DA Mortgage, Inc. v. City of Miami Beach

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12540 MAY 18, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-20684-CV-JEM

DA MORTGAGE, INC.,
A Florida Corporation,
Plaintiff,

136 COLLINS AVENUE, L.C.,
A Florida Corporation,
Plaintiff-Appellant,
versus

CITY OF MIAMI BEACH,
A Florida Municipal Corporation,
MIAMI-DADE COUNTY,
Defendants-Appellees.

________________________

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

(May 18, 2007)

Before TJOFLAT, FAY and SILER, * Circuit Judges.

*Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
FAY, Circuit Judge:

Appellant (“L.C.”), a Miami Beach nightclub owner challenges the

constitutionality of a Miami-Dade County (“County”) noise ordinance that the City

of Miami Beach (“City”) attempted to enforce against the appellant. L.C. owns and

operates Opium Garden, a 20,000 square-foot dance club that occupies the atrium

of a two-story building at 136 Collins Avenue on Miami Beach. L.C. subleases the

premises from DA Mortgage, Inc. (“DA Mortgage”), which holds a lease on the

property.

The appellant’s complaint arose when the City began to cite the club for

violating a County noise ordinance in November of 2001. Over the course of the

next six months, the City cited L.C. d/b/a Opium Garden for violating the County

noise ordinance, section 21-28(b) of the County Code, on ten separate occasions.1

It never cited DA Mortgage, however. In February of 2002, the City scheduled an

administrative hearing on the citations, notifying L.C. that its repeated violations of

the noise ordinance appeared to be “irreparable and irreversible in nature.” The

City postponed the scheduled hearing for March of 2003. Before the hearing

occurred, L.C. and DA Mortgage filed a nine-count complaint against both the City

1
The noise ordinance at issue here appears in Chapter 21, art. IV, § 21-28(b) of the
Miami-Dade County Code. Since the parties and the district court refer to the ordinance as § 21-
28(b), we use that reference throughout this opinion.
2
and the County in the circuit court for Dade County, Florida pursuant to 42 U.S.C.

§ 1983. The plaintiffs asserted that the defendants had violated their First

Amendment rights to free speech and their Fourteenth Amendment rights to due

process. They requested declaratory relief, injunctive relief and damages.

The defendants removed the case to federal district court and each later filed

separate motions for summary judgment. The plaintiffs filed a cross-motion for

summary judgment. Before the parties proceeded to oral argument on the summary

judgment motions, the plaintiffs waived several of the counts asserted in their nine-

count complaint. The district court granted both the County and the City summary

judgment, ruling that the County ordinance was constitutional on its face and that

the City’s enforcement provisions also passed constitutional muster.

Thereafter, L.C. filed an appeal with this Court, addressing only five of the

eight counts remaining under its original complaint.2 In the interim, the City

repealed its own noise ordinance and adopted the County noise ordinance in its

place, mooting one of the five counts brought forward on appeal. For the reasons

stated below, we affirm the district court decision to award both the County and the

City summary judgment in this case.

I. ISSUES CURRENTLY STILL ON APPEAL

2
The court dismissed plaintiff DA Mortgage’s claims for lack of standing because neither
the City nor the County had ever cited this plaintiff for any violations of the County ordinance.
3
 Before we proceed with our review, we note several developments that have

affected the issues on appeal and the manner in which we will structure our

analysis.

A. Recent Amendments to the City Code Moot One of Appellant’s Claims

After the appellant filed this appeal, the City adopted comprehensive

amendments to its noise ordinance that have mooted at least one of the five claims

on appeal.3 In count IV of their complaint, the plaintiffs challenged the City’s

authority to vest special masters with the power to adjudicate alleged violations of

County ordinances such as the County noise ordinance at issue here. The plaintiffs

argued that section 162.03, Florida Statutes, only allowed the City to “designate

enforcement methods and penalties to be imposed for violation of ordinances

adopted by the municipality.” Since the City had never formally adopted the

County noise ordinance as its own, the plaintiffs maintained that the County’s

ordinance violated Florida law. Accordingly, they asked the court to declare that

sections 30-1(b) and 30-2 of the City Code, which established an alternate code

enforcement system that vested special masters with the authority to enforce City

and County ordinances alike, were null and void and to enjoin their use.

3
The City of Miami Beach passed and adopted comprehensive amendments to its noise
ordinance via Ordinance No. 2006-3511 on March 8, 2006. A copy of the ordinance appears
attached to L.C.’s initial appellate brief as “Exhibit B.”
4
 After L.C. filed this appeal on May 3, 2005, the City repealed its own noise

ordinance and formally adopted the County noise ordinance in its place. Since the

County noise ordinance is now officially a municipal ordinance, the City may

enforce compliance by the methods specified in sections 30-1(b) and 30-2 of its

Code without violating Florida Statutes. The City has corrected the constitutional

infirmity that allegedly plagued these sections of its Code. At oral argument on the

motions for summary judgment the plaintiffs conceded that the City could cure the

constitutional infirmity in its alternate code enforcement provisions if it adopted

the County ordinance.4

A change in statute will not always moot a constitutional claim, however. If

a litigant asserts damages from the application of a constitutionally defective

statute, he may be able to pursue his constitutional challenge notwithstanding later

legislative changes that would appear to address his complaint. See Naturist Soc.,

Inc. v. Fillyaw, 958 F.2d 1515, 1519 (11th Cir. 1992); see also Camp Legal Def.

Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1264 (11th Cir. 2006). Damage claims

can save a § 1983 claim from mootness,5 but only where such claims allege

4
At hearing on the motions for summary judgment, counsel for the plaintiffs, Mark
Greenberg, Esquire, stated “[t]here is no question that the City if it adopts a County ordinance or
if there is an inter-local agreement between the County and the municipality can enforce a
County code.”

See Crown Media, LLC v. Gwinnett County, 380 F.3d 1317, 1325 (11th Cir. 2004),
5

which notes that where a plaintiff has requested damages in connection with a constitutional
5
compensatory damages or nominal damages for violations of procedural due

process. See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 310

(1986), which notes that the basic purpose of damages under § 1983 is

compensatory and that absent proof of actual injury, courts can only award nominal

damages. See also Carey v. Piphus, 435 U.S. 247, 266-267 (1978), which endorses

nominal damages awards in § 1983 actions only to vindicate certain “absolute

rights” such as the right to procedural due process. Although count VI of L.C.’s

complaint requested damages in connection with count IV, it did not allege any

facts that would connect its damage claim to a City enforcement proceeding under

sections 30-1(b) or 30-2.6

The record indicates that the City never actually applied this section of its

Code against L.C.. It never held a hearing on L.C.’s citations. L.C. does not dispute

this fact, and acknowledged it once more for the record during oral argument

before this Court. L.C. appears to have based its claim for damages on the threat

that the City might prosecute it for violations of the County noise ordinance.

claim, such a request may save an otherwise moot constitutional claim.
6
L.C. stated the basis for its damages claim in count VI as follows: “This count is
specifically for damages resulting from the Defendant City of Miami Beach’s enforcement of
Sections 30-1(b) and 30-2 of the Miami Beach City Code.” Complaint, Part V, Count VI, ¶ 36.
Nothing in the remainder of the Complaint suggests that compensatory damages would be in
order. L.C. did not allege that it had to close its business, suffer a reduction in clientele,
diminution in revenue, or a slight to its commercial reputation as a result of the citations.
6
Plaintiffs cannot bring prospective damage claims under 42 U.S.C. § 1983,

however. See Tanner Advertising Group v. Fayette County, 451 F.3d 777, 786

(11th Cir. 2006), where this Court held that facial challenges regarding prospective

harm cannot give rise to the remedy of damages. See also Adler v. Duval County

School Board, 112 F.3d 1475, 1478 (11th Cir. 1997) (noting that appellants’ claim

for money damages continued to present a controversy because it did not depend

upon any threat of future harm).

Likewise, although the plaintiffs alleged in count V of the Complaint that

sections 30-1(b) and 30-2 of the City Code violated their rights to due process

under the Fourteenth Amendment, they do not allege a procedural due process

claim. The Complaint states that these sections of the City Code violate due

process concerns to the extent that they adopt the County noise ordinance, which

they allege is unconstitutionally vague and overbroad. Thus, the plaintiffs frame

count V in terms of substantive due process, not procedural due process. However,

as we have noted, only damage claims predicated on violations of procedural due

process are compensable under § 1983. See Carey, 435 U.S. at 266-67.

Accordingly, L.C.’s damage claim, count VI, will not save its constitutional claim

against the City from mootness and both claims must fail.

B. Appellant’s Entire Case May Be Moot If All Citations Are Closed

7
 The record indicates that the City withdrew all of the Notices of Violation

that gave rise to this Complaint during negotiations over a possible pre-trial

settlement in May of 2004. Defendant City of Miami Beach’s Response To Order

To Show Cause, May 5, 2002, at 2. The plaintiffs filed their complaint on March

24, 2003, challenging the citations that the City issued between November 2001

and February 2002. They appended a list of the citations to the Complaint as

“Exhibit A.” The City continued to cite L.C. for violating the County noise

ordinance after February 2002, however. Yet, L.C. never amended its complaint to

include these additional citations.

From May 2002 through April 2003, the City cited L.C. for thirteen

additional violations of the County noise ordinance, and in August of 2003, it

scheduled a hearing to suspend L.C.’s business license on account of these newly

alleged violations. 136 Collins Avenue, L.C. Statement of Undisputed Material

Facts, March 29, 2004, Composite Exhibit 2. The City scheduled the license

suspension hearing for September 11, 2003. On September 8, 2003, L.C. filed for a

temporary injunction in the circuit court for Dade County to halt the scheduled

licensing proceeding. The circuit court issued a temporary injunction on October

30, 2003.

8
 Thereafter, the City rescheduled a special master hearing on the violations

for April 22, 2004. This hearing never took place, however. When the parties filed

their Joint Pre-Trial Stipulation of the Facts on May 4, 2004, they stated that “on or

about April 27, 2004" the City had closed the Notices of Violation for all thirteen

citations issued between May 2002 and April 2003 and withdrawn the scheduled

special master proceedings. Joint Pretrial Stipulation by DA Mortgage, 136 Collins

Avenue, City of Miami Beach, Miami-Dade County, May 5, 2004, Part V, ¶ 9,

note. According to the parties, the only Notice of Violation concerning section 21-

28 of the County Code that remained open at this point was one issued to L.C. on

March 22, 2004. Id.

The parties make no reference to this citation in their appellate briefs and the

record offers no more information on the status of this notice. The City simply

maintains that it has withdrawn all citations that it issued to L.C. pursuant to the

County noise ordinance. L.C. asserts in its reply brief that one

citation—CE05001965— remains open, but concedes in a footnote that based

“[u]pon information and belief, the open violation is a duplicate of 1[sic] City

closed.” Appellant’s Reply Brief, September 14, 2006, at 1 n.2. The appellant

directs this Court to addendum 2 of its reply brief, which consists of a print-out

from the search engine on the City Code Compliance database. The search was

9
executed on September 8, 2006, according to the print-out. It shows that

CE05001965, which was issued on January 31, 2005, was still “OPEN” as of

September 8, 2006. Id. at addendum 2.

Yet addendum 3 of the same appellate brief, which provides a copy of an

email from the Assistant City Manager to City Code Compliance personnel, states

that noise violation notice CE05001965 issued 1/31/05 has been closed. Id. at

addendum 3. It also states that the special master’s office has been informed that no

further action is required. Id. The City Manager’s email predates the print-out from

the City Code Compliance database by several weeks. Id.

The parties did not clear up the dispute during oral argument. The City

insisted that all Notices of Violations issued pursuant to the County noise

ordinance had been closed, and if not, that it was the City’s intent to withdraw

them. The appellant insisted that one notice remained open and that they had

standing to challenge the constitutionality of the County noise ordinance based on

this one outstanding notice.

Since the record is unclear, we proceed with this analysis on the arguable

assumption that the City issued L.C. one Notice of Violation with respect to the

County noise ordinance that still remains open.7

7
It is unfortunate that competent counsel cannot advise this Court whether or not there is
an outstanding citation against L.C.. Frankly, this is beyond our understanding and disappointing.
10
C. Appellant’s Challenge to the Noise Ordinance is a Facial Challenge

Although L.C. argues in its appellate brief that it is challenging the

constitutionality of the County noise ordinance either facially or as applied,

Appellant’s Initial Brief, at 1, we examine the plaintiff’s cause of action for what it

actually is, not for what the plaintiff would have it be. See McKinney v. Pate, 20

F.3d 1550, 1560 (11th Cir. 1994), cert. denied, 513 U.S. 1110 (1995). Thus, we

note at the outset, that neither the City nor the County has ever prosecuted L.C. for

violating this ordinance. The County has never even threatened to prosecute L.C.

with a noise violation. This fact is not in dispute and L.C. conceded it again during

oral argument on its appeal. Nor has L.C. alleged that the ordinance operates to

discriminate against nightclubs as opposed to other businesses or residents. Indeed,

the Complaint states that “[p]laintiffs are challenging the statute as facially

unconstitutional” and asks the court to invalidate the ordinance.

As this Court noted in United States v. Frandsen, 212 F.3d 1231, 1235

(11th Cir. 2000), “[a] facial challenge, as distinguished from an as-applied

challenge, seeks to invalidate a statute or regulations itself.” And, when a plaintiff

mounts a facial challenge to a statute or regulation, the plaintiff bears the burden

of proving that the law could never be applied in a constitutional manner. Jacobs

v. The Florida Bar, 50 F.3d 901, 906 n.20 (11th Cir. 1995). This is because a party

11
who asserts a facial challenge to a statute is seeking not only to vindicate his own

rights, but also those of others who may be adversely impacted by the statute.

Horton v. City of St. Augustine, 272 F.3d 1318, 1331 n.12 (11th Cir. 2001) (citing

City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999)).

Where plaintiffs challenge the validity of a statute because they seek to

vindicate their own rights, however, the challenge is “as-applied.” Jacobs, 50 F.3d

at 906. The only “as-applied” challenge alleged in the Complaint was a due

process challenge to certain sections of the City Code which authorized the use of

“special masters” for enforcing code compliance (count IV). As we discussed

above, this particular constitutional claim is now moot. Thus, at present, L.C.’s

sole challenge to the constitutionality of the County noise ordinance is a facial

challenge. L.C. presents three arguments for finding the ordinance

unconstitutional on its face: 1) that it is not content-neutral or if so, that it does not

contain permissible time, place and manner restrictions on speech; 2) that it is

overly broad; or 3) that it is vague.

D. Remaining Claims Turn on the Validity of the County Noise Ordinance

Finally, we note that the substantive due process violation alleged against

the City in count V of the Complaint must fail if we find that the appellant’s facial

challenge to the County noise ordinance, which is alleged in count II of the

12
Complaint, lacks merit. Similarly, count III of the Complaint, which alleges

damages arising out of the constitutional claim in count II, must also fail if we find

that the appellant’s facial challenge to the County noise ordinance lacks merit.

Thus, we proceed to a discussion of the facts and an analysis of counts II, and III

against the County and count V against the City. These are the only issues

remaining before us on appeal. And, we note that our analysis of the merits of

L.C’s facial challenge to the County noise ordinance, count II of the Complaint,

will be dispositive of the other two claims.

II. BACKGROUND

L.C. operates the Opium Garden dance-club at 136 Collins Avenue,

alongside the Opium Restaurant and Prive, a private club for celebrities. All three

ventures are located within the same building: a two-story structure that features a

huge open-air atrium at its center. Opium Garden occupies this cavernous atrium

area, which can seat up to 1800 persons, and entertains its patrons with a mix of

recorded music. L.C. subleases the premises from DA Mortgage, Inc. (“DA

Mortgage”), which leases the property from Lawrence Kaine. DA Mortgage holds

a certificate of use from the City that recognizes a nightclub as a conforming use

of the property.

13
 The 136th block of Collins Avenue has hosted various nightclubs since

1994; the Opium Garden is the latest in a series of such ventures. L.C. obtained a

license to operate a nightclub and restaurant on the premises of 136 Collins

Avenue in 1998 and the license allows it to serve alcohol there until 5:00 a.m. L.C.

operated Opium Garden under this license without major incident until November

of 2001.

On November 19, 2001, the City issued L.C. a citation for violating section

21-28(b) of the County Code, which addresses “unnecessary and excessive”

noises. The ordinance prohibits persons from operating “[r]adios, televisions,

phonographs” and like-manner of sound reproducing devices and musical

instruments in such a manner “as to disturb the peace, quiet and comfort of the

neighboring inhabitants.” MIAMI-DADE COUNTY, FL., CODE § 21-28 (b) (1958, as

amended 1996). Alternatively, the ordinance prohibits persons from operating

sound devices at a “louder volume than is necessary for convenient hearing” of

voluntary listeners within the room, vehicle or chamber where the sound device is

located. Id. The ordinance adopts a presumptive standard for determining whether

a noise is unnecessary or excessive: if a sound device is plainly audible between

the hours of 11:00 p.m. and 7:00 a.m. 100 feet away from its source (the building

or vehicle where the device is being operated). Id.

14
 From November 19, 2001 through February 11, 2002, L.C. received ten

additional citations for violating the County noise ordinance. The nightclub

received another six citations within the month of January alone. The City did not

assess any fines against L.C. at the time. On February 12, 2002, however, the City

sent L.C. a notice that it considered the violations to be “irreparable or irreversible

in nature” and that it would schedule a hearing before a special master for

February 28, 2002. The hearing notice advised L.C. that the special master could

impose a fine of up to $15,000.00 per irreparable violation and that failure to pay a

fine could result in the placement of liens and ultimately foreclosure. The record

does not indicate why a hearing did not take place in February of 2002, but the

plaintiffs indicate in their complaint that the City had rescheduled the hearing for

late March 2003.

In the intervening period, the City continued to cite L.C. with violations of

the County noise ordinance. In total, it cited L.C. for eleven additional violations

of the County noise ordinance between May 10, 2002 and March 20, 2003. Then,

on March 24, 2003, L.C. and DA Mortgage filed a 42 U.S.C. § 1983 action against

the City and the County in the circuit court for the Eleventh Judicial Circuit for

Dade County, Florida. The plaintiffs alleged that the defendants had violated their

15
rights to free-speech and due process under the First and Fourteenth Amendments

of the Constitution.

The City removed the case to federal district court that same day, March 24,

2003, on the grounds that it presented a federal question. The plaintiffs’ complaint

specifically mentioned only eleven citations—the ones which the City issued

between November 21, 2001 and February 11, 2003 and which were still pending

adjudication before a special master. The plaintiffs’ complaint did not reference

the additional citations that L.C. received between May 2002 and March 2003.

As we noted in the preface to this discussion, L.C. only appealed the district

court’s decision to award the City and the County summary judgment on counts II,

III, IV, V and VI of its complaint. Subsequent actions by the City have mooted

count IV and the record plainly indicates that the associated damages claim

alleged in count VI is untenable. Thus, this recitation of the facts only summarizes

counts II, III and V.

In Count II of the Complaint, the plaintiffs challenge the constitutionality of

section 21-28(b) of the County Code, which addresses excessive noise. The record

indicates that the City cited L.C. for violating this ordinance at least 26 times from

November 2001 though January 2005, although the Complaint references only the

first eleven citations. The plaintiffs request a declaratory judgment that § 21-28 of

16
the County Code violated their First Amendment rights to free speech and a

permanent injunction to prevent either the City or the County from enforcing this

noise ordinance. Count III of the plaintiffs’ complaint requests damages for the

constitutional violation alleged in count II.

Count V addresses problems with enforcement provisions in the City Code,

specifically sections 30-1(b) and 30-2. These sections of the City Code establish

an alternate code system employing “special masters” and vest those masters with

the power to enforce both City and County Code violations. The plaintiffs contend

that any attempt to apply these sections of the City Code to enforce the County

noise ordinance would violate due process, since the underlying ordinance is

allegedly overly broad and void for vagueness. Accordingly, the plaintiffs ask the

court to declare that these sections of the City Code violated both the United

States Constitution and the Florida Constitution and to permanently enjoin the

City from enforcing them.

On February 17, 2004, nearly one year after the plaintiffs filed their

complaint, the County filed a Motion for Summary Judgment. The County limited

its motion to counts II and III of the Complaint since the plaintiffs did not allege

that the County attempted to enforce its ordinance against them. On March 29,

2004, the plaintiffs filed a Cross-Motion for Summary Judgment against both the

17
County and the City. The City filed its own Motion for Summary Judgment on

March 30, 2004. The court scheduled oral argument on the motions for July 26,

2004.

On May 4, 2004, the parties filed a Joint Pretrial Stipulation which did not

address counts I, VII, VIII or IX of the Complaint, signifying that the plaintiffs

conceded to summary judgment on these counts. The parties also filed a Joint

Statement of Supplemental Undisputed Material Facts in Support of Motions for

Summary Judgment, citing changes in the facts that gave rise to the claims in the

plaintiffs’ Complaint. The parties stipulated that the City had closed the Notices of

Violation which it issued to the nightclub between May 2002 and April 2003

without adjudicating the notices. They also stated that the City had withdrawn the

special master proceedings and the Licensing Complaint that it brought pursuant

to these citations. The parties further stipulated that the City issued the nightclub a

Notice of Violation for allegedly failing to comply with section 21-28 of the

County Code on March 22, 2004 and the nightclub had requested a hearing before

a special master to contest this notice.

This joint statement of supplemental undisputed material facts did not

reference the citations named in the plaintiffs’ Complaint—those that dated from

November 2001 through February 2002. However, the City did reference these

18
citations in a later filing with the court, which dated to May 5, 2004. When the

court issued the City an Order to Show Cause for failing to submit the Joint

Pretrial Stipulation in a timely manner, the City explained it had been negotiating

a possible settlement of the dispute. The City stated that it had closed and

withdrawn the Notices of Violation which gave rise to the Complaint in this action

during the settlement discussions.

On July 26, 2004, the district court heard oral argument on all the motions

for summary judgment. On November 28, 2004, the district court awarded the

County summary judgment, and on March 31, 2005, it awarded summary

judgment to the City. The court dismissed plaintiff DA Mortgage’s claims for lack

of standing, observing that neither the City nor the County had ever cited this

plaintiff for violating the County noise ordinance. L.C. filed a Notice of Appeal

before this Court on May 3, 2005, arguing that the district court erred by granting

summary judgment to the defendants on counts II, III, IV, V, and VI of the

Complaint. Before we heard oral argument on this appeal, the City corrected the

constitutional defect alleged in count IV of the Complaint, by formally adopting

the County noise ordinance into the City Code.

III. STANDARD OF REVIEW

19
 We review the district court's ruling on a motion for summary judgment de

novo, and adhere to the same legal standards that bound the district court. National

Fire Insur. Co. of Hartford v. Fortune Const. Co., 320 F.3d 1260, 1267 (11th Cir.

2003), cert. denied, 540 U.S. 873 (2003). See Sarfati v. Wood Holly Assocs., 874

F.2d 1523, 1525 (11th Cir. 1989); Carlin Communication Inc. v. Southern Bell

Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986).

Rule 56(c) of the Federal Rules of Civil Procedure provides that a district

court should grant summary judgment if the record, including pleadings,

depositions, answers to interrogatories, admissions on file, and affidavits, fails to

disclose any genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); National Fire Insur. Co., 320

F.3d at 1267. The moving party bears the initial burden of proving that no genuine

issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

As we review the record on a motion of summary judgment, we draw all

reasonable inferences that can be sustained by the record and evaluate those

inferences in the light most favorable to the non-moving party. See Whatley v.

CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir. 1999).

IV. DISCUSSION

A. Appellant's Facial Challenge: Restriction on Speech Is Content-Based

20
 1. Threshold Consideration: Is the Conduct Constitutionally Protected?

As a threshold matter, we must ask whether the First Amendment protects

the conduct at issue in the challenged ordinance—playing or broadcasting

recorded music. It does. The Supreme Court has clearly stated that the First

Amendment protects music, as a form of speech and expression, from

governmental censorship and control. Ward v. Rock Against Racism, 491 U.S. 781,

790 (1981). Although the First Amendment protects the right to broadcast

recorded music, the government may, nevertheless, impose reasonable restrictions

on the time, place and manner in which persons exercise this right, subject to

certain provisos. Those provisos are that: 1) the restrictions are content-neutral; 2)

they are narrowly tailored to serve a significant governmental interest, and 3) they

leave open ample alternative channels of communication. Ward, 491 U.S. at 791.8

The ordinance at issue here does not contain any blanket prohibitions on the

right to play or broadcast music. The ordinance regulates sound volume according

to a standard that addresses the needs of two different audiences—a nuisance

standard for involuntary listeners and what is presumably a public health standard

for voluntary listeners. It prohibits the use or operation of sound equipment such

8
Ordinances that regulate speech based upon the content of the message are
presumptively unconstitutional and are subject to a higher level of scrutiny as a result. Solantic,
LLC v. City of Neptune Beach, 410 F.3d 1250, 1258-59 (11th Cir. 2005).
21
as radios, phonographs and televisions in such “manner as to disturb the peace,

quiet and comfort of the neighboring inhabitant, or at any time, with louder

volume than is necessary for convenient hearing for the person or persons who are

in the room, vehicle or chamber in which such machine or device is operated and

who are voluntary listeners thereto. ” MIAMI-DADE COUNTY FL., CODE § 21-28(b)

(1958, as amended 1996).

L.C. argues that the ordinance is invalid on its face because it restricts the

volume at which individuals may play recorded sounds based upon the content of

the recordings. Alternatively, L.C. argues that even if the ordinance is deemed to

be content-neutral, it fails to satisfy the constitutional requirements for regulating

time, place and manner of speech.

2. Is the Ordinance Content-Based or Is it Content-Neutral?

The first-step in evaluating the constitutionality of an ordinance which

restrains protected speech or expression is to determine whether the government is

proscribing the speech because it disfavors the message. Ward, 491 U.S. at 791;

Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258 (11th Cir. 2005). In

such a case, courts will subject the ordinance to strict scrutiny analysis. Solantic,

410 F.3d at 1258. If, however, the ordinance is content-neutral, courts will analyze

it according to intermediate scrutiny (prongs 2 and 3 of the test articulated in

22
Ward). The government’s purpose is the controlling consideration at this stage of

the inquiry. Ward, 491 U.S. at 791. Government regulation of expressive activity

is content-neutral so long as it is “justified without reference to the content of the

regulated speech.” Clark v. Community for Creative Non-Violence, 468 U.S. 288,

293 (1984).

Accordingly, when we apply this standard to the ordinance at issue, we find,

as the district court did, that the ordinance is content-neutral. On its face, it does

not disallow certain types of recorded noise or particular viewpoints. It does not

distinguish, for example, between excessively loud singing, thunderous classical

music recordings, reverberating bass beats, or television broadcasts of raucous

World Cup soccer finals. It simply prohibits excessively loud noise from recorded

sources, whether radio, television, phonographs, etc.

Although L.C. argues that the ordinance is not content-neutral because it

sets vague standards for what constitutes “unreasonably loud, excessive,

unnecessary or unusual” noise, which invite subjective enforcement based upon

content of the sound, the government’s purpose is controlling. See Ward, 491 U.S.

at 791. L.C. did not allege that the County adopted the ordinance because it

wanted to silence music with a certain content such as dance-club music, and the

text of the ordinance is facially neutral.

23
B. Alternative Argument: Impermissible Time, Place, & Manner Restrictions

1. Does the County Have a Significant Government Interest at Stake?

Having determined that the County noise ordinance is content-neutral, we

may now review the ordinance to see whether it contains permissible time, place

and manner restrictions. The pertinent test requires that we apply intermediate

scrutiny as our standard of review—whether the ordinance is narrowly tailored to

achieve a significant government interest and leaves open ample alternative

channels of communication.

In their Joint Pretrial Stipulation, the parties stated that the “[g]overnment

has a substantial interest in protecting citizens from unwelcome noise.” The

Supreme Court has endorsed this view, noting that the government may act to

protect traditional public fora such as city streets and parks from excessive noise.

Ward, 491 U.S. at 796.9 Accordingly, we find, as the district court did, that the

County has a significant government interest in regulating reproduced sound.

2. Is the Ordinance Narrowly Tailored to Achieve the Government Interest?

9
Additionally, we note that the U.S. Congress enacted the Noise Control Act of 1972
(“NCA”), 42 U.S.C. §§4901-4918, to protect Americans from noise that jeopardizes their health
and welfare, § 4901(b). It amended the NCA in 1978 with the Quiet Communities Act, 42 U.S.C.
§ 4913. This amendment provided financial and technical assistance to state and local
governments so that they could enact more effective noise ordinances. Although neither the
parties nor the court make reference to these federal acts, we consider the fact that they exist to
be pertinent to the question of government interest.
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 Once we have satisfied ourselves that the ordinance reflects a significant

government interest, we must ask whether the government narrowly tailored the

ordinance to achieve that interest. The Supreme Court has emphasized that the

government does not need to show the regulation utilizes the least restrictive means

of achieving the government interest. A speech-restrictive regulation will satisfy

this requirement so long as it “promotes a substantial government interest that

would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 798-

799 (footnote omitted) (quoting United States v. Albertini, 472 U.S. 675, 689

(1985)).

Section 21-28 of the County Code addresses “excessive” noise in a

comprehensive fashion. It regulates noises from such disparate sources as the horns

and signaling devices that generate traffic noise to power tools and landscaping

equipment used for residential maintenance, and from the noises emitted by caged

animals to raucous shouting on residential streets. The subsection that regulates

noise from devices that reproduce sounds such as televisions, radios, phonographs

and musical instruments contains a standard that is specifically tailored to that

particular category of sound. Thus, it proscribes unreasonably loud noise in terms

that address the needs and welfare of both involuntary and voluntary listeners,

making it unlawful to use sound reproduction devices:

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 in such a manner as to disturb the peace, quiet and comfort of neighboring
inhabitants, or at any time louder that is necessary for convenient hearing for
the person or persons who are in the room, vehicle or chamber in which such
machine or device is operated and who are voluntary listeners thereto.

Id. at § 21-28(b). It also sets forth a rebuttable presumption to aid compliance

officers in enforcing the standard:

The operation of any such set, instrument, phonograph, machine or device
between the hours of 11:00 p.m. and 7:00 a.m. in such manner as to be
plainly audible at a distance of one hundred (100) feet from the building,
structure or vehicle in which it is located shall be prima facie evidence of a
violation of this section.

Id. Accordingly, we find that the ordinance is narrowly tailored.

3. Does the Ordinance Leave Open Ample Alternative Channels of Expression?

The last factor that we must consider in evaluating the validity of the

ordinance’s time, place and manner restrictions on reproduced sounds is whether it

leaves open ample channels for alternative expression. We find that it does. The

ordinance does not impose a total ban on the use of reproduced sound devices. It

only restricts the volume at which these devices may operate so as not to intrude on

the peace and quiet of neighborhood residents or affect the comfort of voluntary

listeners. Nor does the ordinance bar the use of devices that reproduce sound at

certain times of the day or prohibit persons from operating them within certain

areas of the county. The Supreme Court upheld a municipal guideline that

26
addressed sound amplification for concerts at public parks for this very reason,

noting that the guideline “[d]oes not attempt to ban any particular manner or type

of expression at a given place or time.” Ward, 491 U.S. at 802.

L.C. argues that the ordinance fails to leave it any effective way to

communicate music outdoors and that the City has licensed it to operate Opium

Garden as an open-air entertainment venue. Opium Garden is not an open-air venue

in the way that a ballfield grandstand is, however. The record indicates that L.C.

operates the club from the open atrium of a two-story structure. The surrounding

structure, which is roofed and which houses a restaurant, offices and other clubs,

walls off the atrium from the public street outside, and undoubtedly blocks much of

the noise that emanates from the atrium. The ordinance does not prohibit L.C. from

communicating music into the open-air atrium of its building, it prohibits it from

disturbing the neighbors with music that is plainly audible well outside the

building. L.C. need only lower the volume to comply. This should not impact the

ability of the patrons to hear and enjoy whatever is being played.

Similarly, those who wish to listen to their televisions, phonographs, or

radios at a volume that would be prohibitively loud under the ordinance are not

precluded from listening through headphones or wireless devices and those who

wish to share their music, television broadcasts and the like with guests, passengers

27
or patrons need only lower the volume. There is nothing unreasonable about

accommodating the interests of all concerned.

In view of these facts, we affirm the district court’s ruling on the validity of

the County noise ordinance, section 21-28(b) of the County Code. The County

noise ordinance is content-neutral and it sets permissible time, place and manner

restrictions on the use of sound reproduction devices. It conforms to the

requirements of the First Amendment.

C. Alternative Facial Challenge: The Overbreadth Exception

Even if the ordinance contains permissible time, place and manner

restrictions and is content-neutral, L.C. urges the court to invalidate it on

overbreadth grounds. As general rule, those who challenge the validity of a statute

on facial grounds “must establish that no set of circumstances exists under which

the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). “The

fact that [a legislative act] might operate unconstitutionally under some

conceivable set of circumstances is insufficient to render it wholly invalid. . . .” Id.

However, the Supreme Court has carved out a narrow exception to this rule

in what is known as the “overbreadth doctrine,” which allows a litigant to assert a

facial challenge to a statute because it could compromise the First Amendment

rights of parties not before the Court. Horton v. City of St. Augustine, 272 F.3d

28
1318, 1331 (11th Cir. 2001) (citing Salerno, 481 U.S. at 745); Broadrick v.

Oklahoma, 413 U.S. 601, 612 (1972). Thus, the litigant challenges the statute on

facts that apply to others. Camp Legal Defense Fund, Inc. v. City of Atlanta, 451

F.3d 1257, 1271 (11th Cir. 2006). The Court reserves this exception for cases

involving restrictions on the right to free speech. Horton, 272 F.3d at 1331 (citing

Salerno, 481 U.S. at 745). The rationale behind the exception is that “the very

existence of some broadly written laws has the potential to chill the expressive

activity of others not before the court.” Id. (quoting Forsyth County v. Nationalist

Movement, 505 U.S. 123, 129 (1992)).

Accordingly, the Supreme Court has permitted facial challenges based on

overbreadth where an ordinance delegates overly broad discretion to enforcement

officers, creating an “impermissible risk of suppression of ideas” in every

application, and where an ordinance “penalizes a substantial amount of speech that

is constitutionally protected.” Forsyth, 505 U.S. at 129-30 (citations omitted). In

general, however, the Supreme Court and this Circuit have only applied the

exception in cases where the ordinance makes access to a forum for speech

contingent upon issuance of a license or permit. Horton, 272 F.3d at 1331-32; See

also United States v. Frandsen, 212 F.3d 1231, 1236 (11th Cir. 2000); Cannabis

29
Action Network, Inc. v. City of Gainesville, 231 F.3d 761, 768 (11th Cir. 2000),

vacated on other grounds, 534 U.S. 1110 (2002) (citing Ward, 491 U.S. at 793).

Neither of these situations applies to the ordinance being challenged here.

Section 21-28 of the County Code does not impose prior restraint features on

speech. It does not establish a permitting or licensing regime that would make the

use of sound reproduction devices contingent upon issuance of a County or City

permit. See Cannabis Action Network, 231 F.3d at 770 (noting that the key to

determining whether a statute qualifies as a prior restraint is whether it authorizes

the suppression of speech in advance of its expression). Nor does the ordinance

impose criminal penalties for playing a sound reproduction device at excessively

loud volume. The County imposes a civil fine of $100.00 for excessive noise

violations. MIAMI-DADE COUNTY, FL., CODE § 8CC-10 (1985, as amended 2005).

We believe there is little risk that the ordinance, by its very existence, would

lead third parties to censor their own speech. See Members of City Council of the

City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984) (noting that

“[i]n order to decide whether the overbreadth exception is applicable in a particular

case, we have weighed the likelihood that the statute's very existence will inhibit

free expression”). Thus, as a threshold matter, it is not clear that L.C.’s overbreadth

30
challenge falls within the parameters of the overbreadth doctrine. See Ward, 491

U.S. at 793.

Moreover, to prevail on an overbreadth challenge, a litigant must show

“from the text of [the law] and from actual fact,” that substantial overbreadth

exists. Virginia v. Hicks, 539 U.S. 113, 122 (2003), quoting N.Y. State Club Ass’n

v. City of New York, 487 U.S. 1, 14 (1988). It is not sufficient to demonstrate that

there is a possibility of unconstitutional application in the case of third parties, a

law is substantially overbroad “only if it reaches substantially beyond the

permissible scope of legislative regulation.” Taxpayers for Vincent, 466 U.S. at 800

n.19 (quoting John Calvin Jeffries Jr., Rethinking Prior Restraint, 92 Yale L.J. 409,

425 (1983)).

L.C. has suggested various hypothetical scenarios under which the County

noise ordinance might be unconstitionally applied to prohibit persons from playing

sound at any level beyond that necessary for “convenient hearing.” For example,

L.C. argues, this language could prohibit sound that would not even be audible to

persons outside the room where it is being played, much less sufficiently noisome

to generate a complaint from neighboring inhabitants. The “convenient hearing”

clause does not prohibit sound altogether. It provides a flexible standard for

determining when noise levels within a chamber where a sound is being played

31
become excessive. The standard is tied to the comfort level of the voluntary

listeners within that particular chamber— whether that chamber is a structure, an

open-air atrium within a structure, a vehicle, etc.

Clearly, the standard needs to be flexible. The “convenient hearing” needs of

persons who are dancing to club music in the open atrium of a 20,000 foot square,

two-story building will differ from those of persons who are gathered in an

apartment to watch an evening of the Boston Pops on television. Section 21-28(b)

of the County Code provides a standard that is flexible in order to allow both

groups of voluntary listeners to hear sound at a level that matches their particular

needs.

We do not believe that there is a realistic threat of substantial overbreadth

here either from the text of the law or from actual fact. L.C.’s overbreadth

challenge fails on the merits. And, as we have noted, given that the ordinance does

not impose prior restraints on speech, L.C.’s overbreadth challenge is simply

without merit.

D. Appellant’s Alternative Facial Challenge: Vagueness

L.C. also urges the court to invalidate section 21-28(b) of the County Code

because it is unconstitutionally vague and thereby violates due process. A vaguely

worded statute can trap innocent parties by failing to give notice of what is

32
prohibited, and allow enforcement officials to defer to their own standards of what

constitutes a violation. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

Ordinarily, a court must evaluate a vagueness challenge by the facts of the

particular case before it. Konikov v. Orange County, 410 F.3d 1317, 1330 (11th

Cir. 2005) (citing United States v. Fisher, 289 F.3d 1329, 1333 (2002)).When an

ordinance restricts or penalizes speech, however, it can also exert a chilling effect

that discourages individuals who are not present before the Court from exercising

their First Amendment rights for fear of arbitrary enforcement. Grayned, 408 U.S.

at 109. Accordingly, in such cases, courts may consider evidence of discriminatory

or arbitrary enforcement that would be likely to chill expression by others.

Konikov, 410 F.3d at 1330 (citing Grayned, 408 U.S. at 109 & n.5).

To prove that 21-28(b) of the County Code is vague, L.C. must either show

that the ordinance fails to give fair warning of what constitutes a wrongdoing or

that the statute lacks objective enforcement standards. Id. The traditional test for

whether a statute or regulation is void on its face is if it is so vague that “persons of

common intelligence must necessarily guess at its meaning and differ as to its

application.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). See also

Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 620 (1976).

Courts apply this test even more strictly to statutes that inhibit free speech. Id.

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 1. Does the Ordinance Fail to Provide Notice of What Conduct is Prohibited?

Applying the Connally test to section 21-28(b) of the County Code, we find

that it is not so vague that persons of ordinary intelligence would have to guess at

its meaning. Indeed, the Supreme Court has upheld a number of the terms that

appear here in other cases involving noise ordinances. In Grayned, 408 U.S. at 108,

for example, a noise ordinance prohibited “any noise or diversion which disturbs or

tends to disturb the peace or good order of [a] school session or class thereof.” The

Supreme Court upheld this language, cautioning that:

Condemned to the use of words, we can never expect mathematical certainty
from our language. The words of the [] ordinance are marked by ‘flexibility
and reasonable breadth, rather than meticulous specificity,’ but we think it is
clear what the ordinance as a whole prohibits.

Id. at 110 (internal citation omitted). Employing language that is clearly analogous

to the language in Grayned, section 21-28(b) of the County Code states that it is

unlawful to play a device that reproduces sound in such manner “as to disturb the

peace, quiet and comfort of the neighboring inhabitants.”

Alternatively, the County noise ordinance states that it is unlawful to play

such a device “with louder volume than is necessary for convenient hearing” for

those voluntary listeners in the “room, vehicle, or chamber” where the device is

being operated. “Convenient hearing” is a term that is marked by “flexibility and

34
reasonable breadth,” but as we have noted previously, we think the ordinance

requires flexibility here.

Although the word “convenient” may be somewhat abstract, the Supreme

Court upheld similarly abstract terms such as “loud” and “raucous” in a case that

challenged controls on the volume of amplified sound. See Kovacs v. Cooper, 336

U.S. 77, 79 (1949). “While these are abstract words,” the Court noted, “they have

through daily use acquired a content that conveys to any interested person a

sufficiently accurate concept of what is forbidden.” Id. See also Reeves v. McConn,

631 F. 2d 377, 386 (5th Cir. 1980), where the Fifth Circuit approved the abstract

terms “jarring” and “nuisance” on the same ground.

We believe that any interested person would know how to gauge what sound

volume would be “louder than necessary for convenient hearing” when that

standard is applied to persons who are present by design at the source of the sound.

Convenient hearing means the “listening comfort” of those assembled.

2. Does the Ordinance Fail to Provide Clear Enforcement Standards?

Nevertheless, the overarching standard at play in this ordinance is the

reasonable personable standard since the statute begins by prohibiting

“unreasonably loud, excessive, unnecessary or unusual noises.” The Supreme Court

has approved the use of the word “unreasonably” in statutes that are otherwise

35
precise and narrowly drawn. Reeve, 631 F.2d. at 386 (citing Cameron v. Johnson,

390 U.S. 611, 615-16 (1968)).

Here, the County noise ordinance also provides an additional standard to

guide those tasked with enforcing the ordinance. The additional standard is phrased

as a rebuttable presumption. Operating a sound reproduction device between the

hours of 11:00 p.m. and 7:00 a.m. in “such a manner as to be plainly audible at a

distance of one hundred (100) feet from the building, structure or vehicle in which

it is located” is considered prima facie evidence of a violation under section 21-

28(b). This is an objective standard. Thus, we find that the language of the

ordinance does not carry an inherent risk of arbitrary enforcement either, and we

affirm the district court ruling that the County noise ordinance is not void for

vagueness.

E. Appellant’s Damage Claim and Substantive Due Process Claim

As we noted in the preface to this analysis, supra part II, subpart D, L.C.’s

damage claim and substantive due process claim turn on the outcome of its facial

challenge to the County noise ordinance. Since we have found that the ordinance is

constitutional on its face, L.C. cannot request damages as a result of a

constitutional violation. Similarly, L.C.’s substantive due process claim must fail to

the extent that it was predicated on the enforcement of the allegedly

36
unconstitutional County noise ordinance. Thus, we also affirm the district court

ruling that awarded summary judgment to the County on count III and the City on

count V.

V. CONCLUSION

The district court did not err in awarding the County summary judgment on

counts II (facial challenge) and III (damages) of L.C.’s 42 U.S.C. § 1983 suit. L.C.

challenged the constitutionality of the County noise ordinance on facial grounds,

presenting three alternative grounds for invalidating the ordinance: 1) that it was

not a content-neutral ordinance or if so, that it did not contain permissible time,

place and manner restrictions on speech; 2) that it was overly broad and could

inhibit others not before the Court from exercising their rights of expression; 3)

that it was vague and violated due process under the Fourteenth Amendment. We

find the statute to be constitutional on all three grounds. It is content-neutral and

contains permissible time, place, and manner restrictions. Its standards are not

worded in such vague terms that they fail to provide fair notice of what conduct is

prohibited or allow room for arbitrary or discriminatory enforcement. We also find

that the overbreadth exception does not apply to this ordinance since the ordinance

does not impose a prior restraint on speech or impose criminal penalties.

37
Alternatively, we also find that L.C.’s overbreadth challenge fails on the merits.

Thus, L.C. is not entitled to damages under count III.

Because we find the County ordinance is constitutional, we also find that

L.C.’s substantive due process claim against the City for enforcement of the

allegedly unconstitutional ordinance fails. Accordingly, the district court did not

err in awarding the City summary judgment on count V of the Complaint.

AFFIRMED.

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