Hunt v. City of Los Angeles

638 F.3d 703

11 Cal. Daily Op. Serv. 3449

2011 Daily Journal D.A.R. 4172

Michael HUNT and Matthew Dowd, Plaintiffs–Appellees, Cross–Appellants,

v.CITY OF LOS ANGELES, Defendant–Appellant–Cross–Appellee.

Nos. 09–55750

99–55765.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 2010.Filed March 22, 2011.

Stephen F. Rohde, Rohde & Victoroff, Los Angeles, CA, for the plaintiffs-appellees-cross-appellants.Garmen A. Trutanich, Laurie Rittenberg, and Todd T. Leung, Office of the City Attorney, Los Angeles, CA, for the defendant-appellant-cross-appellee.Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. 2:–06–cv–04691–DDP–SS.Before: ALFRED T. GOODWIN and JOHNNIE B. RAWLINSON, Circuit Judges, and J. MICHAEL SEABRIGHT,^* District Judge.

OPINION

SEABRIGHT, District Judge:

The Venice Beach Boardwalk (the “Boardwalk”), located on the west side of Los Angeles, is world-famous for its free performances and public expression activities. Due to over-crowding, safety concerns, and to promote local businesses in the area, the City of Los Angeles (the “City”) has implemented a number of ordinances aimed at preventing vending on the Boardwalk, including Los Angeles Municipal Code (“LAMC”) § 42.15 (2004), LAMC § 42.15 (2006), and LAMC § 63.44. Although none of these ordinances is still in effect, Michael Hunt (“Hunt”) and Matthew Dowd (“Dowd”) (collectively, “Plaintiffs”), who sell items on the Boardwalk, have brought claims for damages pursuant to 42 U.S.C. § 1983, arguing a panoply of reasons why these ordinances are unconstitutional.

The City appeals the district court's grant of summary judgment in favor of Hunt as to LAMC § 42.15 (2004) and the subsequent damages and attorneys' fee awards, while Plaintiffs cross-appeal the district court's grant of summary judgment to the City as to LAMC § 42.15 (2006) and failure to consider the constitutionality of LAMC § 63.44. Based on the following, we AFFIRM the district court's findings as to both versions of LAMC § 42.15, and REMAND for the district court to address LAMC § 63.44 in the first instance.

I. BACKGROUND

A. The Ordinances at Issue1. LAMC § 42.15 (2004)

In October 2004, the City amended LAMC § 42.15 “to require that the public expression activities allowed by that section be exercised in designated spaces on the Venice Beach Boardwalk, and the use of those designated spaces be regulated by a permit process.” The City Council explained that the number of persons wishing to exercise their right of public expression had increased, “creating problems in noise, crowd control, and competition for space,” and that this provision would help, among other things, to alleviate noise, control crowds, provide emergency access for health, safety and law enforcement purposes, and allocate the available space on the Boardwalk in an equitable manner.

LAMC § 42.15 (2004) required that individuals who seek payments and/or donations from their activities on the Boardwalk hold a “Public Expression Participant Permit.” In turn, these permit holders were allotted individual spaces on the Boardwalk to conduct their activities. Although LAMC § 42.15(A) (2004) provided that “[n]o person shall hawk, peddle, vend or sell, or request or solicit donations for, any goods, wares, merchandise, foodstuffs or refreshments upon [the Boardwalk],” it in turn allowed permit holders to sell “merchandise constituting, carrying or making a religious, political, philosophical or ideological message or statement which is inextricably intertwined with the merchandise.” LAMC § 42.15(C) (2004). A permit holder who violated LAMC § 42.15 (2004) was subject to losing the permit, and to criminal penalties.

2. LAMC § 42.15 (2006)

After facing litigation over LAMC § 42.15 (2004), the City suspended the ordinance in August 2005 and passed a new version in February 2006. The 2006 version required that any person engaging in allowable activities on the Boardwalk obtain a “Public Expression Participant Permit,” and spaces on the Boardwalk were assigned pursuant to a weekly lottery system.

Regardless of whether an individual had a permit, LAMC § 42.15 (2006) contained a broad vending ban.¹ This prohibition on vending was inapplicable, however, to:

(1) Any individual or organization vending newspapers, leaflets, pamphlets, bumper stickers or buttons;

(2) Any individual or organization that vends the following items, which have been created, written or composed by the vendor: books, cassette tapes, compact discs, digital video discs, paintings, photographs, sculptures or any other item that is inherently communicative and has nominal utility apart from its communication;

Although an item may have some expressive purpose, it will be deemed to have more than nominal utility apart from its communication if it has a common and dominant non-expressive purpose. Examples of items that have more than nominal utility apart from their communication and thus may not be vended under the provisions of this section, include, but are not limited to, the following: housewares, appliances, articles of clothing, sunglasses, auto parts, oils, incense, perfume, lotions, candles, jewelry, toys, and stuffed animals;

(3) Performances by performing artists and musicians.

A permit holder who violated LAMC § 42.15 (2006) was subject to losing the permit and criminal penalties.

LAMC § 42.15 (2006) was ultimately amended by Ordinance number 179,807, which took effect May 19, 2008.

3. LAMC § 63.44

Plaintiffs also challenge several provisions of LAMC § 63.44, which prohibited various activities “within the limits of any park or other City-owned Harbor Department designated and controlled property within the city of Los Angeles.” The challenged provisions were suspended by Ordinance number 176,929, effective October 1, 2005.

B. Plaintiffs' Activities1. Hunt

Hunt sells shea butter on the Boardwalk. Hunt sets up three different tables with his shea butter, decorated with table-cloths and roses. According to Hunt, his area is “the Garden of Eve and [I] really just make it look nice and smell good, as if I was in heaven.” As people pass his stand, Hunt provides a standard sales pitch—“Here's what you better ask yourself: Have you been buttered up, or have you been buttered down? Have you seen that doggone butter man, because that butter man's back in town. Get buttered up, and get buttered down. Come get your free sample, ‘cause that butter man's back in town.” For those who stop and obtain a free sample, Hunt “give[s] them a full therapeutic hand massage and anoint[s] them,” and asks whether they can feel the “healing power” of the shea butter. Hunt further tells them that “[s]hea butter is an African nut that aged over 365 years that protects your skin from stretch marks, scars, and blemishes, heals eczema ... and it's anointing, and it has a very, very good vitamin A, E, and F, contact-neutral base to it.”

Hunt has been issued an Expression Permit, but has been arrested for violation of each of the ordinances at issue in this action.

2. Dowd

Dowd, since 2005, has sold his original design incense flavor called “Pacific Breeze,” along with incense holders and oil burners with engraved symbols. As people pass by his stand on the Boardwalk, Dowd says, “Hey. Come over and check out my original incense flavor. Smell this. Tell me if you like it. It's my own design of coconut, mango, and strawberry.” If the prospective customer appears interested, Dowd explains how his product “differs from commercial brands of incense, how they're soaked in [his] original oil, they don't smell of smoke or wood, they last a lot longer, and they keep fresh inside the sealed plastic bag which [he] provide[s].”

Dowd's incense holders and oil burners display the following five symbols: (1) yin-yang, (2) elephant, (3) dragon, (4) sun, and (5) stars and moon. Dowd has a sign that explains the religious and/or mythological significance of each of these symbols, and he also distributes flyers explaining these symbols and how to use his coffin-box incense holder. His flyers explain his belief that “the burning of incense symbolizes the breakdown of a being from an organic state into a molecular state, and the release of energy back into the biosphere.” His coffin-box holders symbolize “the funeral casket, and the resultant ashes are the by-product of the energy transfer by combustion of the organic material.” The primary message that Dowd attempts to convey, however, is that he has “created and designed [his] own original flavor which [he] believe[s] is better than a lot of the other commercially available incense that are out there.”

Dowd has been issued an Expression Permit, but was arrested on two occasions for illegal vending in violation of LAMC § 42.15 (2006). Dowd conceded that he was never arrested for violation of LAMC § 42.15 (2004), and the record is unclear whether LAMC § 63.44 was enforced against him.

C. Determinations Below

On July 27, 2006, Plaintiffs filed this action facially challenging LAMC §§ 42.15 (2004), 42.15 (2006), and 63.44. On cross-motions for summary judgment, the district court found that Hunt had standing to challenge § 42.15 (2004) and that it was unconstitutionally vague. As to § 42.15 (2006), the court found that the vagueness challenge failed because Plaintiffs' conduct was clearly proscribed by the ordinance, the improper time, place, or manner challenge failed because Plaintiffs were not engaged in protected speech, and Plaintiffs' commercial speech argument failed because the ordinance was not more extensive than necessary to serve the City's interests. The court did not expressly address Plaintiffs' prior restraint argument. Further, based on Plaintiffs' assertion during the hearing that they were primarily challenging the two versions of § 42.15, the court did not address Plaintiffs' arguments as to LAMC § 63.44. See Hunt v....