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Date: 11-15-2001

Case Style: Larry Horton v. City of St. Augustine, Florida

Case Number: 00-16220

Judge: Hull

Court: United States Court of Appeals for the Eleventh Circuit

Plaintiff's Attorney: David A. Wasserman, Law Office of David A. Wasserman, Winter Park, Florida

Defendant's Attorney: Michael H. Kahn of Michael Kahn, P.A., Melbourne, Floriad

Description: Defendant City of St. Augustine ("City") appeals the district court's preliminary injunction against the enforcement of Ordinance 2000-03, which restricted street performances in a four-block area of the City's historic district. Because the district court erred, we reverse, and vacate its injunction.


This appeal involves the regulation of street performances in a four-block area of St. George Street in St. Augustine, Florida, that is closed to automobile traffic. Along with other artists and entertainers, Plaintiff Larry Horton performed as a "one-man band" for tourists and other pedestrians on St. George Street.

City Code Section 22-9

On March 13, 2000, the City Commission passed Ordinance 2000-03, which created Section 22-9 of the Code of the City. Section 22-9 provides that street performances "may take place in all public areas" of the City except for a prohibited four-block area and specifically prohibits persons from performing, such as by acting, singing, playing musical instruments, and dancing, in only this four-block area, as follows:

(b) Definitions. The following words, terms and phrases , when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) Perform includes, but is not limited to acting, singing, playing musical instruments, pantomime, mime, magic, dancing, and the sale of visual art and wares, which shall include drawings and paintings applied to paper, cardboard, canvas or other similar medium when such art is applied to the medium through the use of brush, pastel, crayon, pencil, or other similar object, and the creation, display and/or sale of crafts made by hand or otherwise.

The following activities shall be prohibited because of issues of safety to the public: Any activity involving spray painting or use of aerosols or propellants, including air pressure, to spray or apply any liquid; the use of fire; or the use of any weapon as defined within Florida Statutes.

(2) Prohibited public areas means the pedestrian accessed public areas of St. George Street from Cathedral Place north to Orange Street and within 50 feet of that section of St. George Street on the public lanes, streets or thoroughfares.

(3) Other public areas means public streets, rights-of-ways, sidewalks, parks, playgrounds, and all public ways except those portions of the streets and roadways intended for use by vehicular traffic within the City of St. Augustine.

(c) Prohibition. No person may perform in a prohibited public area.

(d) Permitted performances. Performances may take place in all public areas of St. Augustine except that area on St. George Street located between Orange Street to the north and Cathedral Place to the south, and within 50 feet of this section of St. George Street on the intersecting public streets, lanes and thoroughfares.

A performer shall not perform in a manner that interferes with the visibility of any motorist, or at or near intersections or passages in a manner which interferes with the sight distance of any motorist traveling on or entering any thoroughfare in the City. St. Augustine, Fla., Code 22-9(b)-(d) (Mar. 2000).

Complaint and Preliminary Injunction

On June 21, 2000, Horton filed a Complaint challenging Section 22-9 as unconstitutional "on its face." Horton's Complaint claimed that Section 22-9 was:

(1) "unconstitutionally vague since it allows for the use of unbridled discretion in every instance,"

(2) "substantially overbroad and impinges upon conduct protected by the United States Constitution,"

(3) adopted with "a predominantly censorial purpose,"

(4) "not narrowly tailored to meet any substantial governmental interests," and

(5) a "content based prohibition on free expression protected by the United States Constitution."

Alleging the City had made arrests, seized instruments, and chilled his expression, Horton's Complaint requested declaratory and injunctive relief, court costs, and attorney's fees under 42 U.S.C. 1988.

On August 30, 2000, Horton filed an Application for Preliminary Injunction. (2) His accompanying brief challenged Section 22-9 as being (1) vague, (2) overbroad, and (3) impermissibly restrictive of speech as to time, place, and manner. As to vagueness, Horton claimed Section 22-9 does not "put ordinary citizens on notice so they may avoid inadvertent violations of the law." For example, he argued, it "fails to set forth any guidelines to determine whether a person singing is doing so for personal enjoyment or for the purpose of engaging in a street performance." This lack of "objective guidelines" prevents citizens from knowing "what conduct is prohibited and whether they will be subject to arrest for such innocent behavior such as whistling on St. George Street." As a result, Horton submitted, police officers are "vested with complete discretion to make arbitrary determinations as to whether or not" someone is engaging in a "street performance," thereby rendering Section 22-9 unconstitutionally vague.

As for overbreadth, Horton complained that Section 22-9 impermissibly outlaws all "singing, acting and dancing" on St. George Street, as follows:

[T]o the extent that the Ordinance purports to outlaw all singing, acting and dancing on St. George Street, it raises serious questions about the overbreadth of legislation by criminalizing innocent conduct.

As for its validity as a time, place, and manner restriction, Horton asserted Section 22-9 is not narrowly tailored because (a) "the prohibition is twenty-four (24) hours a day and not limited to any times in which any particular pedestrian traffic concern or other problems could arise," (b) it "effectively bans all musical performances, even performances conducted with small musical instruments such as harmonicas or kazoos or even singing that cannot be shown to impact pedestrian traffic," and (c) it is "a ban on the entirety of St. George Street within the City of St. Augustine." Addressing the governmental purpose required of a valid time, place, and manner restriction, Horton also argued that the City's goal in enacting Section 22-9 - to aid the "free flow of traffic" - was "disingenuous" because it "allows outdoor restaurants with tables and chairs, along with news stands with newspaper racks - without concern for the flow of pedestrian traffic." Finally, he contended Section 22-9 was an improper restriction because it was "impermissible as under-inclusive in that it seeks to prevent only certain types of street performances which are intended to communicate a message and appears to be aimed at ridding the area of the then existing street performers...."

Opposing Horton's injunction request, the City argued that Section 22-9 was (1) content neutral as it did not distinguish between types of street performers, (2) a regulation narrowly tailored to serve a significant government interest, namely guarding the aesthetic value of the historic area while reducing pedestrian congestion, (3) one that left open ample alternative channels for communication in other public and historic areas in the City, and (4) an enactment in which the definition of "perform" in Section 22-9(b)(1) was not unconstitutionally vague.

Hearing on Preliminary Injunction

At the hearing on October 6, 2000, Horton again challenged multiple features of Section 22-9 as unconstitutionally vague, impermissibly overbroad, and unduly restrictive of speech in time, place, and manner. For example, although emphasizing vagueness in such phrases as "includes, but is not limited to" in the definition of "perform," Horton also asserted Section 22-9 was overbroad because "[t]his law criminalizes wholly-innocent activities. It criminalizes singing and dancing on St. George Street which makes it overbroad." Thus, he argued it "may be facially invalid even if [it] can have a legitimate application." Further attacking Section 22-9 as an unreasonable restriction on activities protected by the First Amendment, Horton explained that it impermissibly "targets certain types of speech that the City seeks to prevent on St. George Street due to its content or subject matter."

Relying on affidavit testimony and public hearing transcripts, the City responded that these restrictions were needed in this narrow four-block area due to safety, noise, congestion, aggressive solicitation, and aesthetic harm caused by the street performers. The City further defended Section 22-9 as not unconstitutional on any of the grounds raised by Horton.

Preliminary Injunction

On October 13, 2000, the district court granted a preliminary injunction against the enforcement of Section 22-9 as enacted by Ordinance 2000-03. The court held that "the Ordinance is unconstitutionally vague" because (1) it failed to provide ordinary people notice of prohibited conduct, and (2) it promoted arbitrary and discriminatory enforcement.

Regarding notice of the prohibited conduct, the district court found that "it is not clear what expressive activities are covered by the Ordinance or under what circumstances someone would be in violation of the Ordinance." Citing the definition of "perform" and underlining its observation that this definition was "not to be limited to" its specified terms, the district court stated: "[f]or example

. . . [b]ecause of the catch-all phrase 'but is not limited to,' the speech caught-up in this net is vast and undefined, and thus does not put an ordinary person on notice that what he or she is doing is proscribed by the Ordinance." (emphasis supplied) The court dismissed the City's argument that the "Intent" section prevented ambiguity, criticizing phrases such as "street performers, artists and others." See St. Augustine, Fla., Code 22-9(a) (Mar. 2000). While giving examples of textual vagueness, the court appeared to make a wholesale conclusion that Section 22-9 and its definition of "perform" was unconstitutionally vague. (3) The court also found that "[t]he infirmities noted in the context of fair notice also provide the source for arbitrary and discriminatory enforcement of the Ordinance by the police." Beside these vagueness issues, the district court did not address Horton's other challenges to Section 22-9. The City timely appealed.

Amendment to Section 22-9

After filing a notice of appeal, the City Commission amended Section 22-9 through its passage of Ordinance 2000-41 on November 29, 2000. That amendment deleted certain words from Section 22-9 (by striking through them) and added certain words

* * *

We initially consider the effect of the City's amendment of Section 22-9 on this appeal because the "case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate," Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). Indeed, "a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (citations and quotations omitted).

This Court has addressed frequently the familiar intersection of mootness analysis and post-judgment alterations to legislative enactments. Such alterations do not automatically strip federal courts of viable cases. Instead, post-judgment alterations may moot a case to the extent they remove certain challenged features, but do not moot a case if they leave other challenged features substantially undisturbed. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1313 (11th Cir. 2000) (rejecting suggestion of mootness when challenged portions of now-amended ordinance "have not been sufficiently altered so as to eliminate the issues raised"); see also Butler v. Alabama Judicial Inquiry Comm'n, 261 F.3d 1154, 1158 (11th Cir. 2001) (finding challenge to ethical canon to be "live" despite subsequent modification because pending controversy remained as to narrowed canon); Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992) (holding amendment to challenged park regulations did not moot case because "[w]here a superseding statute leaves objectionable features of the prior law substantially undisturbed" and challenged aspects "remain essentially as they were before the amendments," the case is not moot).

Our decision in Coalition is particularly instructive regarding how and when subsequent legislative activity does not moot an appeal. In Coalition, the district court found portions of a festival permit ordinance unconstitutional and enjoined its enforcement, but did not address all aspects of the plaintiffs' arguments. 219 F.3d at 1306-08. While on appeal, the defendant city repealed the ordinance and "purported to correct those portions of it that the district court found unconstitutional and make clearer the remaining portions of the festival ordinance." Id. at 1309. This Court concluded the appeal was not moot even though the ordinance was superseded because:

the "superseding statute or regulation moots a case only to the extent that it removes challenged features of the prior law. To the extent that those features remain in place, and changes in the law have not so fundamentally altered the statutory framework as to render the original controversy a mere abstraction, the case is not moot."

Id. at 1310 (quoting Fillyaw, 958 F.2d at 1520). In Coalition, w e examined whether the new ordinance "leaves objectionable features of the prior law substantially undisturbed" and has not "sufficiently altered [the statute] so as to present a substantially different controversy." Id. at 1311 (quotations and citations omitted). This Court determined that the city's amendments "do narrow the scope of events which will be governed" by the new ordinance, "however, they do not substantially alter" assertions that the challenged provision was an impermissibly content-based regulation not narrowly tailored to foster a legitimate government interest. Id. at 1314. "It is reasonable to expect that the alleged constitutional violations resulting from the enforcement of the [first version of the ordinance] will continue with the enforcement of the [new version]." Id. at 1315. Thus, this Court proceeded to review the merits of the injunction. Id.

Applying our precedent, we conclude that the City's amendment to Section 22-9 did not so fundamentally alter either its statutory framework or the gravamen of Horton's fundamental challenges as to render the original controversy moot. Instead, Ordinance 2000-41 left in place both the statutory framework and the bulk of the language of Section 22-9 as enacted by Ordinance 2000-03. The majority of Horton's challenges to Section 22-9 remain alive and unresolved.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: Reversed, vacated and remanded.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None

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