or exit the same. Upon a first-hand observation of the small size, configuration, and lack of park-like amenities on Causeway Island the Town's characterization appears to be the more correct one.
The controversy between the parties has its origins in December of 2001. Specifically, on December 3, 2001, the Mayor, who was then a member of the Town Council, proposed that the Shul, an Orthodox Jewish synagogue located in the nearby town of Surfside, Florida, and of which he was also a member, be allowed to erect a stainless steel menorah on Causeway Island. As reflected in the official minutes of the meeting:
Councilman Salver explained his request was a result of him being approached by several residents, who in anticipation of the coming holiday of Chanukah, had asked that the Town allow the Shul to erect a menorah on public property.
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The Rabbi of the Shul of Surfside stepped up to the podium and spoke on various aspects related to the issue. He stated that from a legal perspective, there was no problem in approving the menorah, because the issue had already been dealt with up to the level of the Supreme Court and it had been decided that the menorah is not considered to be a religious symbol but a symbol of freedom....
* * * * * *
Mr. Martin Wiescholek ... objected to the Town allowing the menorah placed [sic] on public property since he felt it represents a religious symbol and other people might feel offended by it. He stated that if the Town allowed a particular religion [sic] symbol to be erected in public property everybody else should be allowed to display their symbols as well....
* * * * * *
Attorney Sherman commented there is case law in support of the Menorah being secular and not religious, and if not considered secular, the Council would have to provide the same opportunity to other symbols. He stated that the Council might be setting a precedent to a certain extent but it would have to deal with it and that each case would have to stand on its own....
(Plaintiff's Motion, Ex. 2)(emphasis added to original).
After the discussion concluded, and with no articulated standards guiding its decision, the Town Council voted unanimously to have the menorah placed on Causeway Island, near an electrical power source provided and paid for by the Town. The Shul provided a 14-foot high menorah to the Town, and it was so lighted and displayed on Causeway Island that December. Temporary, colorful sailboat decorations also appeared alongside the menorah. This combined display of lighted menorah and colorful sailboats continued to appear in November and December of the years 2002 and 2003 without any reappearance or renewed request by the Rabbi or a representative of the Shul before the Council identifying that organization's continued ties to the menorah, but also without any directive by the Council to staff that it be re-erected.
Furthermore, for the three years in question, 2001-2003, the Town also placed temporary illuminated displays on light poles in the downtown areas along Kane Concourse (96 Street), a state road, of six, approximately 6-foot tall, blue and white Stars of David, six, 8-foot tall, blue and white menorahs, and an unknown number of poinsettias. Unlike the situation presented with the display on Causeway Island, there is no record evidence as to the date these lighted displays first appeared, or their origin.
On December 2, 2003, Snowden, a Town resident, faxed a letter to then-Mayor Linda Zilber, then-Vice-Mayor Isaac Salver, and Tindle, explaining her background as an author in the field of international protocol, her background in international diplomacy, and her experience in advising private and public entities in her areas of expertise. She indicated that "for the past few years I have been deeply offended by the holiday decorations along Kane Concourse." (Plaintiff's Motion, Ex. 5). She asked to be permitted to "jump on board immediately and work with our students, city officials and our diverse community to reflect an international holiday in our town." (Id.).
Mayor Zilber called Snowden at her home on December 6. Mayor Zilber explained that Salver would be sending her a written response which the Mayor disagreed with and which, incidentally, was not to be considered a response from the Town. Mayor Zilber agreed that the Star of David was a Jewish symbol and that the decorations in the Town should be more inclusive. Mayor Zilber also informed Snowden that there would be a Town Council meeting on December 8, 2003.
Salver's letter, which included an "excerpt from the Supreme Court's ruling on religious holiday decorations for your records" (Plaintiff's Motion, Ex. 6), opined that the decorations (referring to the lighted displays along Kane Concourse) were indeed diverse. Moreover, he informed Snowden that the Town spent "more money on Halloween (traditionally the Eve of All Saints day) than all other celebrations combined." (Id.) He observed it was "sad to see one get `deeply offended' by something as trivial as holiday decorations," (id.), and suggested she become involved with the Town's Community Enhancements Project. The record does not reveal what this Project is or was.
Snowden then attended the December 8, 2003 Town Council meeting, and asked to be permitted to place a Nativity scene on Causeway Island. She indicated she was willing to place a disclaimer by the Nativity scene or creche, indicating it was her personal display. Her request was denied on the basis that it was too late in the year to put up the display. She was advised the issue would be reconsidered in January of 2004. After another citizen requested that the matter be reconsidered before January, and Snowden proceeded to again speak on the matter, then-Mayor Zilber (Plaintiff's Motion, Ex. A, ¶ 13). It is unclear why Mayor Zilber abruptly ended the meeting, and the minutes of that meeting have not been provided.
Thereafter, Snowden had communications concerning the issue with Tindle and Bay Harbor Police Chief John Ross. She suggested holding a living Nativity in...
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...omitted.]798 F.2d at 1266–67.10 Cases involving speech on highway medians are few and far between. In Snowden v. Town of Bay Harbor Islands, Florida, 358 F.Supp.2d 1178 (S.D.Fla.2004), the plaintiff requested permission to place a Nativity scene on a grassy median dividing a state road. Whe......
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...to freedom of speech is protected from infringement by state actors by the Fourteenth Amendment. Snowden v. Town of Bay Harbor Islands, Florida , 358 F.Supp.2d 1178, 1189 (S.D.Fla.2004) (citing Everson v. Board of Educ. , 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947) ). The government do......
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SATAWA v. BD. OF COUNTY ROAD COM'RS OF MACOMB CTY.
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