concurring and dissenting:
I concur in the majority’s holding that the permit scheme created by Ordinance No. 2609 is constitutional because it is free from arbitrary application, but I dissent from that part of the opinion which remands the case to the district court for further findings on the issue of whether the ordinance is an overly broad infringement of speech. I would hold it to be a valid time, place and manner regulation which serves a significant governmental interest and leaves open ample alternate channels for communication by the plaintiff and his bagpipes.
It is important to keep the facts in mind. We are dealing with a musician who wishes to attract an audience and to make money playing his instrument on the sidewalks of the central business district of Alexandria known as Old Town. This area comprises only 201 acres. It caters to tourist trade, is subject to heavy pedestrian traffic, and has areas with narrow sidewalks, alleyways and streets. Old Town is the forum within which plaintiff wishes to perform. His performance is not pure speech, but is commercial entertainment. Within the forum there are open spaces or parks in which he may perform under the ordinance by obtaining a permit available on a first-come, first-served basis. The City of Alexandria has more than 9,800 additional acres in which he may perform without restriction.
Ordinance No. 2609 amended § 33-17, Article 1, Chapter 33 of the Code of the City of Alexandria and reads in pertinent part as follows:
Subject to the requirements imposed in the following paragraph, no person shall place any goods, wares, merchandise, foodstuffs, etc., on or in any way obstruct the sidewalks or walkways for the display or sale of such goods, wares, merchandise, foodstuffs, etc., unless such goods, wares, merchandise, foodstuffs, etc. be allowed to remain on the sidewalk or walkway longer than is reasonably necessary for the delivery of the same. In addition, no business licensed pursuant to section 20-82 of this Code or similar nonbusiness activity shall be conducted on the sidewalks, walkways or other public property located in the central business district as defined in section 42-29 of this Code, except as permitted subject to the following:
(a) The city manager or his or her des-ignee may, by permit, authorize the conduct of the above-noted businesses and activities in publicly owned open spaces of the central business district. The term “open spaces” shall be defined as stated in section 42-1 (47.1), but shall not include sidewalks, walkways or courthouse Plaza; and
(1) The receipt of a permit from any city agency authorized to issue permits for the use of any of the above described areas shall be construed to satisfy the requirements of subsection (a).
(2) Each permit shall be issued for a time period certain.
(3) No more than three (3) permits shall be issued for each city block at any one time except that no permit shall be required for any event sponsored by the city or an agency or department thereof.
(4) All permits shall be issued on a first-come, first-served basis.
(b) The city manager or his or her des-ignee may authorize the conduct of the above-mentioned businesses and activities on the sidewalks, walkways or publicly owned open spaces of the central business district for an event held in connection with a civic holiday or activity designated by city council as such.
The city manager is authorized to establish reasonable and appropriate regulations including the imposition of a rea*154sonable fee for the issuance of permits under this section.
The activities covered by § 20-82 of the City Code include places of amusement and entertainment, and also mention performers, dance bands, exhibition or performance and beauty and talent contests for fee.
“It is also common ground, however, that the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981).
All seem to agree that in dealing with a restriction on a protected right of expression such restriction
(1) must be reasonable in time, place and manner;
(2) may not be based upon the content of the speech thereby restricted;
(3) must be drawn with reasonable specificity so as to be no more restrictive than necessary to
(4) serve a significant governmental interest; and
(5) adequate alternative channels for communication must be left open and
(6) such restrictions may not vest in administrative officials the discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.1
The majority finds that the ordinance meets muster under (6) above, but I submit that it meets the other five requirements as well.
The ordinance is reasonable in time, place and manner of restriction. It applies to only the central business district of Alexandria, a space containing 201 acres and specifically defined in § 42-29 of the City Code. The only restriction as to time is that not more than three permits may be issued per city block at any one time. Its manner of restriction is to prevent any use of its sidewalks and walkways for business or entertainment except on certain holidays or at other times when civic activities are being sponsored and everyone is aware that the sidewalks and walkways may be obstructed and the city can provide adequate police for direction of traffic and crowd control.
It provides eight parks or open spaces within the 201 acre Old Town, and this is reasonable as to place and provides adequate alternate channels for communication.
There is no effort by the city to base the restriction upon content of anyone’s speech or expression. The ordinance does not apply to the usual first amendment speech such as political orators or persons passing out pamphlets. They are not mentioned in Ordinance No. 2609 or in the activities listed in Section 20-82. The ordinance is directed to commercial activity.
The ordinance serves a significant governmental interest in providing for the safe and orderly flow of traffic upon its streets and sidewalks within a small and congested area similar to the restrictions found in Heffron, supra, which stated:
Indeed the court below agreed that without Rule 6.05 there would be widespread disorder at the fairgrounds. The court also recognized that some disorder would inevitably result from exempting the Krishnas from the Rule. Obviously there would be a much larger threat to the State’s interest in crowd control if all other religious, nonreligious and noncommercial organizations could likewise move freely about the fairgrounds distributing *155and selling literature and soliciting funds at will.
Given these considerations, we hold that the State’s interest in confining distribution, selling and fund soliciting activities to fixed locations is sufficient to satisfy the requirement that a place or manner restriction must serve a substantial state interest.
A municipality or a state has a significant interest in protecting the safety and convenience of persons using its streets and sidewalks. Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
In providing the eight open spaces within the central business district for use by the •plaintiff, the city provided adequate alternative locations, which are similar to the fair booth restriction and alternatives approved by the Supreme Court in Heffron. The State Fair in Heffron covered 125 acres and the Krishnas were restricted to one booth for sale and solicitation purposes. In discussing the rule in Heffron the court stated at 452 U.S. at 654, 101 S.Ct. at 2567:
First, the rule does not prevent ISKCON from practicing Sankirtan anywhere outside the fairgrounds. More importantly, the Rule has not been shown to deny access within the forum in question. Here, the rule does not exclude Iskcon from the fairgrounds, nor does it deny that organization the right to conduct any desired activity at some point within the forum. (Emphasis added)
The eight public areas available in the central business district of Alexandria represent considerably more access to the forum than the Supreme Court approved in Heffron.
The ordinance does not restrict a person from singing or whistling or playing his bagpipe for his own amusement as he walks about the streets of the central business district. The restriction comes when this expression becomes commercial and rises to the level of a performance, and the singer, whistler or piper seeks to perform for money and draw a crowd.
The plaintiff wants to play his bagpipes for money in the forum and has obtained a business license to do so. Should he be allowed to sell his product on the sidewalks of the central business district when other businessmen may not do so? Is there any difference between plaintiff’s sale of his music on the sidewalks and other merchants’ sale of their products — be they apples or automobiles? The answer to these questions is obviously “no” and the effort of the City of Alexandria in passing Ordinance 2609 is to treat all businessmen equally and fairly. As Heffron teaches, at 653, 101 S.Ct. at 2566:
If Rule 6.05 is an invalid restriction on the activities of Iskcon, it is no more valid with respect to the other social, political, or charitable organizations that have rented booths at the Fair and confined their distribution, sale, and fund solicitation to those locations. Nor would it be valid with respect to other organizations that did not rent booths, either because they were unavailable due to a lack of space or because they chose to avoid the expense involved, but that would in all probability appear in the fairgrounds to distribute, sell, and solicit if they could freely do so. The question would also inevitably arise as to what extent the First Amendment also gives commercial organizations the right to move among the crowd to distribute information about or to sell their wares as respondents claim they may do.
Does a merchant with a place of business outside the central business district have a right to set up shop on one of the sidewalks in Old Town? 2 Of course not, because the city has the right to control its streets and sidewalks and also has the right to zone and restrict businesses to certain areas. As the Supreme Court said in Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1975)
*156[W]e have no doubt that the municipality may control the location of theatres as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not sufficient reason for invalidating these ordinances.
We are fully aware that the statute does not just regulate business activity, however, appellee’s challenge is based entirely on his desire to perform by playing his bagpipes on the sidewalk and solicit contributions. Plaintiff is a businessman and must be treated as such. He is not a soapbox orator, who wishes to express his political beliefs.3
The majority leans heavily upon Hickory Fire Fighters Association v. City of Hickory, North Carolina, 656 F.2d 917 (4th Cir. 1981). However, the restriction in Hickory covered all sidewalks in the city and not just 201 acres out of a total of 10,000 acres in Alexandria; no adequate alternate areas were provided; and although the pickets were seeking to improve their financial circumstances, they were not seeking pay from any spectators or passersby that might be attracted by their activity.
The majority opinion sets a higher standard than the Supreme Court has required in judging the constitutionality of a time, place, and manner restriction. The majority states that it cannot find the ordinance constitutional “... because we are unable to hold that the ordinance is drawn as narrowly as possible to maximize speech while securing the city’s interest in public safety ...” Later in describing the purpose of the appellate review the majority finds it “is to determine whether the blanket prescription contained in Ordinance No. 2609 is the narrowest means of securing public safety in Old Town.” (Emphasis added).
The Supreme Court does not require the narrowest restrictions but uses a rule of reason. Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980) found: “A restriction that regulates only the time, place or manner of speech may be imposed so long as it is reasonable.”
In Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 75, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671 (1981) the court states: “To be reasonable, time, place and manner restrictions not only must serve significant state interest but also must leave open adequate alternate channels of communication.”
In Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222’ (1970) is found: “The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place and manner that are reasonable.’ ”
In determining what is reasonable we must apply the standard of review directed by Schad. What time, place and manner restriction is reasonable for a commercial performer? I submit Ordinance No. 2609 is reasonable.
In setting forth the four factual findings to be made by the district court on remand, the majority has assigned the district court an unreasonable and an improper task. It is unreasonable because the district court must consider every sidewalk, walkway and street within Old Town together with its traffic flow and then determine what performances or exhibitions can be safely accommodated at which times and on which dates. The findings resulting from such inquiry will be so voluminous and detailed that they will be too cumbersome to be useful.
The city cannot adequately anticipate the audience that might gather to see and hear performers on its sidewalks. Inquiry into the particularized facts of sidewalk widths, block lengths, and traffic patterns is of no *157help in determining whether the restrictions in the ordinance are narrowly tailored to particular time, place and manner of expression. Because audience size is unde-terminable prior to performance, the ordinance is drawn as narrowly as possible to protect the interest advanced by the city. The open spaces of the central business district and the remaining 9800 acres of the city outside the central business district provide ample alternative areas for expression.
The conditions of remand are improper because such detailed findings and conclusions will result in the district court rewriting the ordinance. This is not a judicial function. The remand indicates that the district court is to determine when, where, and what type performances and exhibitions may be conducted in the central business district. Are outsiders to be allowed to use the sidewalks for exhibit, performance and sale when local merchants in the central business district cannot so much as place their goods on the sidewalk for display? No one would seriously question that a city has a significant interest in keeping its sidewalks clear for pedestrian traffic and safety, and in so doing the city may prevent local merchants from using the sidewalks in front of their shops to display and sell their goods and wares. Young v. American Mini Theatres, supra. However, the majority is instructing the district court to find where these-activities may be conducted on the same sidewalks, which are off limits to taxpaying merchants.
Performers soliciting contributions and exhibitors soliciting sales on such sidewalks are conducting business. They should be subject to the same restrictions on sidewalk use as are local shopkeepers. The fact that appellee has a profession that involves commercial exploitation of free expression does not put him in a preferred position among businessmen.
Ordinance No. 2609 is a reasonable restriction upon the use of sidewalks and walkways within an admittedly congested business area. It provides adequate alternate areas within the forum for expression. We should leave this matter to the elected officials of Alexandria. The record reflects that City Council considered other proposed ordinances in an effort to solve the sidewalk congestion problem and adopted No. 2609 as the most reasonable.
I would find Ordinance No. 2609 constitutional and reverse the district court.
. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Hef-fron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).
. Davenport is a resident of Baltimore, Maryland and comes to Alexandria when he has the urge to perform in Old Town.
. “The standard of judicial review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed.” Schad v. Borough of Mount Ephraim, 452 U.S. at page 68, 101 S.Ct. at 2182.