Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks

195 F.Supp.3d 1065

JOSEPHINE HAVLAK PHOTOGRAPHER, INC. ; Josephine Havlak ; William Joseph Hill; and Mary Katherine Hill, Plaintiffs,

v.VILLAGE OF TWIN OAKS; Kathy Runge, Village of Twin Oaks Clerk/Controller; and St. Louis County Police Chief Jon Belmar, Defendants.

Case No. 4:15CV00518 AGF

United States District Court, E.D. Missouri, Eastern Division.

Signed July 14, 2016

W. Bevis Schock, Schock Law, Hugh A. Eastwood, Hugh A. Eastwood, Attorney at Law, St. Louis, MO, for Plaintiffs.

John M. Hessel, Joseph E. Martineau, Eric David Block, Lewis Rice, LLC, St. Louis, MO, for Defendants.

MEMORANDUM OPINION

AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

This action for declarative and injunctive relief is before the Court for a decision on the merits, following an evidentiary hearing held on April 27, 2016. Plaintiffs Josephine Havlak Photographer, Inc., and Josephine Havlak seek (1) declaratory judgment that a municipal ordinance of the Village of Twin Oaks regulating commercial activity within Twin Oaks Park is an unconstitutional prior restraint on their engagement in commercial photography, which they maintain is protected First Amendment activity, and (2) permanent injunctive relief against Defendants' enforcement of the ordinance.¹ Defendants are the Village of Twin Oaks ("Village"), Village Clerk/Controller Kathy Runge, and St. Louis County Police Chief Jon Belmar. For the reasons set forth below, the Court concludes that even if the commercial photography at issue is expressive speech covered by the First Amendment, the ordinance in question passes constitutional scrutiny.

BACKGROUND

Josephine Havlak Photographer, Inc., is a corporation offering commercial photography services, focusing on wedding and portrait photography. Josephine Havlak, a professional photographer who takes all the photographs on behalf of Havlak Photographer, Inc., is the sole corporate officer and director of the company. Plaintiffs believe that Twin Oaks Park is an excellent place to take photos of their clients, such as wedding groups and high school seniors. The Park is approximately 11 acres in total, including a lake, a playground, a basketball court, and a wooded area. The area that commercial photographers, such as Plaintiffs, tend to use for their work is a small area in which there is a waterfall and a small picturesque wood bridge spanning a creek. This area is also the most popular area for other patrons of the Park.

Plaintiffs initiated this lawsuit in February 2015. At the time, the Village had an ordinance that prohibited use of the Park for commercial purposes, and posted two signs in the Park that stated, "No commercial activity, including commercial photographers." On June 17, 2015, the Village passed Ordinance No. 459, which superseded the previous ordinance and provides, in relevant part, as follows:

Regulation of Solicitations and Commercial Activities. Solicitation of any business or service is prohibited. No person, firm, or corporation is permitted to offer or advertise merchandise or other goods for sale or hire. Excepting Village-sponsored events and activities, the maintaining of a concession or the use of any park facility, building, trail, road, bridge, bench, table or other park property for commercial purposes is prohibited unless a permit is issued by the Board of Trustees or their designated representative(s). Such permit shall be clearly displayed by the person(s) seeking to conduct commercial activities within the park. The permitting process will help to ensure that the Village is aware of the activity taking place within the park, that the proposed date/time/location does not conflict with the scheduled activities/events/operations, and that no harm is done to the landscape of the park. In its review of the permit request, the Board of Trustees or its designated representative(s) should consider:

1. The risk of damage and injury as set forth in Sections 220.020(B)-(E);

2. The disruption of or conflict with the public's use and enjoyment of the park;

3. Whether the issuance of such permit may result in crowded or congested conditions due to the anticipated number of attendees for a planned event.

4. The nature of the requested activity, including whether such activity involves:

a. the sale of products or items, which is prohibited unless it is a First Amendment protected activity;

b. the use of furniture, tents (as that term is defined in Section 220.040(D)) or large "prop" amenities, which is prohibited; or

c. the use of models or equipment.

5. The time and duration requested for such commercial purposes, including:

a. Whether the activity will exceed one (1) hour;

b. Whether the number of people involved exceeds ten (10); or

c. Whether the time requested conflicts with a period of peak visitation to the park or other scheduled events, activities, or operations.

Any permit request involving less than ten (10) people, lasting for less than one (1) hour, and complying with the above, will be granted by the Village Clerk/Controller or a designee. All permit requests must be submitted at least forty-eight (48) hours before the proposed activities. Any permit request involving more than ten (10) people, lasting more than one (1) hour, or otherwise conflicting with any of the above factors must be submitted at least fourteen (14) days in advance of the proposed activities so that the Board of Trustees may review the request and the permitted authority may be limited to certain designated areas. Each permit issued by the Village shall only be effective on the date and time specified on the permit. Specific permit fees shall be set by the Board of Trustees from time to time and shall be posted on the Village's website.

The fee for the permit at issue here was set at $100. With the passage of this ordinance, Plaintiffs amended their complaint to challenge this version. They claim that it impermissibly restricts their First Amendment freedom of expression and violates their due process rights under the Fifth and Fourteenth Amendments. It is undisputed that taking commercial photographs in the Park without a permit would violate the ordinance and subject Plaintiffs to penalties of up to $1,000 in fines or 90 days in county jail pursuant to the Village Code's general penalty provision.

Plaintiffs maintain that the photography at issue is artistic expression of ideas such as love, harmony, and humor, both for commercial purposes and as an expression of Josephine Havlak's individual artistic motivation. Plaintiffs assert that this expressive message is conveyed to an audience, namely the subject/owner and other subsequent viewers of the photographs, which are often posted on social media. They assert that because of the threat of prosecution, they are refraining from engaging in commercial photography in the Park, and that even complying with the application process would chill their First Amendment speech. Plaintiffs maintain that the ordinance is akin to a content-based regulation because it discriminates between commercial photographers and amateur photographers, and does not apply to the Village itself which uses photographs of the Park on its website.

Although Plaintiffs recognize that safety and fair use of the Park for all users are legitimate government interests, Plaintiffs argue that the ordinance's restriction of commercial activity such as commercial photography has no relation to these interests. Plaintiffs assert that non-commercial and commercial photography are equally disruptive to public use of the Park, and that any distinction between the two is meaningless. Thus, according to Plaintiffs, Defendants have not met their burden to show that the ordinance serves a significant governmental interest because Defendants failed to articulate any harm exclusively caused by commercial activity.

Plaintiff also contend that the criteria for issuing a permit are too vague and render the ordinance unconstitutional. In particular, they point to three criteria the decision maker is to consider: disruption of the public's use and enjoyment of the Park, use of models or equipment, the sale of products or equipment. They further argue that the use-of-models-or-equipment criterion is content based and is not related to a compelling government interest. Plaintiffs argue that the Park is a unique and beautiful space, and that photographic artists have a right to decide the appropriate setting for their expressive works. Thus, in Plaintiffs' view, a different park is not an adequate alternative forum in which to take the desired photographs.

Plaintiffs seek declaratory judgment that the ordinance is unconstitutional, both facially and as applied to them, under the First and Fourteenth Amendments, and seek an order enjoining Defendants from enforcing the ordinance as to Plaintiffs.

Defendants argue that taking photographs for the private use of paying customers is not an activity covered by the First Amendment because the purpose is primarily commercial rather than expressive, and there is no message to a public audience. Assuming arguendo that Plaintiffs' activity at issue is covered by the First Amendment, Defendants assert that the challenged ordinance withstands constitutional scrutiny. First, Defendants argue that Plaintiffs' activity combines both speech and non-speech elements, and is content neutral, and for each of these reasons, is subject to intermediate scrutiny; that is, the ordinance must be upheld so long as it is narrowly tailored to serve a significant government interest and leaves open ample alternatives for communication.

Defendants maintain that the Village has a significant interest in mitigating disruption of Park activities and ensuring the public is able to use the relatively small Park. Defendants reason that the ordinance is narrowly tailored to serve these interests, since the ordinance instructs that when evaluating requests for permits, factors to be considered include disruption of public use of the Park,...