Taylor v. City of Fort Lauderdale

• Decision Date: 02 March 1987
• Docket Number: No. 85-5986,85-5986
• Citation: 810 F.2d 1551
• Parties: William TAYLOR, et. al. Plaintiffs-Appellants, v. CITY OF FORT LAUDERDALE, Leo Callahan, etc., Donald R. Hall, etc., Defendants- Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1551

810 F.2d 1551

William TAYLOR, et. al. Plaintiffs-Appellants, v. CITY OF FORT LAUDERDALE, Leo Callahan, etc., Donald R. Hall etc., Defendants- Appellees.

No. 85-5986

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

March 2, 1987.

Rehearing and Rehearing En Banc Denied April 6, 1987.

Steven Wisotsky, Ft. Lauderdale, Fla., for plaintiffs-appellants.

Lindsey A. Payne, City of Fort Lauderdale, Ft. Lauderdale, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before JOHNSON and ANDERSON, Circuit Judges and GARZA ^*, Senior Circuit Judge.

GARZA, Senior Circuit Judge:

This case arises from appellant's claim for attorney's fees under 42 U.S.C. Sec. 1988 with regard to actions taken challenging a solicitation ordinance of the City of Ft. Lauderdale. Since appellant Taylor successfully obtained a preliminary injunction on the merits of the central substantive issue in the Sec. 1983 case underlying this appeal, we reverse the district court's denial of attorney's fees to plaintiffs and remand the case for a hearing on reasonable attorney's fees.

I

The relevant facts are not in dispute. At the hearing on Plaintiff's Motion for Preliminary Injunction, the parties stipulated to the truth of the Declaration of Plaintiff William Taylor filed in conjunction with the Motion. The Declaration sets forth these facts:

1. I am a member of the Unification Church and have been since 1974. I am 27 years old.

2. My responsibility in the Church is Public Relations Director for the Southeast region of the United States. My duties and responsibilities cover the State of Florida.

3. Prior to May 1, 1982, I on behalf of my Church had solicitation permits for the years 1979, 1980 and 1981. In order to obtain these permits I, on behalf of my Church, completed an application and filed financial reports as required by the Fort Lauderdale Solicitations Ordinance.

4. On or about May 4, 1982, I learned from Mr. Jim Turner, the chief license inspector for the City of Fort Lauderdale and the official who is responsible for issuance of solicitations permits that the City of Fort Lauderdale did not require applications or financial reports from all religious organizations who solicit funds in the City of Fort Lauderdale. More specifically, Mr. Turner told me that permits are issued only to those religious organizations that solicit donations outside the church, from door-to-door and the like.

5. On or about May 12, 1982, I inspected a list of permit holders and viewed briefly the financial reports or 990 form filed by said permit holders with the chief inspector's office. My inspection of the permit holders and financial reports revealed that there were a total of thirteen (13) solicitation permits issued to the following organizations:

VFW Post 1966

Palm Beach Treatment Home

NALC Branch

Leukemia Society of America, Inc.

Cystic Fibrosis Foundation

The Bible Speaks

Delta Sigma Theta Sorority, Inc.

Robert L. Agee, VFW Post 1966

Christian Record Braille Foundation, Inc.

Broward County Girl Scout Council

Fraternal Order of Eagles

Teen Challenge

Arthritis Foundation

Only one organization, The Bible Speaks, might arguably qualify as a religious organization. No Fort Lauderdale churches which regularly solicit donations had been issued permits.

6. The Unification Church is a California non-profit corporation, holding federal and Florida tax exemptions.

7. Founded in 1954, the Church is established in 120 countries throughout the World. The Church emphasizes evangelical missionary engagements and sponsors religious rallies, workshops, retreats, and lectures. Included in the Church activities are door-to-door and public-place proselytizing and solicitation of funds to support the Church.

8. As members of the Church, we seek to distribute tracts and solicit contributions to support our Church and give gifts to the people of Florida.

* * *

20. Church members proselytize and engage in public evangelism throughout the United States, including witnessing, both on the street and house-to-house, literature distribution, gift giving, public lectures and speaking engagements, fund raising and hospital and retirement home visitation.

After discovering that other religious groups in Ft. Lauderdale were not required to obtain solicitation permits when they sought donations inside a church or on church property, Taylor and other Unification Church members filed suit. On June 21, 1982, plaintiffs filed a two-count civil rights action under 42 U.S.C. Sec. 1983 for declaratory relief and a preliminary and permanent injunction: plaintiffs sought to declare unconstitutional and to enjoin enforcement of the Ft. Lauderdale City Code Chapter Sec. 38-1 et. seq. ¹ and the Florida Transportation Code, Section 339.301, ² as unconstitutional as construed and applied against the plaintiffs because such state action deprives plaintiffs of their constitutional rights of freedom of religion and speech.

The district court heard the Motion for Preliminary Injunction on July 12, 1982. The only witness to appear was Mr. James Turner, the Chief License Inspector for the City of Ft. Lauderdale since 1981. Turner testified that while all solicitations inside the City required a permit, he "took the law the way it had been applied for the previous years" before he was appointed Chief License Inspector. Fort Lauderdale's enforcement scheme, as described by Turner, was two-fold: a) All religious or charitable organizations soliciting out-of-doors must have a permit ("[A]nyone that solicits religious funds or gifts from the taxpayers of Fort Lauderdale upon the streets of Fort Lauderdale requires a permit, irregardless of what the organization is"); and b) if the solicitation is indoors but not on property owned or controlled by the solicitor, a solicitation permit was also required. This meant that "Catholic, Baptist, Protestant, [or] Jewish" congregations which "passed the plate" inside a traditional house of worship, to church members and visitors alike, would not need a City permit. The Unification Church, even if it had a "members only" meeting at the Holiday Inn and took a collection, would need a permit or be in violation of the City ordinance. The district court termed this "edifice discrimination."

On November 1, 1982, the district court entered an Order granting plaintiffs' Motion for Preliminary Injunction on Count I ³ against the solicitation permit requirement of Section 38-9 of the Ft. Lauderdale City Code.

The district judge specifically found "that in practice the City has exempted established religious organizations from both the registration and reporting requirements [of the ordinance] whether they solicit indoors or out-of-doors." (emphasis by the court). Mr. Turner also stated that "unless the Plaintiffs secured a solicitation permit, Unification Church members who attempt to solicit donations from members of the general public would be subject to arrest." Following well-established First Amendment doctrine, the lower court recognized that religious solicitation is protected activity, Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed.1292 (1943), and the threat of criminal prosecution effectively chills the exercise of free expression, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Thus, without a compelling government interest to justify the City's enforcement scheme which was narrowly tailored to achieve its desired ends, Larson v. Valente, 456 U.S. 228, 246-47, 102 S.Ct. 1673, 1684-85, 72 L.Ed.2d 33 (1982), the application of City Code Sec. 38-9 was presumptively invalid. The district court entered the preliminary injunction because the plaintiffs "have suffered, and continue to suffer" irreparable injury. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981). The injunction provided the City may not require the plaintiffs to register under Section 38-9 "unless and until all religious organizations which solicit donations within the City of Ft. Lauderdale, whether indoors or out-of-doors, are also required to register for such solicitation permits." (Order, Case No. 82-6408, Nov. 1, 1982).

After a brief exchange of limited interrogatories, plaintiffs moved in March of 1983 for summary judgment on Count I of the complaint. The district court heard oral argument on the Motion, and on April 8, 1984, the court granted plaintiffs' Motion for Summary Judgment in part. 583 F.Supp 514 (S.D.Fla.1984). The district court found that there had been no discrimination by the City in its permit requirement for outdoor solicitations. There had been "no showing in the record that any of the described 'traditional' churches ever solicited out-of-doors without a permit" or that the City ever waived the permit requirement for another group that solicited outdoors. ⁴ Id. at 517. The district court did find "edifice discrimination" in the City's policy of requiring evangelical churches that had no permanent structure to have a solicitations permit to meet and collect donations indoors while other church groups established in a house of worship on a specific site were exempted from the permit requirement. Therefore, plaintiffs received a partial summary judgment on Count I "only insofar as it alleges unconstitutional application of the Fort Lauderdale Solicitation Ordinance to plaintiff's indoor solicitation." 583 F.Supp. at 519. Plaintiffs' complaint did not explicitly allege any indoor solicitation. ⁵

Beginning in the fall of 1984, the Ft. Lauderdale City Commission took under consideration the repeal of Section 38-9, along with other provisions of Chapter 38. Chapter 38, including Section 38-9...