Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta

FOR THE ABOLITION COALITION PROHIBITION, MARIJUANA

OF Cornwell, II, Plaintiffs-Appel-

Paul D.

lants, ATLANTA, Defendant-

CITY OF

Appellee.

No. 99-11385. Appeals,

United States Court

Eleventh Circuit.

July appellants appeal

ordinance. The the dis- portions trict court’s determination that the festival ordinance were constitutional. follow, For the reasons we AFFIRM the holding of the district court.

BACKGROUND non-profit organization CAMP is a fo- primarily cused on forming alliances and associating groups with other concerned marijuana with Additionally, issues. sponsors CAMP the Great Atlanta Pot (the Festival”), “Pot a direct ac- advocating changes tion event in the laws Decatur, GA, for Plain- Ralph Goldberg, governing marijuana. tiffs-Appellants. held the CAMP Pot Festival Atlanta’s Smith, City E. of Atlanta Law Kendric Park through Piedmont from 1990 Atlanta, GA, Dept., Defendant-Appel- Prior erected a lee. cover, stage with a stage lights and barri- speakers cades for the use of and musical performers during the Pot Festival. Dur- Festival, ing the Pot CAMP distributed printed information regarding uses BARKETT, COX, marijuana hemp plant and BIRCH and and advo- Before repeal all cating prohibiting laws Judges. Circuit marijuana. prod- use of sold CAMP also BIRCH, Judge: Circuit ucts, t-shirts, bearing messages such as marijuana. about Other vendors sold food The Coalition for the Abolition of Mari- (“CAMP”) and drinks. na- juana Prohibition and its coordinator, Cornwell, II, Paul D. tional City requested In of Atlanta appeal (collectively, appellants) the dis- apply that CAMP for an outdoor festival judgment finding City trict court’s that, permit.1 City explained The because

Atlanta Outdoor Festivals Ordinance of larger, the Pot Festival had evolved into a Ga., codified at Atlanta. Code event, attracting approx- more commercial (the (1994), §§ through 138-208 30,000 imately featuring attendees and Ordinance”), repealed by “1994 Festival concerts, political speeches, and vendors Atlanta Outdoor Festivals Ordinance of merchandise, it now fell selling food 2000, Atlanta, § Ga.Code 99-0-1020 within the 1994 Festival Ordinance’s defi- (2000), be, part, facially unconstitu- nition of an “outdoor festival.”2 When the enjoining application tional and appellants complied City’s future re- with portions quest applied permit, of those unconstitutional for a festival City defined “out- 1. The had determined in 1991 The 1994 Festival Ordinance door festival” under 138-187 as the follow- should have been treated an Pot Festival ing: scope outdoor festival within the of the festi- public gathering an outdoor celebration or requested apply val ordinance and that CAMP public either of which involves parks use permit. a CAMP for festival refused public or streets and which includes brought County the matter before a Fulton entertainment, music, dancing, dramatic pro- the event to Court. That allowed exhibits, productions, parades art permit. ceed a festival The did without merchandise, sale of food or alcohol or request apply that CAMP for a festival necessity combination of such and which of permit again until 1995. pro- requires its successful execution the municipal vision and coordination of ser- val was unconstitutional on its application their was denied because “ previous ‘the histo- applied determined face and as to the Pot Festival. indicates to a reasonable ry of this event argued that the Specifically, appellants certainty public safety would be com- was unconstitu- 1994 Festival Ordinance promised substantially.’” (quot- R2-37-5 provided face unfet- tional on its because Dep., Ex. Letter of Febru- Labovitz mayor’s discretion to the chief of tered 14, 1995, from Labovitz to Paul ary Steven officials when decid- staff other 1). mayor’s chief of staff Cornwell at permit. ing whether to issue a festival explained that was denied conducting two-day After a trial on the of the At- based on the recommendation issues, the district court held that “while Department. police lanta Police de- pass con- parts of the Festival Ordinance in 1994 at partment had estimated muster, on parts, stitutional other their least half of the Pot Festival attendees face, impermissible prior constitute an re- marijuana in defi- openly smoked blatant expression.” straint on First Amendment therefore, law and “[i]n ance of the Id. at 6-7. opinion police monitoring officials The district court determined that the event, any law on attempt to enforce the prior re- 1994 Festival Ordinance was unusually require such an occasion would protected speech, straint on but was con- police and would large numbers officers on its face. The district court tent-neutral likely provoke a civil disturbance.” then assessed each section of the 1994 Id. individually to Festival Ordinance deter- Upon application denial their for a passed mine whether it constitutional mus- permit, appellants exhausted festival First, the district court found that ter. appeals process administrative defined of an outdoor found the definition §in 138-208 of the 1994 Festival Ordi- grant §in 138-187 did not unfettered dis- nance. The then filed for cretion, narrowly tailored a was to serve preliminary injunction, requiring City the interest, and, significant government grant permit. of Atlanta to them a festival therefore, was constitutional. Nonethe- ap- that the The district court determined less, court ordered the “to district pellants’ rights First Amendment were not specifically out those set more attributes a being infringed they because could hold an bring that would event within the defi- political demonstration and concert with- revising when nition of outdoor festival” permit. Accordingly, out a festival at n. the 1994 Festival Id. Ordinance. request pre- district court denied the for a liminary injunction. Festival, The district court next considered appel-

After the 1995 Pot § that 138-203 of the 1994 Festival Ordinance3 alleging lants filed suit the 1994 Festi- cle, degree significantly special with the events to a over and in consultation vices city routinely provides above that which the coordinator. ordinary everyday under circumstances. (b) determining grant whether or In definition outdoor festival does not of deny particular permit application, the chief solely parades, include events which are of staff shall take into account effect political footraces or demonstrations unless proposed special upon will have events parade, political or demon- such footrace public safety. and the health and environment proposed integral part stration is as an The chief of staff shall also take into account larger festival. frequency with which such events Rl-3-Ex. A at 1-2. public and the convenience of the held granted pursuant to relation thereto. Permits 3. Section 138-203 of the 1994 Festival Ordi- this article shall not authorize more than ten provides: nance any partic- days special events for calendar (a)The charged with chief of staff shall be year. applicant per ular calendar responsibility determining whether or (c) criteria in subsections In addition to the particular applicant granted not a shall be an section, (a) (b) making this permit pursuant arti- outdoor festival to this provisions festival.” R2-37-31. The that certain district court and determined sufficiently lacked ob- found that “it is a much question within section closer limit the jective and definite standards to provision provide whether this fails to defi- issuing when of the chief of staff precise discretion nite and standards on which to Thus, the district court permits. festival condition of a grant permit.” “[b]y allowing the concluded that individu- Therefore, Id. not determine ... “d[id] enforcing with the Festival Or- charged al provision whether or not this is unconstitu- assign to balance or various dinance but, nonetheless, tionally vague,” suggest- subjective, imprecise to this list of weights provision ed that the should make this criteria, § to restrict the de- 138-203 fails precise more when it revised the 1994 and thus leaves cision-maker’s discretion Id. at 32. Festival Ordinance. unconstitutional, content open the door 138-204(a) (b), §§ Turning to discrimination.” Id. at 33. Particu- based requirement district court found that the noted that larly, the district court the fol- “deny application staff an the chief of § subsections of 138-203 set forth lowing if applicant ‘proposes to limit the use criteria which allow the chief staff to public by pedestrians using street impermissible degree an of dis- exercise streets to move from location to location approving applications when for cretion applicant proposes if the limit the use of 138-203(b) § permits: outdoor festival re- public parks parks when use ac- quires the chief of staff to “take into public general unreasonably shall dis- proposed special count the effect ” festival,’ planned turb the activities of the upon events will have the environment and id. at was “neither nor overbroad safety” provides public health and indeed, vague; permit requirement its is balancing pub- “the convenience of the practical justification linked to a and is frequency lic in relation to the with which narrowly justifica- tailored to meet 203(c)(2) held,” § requires an is event 138— tion.” Id. at 35. The district court also the chief of staff to consider whether provision granting noted the section’s “[a]ny which be suf- inconvenience authority the chief staff to regulate public general outweighed fered closings applied only appli- street after an potential community benefit to the and, approved cant’s had been thus 203(c)(5) whole,” provides as a 138— face. was not unconstitutional on its “[t]he for consideration of whether Therefore, the district court found safety compromised would be substantial- § passed 138-204 constitutional muster. ly.” Id. at 29-30. § analyzed The court then 138— district The district court also considered the pay 203(c)(1) requires applicant 205 which an to §in con- requiring criteria 138— permit deposit in order fee sanitation history, any, sideration of whether if “[t]he permit. to obtain an outdoor particular applicants, of the insofar as it determined, These fees are calculated based on a slid- capabili- can be indicates their applicant’s ty incapability executing planned utilizing of the scale the estimate grant permit, upon city’s decision whether to the the the financial resources den chief of staff shall take into account whether: practical it would not be to hold (1) history, any, particular if The proposed re- the festival at the time applicants, insofar as it can be deter- quested; mined, capability indicates their or in- (4) holding planned The of the festival as capability executing planned the fes- upon would create an undue burden the tival; personnel city; resources of the (2) Any which inconvenience suf- safety compro- would be by general public fered the is out- substantially. mised weighed by potential the benefit to the Code, 138-203; § City Rl-2-Ex.A at Atlanta whole; community aas 3. (3) Budgetary at the time of considerations application heavy create such a bur- grant city’s regarding make a final decision attendance and the anticipated applicant it to an at least personnel hours of a festival of the extra estimate the festival. expend days to accommodate before event’s scheduled will five applicant requires the court found that 138-205 also The district Section date. City for the cost of ex- City effectively to reimburse to deadline allowed “ actually pro- and services cess man hours on by ‘kill’ the event its inaction the. by city support event vided appeal.” Id. at 43. There- administrative initial by covered which exceed those fore, court concluded that the the district The district court concluded permit fee. appeal provided mechanism administrative § imposition that “the fees provide adequate § 138-208 does not the free unconstitutionally not burden does guar- and does procedural safeguards municipality A can expression speech. judicial final review. prompt, antee fee on certain kinds of impose reasonable court also considered The district costs, expressive activities to recover its so had the 1994 Festival Ordinance whether charge imposed does not ex- long as the unconstitutionally applied to the Pot been regulating costs of ceed the administrative Festival, question determined that the but Id. at protected activity.” 36. While striking moot because the court was was § court found that 138-205’s the district question facially provisions down the and content fee schedule was “reasonable Finally, district unconstitutional. neutral,” city id. at it did caution the permanent injunction pre- court issued a police ap- chief of to requiring applying pro- venting City from those security plan for the prove applicant’s visions the 1994 Ordinance event, off-duty including number which had found be unconstitutional. applicant officers the will hire to police injunction city allowed the to continue event, security for the “could con- provide portions those of the 1994 Festival use Police De- improper fer discretion to the however, valid; that remained po- the amount of partment to determine remaining the ordinance after because support sponsor a festival must retain lice striking portions the unconstitutional was event,” to the id. at 40 n. 19. The prior understand, jumbled and difficult City to ad- district court “advise[d] to enact a district ordered in greater dress detail the content-neutral prior new festival ordinance to December security supervisor and bases which the subsequently 1999. This deadline was sponsor structure their a festival should through extended March 2000. scope security about the re- discussions event, if quired for an and when the Prior to the enactment of a new festival re-evaluates the 1994 Festival Ordinance.” ordinance, appeal. filed this n. Id. at 40-41 They contest the court’s conclusion district portions of the 1994 Festival Ordi-

Finally, the district court determined constitutional, specifically sec- nance are facially unconstitution- 138-208 was 138-187, 138-204, 138-205.4 The mayor that the tions requires al. This section regarding off-duty police ment the use of offi- 4. The district court refused to determine 138-203(c)(l) part applicants' a festival secu- § was "unconstitu- cers as of the whether However, rity improper of the tionally vague.” it could confer discretion R2-37-32. specifically Department Police to determine the amount did not find that subsection also festival; Therefore, 203(c)(1) support required police for a was constitutional. of 138— however, por- part appellants do not raise this this as a of we do not include subsection Therefore, appeal. appellant’s challenge the district tion of the ordinance on to requirements portions consider the of the we do not revised court’s determination security plan passed in the 2000 Festival Ordi- for a 1994 Festival Ordinance constitution- express opinion regarding their Accordingly, nance and no al we do not consider 203(c)(1), muster. revised, constitutionality. appel- We leave it to the whether subsection 138— desire, lants, they challenge Similarly, if so to these the district court is constitutional. provisions the district court. require- 138-205's cautioned

1309 appellants argue appellants the 1994 court found that the had stand- content-based, does not allow ing Ordinance a bring challenge against facial fora, access to and is not effective 1994 Festival Ordinance they because were regulating the least restrictive means ordinance, subject to the licensing they conduct. appellant’s First Amendment alleged provided the government that the appellants argue also discretion, unbridled and the ordinance required by fees the 1994 Festival Ordi- could lead to content-based discrimination manipulat- and are nance are not nominal of constitutionally protected speech. Simi- accomplish ed to content-based restriction larly, agree we with the district court that activity. Finally, the of First Amendment the appellants proper have standing to appellants contend that district court launch a facial challenge against the 2000 supplementary by failing erred to exercise Festival Ordinance because the jurisdiction their Georgia over Constitu- engage seek to in constitutionally protect- tional claims. speech ed that the 2000 Festival Ordinance appeal pending, May- was While attempts Spo- to restrict. See Brockett v. Atlanta, 9, 2000, signed on March or of Arcades, Inc., 491, 504, kane 472 U.S. 105 ordinance, outdoor new Ordinance 2794, 2802, (1985). S.Ct. 86 L.Ed.2d 394 Letter Brief Number 99-0-1040. See of 31, Defendant-Appellee dated March B. Mootness (with copy of Number 99- 2000 “present, There must be live 0-1040).5 ordinance, styled This new controversy in advisory order to ‘avoid Atlanta Ordinance 2000 Outdoor Festival ” opinions propositions on abstract of law.’ (the Ordinance”), repealed “2000 Festival Scientology Flag Org., Church Serv. purported the 1994 Festival Ordinance and (“Church Inc. v. Clearwater portions to correct those of it that I”), Scientology district found unconstitutional Cir.1985) Beals, (quoting Hall v. 396 U.S. portions remaining make clearer the 45, 48, 200, 201-02, S.Ct. L.Ed.2d festival ordinance. “ curiam)). (per ‘[W]hen DISCUSSION presented longer issues are no “live” or parties a legally cognizable lack inter I. JUSTICIABILITY ” outcome,’ est in the the case has become As an initial matter we must ad Davis, County Angeles moot. Los v. question justiciability. dress the Article 1379, 1383, 440 U.S. 99 S.Ct. requires III of the an Constitution actual (1979) (quoting L.Ed.2d 642 Powell v. controversy support case or the exercise McCormack, 486, 496, 395 U.S. judicial power. justi “Three strands of (1969)). 1944, 1951,23 L.Ed.2d 491 As the ciability standing, ripeness, and doctrine — noted, Supreme recently un “[t]he Court play important an role mootness— that, derlying concern is when the chal plaintiff-ap determination of whether the ‘ lenged conduct ceases such that “there is pellants’ against presents [City] case expectation wrong no reasonable that the controversy.” an Article III case or So ’ repeated,” impos will be then it becomes Party Leahy, cialist Workers F.3d ‘ grant “any sible for the court to effectual (11th Cir.1998). 1240, 1244 prevailing par whatever” [the] relief ” — Standing A. A.M, ty.’ City Pap’s Erie v. U.S. —, 1382, 1390, 146 L.Ed.2d 265 S.Ct. Citing City Lakewood v. Plain (2000) (citations omitted) (alteration in Co., 755-56, 750, Publ’g Dealer 486 U.S. moot, has become original). When case 2138, 2143, 771 108 S.Ct. 100 L.Ed.2d (1988) Gilbert, presented, we do not consider merits and United v. 130 States (11th 1458, 1462 Cir.1997), judgments F.3d the district but vacate the below instead Hereinafter, 5. we will cite to the document as Ordinance No. 99-0-1040.

1310 challenged that it removes if a to the extent to dismiss even contro with directions prior at the time the district law. To the extent versy did exist features of See United place, court rendered its decision. and that those features remain Inc., 340 Munsingwear, U.S. States funda- changes in the law have not so 104, 106-07, 39-40, 95 L.Ed. 36 statutory framework mentally altered (1950). controversy a original to render abstraction, moot.” the case its not mere brings law subsequent aWhen “ 958 F.2d Soc’y, Fillyaw, Naturist Inc. v. controversy to an end ‘the existing (11th Cir.1992) (holding that 1520 treated moot and should be case becomes ” challenged regulations amendments I, Scientology accordingly.’ Church of plaintiffs request did not moot the the is (concluding at 605 that 777 F.2d relief). injunctive Accord Northeastern moot validity an ordinance’s was sue of Chapter Associated Gen. Contrac- Fla. repealed the ordinance had been when Jacksonville, America v. tors prior of new ordinance by the enactment Fla., 656, 661-62, 113 508 U.S. S.Ct. court’s consideration of to the district 2297, 2300-01, 124 repealed ordinance and L.Ed.2d 586 challenged, repealed ordi reviewed the repeal challenged district court of a ordi- (holding or newly than the enacted nance rather replacement nance and enactment of a dinance) States v. Alas (quoting United Supreme granted statute after the Court Co., 113, 116, 40 S.Ct. ka S.S. 253 U.S. certiorari, it a decision but before issued (1920)).6 448, 449, 64 L.Ed. 808 General not render the case moot because did repealed any an ordinance is ly, when plain- disadvantaged new statute constitutionality of that challenges to the way”).7 tiffs “in the same fundamental become moot. See Church ordinance Therefore, in order to determine whether Serv., Org., Inc. v. Scientology Flag controversy presented appeal on is (“Church “ Scientology Clearwater look, moot, ‘stop, we must and listen’ to Cir.1993) II”), 1511 impact changes determine the vacated a district (explaining we Inc., F.2d at Soc’y, law.” Naturist concluding that a former court’s order Bartley, Kremens v. (quoting municipal facially unconsti ordinance was 1709, 1718, 119, 135, U.S. S.Ct. enforcement enjoining tutional and its (1977)). L.Ed.2d 184 prior ordi analyzed only it because Here, 1994 Festival has nance, re repealed which had been repealed by the enactment of been ordi placed by currently effective we Accordingly, 2000 Festival Ordinance. nance). Nonetheless, an when ordinance must review the 2000 Festival Ordinance repealed by the enactment of a su all the to ascertain whether “‘satisfies statute, “superseding perseding then prior in an attack on the only principles sought a case regulation statute or moots complaints proceed to amend their 6. We the considerations that com- tiffs note that litigate in effect.” Id. Church the ordinance then pelled our conclusion that the case in moot, (noting See also id. at 606 n. Scientology at at 605-06. I was see F.2d illustrating 604-06, are numerous cases ”[t]here present in this case. In challenged principle where a ordi- challenged Scientology Church I the entire appro- during litigation the nance is amended repealed replaced with a ordinance was priate proceed course is to to a consideration prior new ordinance to consideration case, ordinance”). In this of the amended contrast, Despite receiving timely notice district court. challenged was not ordinance change, proceeded of this the district replaced until after the district court issued its repealed unconstitu- declare the ordinance order, maintains, in and the new ordinance enjoined its enforcement. There- tional fore, part, portions of the ordi- substantial those we determined that the issue of challenged appeal by plaintiff. on nance constitutionality repealed was ordinance's time that the district court consid- moot at the Hereinafter, we this case as proper will refer to ered it. We noted that course "[t]he plain- Chapter. Fla. Northeastern of action would have been to allow the

13H ” moot). Inc., Soc’y, Supreme 958 F.2d was not statute.’ Naturist Court ex- State, plained holding its regarding repeal 586 the of (quoting at 1520 Johnson Cir.1978)). 387, challenged statutory language If set forth in the 2000 F.2d Castle, Inc., City Mesquite v. Aladdin’s objectionable “leaves Festival Ordinance 283, 289, 1070, 1074-75, 455 U.S. substantially un S.Ct. prior of the law features (1982) disturbed, gov- L.Ed.2d 152 that a (holding the case is not moot.” Id. Addi repeal objectiona- ernment defendant’s tionally, any we must determine whether language challenged ble from a ordinance challenged portions of the statute “ does not render the moot ease because the ‘sufficiently as to have been altered so “repeal objectionable defendant’s of the substantially different controver present language preclude would not it from reen- origi the District sy from one Court ” precisely provision acting the same if the nally Chap decided.’ Northeastern Fla. vacated”) judgment District Court’s were ter, 3, n. at 508 U.S. at 662 113 S.Ct. as follows: at (quoting n. 3 id. at 113 S.Ct.

(O’Connor, This is an a fortiori case. There no is dissenting) (agreeing J. mere risk that will repeat Jacksonville repealed challenged when the statute is conduct; allegedly wrongful its it has replaced legislation analy new but already done so. Nor does matter requires the court to consider whether sis that the new ordinance differs certain changes sufficiently alter statute respects from the old one. Mes- challenged portions of the ordinance so quite proposition does not stand for the moot, disagree as to render the case but only possibility it is mate majority regarding with will selfsame statute be enacted that of the to the riality changes challenged moot; prevents being a case from if that ordinance)).8 In order the alterations rule, were the a defendant could amoot to satisfy to the 1994 Festival Ordinance by repealing case challenged statute requirement pre and moot the issues replacing it with one that differs appeal “gravamen peti sented on only insignificant respect. some complaint” tioner’s must have been gravamen petitioner’s complaint respect. changed some fundamental disadvantaged that its members are Chapter, Northeastern Fla. at U.S. their efforts.... The new ordinance 662, 113 (reviewing S.Ct. at 2301 a decision may disadvantage them to a lesser de- this court where the defendant one, ... gree than the old but it disad- repealed challenged ordinance and re vantages them in the same fundamental placed it with a new ordinance while the way. appeal was pending Supreme before that, Therefore, noting although Court and the new Id. at 113 S.Ct. at 2301. repealed ordi changes ordinance differed from the we must determine if the enacted principal respects nance in three in the 2000 Festival Ordinance alter the the case present substantially controversy.” 8. The concerns Justice O’Connor voiced in different 672-73, Chapter Chapter, 508 U.S. at her dissent in Northeastern Fla. re Northeastern Fla. (O’Connor, garding repeal challenged at J. of the ordi dissent case, dealing legislation ing). only are with nance and enactment of new In this we applicable portions the 1994 Festival Ordinance that not here. Justice O’Connor assert majority by the district court. ed that the should have found the were declared valid Therefore, controversy por because when a statute minor alteration of these moot which which has been declared invalid a lower tions of the 1994 Festival Ordinance narrowly may slightly scope replaced court been with more narrow the has Ordinance, legislation plaintiff only drawn and the Festival do not alter contro seeks relief, origi prospective appellate versy district court then an from which the statutory Compare nally could be how considered. Atlanta Outdoor certain 1994, Atlanta, Ga., changes plaintiff’s would affect claims Ordinance ultimately may §§ with At while new law suffer Code 138-187 — 138-208 "[t]he old, legal as the ... Outdoor Festival Ordinance of from same defect lanta sufficiently No. 99-0-1040. statute altered so as to the 1994 Festival Ordinance portions is of argument that the ordinance appellants’ court found to be consti- which the district content-based, narrowly-tailored to is not or materially changed have tutional been interest, government significant a serve 2000 Festival Ordinance. corrected the expression protect- on of imposes and fees Likewise, of the 2000 Festival our review more than nominal speech which are ed portions of indicates that the Ordinance according to the content manipulated and Ordinance the Festival which speech.9 of the appeal have not been suffi- challenged on .assessment, In to make this order eliminate the issues ciently altered as to so portions of the 1994 the we must review Atlanta Festival Compare raised. Outdoor challenged appeal on Atlanta, Festival Ordinance Ga., Code of Ordinance they have been sub determine whether Atlanta §§ with 138-187-138-208 stantially altered the 2000 Festival Ordi Festival Ordinance of Ordi- Outdoor than nance No. 99-0-1040.10 Other City suggest does not the nance. The designated by city-employee appeal dinator or a City contends that this is moot 9. The fune-t-io-n-ef-special expectation events coordina- no reasonable fulfill the because there is personnel recurring particular-occasion, violations because constitutional tor on the an}' by any person prevents court's final order en- the district of the level of hours worked personnel higher, portions of forcement of the unconstitutional bureau director or Ordinance, by police the 2000 Festi- 1994 Festival officers. hours worked val does not contain the unconsti- Ordinance Festival means an outdoor Outdoor language, is reason to and there no tutional gathering which involves either celebration or the unconstitution- expect belonging to reinsert public parks the use either language Ordinance. al in the public streets and which includes en- or pre- argument the issues tertainment, This misconstrues music, dancing, pro- dramatic appeal. appellants on do not chal- sented ductions, exhibitions, parades art or the sale findings regarding lenge the district court's alcohol, merchandise, any or or com- foodr portions those 1994 Festival foregoing, and which bination of such the Rather, which it to he unconstitutional. barricades, requires stages, found the erection of argue the district court temporary utility poles, booths, tents, or other finding portions erred in that some structures, parked or the use of vehicles or of pass constitutional Festival Ordinance did structures, necessity permanent which of such, appellants specifically As muster. provi- requires for its successful execution finding challenge court's that the the district municipal services to sion coordination neutral, Ordinance was content 1994 Festival significantly degree over and above that a 138-187, §§ as well as the conclusion city routinely provides under ordi- which the 138-204, and 138-205 were constitutional. nary everyday circumstances. The definition does not include events of outdoor festival following version of the 10. The "red-lined” solely parades, footraees-or-polit-i- which are provides compari- 2000 Festival Ordinance parade-,-foot- unless such c-al-demonstrations challenged portions son of the proposed polit-ie-al-demonstratioais race or the 2000 Festival Or- Festival Ordinance and integral part larger an of a broader outdoor portions Those of the 1994 Ordi- dinance. from the definition of festival. Also excluded deleted from the 2000 nance which have been festival” herein is event with "outdoor have been struck out and Festival Ordinance (3) hours or less. scheduled duration of three language added in the 2000 Festival ordi- approv- Classification and Section 138-204. has been underlined. nance al Section 138-187. Definitions. (a) reviewing all the After the comments of personnel hours the total of the Extra means departments and th© or bureaus ef other by city all em of all hours worked number submitting them, buildings the ©Chief of ployees particular departments or areas deny, approve approve, with mod- sStaff shall pur for classification under consideration upon conditions as set ifications forth production poses in connection with the reject application-fop Section 138-203. er special in-question which is events permit for an outdoor festival-.- If the the- application, subject to the extent sStaff, application approved, the ©Chiefof hours exceed the total number of that such the heads of affected in consultation with have been worked hours which would necessary impose any departments, shall also city employees in the same loca those same time, manner restrictions or conditions as to place. tion had the festival not taken Exclud place with to be observed in accordance personnel are the ed from this definition public safety, and adminis- environmental sSpecial ©Events©Coor- hours worked ©City to be furnished in order to ac- necessary particu- complish public safety—and involved in considerations trative — upon appear administrative, sanitary, application which based sanitation- sight and over- lar application, provided such considerations components By agree- of the festival. any ment, of the include consideration upon shall not as endorsed the or in may message any speech contract, or which of separate content applicant may the furnish by any festival, conveyed by nor con- such be personnel required}-, some of the to in which concerning identity the of associa- siderations anticipated event and the calculation of the applicant, relationships nor to of the tional personnel personnel extra hours hours [extra predictions any assumptions as to the or is italicized in the 2000 Festival Ordinance] hostility may be aroused in of which amount may requirements-for -pur- be -Glassifieation speech public by of or mes- the content the sage conveyed by poses-shall ac- be considered—as—reduced© [Beginning of the festival. cordingly. paragraph the 2000 Festival Ordi- a new (2)The type city and of services amount (b) Except provided in subsection of as nance] this required personnal other than extra hours. section, the circumstances shall under no (2) (3}The anticipated persons number of any approve permit if the of sStaff the ©Chief attending period the event over the entire proposes applicant to limit which allows the estimating number, the festival. regard In no using public by pedestrians use of streets the given any to the shall be estimate of to move from location to location the streets persons may anticipated to number of who be applic-ant-pr-epeses limit the use of or if the to vicinity be of the festival as counter- parks parks by the the public when use of the general public hostility any demonstrators or to show to unreasonably disturb shall message may perceived the festival be as hav- Nothing planned festival. the activities of the ing. any Nor there be consideration of shall prohibit shall be construed in this section any speech message the may or which content imposition restrictions on the of reasonable conveyed by festival, by any be nor such general public which are movement of the the necessary however, concerning identity or as- considerations the festival; carrying out of the for the relationships applicant, sociational of the nor bar the such restrictions shall not any assumptions predictions or as to the public member of the on the admission may hostility amount of which be aroused gen- race, color, gender, religion, grounds of public by speech content of or mes- the the disability identity, orientation, age, sexual der sage conveyed by the festival. Unless such origin. national or ethnic appear to have been made in grossly in estimate shall closed, (b) may portions be Streets palpable bad faith or otherwise parks may gated, and an ad- streets and be guided by error, the Chief of Staff shall be charged by applicant mission fee be provided by applicant. If the estimate outdoor at the in connection with an festival adopt the Chief of Staff determines not to after discretion of the ©Chiefof sStaff consul- given by applicant, he shall state estimate chief, the Ppolice tation with the Chief of writing permit. the reasons in on pPublic ©Chief and cCommissioners of IFire (d)The permits festival classes of outdoor pParks, and ©Cul- wWorks and of ^Recreation for each class and the evaluated factors ©I affairs, may appropriate, having tural as shall be as follows: being given safety regard far the due (1) permit. A For a festival which Class closing, and environmental effects of such per- require 300 extra will between 100 and steps provided that all reasonable are taken to which the attendance is sonnel hours and for closings may the adverse effect such minimize 50,000 anticipated persons to be in excess of event, however, upon public. In no have period of festival. over the entire Peachtree Road or shall Peachtree Street or (2) permit. For a festival which Class B any portion thereof which lies within the ©Ci- person- require 50 and 100 extra will between sStaff, ty by the ©Chief of without be closed and for which the attendance is nel hours approval —au- of Council resolution 20,000 50,000 anticipated to be between and any portion thor-i-ty-for closing period persons the entire of the festival. over Peachtree Cor-rider-must-be resolution (3) permit. C For a which Class festival the-sity-council. In the event that an event is person- require 50 extra will between person gated, ing be barred from enter- no shall and for which the attendance is nel hours race, gated grounds area on the 20,000 10,000 anticipated to be between identity, color, religion, gender, gender sexual period persons of the festival. over entire disability orientation, age, eth- or national or (4) permit. which Class D For a festival origin. nic require will three 3 and 25 extra between (c) purposes, For classification the ©Chief the-anticipated personnel hours and for which application by evaluate the of sStaff shall anticipated 2,000 attendance is to be between following criteria: 10,000 period persons over the entire (1)The anticipated per- amount of extra the festival. personnel itali- [extra hours hours is sonnel Ordinance], (5) permit. E For a festival which de- Class cized in the 2000 Festival article, required require than three 3 extra which shall be will between fewer fined in this choice, applicant not to include counter-dem- changes grammar or word in their of the antici- 2000 Festival Ordinance differs from onstrators estimate (8) attendance, pated directs the chief of following 1994 Festival Ordinance (1) applicant’s estimated specifically excludes the staff to utilize respects: police from the definition attendance for classification of hours of officers (2) faith, hours, made in personnel adds to the unless the estimate was bad of extra which the explana- of outdoor festival the establishes deadline definition applicant for excess “requires tion that such a festival the erec- must bill barricades, personnel expended utility poles, extra hours on the stages, tion of booths, tents, temporary changes struc- festival. These do narrow the other tures, scope governed by which will parked or the use of vehicles or of events be Ordinance; however, structures,” permanent 2000 Festival Ordi- the 2000 Festival (3) nance, 138-187, they substantially appel- exclu- do not alter the removes the political argument from the that the ordinance is con- sion of demonstrations lants’ (4) festival, against of an ex- tent-based because it discriminates definition outdoor messages upon from of an outdoor various based the size of cludes the definition and the manner in any gathered festival event with a scheduled dura- crowd which (5) hours, message conveyed. appellants’ requires tion of less than three is time, argument narrow-tailoring re- place, manner restrictions imposed by quirement the chief of staff for the issu- is not satisfied because the upon legitimate constitu- not have a interest in its permit ance of based does (6) criteria, purpose assuring security tional additional bases— adds stated color, gender identity, disability upon public safety avoiding scheduling con- — applicants changes not affected incor- which festival forbidden flicts is in discriminating, specifically porated from directs the 2000 Festival Ordinance. personnel hours and for which the attendance j-QQ-and 10,000-20,000 1,000.00 50.00 150.00 C anticipated is to be bet-weem fewer 2,000 persons period over the than entire 25-50 2,000- D 50.00 500.00 75.00 the festival. 10,000 Section 138-205. Permit fees. pres- 2000 Ordinance does [The Festivals not 2&Q050.00 75.00 20.00 E 100- 3 ent the fee schedule in tabular form. Rather 2,000 3 reproducing than the new format of the we have Festivals Ordinance fee schedule not- (c) aAny may fb) the extent festival .To changes ed the in the tabular format utilized n require ing- personnel in excess of-the extra Ordinance.] in the 1994 Festivals the 2000 Festival [italicized hours in Ordi- application (a) The fee for each classifica- chy in excess of those nance] and sendees permit (b) tion of shall be as follows: ... If anticipated the-application and in endorsed approves After the chief of staff the issuance upon permit, applicant shall be re- permit, provided as in section 138-204/ quired -the-sky-fog the cost of reimburse applicant obtain such personnel such additional extra excess hours agreeing accept the classification and con- personnel [excess hours italicized imposed by ditions the chief of staff in accor- 2000 Festival services in addi- Ordinance]and by paying dance this article and with n permit--fee to-the-initial to the extent that tion applicable permit deposit fee and sanitation they $500.00, only exceed the io sum fee-,, -Smellwhich fees shall be determined extent, Staff, provided that Chief of such according following to the schedule: amount, impose in order to such additional Appli- Permit Sani- Class Atten- Extra mail or an invoice for such addi- must deliver cation Fee tation dance Per- applicant no later tional amount to the than Deposit Fee sonnet days sixty (60) date of after the last such Fee Hours (d) fe) Upon satisfactory completion of the 50,000+ $6,000.00 $50.00 $500.00 A 100- provided deposit agreement, and sanitation in that no further amount to due set forth (c) above, deposit 2,000.00 20,000-50,000 subsection the sanitation B 50.00 300.00 applicant. fee shall be refunded to the 50-1 entry judgment after the in the trial argument ed Similarly, appellants’ court, appel the decision of the does not leave but before Festival Ordinance the 1994 court, appellate channels of com- court must ‘review alternative late open adequate by the 2000 impacted judgment light of the district court munication is stands, neither because it it Festival Ordinance law as now not as [the] any additional channels of opens nor closes was en judgment stood when the below ”) appellants’ Finally, communication. v. Cent. (quoting tered.’ Diffenderfer Miami, Fla., Inc., the fee schedule arguments that Baptist Church of is unconstitutional 412, 414, 574, 575, Festival Ordinance U.S. 30 L.Ed.2d than imposed (1972) (alteration fees are more because the in original)). fees are content-based are nominal and the Ripeness C. imposed re- unaffected because fees and con- completely almost identical main mootness, ripeness “[t]he Like upon sliding based tinue to be calculated courts, ‘prevents] through doctrine attendance considering scale estimated premature adjudication, avoidance of from Ordinance.11 the 2000 Festival entangling themselves abstract dis ” Soc’y v. Al agreements.’ Wilderness that the issues Accordingly, we conclude (11th Cir.1996) cock, 386, 83 F.3d 390 not made presented appeal on have been Gardner, v. (quoting Abbott Labs. 387 U.S. repeal of the 1994 Festival by moot the 136, 148-49, 1507, 1515, 18 enactment of Ordinance and simultaneous (second (1967)) L.Ed.2d 681 alteration Crosby See the 2000 Festival Ordinance. Nonetheless, conclusion original). the our Lowndes Hosp. v. Auth. Valdosta and of Cir.1996) presented appeal not 1515, (11th that issues on 1534 County, 93 F.3d (“ automatically suggest moot does not that regula- statute or superseding ‘Thus a appeal ripe adjudication. for To is it only moots a case to the extent that tion ripe determine whether a claim is we must prior features of the challenged removes “ ”) ‘evaluate both the fitness of the issues Soc’y, Naturist 958 F.2d (quoting law.’ 1520).12 judicial hardship decision and the to the expect that at It is reasonable to parties withholding of court consider violations result- alleged constitutional ” Specifically ation.’ we “must exam Id. provisions ing from the enforcement of the “‘ injury there is sufficient to ine “whether validated of the 1994 Festival Ordinance a requirement meet Article Ill’s of case or will with the by the district court continue so, controversy, and if the claim is whether the 2000 Festival Ordi- enforcement of mature, sufficiently and the issues suffi Therefore, nance. we must consider ciently defined and concrete to ef by appellants’ arguments merits of the ” ’ ” decision-making by the court.’ fective reviewing the 2000 Festival Ordinance. (ex- Advocacy Office, Camp, Inc. v. Georgia at Society, Naturist 958 1519-20 See (11th Cir.1999) F.3d that a statute is amend- 172 plaining “[w]here Additionally, finding we note that a on our We 2000 Festival Ordinance’s 11. note applicants part provisions of the 1994 Festival specific not to consid- that the directive for challenged appeal on are unconsti- potential when esti- Ordinance er counter-demonstrators appellants mating provide the relief attendance and the removal of the tutional would alleged deprivations by constitutional police officers from the extra from those hours worked presumably will component they have suffered and personnel hours of the fee sched- City to under the 2000 Festival make it difficult for the to continue endure ule more despite the district court’s earlier manipulate based on the of a Ordinance the fees content finding portions of 1994 Festi- message portion a that other festival’s and eliminates of regarding Ordinance were unconstitutional. appellants' arguments the con- val fees; however, ability provide court to such relief stitutionality they do of this of the challenges against appeal that this is not moot. satisfy appellants’ further indicates all the Erie, Therefore, (concluding S.Ct. at 1390 portion we See 120 of the ordinance. of availability ... is sufficient gravamen appellants' that "the relief that the of the conclude moot”). being prevent from complaint to the case remains unaffected. 1316 analyzing the 2000 festival ordinance. See Party, Workers 145 F.3d

(quoting Socialist (“Where Digital Properties, at 1244 Inc. v. (quoting a Soc’y, 958 at 1519-20 Naturist Plantation, F.3d entry judg is amended after the statute Cir.1997) Reno, (quoting 55 F.3d court, trial before the ment but Cheffer (11th Cir.1995)))). 1517, 1524 court, appellate appel decision judgment late court must ‘review acknowledge changes to We light the district court in law as it [the] Festival enacted the 1994 Ordinance stands, judg not as it stood when the now City in the 2000 ”) (quoting ment below was entered.’ not been reviewed the district have Dif fenderfer, court. leave for the at at 575 We U.S. S.Ct. challenge constitutionality (alteration of those original)); Crosby, see also provisions substantially which have been (reviewing at 1533-34 the “current by the 2000 Festival Ordinance in altered statute as amended” to consider the issue the district court. The district presented appeal); on Church Scientolo provisions should review those the first I, F.2d at n. 22. gy (noting City’s instance determine whether the illustrating are numerous cases “[t]here comport with changes to ordinance principle that a challenged where ordi requirements of the district court’s order during litigation ap nance amended amended, provisions, whether those proceed propriate course is consid However, pass constitutional muster. ordinance”). eration the amended provisions Festival Ordinance Ordinance, Like the 1994 Festival challenged appeals on —those found district court to be constitutional —remain imposes pri- the 2000 Festival Ordinance unchanged by predominantly the enact protected by or restraint on conduct ment the 2000 Festival Ordinance. Therefore, First Amendment. in order to of Therefore, alleged conclude that we constitutional, be considered the 2000 Fes injury by appellants suffered via the require tival Ordinance must meet provisions validated satisfies Article Ill’s time, place ments for reasonable and man requirement controversy, of a case or their protected speech in ner restrictions of mature, sufficiently claim and the is issues such, public fora. As the 2000 Festival presented are appeal sufficiently on de “(1) must be ... content neu Ordinance fined and concrete to effective deci (2) tral, narrowly ... tailored to serve by sion-making Accordingly, the court. (3) interest, significant governmental and appellants presented the issues open ample for leave alternative channels ripe despite our the fact that it review communication of the information.” Int’l province remains the of the district court Caucus Labor Comm. v. Mont changes to material enacted review the 1548, gomery, 111 F.3d 1551 Cir. the 2000 Festival Ordinance. 1997). II. CONSTITUTIONALITY Content-Neutrality A. Turning to the merits of the appellants’ argu- We first consider the appeal, we review the district court’s de ment that the 2000 Festival Ordinance is termination “constitutional facts” content-based.13 See Nationalist Move- a First Amendment case de novo. Falan City Cumming, Forsyth ment v. Coun- Ga., ga v. State Bar 150 F.3d (11th Cir.) Ga., (“Our (11th Cir.1998). ty, Additionally, we consider determining method of the constitutionali- appellants’ arguments the 1994 by ty depends initially of the ordinance on Festival Ordinance is unconstitutional presented appeal Although be- make all their ar- the issues on and guments regard they substantially unchanged, to the 1994 Festival Or- cause remain with dinance, required apply appellants’ arguments we are we will to the because review the 2000 Festival Ordinance when consider- 2000 Festival Ordinance. any door festival’ herein is event with a expressive activity on regulates it whether content.”), reh’g vacated scheduled duration three hours basis (1990), 99-0-1040, § reinstat by, 921 F.2d No. granted less.” Ordinance 138- (1991), on F.2d 1482 reh’g, on ed 187.14 aff'd 123, 112 by, 505 U.S. S.Ct. grounds other court, the district we Like con (1992). appel 120 L.Ed.2d 101 that, upon intent be examining clude Festival argued that the 1994 Ordi lants Ordinance, hind the 2000 Festival point to the is content-based nance City adopted evident the ordi distinction between ordinance’s festival in an effort to manage effectively nance and “entertain “political demonstrations” efficiently City’s parks the use of the music, ment, produc dramatic dancing, sponsors and other resources exhibitions, tions, parades” as art [and] festivals, large disagree not because of A, R1-2-Ex. argument. support for their message conveyed by any ment with the According appellants, § to the 138-187. particular festival. See Ward v. Rock music, produc dancing, dramatic because Racism, 781, 791, Against 491 U.S. exhibitions, tions, parades are all art (1989). 2746, 2754, 105 L.Ed.2d 661 S.Ct. by the First expressive protected activities applies equal The 2000 Festival Ordinance just expressive con Amendment as is ly to all festivals of kind without re political with a demonstra duct associated any message to the content of gard tion, distinc the 1994 Festival Ordinance’s sponsor might convey. The 2000 expressive forms of tion between these only distinguishes Festival be Ordinance equates disparate treatment conduct gather tween various festivals or similar basis of its con protected conduct on the attributes, physical ings on the basis of tent. de content. The 2000 Festival Ordinance argument This is not relevant in fines an as an event Outdoor Festival because it does cluding expressive various forms of con political not make a distinction between requires “and which the erection of duct expres- other forms of demonstrations and barricades, booths, stages, utility poles, 1994 Festival Ordi- sive conduct. The tents, structures, or temporary or other festival in nance defined an outdoor 138— permanent parked the use of vehicles or of solely which are 187 to exclude “events 99-0-1940, No. structures.” Ordinance political or demonstra- parades, footraces attempt § 138-187. These criteria politi- footrace parade, tions unless such or which will identify those outdoor events proposed as an inte- cal demonstration is It require municipal additional services. festival.” The 2000 gral part larger of a attempt not to create distinctions does Ordinance, however, only excludes Festival speech upon the content of the based the definition of an outdoor festival from specifically Ordinance the 2000 Festival solely parades, “events which are those basing the Chief of Staff from forbids parade proposed is as an inte- unless such permit on the grant decision to a festival gral part of a broader outdoor festival. message conveyed by or speech the definition of ‘out- content of Also excluded from rights assembly “savings of of and free We clause” added to the exercise note that effectively ex- guaranteed by 2000 Festival Ordinance speech as the first amendment political States”) demonstrations from the am- cludes of the with to the Constitution United way bit of the ordinance in the same that the (stating § 2000 138-209 political exclusion of demonstrations from the "[n]othing be con- that in this article shall did definition of an Outdoor Festival prevent public of the from strued to members Compare 1994 Fes- 1994 Festival Ordinance. assembling parks for the or streets (excluding politi- § tival Ordinance conveying making any speech purpose or demonstrations from the definition of an cal public government any message to the or political defining a dem- Outdoor Festival and holding an without outdoor public gathering, procession "a onstration as article”). pursuant to this parade, primary purpose of which is City’s Since we conclude See Ordinance No. 99-0- the festival. 1940, By distinguishing purposes events stated for the 2000 Festival Ordi 138-203. city additional resources require legitimate significant which inter nance attributes, upon physical their City, based we determine wheth ests of the must mu- and coordinate the City can schedule a fit” between er there is “reasonable nicipal required public to ensure services and the 2000 Festival Ordi those interests these safety and otherwise accommodate nance, City’s for serv as the chosen means Therefore, be- large public gatherings. City Discovery them. Cincinnati v. Festival Ordinance “serves cause the 2000 Network, Inc., 410, 416, 507 U.S. 113 S.Ct. unrelated to the content of ex- purposes (1993). 1510, 1505, In 123 L.Ed.2d 99 “ ‘justified without refer- pression” and is analysis, City bears the burden regulated of the ence to the content demonstrating “logical practical rela ” court, we, con- speech,’ like the district tionship [its] between restriction and clude that it is content-neutral. Ward v. interests, so determine [we] Racism, 781, 791, Against Rock 491 U.S. substantially the restriction is whether 2746, 2754, 105 L.Ed.2d 661 necessary than is to achieve those broader (1989)(citations omitted). Movement, F.2d ends.” Nationalist However, City prove at 890. need B. Narrowly Tailored the 2000 Festival Ordinance is the appellants argue also them, serving least restrictive means of see Ordinance is not narrow the 2000 Festival Auctioneers, Inc. v. City Jim Gall Coral ly significant govern tailored to serve a (11th Cir.2000) Gables, 1331, 210 F.3d appellants question mental interest. The Lauderdale, Fort (quoting Smith city’s purposes legitimacy stated Fla., Cir.1999)); 177 F.3d security safety, assuring requirement tailoring of narrow is “[t]he avoiding scheduling well as conflicts. “To long regulation ‘so as the ... satisfied interest, significance demonstrate the of its promotes government inter substantial required present is not detailed effectively est that would be achieved less ,[but] ... to advance evidence ‘entitled ” Rock regulation.’ Against absent ap by arguments its interests based on Racism, 491 U.S. at at S.Ct. ” peals logic.’ to common sense and Inter (alteration (citation omitted). original) Comm., 111 national Caucus Labor portions The district court determined that (quoting F.3d at 1551 Multimedia Pub of the 1994 Festival Ordinance were not Greenville-Spartanburg Carolina, lishing Co. S. Inc. v. narrowly City’s tailored to meet the inter Airpo rt, they granted ests because the chief of staff (4th Cir.1993)). Taking a common unfettered discretion. approach, we find it obvious that sensical challenge por the conclusion that other City significant regu has a interest in the satisfy of the 2000 tions Festival Ordinance parks the its and lating use of streets tailoring requirement. the narrow Certainly, City the large groups. needs cooperation notice and the of or advance 1. Section 138-187 services, plan ganizers to the such as secu reviewing After the 2000 Festival sanitation, control, and traffic that are rity, Ordinance, that we conclude the district which, for an like the Pot required event § properly determined that 138-187 Festival, 30,000 approximately attracts narrowly is tailored to exclude those only that a participants. logical It is require gov which do not additional events for City framework is needed the to work services and therefore do not ernmental organizers large, of a multi-facet- with scope City’s fit within the of the logically City’s ed in order to coordinate the event interests. We note that the addition of the successfully resources to accommodate the of events description “requiring] erec pro event. The 2000 Festival Ordinance barricades, stages, utility poles, vides such a framework. tion of condition, tents, readily attractive and intact booths, temporary or other struc- tures, people vehicles or of available to the millions of who parked use of or the them).” Therefore, structures,” enjoy No. 99- Ordinance wish to see and permanent 138-187, 0-1940, § the 2000 that court proper- we conclude the district limits the universe of provisions further that ly Ordinance determined above parameters that will fall within the requirement being events satisfied the narrow- regulations the 2000 Festival Ordinance ly City’s significant tailored to serve “ and, thus, ‘substantially not burden does interests. necessary than to further speech more ” C. Alternative Channels Communica- legitimate interest.’ government’s tion Smith, (quoting at 956 One 177 F.3d Family Now v. Miami World One contend The also that (11th Cir.1999)) Beach, provide 2000 Festival Ordinance does not (second omitted). citation to avenues for effective access alternative message. ap- of their The communication 2. Section city pellants park assert that use for district court also determined The “absolutely the Pot Festival is essential” 138-204(a) (b) § was not uncon that convey to message for them to their primarily granted stitutional because Appellants’ intended audience. Brief at authority impose to the Chief Staff Additionally, appellants argue their applicants on the after restrictions electricity, they absolutely require lighting, permit approved. had been festival barricades, effectively stage covers to note that 138-204 re district court did convey message. their appli deny any the chief of staff to quired satisfy can the re applicant “proposes to cation where the quirement that alternative channels of by pedestri the use of streets limit open communication remain to CAMP using ans the streets to move from loca “may if effec even those channels less proposes if applicant tion to location or prefer.” tive than would ISK [CAMP] public parks limit the use of when use Miami, Dade Metropolitan Inc. v. CON public shall parks by general County, 147 F.3d Cir. activities of unreasonably disturb the 1998). court found when it As district festival,” planned but concluded preliminary for a request denied CAMP’s “narrowly tailored to this restriction was political injunction, CAMP hold justification.” R2-37 at meet its 34-35. city park in a and concert demonstration remains in force This restriction at 6. permit. a' festival See R2-37 without We, likewise, 2000 Festival Ordinance. Therefore, opportunity still has the CAMP does not conclude this restriction advocating message to communicate its applicants festival be overburden marijuana laws without changes cause, has noted Supreme as the Court permit. 138-209 of Section authorities, trustees for “[municipal limits specifically 2000 Festival duty keep have the their public, Ordi application of the 2000 Festival open and communities’ streets available “[n]othing in this provides nance property, people the movement prevent mem article shall be construed to which the streets primary purpose assembling in the public of from bers v. State New are dedicated.” Schneider purpose of mak parks or streets for the 147, Irvington, Jersey, Town U.S. any message (1939). any speech conveying or ing 160, 146, 150, 84 L.Ed. S.Ct. without public government to the or to the Community See also Clark v. Creative for permit.” festival Ordi Non-Violence, 288, 296, holding an outdoor 104 S.Ct. 468 U.S. 99-0-1940, § 138-209. Those (1984) 3070, nance No. (recog 82 L.Ed.2d assembly an organize who inter individuals nizing government’s “substantial are permit festival in an outdoor parks ... an without maintaining in est only they limited in the sense that City’s Special are not the festival Events Coordinator, officers, “entitled to the police benefits of new festi- any per- [the ordinance], including val but limited with a ranking son of bureau director or to, barricades, right stages, to erect higher. Applicants opportunity have the booths, tents, utility poles, or other tem- by supplying to reduce the fee some structures, porary parked or the use of personnel required when calculating the structures, permanent or of or to vehicles personnel City extra hours for which the city personnel carry- the assistance of anticipates paying. Additionally, the sani- ing out their event.” Id. Lighting, stage deposit tation fee to will returned covers, barricades, electricity, any applicant they after completed have the other benefits conferred an outdoor deposit agreement sanitation by cleaning permit festival are not essential to the festival area of litter and debris and message, they CAMP’s rather are conve- restoring parks damaged and streets nient mechanisms for increasing the effi- connection applicant with the festival. The ciency might with which CAMP choose to is also required to reimburse the for message. Accordingly, communicate its personnel the cost of extra hours ample we conclude that alternatives re- provided which exceed those main available to CAMP for communicat- permit fee. message despite its the restrictions court, reviewing The district the mark- created the 2000 Festival Ordinance. edly provisions similar fee of the 1994 Fes- Ordinance, tival found that the initial fee D. Section 138-205: Festival Permit schedule was “both reasonable and content Fees Additionally, neutral.” R2-37 at 38.' argue that the fees re district court concluded that the fees satis- quired grant permit for the of a festival requirement being fied the nominal be- are required unconstitutional because the they “actually cause refleet[ ] administra- manipulated fees according are to the con Therefore, tive costs.” Id. at 41 n. 20. speech they tent of the are more than impo- district court concluded that the Supreme nominal. The has autho Court § provided sition of fees as rized a municipality charge to “fees for the unconstitutionally “does not burden the only use of the streets when such speech free exercise of ... [because a] fees are both nominal and related to the municipality impose can a reasonable fee expenses incidental to policing expressive certain on kinds of activities to' event” Cent. Fla. Nuclear Freeze Cam costs, long recover its as the charge so Walsh, paign v. imposed does not exceed the administra- Cir.1985) (interpreting Murdock v. Com. of regulating protected tive costs of activ- U.S, 105, Pennsylvania, 319 ity.” Id. at 36. (1943)). 138-205, § L.Ed. 1292 In with the district court We^agree 2000 Festival requires the each that the fees assessed under 138-205 are' applicant pay for a festival $50 argues content neutral. CAMP application Upon approval, ap fee. each (1) they fees are content-based because plicant required pay permit fee and anticipated based on attendance at the fes deposit sanitation fee. The total amount and, thus, tival against discriminate festi $6,500 $95, ranges of these fees from .to larger vals which attract crowds and upon a sliding based scale which considers personnel persons the number extra hours expected number to attend person charged manipulated the event and the number of extra to the festival can be expend accomplish nel hours which the will on so as discrimin content-based festival, spent excluding the hours on ation.15 fees are calculated based specifically argued longer police specific argument CAMP that the festival. This is ho clearly manipulate could their estimate of the relevant in the context the 2000 Festival police required number of officers 2000 for the Ordinance because the Festival Ordi-

1321 Similarly, in Pennsylvania, scale where the variables Murdock v. upon sliding a 105, 113-14, 870, 875, the 319 U.S. personnel extra hours S.Ct. only include the (1943), Supreme L.Ed. 1292 the Court anticipated and the num- City expend will charging found a local ordinance a flat fee who will attend the festi- ber of individuals per day for a license to canvass or solicit val. locality within the to be unconstitutional anticipated at- determining the When because “the license tax fixed in [wa]s festival, “the Chief of tendance for scope amount and unrelated to the of the pro- guided by be the estimate Staff shall petitioners activities or their realized ... by applicant, [u]nless such vided only logical It is that revenues.” to have made in appear estimate shall been City’s supporting costs for a festival will be grossly faith or otherwise palpable bad proportion increased in some to num- 99-0-1940, § No. 138- error.” Ordinance attending ber of individuals the festival. 204(c)(2). “If the Chief of Staff deter- Therefore, we fees conclude that based adopt by given mines not the estimate to upon sliding considering a scale the antici- the reasons in applicant, he shall state pated attendance of the festival are not Further, permit”’ Id. writing on the but, instead, reasonably content-based Festival makes clear expenses policing related to “the regard given shall be to estimate “no Murdock, question.” activities in 319 U.S. persons may number of who be of the 113-14, at at 875. S.Ct. vicinity anticipated to be of the Ordinance, the 2000 Under , or to festival as counter-demonstrators personnel required hours number of extra hostility any message the festival show by for a festival is determined Chief perceived having.” Id. These completed application After a has Staff. provisions assure that the estimate of an- City’s Special been to the submitted ticipated manipulated attendance is not Coordinator, copies applica- Events of the unconstitutionally speech to burden order Departments tion are forwarded to upon its content. based Parks, Police, Fire, Works, Public Recre- Moreover, argument CAMP’s Affairs, the Bureau of ation Cultural fee schedule is content-based because Neighborhood and the affected Buildings, higher charged Planning departments fees are for those festivals Unit. These each personnel the number of extra anticipated larger where the attendance is estimate by their de- required hours that will be reasoning Supreme contradicts the partment question. for the festival in Hampshire, Court Cox v. New U.S. personnel hours ex- (1941). definition of extra 85 L.Ed. personnel worked cludes the hours There, Court, parade considering Coordinator, any City’s Special Events adjusted licensing fee which was to consid employee at the level of bureau di- greater expense of comparatively er the police higher, and all officers. rector event, rejected the “policing” expansive an applicant may separate enter a con- municipality charge that a should notion City whereby applicant tract with the parades explained all flat fee for personnel required furnishes some of “perceived constitutional the court no and, therefore, reduces the calculation of ground' denying governments to local personnel extra hours and the associated flexibility adjustment which fees fee. light varying conditions would impair rather than 2000 Festival Ordinance does tend conserve While the department heads provide at at 766. not the various liberty sought.” Id. S.Ct. charged by police personnel extra hours of whether the nance excludes the hours worked per- City manipulable extra officers from the total number of accord- to a festival par- expended on a sonnel hours message might a festival seek to the Therefore, we their ticular festival. consider convey. argument larger question in the context of the banned, determining simply might num- because it offend specific criteria for the or 134-135, at a hostile mob.” Id. S.Ct. personnel hours that will be ber of extra Fla. Nuclear at 2404. See also Cent. department support to required by their (con at 1525 Campaign, Freeze 138-203(b)(3) festival, section particular presence of out-of-town cluding that admonition that “no consider- provides the potential and the for hostile demonstrators message of the may given ation be to activity are factors that “cannot be counter festival, speech, nor content of nor to the protection in fixing considered the costs identity relationships or associational to their First asking to those exercise applicant, any assumptions of the nor to or Additionally, rights”). Amendment predictions hostility as to the amount of applicant’s ability negotiate to festival may public by which be aroused personnel of extra hours assessed number speech conveyed message content of or a separate to the festival and enter con 99-0-1940, No. the festival.” Ordinance to City whereby they agree tract with the 203(b)(3). 138-203(b)(5) Further, § § 138— in personnel required of the supply some for, recipi- provides applicant or “[n]o City’s person calculation of the extra of, permit ent an outdoor festival shall be expend supporting nel hours it will for, provide required pay to or for the cost against dan strongly mitigates of, safety personnel necessary to public any ger of content-based discrimination provide protection for the of a festival and City’s analysis creeping into the of the from hostile members of the its attendees required personnel number of extra hours counter-demonstrators, public or or for for a festival. control, general or for law enforce- traffic is not a The 2000 in vicinity ment of the festival.” Ordi- speech. prior restriction on content-based 203(b)(5). 99-0-1940, § nance No. 138— only Not the new festival ordinance does provisions problem These cre- avoid specifically direct the chief of staff not to Supreme ated the ordinance which the hostility “the consider amount of which facially found to be unconstitutional Court may public by be aroused in the the con- Ga., Forsyth County, 505 U.S. speech message conveyed by tent of 2395, 120 101. That ordi- S.Ct. L.Ed.2d determining festival” where the fes- when county nance authorized the administrator tival should be classified on fee scale “ ‘ expense covering to assess a fee “the per- resulting and what the amount of the incident to the administration of the Ordi- be, mit fee should but also excludes from public nance and to the maintenance of the calculation of the fee those parade, procession, open order in [the personnel expended by the extra hours ’” public Id. at meeting] air licensed.” “public safety per- city police or other (citations 126-127, 112 S.Ct. at 2399 omit- necessary provide protec- to for the sonnel ted). county’s intent was for the fee tion of a festival and its attendees from “ necessary to also cover ‘the cost of hostile members of the or counter- protection persons partici- reasonable demonstrators, control, or for traffic or for ” pating observing activitfy].’ in or said ... general vicinity law enforcement (quoting App. Id. at 112 S.Ct. at 2403 99-0-1940, Ordinance No. festival.” 100) (alteration origi- to Pet. for Cert. 138-203(b)(5). 138-204(a)and Further, §§ nal). Supreme Court found that this provides 2000 Festival Ordinance impermissible was an content- fee scheme regard given “no shall be estimate speech based restriction on because “[t]he persons may number of who be depend fee assessed will on the adminis- vicinity anticipated to be hostility trator’s measure of the amount or to festival as counter-demonstrators likely speech be created based on hostility any message the festival show Supreme not- its content.” Id. The Court having” when esti- perceived be financially expected bur- “[s]peech ed that cannot the number of individuals mating dened, any punished than it to attend the festival and directs the Chief more can be

1323 Ga., 136, County, 505 U.S. at 112 syth estimate of applicants’ use the of Staff to to have 2405. The noted that “appear[s] “[a] unless it S.Ct. at Court attendance faith or other palpable speech in bad tax based on the content of does been made §at in error.” Id. 138- grossly wise constitutional because it not become more 204(c)(2). Therefore, that we conclude Supreme tax.” Id. The Court is a small organizers that permit fees interpretation also discussed our of Mur- pay by the 2000 Festival Ordi required to permit imposed requiring dock as that fees content-based, nor are sub not nance are “nominal” and protected speech on be the con manipulation predicated on ject to Supreme that Court’s lan- commented perceived message. of a festival’s tent that guage in Murdock “does not mean an Cf. Columbus, 931 v. Stonewall Union nominal, if it or invalid fee can be saved (6th Cir.1991) 1130, (finding that 1135 F.2d only charges nominal are constitution- objective when an “ordinance contains 137, permissible.” Id. at 112 S.Ct. at ally control and not related to traffic standards Justice, in a dissent 2405. The Chief potential speculation about related White, Scalia, and joined by Justices parade’s based on for disturbances Thomas, explicitly explained that more content, for ... the scheme assess [then] ‘nominal’ in Mur- use of the word “[t]he uncon traffic control is not ing the costs of ... dock was a mistaken characterization stitutional”). ... that the [and] of the fee statute Cox the fees argue also parade limit a li- Constitution does not imposed by the 2000 Festival Ordinance Id. at cense fee to a nominal amount.” In than nominal. Nationalist are more 139-140, (Rehnquist, 112 at 2406 C.J. S.Ct. 1483, court, Movement, at 934 F.2d that, the low- dissenting) (arguing because banc, panel deci- sitting en reinstated upon court had not based its decision er out the outer which refused to “stake sion majority, the analysis adopted by the charge,” a but held limits of ‘nominal’ the lower should remand so that up fee of requiring permit “a provision a pre- could first consider the issues courts $1,000 parade rally a day for each sented). re- place exceeds the constitutional takes impact We need consider a be at most charge that such quirement of nomi Supreme Court’s discussion Movement, Nationalist nominal.” County, on our Forsyth nal fees Ga. Supreme appeal, the F.2d at 891. On imposed requiring that the fees precedent provision of the agreed that the fee Court speech constitutionally-protected on question was unconstitutional ordinance fees hold that nominal because we content-based, prior re- it was a because Ordinance by the 2000 Festival imposed First speech protected straint on nominality of the fees $1,000 are nominal.16 Amendment, fee not because by the 2000 Festival imposed For- nominal. See imposed was more than activity constitutionally protected that "does specifically address the we do not 16. While holding Supreme defray administra impact of the Court's more than reasonable no Forsyth County, precedent, we note costs”); Ga. to our Ohio Coalition tion Northeast for have majority 1107, sister circuits Cleveland, that the interpreted of our v. Homeless Forsyth County, making it Ga. as Cir.1997) (6th (holding that "a more constitutionally permissible an ordinance for constitutionally permit fee is than nominal constitutionally protected activity regulating ‘reasonably long the fee is permissible so impose permit which is more than a fee expenses to the admin incident related to long permit reason as the fee is nominal so the mainte and to istration of the ordinance expense incident to the ably related to "the ”); public safety and order’ Mac nance of the act and to the mainte administration 355, Dist., F.3d Chicago Park Donald v. public order in the matter licensed.” nance of (7th Cir.1997) (finding unlikely that 569, Hampshire, U.S. New Cox State of provision of plaintiff could show that the fee a 766, (1941). 85 L.Ed. 1049 facially was unconstitutional a ordinance Giani, Target Advertising, Inc. v. American See according to a con when the fees were set Cir.2000) (uphold F.3d schedule); Awareness Nat'l tent-neutral registration imposing a fee on an act Additionally, applicants considered in the context of tax. must be for an out- they apply. permit opportunity size of the festival to which door festival have the 138-204(d) §§ by entering No. 99-01940 to reduce the fees See Ordinance 138-205(b) (imposing separate agreement City whereby fees of with the $95 2,000 persons applicant supplies person- festival where fewer than some of the expected requires ordinarily are to attend and which nel which the would utilize hours, personnel support Similarly, fewer than 3 extra the festival. the san- $575 expected portion where attendance is between itation fees is re- 2,000 10,000 people per- applicant up and and the extra turned to the if it cleans required public spaces sonnel hours are between 3 and for utilized the festival. 25, $1,150 Therefore, when estimated attendance is we conclude that the fee sched- 10,000 20,000 by between and and 25 to 50 ule established the 2000 Festival Ordi- $2,300 personnel narrowly nance is tailored to serve the required, extra hours are 20,- City’s legitimate covering when estimated is between interest attendance and, 50,000 supporting cost of the outdoor festival people per- and the extra therefore, constitutionally required permissible. sonnel hours is between 50 and Murdock, $6,500 113-14, 50,000 See at when more than U.S. at (striking down a fee that was not expected attendees are and between 100 “imposed regulatory as a measure to de- personnel and 300 extra hours are re- fray expenses policing the activities quired). We conclude that the fees of question”). imposed by the 2000 Festival Ordinance against are nominal when balanced III. SUPPLEMENTARY JURISDIC- they ap- size of the festival to which TION plied. imposed The fees are a upon based sliding considering appellants argue scale the relevant fac- The the district impact City’s expense by tors which in court exercising supplementa- erred supporting recoup ry jurisdiction discussing the event. The fees their state City’s expenses administering the 2000 law claim that the 1994 Festival Ordinance supporting Festival Ordinance and Georgia the out- violated the A Constitution. question. parties door festival in supplemental jurisdic- do court’s exercise of not contend that statutorily by fees exceed those tion is controlled 28 U.S.C. expenses § or serve as a form of previously revenue 1367.17 As we have held Abrams, (2nd original jurisdiction they Found. v. 50 F.3d within such Cir.1995) (holding part controversy that "fees that serve not as form of the same case or taxes, revenue under Article III of the United States Con- but rather as means to meet supplemental jurisdiction expenses stitution. Such incident to the administration of regulation joinder and to the shall include claims that involve the maintenance of regulated parties. or intervention of additional (b) order in the matter are constitution any In civil which ally permissible"); Safety, action of the district Center Inc. Auto for 139, (4th Cir.1994) original jurisdiction courts have Athey, founded (uphold 37 F.3d title, solely on section 1332 dis- imposing protected a statute fees on jur- supplemental trict courts shall not have speech narrowly because the fees were tai (a) isdiction under subsection over claims legitimate government pur lored to further against by plaintiffs persons parties made pose and the revenues raised the fees do 14, 19, 20, Rule 24 of the under or Federal administering not exceed the costs of the Stat Procedure, Rules of Civil or over claims ute). persons proposed joined plaintiffs to be as portions provide § 17. The relevant rules, seeking under of such Rule 19 or following: plaintiffs intervene as under Rule rules, (b) (a)Except provided exercising supplemental in subsections such when (c) expressly provided jurisdiction or as such in- otherwise over claims would be statute, jurisdictional require- Federal civil action of consistent with the original juris- which the district courts have ments of section 1332. diction, (c) sup- district courts shall have The district courts decline to exer- plemental jurisdiction supplemental jurisdiction over all other claims cise over a claim (a) that are so related claims in the action under subsection if— REPEAT I WANT TO WHAT supplemen- DON’T court has a federal “whenever 1367(a), IN MY FOR I’VE SAID MOTION under section jurisdiction tal I unless sec- WHAT be exercised SUMMARY JUDGMENT OR should jurisdiction (c) 1367(b) Palmer v. I applies.” THE BRIEF THAT HAVE SAID IN tion Randolph County, Hosp. Auth. FILED LAST WEEK. JUST SIMPLY Cir.1994) (remanding 1559, 1569 THREE TO MAKE WE WANT consider, in the first district court- POINTS. un- instance, to discretion whether had THINK THAT THE IS WE ONE 1367(c) not to exercise der 18 U.S.C. ON ITS FACE IS UN- ORDINANCE law over state jurisdiction supplemental OF BECAUSE CONSTITUTIONAL claims). THAT THE IMMENSE DISCRETION IT GIVES. law claims state appellants’ controversy” ease and satisfy the “same ALL, THINK SECOND OF WE 1367(a); therefore, of section requirement THINGS THAT WERE THAT THE to consid power had the district court AND FOR ORIGINALLY ASKED 1994 Fes claim that the appellants’ er IN COM- ARE FOR OUR ASKED Georgia Con violated tival Ordinance AND IN TERMS OF PLAINT STAGE However, stating that after stitution. LIGHTING AND ELECTRICITY 1, Article violated 1994 Festival Ordinance AND IS AND SO ON BARRICADES 1, Georgia Con Paragraph Section IT SOLELY BECAUSE IMPORTANT Rl-1-3, al stitution, listing this see EFFECTIVE ACCESS. PROVIDES legal issues to as one of leged violation IN MY I OUT AND AS POINTED Preliminary State in the tried Joint BRIEF, EF- ARE ENTITLED TO WE Order, Rl-7-1, see Scheduling ment IF EVEN WE FECTIVE ACCESS argument. this appellants abandoned THE ENTITLED TO ARE NOT argu present appellants did ACCESS. MOST EFFECTIVE summary partial in motion for ment them I TO POINT AND FINALLY WANT authority they any cite nor did judgment, HEAR, AS THAT WHEN YOU OUT Support in their Brief in argument for this BEFORE, THE HEARD YOU HAVE Summary Judgement Partial of Motion for THE THAT POLICE COMMENTS OF Motion Response Defendants’ or their BAR AN CANNOT YOU SIMPLY Rl-18 at Summary See Judgement. For UN- OF PAST EVENT BECAUSE 4-17; After the district court Rl-22. EVEN, I ACTIVITY LAWFUL City’s and the appellants’ denied both ADD, MY IF CLIENT WERE MIGHT judgment, appel summary for motion HAD ADVOCATED THE ONE WHO argument that did not raise their lants ACTIVITY, THE PAST UNLAWFUL the Geor violated 1994 Festival Ordinance OF NO EVIDENCE AND THERE IS any documents submit gia Constitution THAT. they urge court nor did ted to the district did not discuss 4-5. The R3 at during the upon the district court the issue 1994 Festival Ordi- assertion that the their trial which it conducted. two-day bench Georgia violated the Constitution statement, nance counsel for opening During his the district two-day trial before during the following state appellants made authority in cited case: and never scope of their court regarding the ment circumstances, (4)in exceptional there (1) complex a novel or the claim raises law, declining jur- compelling State for issue of other reasons substantially predominates the claim isdiction. claims over which over the claim or district court has (3) § 1367 28 U.S.C. original jurisdiction, dismissed all the district court has jurisdic- original which it has claims over tion, or support prior ap court, the argument to this raised in the district we will not peal. appellants’ failure to brief and appellants’ arguments consider the argue during proceedings this issue the 2000 Festival Ordinance violates the grounds before the district court is Dean, Georgia Narey Constitution. See finding that the issue has been abandoned. (11th Cir.1994) (dis- 1521, 32 F.3d 1526-27 Fehlhaber, Fehlhaber v. F.2d cussing general rule appellate (5th Cir.1982) (citing U.S. v. Indiana arguments courts do not consider issues Co., Bonding Surety & F.2d not raised district court and the five (5th Cir.1980) (finding though that “[e]ven rule). exceptions to that as one of the [an] issue was listed defen order, pretrial dant’s contentions in the CONCLUSION triable, presumably [the was thus de Reviewing the 2000 Festival Ordinance present failure to evidence fendant’s] promulgated by the Atlanta Counsel support of the defense before the district response to the district court’s finding precludes appeal]”)). [on our review of it portions of the 1994 Festival Ordi- States, McMaster v. United Cf . unconstitutional, nance were we conclude (11th Cir.1999) (not portions those of the 2000 Festival that a claim be considered aban Ordinance validated the district court allegation doned when the included satisfy requirements of a constitutional plaintiffs complaint, but he fails to time, place, manner restriction on constitu- present any argument concerning this tionally protected speech. The 2000 Festi- court); Lyes City claim to the district v. content-neutral, val Ordinance is narrowly Beach, Fla., 1380, Riviera 126 F.3d 1388 significant government tailored to serve a (11th Cir.1997) (noting that “‘the onus is interest, open ample and leaves alternative upon parties arguments; the to formulate grounds complaint in channels communication. con- alleged the but not We also upon in summary judgment relied clude that the abandoned in the ”) (citation omitted), deemed abandoned’ district court their argument that the 1994 reh’g granted by, and vacated 136 F.3d Festival Ordinance Georgia violated the (1998), by, 1295 reinstated Therefore, Constitution. the district court (11th Cir.1999) (en banc); Road properly acted in exercising supple- Sprinkler Fitters Local Union No. mentary jurisdiction over this claim and Indep. Sprinkler Corp., 10 F.3d appeal. we do not consider it on Accord- (11th Cir.1994) (concluding that a district ingly, holding we AFFIRM the of the dis- properly court “could treat as abandoned a trict court. alleged complaint claim in the but not even ground summary raised as a for judg COX, Judge, part in concurring Circuit ment”). dissenting part: in that, We appel- conclude because the join I part opinion the of the court’s that effectively lants abandoned the district that concludes CAMP abandoned in the argument their that the 1994 Festi- district court its claims the 1994 Fes- val Georgia Ordinance violated the Consti- tival Ordinance Georgia violated the Con- tution, there was no reason for the district appears stitution. But because it to me court to consider to whether exercise its repeal the of Atlanta’s supplemental discretion not to exercise adoption 1994 Festival Ordinance and 1367(b) (c). jurisdiction under section or the 2000 Festival Ordinance moots the Accordingly, the district court did not err claims that the 1994 Festival Ordinance by failing juris- supplementary exercise Constitution, violates the Federal I re- discussing appellants’ diction and claim spectfully dissent. that the 1994 Festival Ordinance violated observes, Georgia majority supersed- As the “a Similarly, Constitution. be- cause the issue was not appropriately regulation only statute or moots a case distinguished the 1994 Festival Ordinance challenged that it removes to the extent and other political extent demonstrations law. To between prior features conduct. place, expressive features remain those law not so fundamen- have changes argument'that Also is CAMP’s moot as to statutory framework tally altered Ordinance’s fees were uncon- 1994 Festival mere controversy original render they manipulable were because stitutional Natu- abstraction, not moot.” the case is speech.2 the content' of the according to F.2d Fillyaw, Inc. v. Soc’y, rist manipu- that the could argued CAMP Cir.1992). a law But “[w]here estimated attendance and late both the challenged to remove its amended so as at a police required officers number of features, injunctive relief be- claim for mes- on the content of the festival based My Id. as to those features.” comes moot to be Festival sage delivered. and 2000 ordi- of the 1994 comparison at- challenged these Ordinance removes argu- parties’ analysis of nances and (1) ways: the Chief of tributes in four su- me to conclude that ments leads appli- guided by to be is directed Staff materially altered has perseding ordinance attendance for classifica- cant’s estimated per- issuing approach City’s festival, was unless estimate tion of mits, challenged features removing the bad faith or palpable otherwise “made CAMP’s mooting ordinance prior error,” Staff Chief of grossly injunctive relief. claims for declining provide must written reasons First, the 1994 facial attack on CAMP’s (2) estimate; applicant’s adopt ap- as content-based not to consider is directed Chief of Staff argued moot. CAMP pears to be in his evaluation counter-demonstrators Festival Ordinance of the 1994 attendance; the Chief of anticipated content-based because impermissibly was con- not to consider the Staff is directed “political demon- between distinguished con- message to be any speech tent of “entertainment, dancing, strations” applicant;3 and veyed by festival music, exhibi- productions, art dramatic by police personnel hours worked majority tions, As the parades.” [and] excluded from the definition officers are notes, Festival Ordi- § of the 2000 138-187 hours” to be billed personnel “extra (unlike Fes- in the 1994 section nance In permits.4 receive festival those who Ordinance) distinguish be- does not tival features, challenged these absence and other demonstrations political tween 'are provisions the fee CAMP’s claim Furthermore, conduct.1 expressive appears to be moot. unconstitutional . explicitly forbids Ordinance 2000 Festival claimed that Finally, CAMP basing of Staff from Chief City’s permitting require- Festival Ordinance’s on the content of decision permitting nar- festivals” were not ments for “outdoor conveyed by to be message or the speech gov- a significant to serve rowly tailored 99-0-1940, No. See Ord. the festival. open ample and leave ernmental Accordingly, the § 138-204. .interest communication. channels of alternative content-based removed CAMP’s Ordinance nar- is more The 2000 Festival Ordinance argued that insofar as CAMP challenge nominal,” they “not because were § stitutional majority, 138-209 of 1. As noted they the costs additional effectively since included excludes Ordinance 2000 Festival "not nominal” coverage. police protection. CAMP’s CAMP purely political speech from its however, intertwined with challenge the fees is § argued, has not Therefore, challenge. I con- impermissibly content-based Festival Ordinance the 2000 challenges are content-based, fee that all of CAMP’s provides a dif- clude and this section politi- excluding purely moot. ferent mechanism for speech. cal 99-0-1940, 8-204(c)(2). § 13 3. Ord. No. argued 1994 Fes- also that under the 2. CAMP 99-0-1940, § 138-187. 4. See Ord. No. permit fees uncon- were tival Ordinance rowly provides tailored and additional al of the 1994 Festival Ordinance consti- communication; ternative channels tutional.

therefore, original controversy be parties longer

tween the is no before us.

The 2000 Festival narrows

definition ways. of “outdoor festival” two

First, an “outdoor festival” includes events require stages, “the erection of barri

cades, booths, tents, utility poles, or other structures,

temporary or the use of parked PACIFIC EMPLOYERS INSURANCE structures,” permanent vehicles or of COMPANY, Plaintiff-Appellant, meeting addition to the 1994 Festival Ordi nance’s definition. Ord. No. 99-0-1940 Second, § 138-187. any event with a CESNIK, Cesnik, Blane Kristi scheduled duration of three hours less Defendants-Appellees. does not fall within the new “outdoor festi val” definition.5 id. See This second nar No. 99-8218. rowing of the “outdoor festival” definition Appeals, United States Court of permits also additional alternative means Eleventh Circuit. of communication. The 2000 Festival Or time, requires any dinance place, also July imposed manner restrictions City’s Chief of Staff to be based on constitutional

criteria. See Ord. No. 99-0-1940 138-

204(a). The ordinance been has “suffi

ciently present altered so as to a substan

tially controversy different from the one originally district decided.” Chapter

Northeastern Fla. Associated Gen. Contractors Am. v. Jack sonville, Fla., 656, 671, 508 U.S. (1993) (O’Con

2297, 2306, 124 L.Ed.2d 586

nor, J., dissenting). I would therefore con

clude that this claim is moot well. must, course, “present,

There be a controversy

live in order advisory to avoid

opinions propositions on abstract of law.” Scientology Flag Church Org., Serv. Clearwater,

Inc. v. City (11th Cir.1985) (internal citation omit

ted). Because the 2000 Festival Ordinance challenged

removed the features of the Ordinance,

1994 Festival original con

troversy has been rendered a mere ab Soc’y,

straction. See Naturist 958 F.2d at

1520. Accordingly, I would dismiss as appeal

moot CAMP’s challenging the dis

trict court’s aspects conclusion that certain Although majority correctly notes parks limit the use of streets under conditions, there has been no alteration in 138-204's challenged certain CAMP has not requirement deny any the Chief of Staff appeal on this attribute of the ordinance. application applicant proposes where the

Case Details

Case Name: Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 27, 2000

Citation: 219 F.3d 1301

Docket Number: 99-11385

Court Abbreviation: 11th Cir.