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

0653

COALITION FOR THE ABOLITION OF MARIJUANA PROHIBITION, Paul D. Cornwell, II,
Plaintiffs-Appellants,

v.

CITY OF ATLANTA, Defendant-Appellee.

No. 99-11385.

United States Court of Appeals,

Eleventh Circuit.

July 27, 2000.

Appeal from the United States District Court for the Northern District of Georgia.(No. 96-00407-CV-1-JEC),
Julie E. Carnes, Judge.

Before COX, BIRCH and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

The Coalition for the Abolition of Marijuana Prohibition ("CAMP") and its national coordinator, Paul

D. Cornwell, II, (collectively, the appellants) appeal the district court's judgment finding the City of Atlanta

Outdoor Festivals Ordinance of 1994, codified at Atlanta. Ga., Code §§ 138-186 through 138-208 (1994),

(the "1994 Festival Ordinance"), repealed by Atlanta Outdoor Festivals Ordinance of 2000, Atlanta, Ga.Code

§ 99-O-1020 (2000), to be, in part, facially unconstitutional and enjoining the future application of those

unconstitutional portions of the ordinance. The appellants appeal the district court's determination that

portions of the festival ordinance were constitutional. For the reasons that follow, we AFFIRM the holding

of the district court.

BACKGROUND

CAMP is a non-profit organization focused primarily on forming alliances and associating with other

groups concerned with marijuana issues. Additionally, CAMP sponsors the Great Atlanta Pot Festival (the

"Pot Festival"), a direct action event advocating changes in the laws governing marijuana.
 CAMP held the Pot Festival in Atlanta's Piedmont Park from 1990 through 1995. Prior to 1995, the

appellants erected a stage with a cover, stage lights and barricades for the use of speakers and musical

performers during the Pot Festival. During the Pot Festival, CAMP distributed printed information regarding

the uses of marijuana and the hemp plant and advocating the repeal of all laws prohibiting the use of

marijuana. CAMP also sold products, such as t-shirts, bearing messages about marijuana. Other vendors sold

food and drinks.

In 1995, the City of Atlanta requested that CAMP apply for an outdoor festival permit.1 The City

explained that, because the Pot Festival had evolved into a larger, more commercial event, attracting

approximately 30,000 attendees and featuring concerts, political speeches, and vendors selling food and

merchandise, it now fell within the 1994 Festival Ordinance's definition of an "outdoor festival."2 When the

appellants complied with the City's request and applied for a festival permit, their application was denied

because the City determined that " 'the previous history of this event indicates to a reasonable certainty that

public safety would be compromised substantially.' " R2-37-5 (quoting Labovitz Dep., Ex. 1, Letter of

February 14, 1995, from Steven Labovitz to Paul Cornwell at 1). The mayor's chief of staff explained that

1
The City had determined in 1991 that the Pot Festival should have been treated as an outdoor festival
within the scope of the festival ordinance and requested that CAMP apply for a festival permit. CAMP
refused and brought the matter before a Fulton County Court. That court allowed the event to proceed
without a festival permit. The City did not request that CAMP apply for a festival permit again until 1995.

2
The 1994 Festival Ordinance defined "outdoor festival" under § 138-187 as the following:

an outdoor public celebration or gathering which involves the use either of public parks or
public streets and which includes entertainment, dancing, music, dramatic productions, art
exhibits, parades or the sale of merchandise, food or alcohol or any combination of such and
which of necessity requires for its successful execution the provision and coordination of
municipal services to a degree significantly over and above that which the city routinely
provides under ordinary everyday circumstances. The definition of outdoor festival does not
include events which are solely parades, footraces or political demonstrations unless such
parade, footrace or political demonstration is proposed as an integral part of a larger festival.

R1-3-Ex. A at 1-2.

2
the permit was denied based on the recommendation of the Atlanta Police Department. The police department

had estimated that in 1994 at least half of the Pot Festival attendees openly smoked marijuana in blatant

defiance of the law and therefore, "[i]n the opinion of police officials monitoring this event, any attempt to

enforce the law on such an occasion would require unusually large numbers of police officers and would be

likely to provoke a civil disturbance." Id.

Upon denial of their application for a festival permit, the appellants exhausted the administrative

appeals process defined in § 138-208 of the 1994 Festival Ordinance. The appellants then filed for a

preliminary injunction, requiring the City of Atlanta to grant them a festival permit. The district court

determined that the appellants' First Amendment rights were not being infringed because they could hold a

political demonstration and concert without a festival permit. Accordingly, the district court denied the

request for a preliminary injunction.

After the 1995 Pot Festival, the appellants filed suit alleging that the 1994 Festival Ordinance was

unconstitutional on its face and as applied to the Pot Festival. Specifically, the appellants argued that the

1994 Festival Ordinance was unconstitutional on its face because it provided unfettered discretion to the

mayor's chief of staff and other public officials when deciding whether to issue a festival permit. After

conducting a two-day trial on the issues, the district court held that "while parts of the Festival Ordinance pass

constitutional muster, other parts, on their face, constitute an impermissible prior restraint on First

Amendment expression." Id. at 6-7.

The district court determined that the 1994 Festival Ordinance was a prior restraint on protected

speech, but was content-neutral on its face. The district court then assessed each section of the 1994 Festival

Ordinance individually to determine whether it passed constitutional muster. First, the district court found

that the definition of an outdoor festival found in § 138-187 did not grant unfettered discretion, was narrowly

tailored to serve a significant government interest, and, therefore, was constitutional. Nonetheless, the district

3
court ordered the City "to set out more specifically those attributes that would bring an event within the

definition of outdoor festival" when revising the 1994 Festival Ordinance. Id. at 26 n. 13.

The district court next considered § 138-203 of the 1994 Festival Ordinance3 and determined that

certain provisions within that section lacked sufficiently objective and definite standards to limit the

discretion of the chief of staff when issuing festival permits. Thus, the district court concluded that "[b]y

allowing the individual charged with enforcing the Festival Ordinance to balance or assign various weights

to this list of subjective, imprecise criteria, § 138-203 fails to restrict the decision-maker's discretion and thus

leaves open the door to unconstitutional, content based discrimination." Id. at 33. Particularly, the district

3
Section 138-203 of the 1994 Festival Ordinance provides:

(a) The chief of staff shall be charged with the responsibility of determining whether or not
a particular applicant shall be granted an outdoor festival permit pursuant to this article, in
consultation with the special events coordinator.

(b) In determining whether to grant or deny a particular permit application, the chief of staff
shall take into account the effect the proposed special events will have upon the environment and the
public health and safety. The chief of staff shall also take into account the frequency with which
such events are held and the convenience of the public in relation thereto. Permits granted pursuant
to this article shall not authorize more than ten calendar days of special events for any particular
applicant per calendar year.

(c) In addition to the criteria in subsections (a) and (b) of this section, in making the decision
whether to grant the permit, the chief of staff shall take into account whether:

(1) The history, if any, of the particular applicants, insofar as it can be determined, indicates their
capability or incapability of executing the planned festival;

(2) Any inconvenience which may be suffered by the general public is outweighed by the potential
benefit to the community as a whole;

(3) Budgetary considerations at the time of the application create such a heavy burden upon the city's
financial resources that it would not be practical to hold the proposed festival at the time requested;

(4) The holding of the festival as planned would create an undue burden upon the personnel resources
of the city; and

(5) The public safety would be compromised substantially.

Atlanta City Code, § 138-203; R1-2-Ex.A at 3.

4
court noted that the following subsections of § 138-203 set forth criteria which allow the chief of staff to

exercise an impermissible degree of discretion when approving applications for outdoor festival permits: §

138-203(b) requires the chief of staff to "take into account the effect the proposed special events will have

upon the environment and the public health and safety" and provides for balancing "the convenience of the

public in relation to the frequency with which an event is held," § 138-203(c)(2) requires the chief of staff

to consider whether "[a]ny inconvenience which may be suffered by the general public is outweighed by the

potential benefit to the community as a whole," and § 138-203(c)(5) provides for consideration of whether

"[t]he public safety would be compromised substantially." Id. at 29-30.

The district court also considered the criteria in § 138-203(c)(1) requiring consideration of whether

"[t]he history, if any, of the particular applicants, insofar as it can be determined, indicates their capability

or incapability of executing the planned festival." R2-37-31. The district court found that "it is a much closer

question whether this provision fails to provide definite and precise standards on which to condition the grant

of a festival permit." Id. Therefore, it "d[id] not determine ... whether or not this provision is

unconstitutionally vague," but, nonetheless, suggested that the City should make this provision more precise

when it revised the 1994 Festival Ordinance. Id. at 32.

Turning to §§ 138-204(a) and (b), the district court found that the requirement that the chief of staff

"deny an application if the applicant 'proposes to limit the use of public street by pedestrians using the streets

to move from location to location or if the applicant proposes to limit the use of public parks when use of the

parks by the general public shall not unreasonably disturb the activities of the planned festival,' " id. at 34,

was "neither overbroad nor vague; indeed, its permit requirement is linked to a practical justification and is

narrowly tailored to meet this justification." Id. at 35. The district court also noted that the section's

provision granting the chief of staff authority to regulate street closings applied only after an applicant's

permit had been approved and, thus was not unconstitutional on its face. Therefore, the district court found

that § 138-204 passed constitutional muster.

5
 The district court then analyzed § 138-205 which requires an applicant to pay a permit fee and

sanitation deposit in order to obtain an outdoor festival permit. These fees are calculated based on a sliding

scale utilizing the applicant's estimate of the anticipated attendance and the city's estimate of the extra

personnel hours it will expend to accommodate the festival. Section 138-205 also requires the applicant to

reimburse the City for the cost of excess man hours and services actually provided by the city in support of

the event which exceed those covered by the initial permit fee. The district court concluded that "the

imposition of fees by § 138-205 does not unconstitutionally burden the free expression of speech. A

municipality can impose a reasonable fee on certain kinds of expressive activities to recover its costs, so long

as the charge imposed does not exceed the administrative costs of regulating the protected activity." Id. at

36. While the district court found that § 138-205's fee schedule was "reasonable and content neutral," id. at

38, it did caution the city that requiring the chief of police to approve the applicant's security plan for the

event, including the number of off-duty police officers the applicant will hire to provide security for the event,

"could confer improper discretion to the Police Department to determine the amount of police support a

festival sponsor must retain prior to the event," id. at 40 n. 19. The district court "advise[d] the City to

address in greater detail the content-neutral bases by which the security supervisor and a festival sponsor

should structure their discussions about the scope of security required for an event, if and when the City

re-evaluates the 1994 Festival Ordinance." Id. at 40-41 n. 19.

Finally, the district court determined that § 138-208 was facially unconstitutional. This section

requires that the mayor make a final decision regarding the grant of a festival permit to an applicant at least

five days before the event's scheduled date. The district court found that this deadline allowed the City to

effectively " 'kill' the event by its inaction on the administrative appeal." Id. at 43. Therefore, the district

court concluded that the administrative appeal mechanism provided by § 138-208 does not provide adequate

procedural safeguards and does not guarantee prompt, final judicial review.

6
 The district court also considered whether the 1994 Festival Ordinance had been unconstitutionally

applied to the Pot Festival, but determined that the question was moot because the court was striking down

the provisions in question as facially unconstitutional. Finally, the district court issued a permanent

injunction preventing the City from applying those provisions of the 1994 Festival Ordinance which it had

found to be unconstitutional. The injunction allowed the city to continue to use those portions of the 1994

Festival Ordinance that remained valid; however, because the ordinance remaining after striking the

unconstitutional portions was jumbled and difficult to understand, the district court ordered the City to enact

a new festival ordinance prior to December 31, 1999. This deadline was subsequently extended through

March 1, 2000.

Prior to the enactment of a new festival ordinance, the appellants filed this appeal. They contest the

district court's conclusion that portions of the 1994 Festival Ordinance are constitutional, specifically sections

138-187, 138-204, and 138-205.4 The appellants argue that the 1994 Festival Ordinance is content-based,

does not allow effective access to public fora, and is not the least restrictive means for regulating the

appellant's First Amendment conduct. The appellants also argue that the permit fees required by the 1994

Festival Ordinance are not nominal and are manipulated to accomplish content-based restriction of First

Amendment activity. Finally, the appellants contend that the district court erred by failing to exercise

supplementary jurisdiction over their Georgia Constitutional claims.

4
The district court refused to determine whether § 138-203(c)(1) was "unconstitutionally vague." R2-37-
32. However, it also did not specifically find that subsection 138-203(c)(1) was constitutional. Therefore,
we do not include this subsection as a part of the appellant's challenge to the district court's determination that
portions of the 1994 Festival Ordinance passed constitutional muster. Accordingly, we do not consider
whether subsection 138-203(c)(1), as revised, is constitutional. Similarly, the district court cautioned the City
that § 138-205's requirement regarding the use of off-duty police officers as a part of the festival applicants'
security could confer improper discretion of the Police Department to determine the amount of police support
required for a festival; however, the appellants do not raise this portion of the ordinance on appeal.
Therefore, we do not consider the revised requirements for a security plan in the 2000 Festival Ordinance and
express no opinion regarding their constitutionality. We leave it to the appellants, if they so desire, to
challenge these provisions in the district court.

7
 While this appeal was pending, the Mayor of Atlanta, on March 9, 2000, signed a new outdoor

festival ordinance, Ordinance Number 99-O-1040. See Letter Brief of the Defendant-Appellee dated March

31, 2000 (with copy of Ordinance Number 99-O-1040).5 This new ordinance, styled the Atlanta Outdoor

Festival Ordinance 2000 (the "2000 Festival Ordinance"), repealed the 1994 Festival Ordinance and purported

to correct those portions of it that the district court found unconstitutional and make clearer the remaining

portions of the festival ordinance.

DISCUSSION

I. JUSTICIABILITY

As an initial matter we must address the question of justiciability. Article III of the Constitution

requires an actual case or controversy to support the exercise of judicial power. "Three strands of

justiciability doctrine—standing, ripeness, and mootness—play an important role in the determination of

whether the plaintiff-appellants' case against the [City] presents an Article III case or controversy." Socialist

Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir.1998).

A. Standing

Citing City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143,

100 L.Ed.2d 771 (1988) and United States v. Gilbert, 130 F.3d 1458, 1462 (11th Cir.1997), the district court

found that the appellants had standing to bring a facial challenge against the 1994 Festival Ordinance because

they were subject to the licensing ordinance, they alleged that it provided the government unbridled

discretion, and the ordinance could lead to content-based discrimination of constitutionally protected speech.

Similarly, we agree with the district court that the appellants have proper standing to launch a facial challenge

against the 2000 Festival Ordinance because the appellants seek to engage in constitutionally protected speech

that the 2000 Festival Ordinance attempts to restrict. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491,

504, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394 (1985).

5
Hereinafter, we will cite to the document as Ordinance No. 99-O-1040.

8
B. Mootness

There must be a "present, live controversy in order to 'avoid advisory opinions on abstract

propositions of law.' " Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater ("Church of

Scientology I"), 777 F.2d 598, 604 (11th Cir.1985) (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-

02, 24 L.Ed.2d 214 (1969) (per curiam)). " '[W]hen the issues presented are no longer "live" or the parties

lack a legally cognizable interest in the outcome,' " the case has become moot. County of Los Angeles v.

Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395

U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)). As the Supreme Court recently noted, "[t]he

underlying concern is that, when the challenged conduct ceases such that ' "there is no reasonable expectation

that the wrong will be repeated," ' then it becomes impossible for the court to grant ' "any effectual relief

whatever" to [the] prevailing party.' " City of Erie v. Pap's A.M, --- U.S. ----, 120 S.Ct. 1382, 1390, 146

L.Ed.2d 265 (2000) (citations omitted) (alteration in original). When a case has become moot, we do not

consider the merits presented, but instead vacate the judgments below with directions to dismiss even if a

controversy did exist at the time the district court rendered its decision. See United States v. Munsingwear,

Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950).

When a subsequent law brings the existing controversy to an end " 'the case becomes moot and

should be treated accordingly.' " Church of Scientology I, 777 F.2d at 605 (concluding that the issue of an

ordinance's validity was moot when the ordinance had been repealed by the enactment of new ordinance prior

to the district court's consideration of the challenged, repealed ordinance and the district court reviewed the

repealed ordinance rather than the newly enacted ordinance) (quoting United States v. Alaska S.S. Co., 253

U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920)).6 Generally, when an ordinance is repealed any

6
We note that the considerations that compelled our conclusion that the case in Church of Scientology
I was moot, see 777 F.2d at 604-06, are not present in this case. In Church of Scientology I the entire
challenged ordinance was repealed and replaced with a new ordinance prior to consideration by the district
court. Despite receiving timely notice of this change, the district court proceeded to declare the repealed
ordinance unconstitutional and enjoined its enforcement. Therefore, we determined that the issue of the

9
challenges to the constitutionality of that ordinance become moot. See Church Scientology Flag Serv., Org.,

Inc. v. City of Clearwater ("Church of Scientology II"), 2 F.3d 1509, 1511 (11th Cir.1993) (explaining that

we vacated a district court's order concluding that a former municipal ordinance was facially unconstitutional

and enjoining its enforcement because it analyzed only the prior ordinance, which had been repealed and

replaced by a currently effective ordinance). Nonetheless, when an ordinance is repealed by the enactment

of a superseding statute, then the "superseding statute or regulation moots a case only to the extent that it

removes challenged features of the prior law. To the extent that those features remain in place, and changes

in the law have not so fundamentally altered the statutory framework as to render the original controversy

a mere abstraction, the case its not moot." Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th

Cir.1992) (holding that amendments to challenged regulations did not moot the plaintiff's request for

injunctive relief). Accord Northeastern Fla. Chapter of Associated Gen. Contractors of America v. City of

Jacksonville, Fla., 508 U.S. 656, 661-62, 113 S.Ct. 2297, 2300-01, 124 L.Ed.2d 586 (1993) (holding that

repeal of a challenged ordinance and enactment of a replacement statute after the Supreme Court granted

certiorari, but before it issued a decision did not render the case moot because the new statute disadvantaged

the plaintiffs "in the same fundamental way").7 Therefore, in order to determine whether the controversy

presented on appeal is moot, we must " 'stop, look, and listen' to determine the impact of changes in the law."

Naturist Soc'y, Inc., 958 F.2d at 1520 (quoting Kremens v. Bartley, 431 U.S. 119, 135, 97 S.Ct. 1709, 1718,

52 L.Ed.2d 184 (1977)).

repealed ordinance's constitutionality was moot at the time that the district court considered it. We noted that
"[t]he proper course of action would have been to allow the plaintiffs to amend their complaints and proceed
to litigate the ordinance then in effect." Id. at 605-06. See also id. at 606 n. 22 (noting that "[t]here are
numerous cases illustrating the principle that where a challenged ordinance is amended during litigation the
appropriate course is to proceed to a consideration of the amended ordinance"). In this case, by contrast, the
challenged ordinance was not replaced until after the district court issued its order, and the new ordinance
maintains, in substantial part, those portions of the ordinance challenged on appeal by the plaintiff.
7
Hereinafter, we will refer to this case as Northeastern Fla. Chapter.

10
 Here, the 1994 Festival Ordinance has been repealed by the enactment of the 2000 Festival

Ordinance. Accordingly, we must review the 2000 Festival Ordinance to ascertain whether it " 'satisfies all

the principles sought in an attack on the prior statute.' " Naturist Soc'y, Inc., 958 F.2d at 1520 (quoting

Johnson v. State, 586 F.2d 387, 388 (5th Cir.1978)). If the 2000 Festival Ordinance "leaves objectionable

features of the prior law substantially undisturbed, the case is not moot." Id. Additionally, we must determine

whether any of the challenged portions of the statute have been " 'sufficiently altered so as to present a

substantially different controversy from the one the District Court originally decided.' " Northeastern Fla.

Chapter, 508 U.S. at 662 n. 3, 113 S.Ct. at 2301 n. 3 (quoting id. at 671, 113 S.Ct. at 2306 (O'Connor, J.

dissenting) (agreeing that when the challenged statute is repealed but replaced by new legislation the analysis

requires the court to consider whether the changes in the statute sufficiently alter the challenged portions of

the ordinance so as to render the case moot, but disagreeing with the majority regarding the materiality of the

changes to the challenged ordinance)).8 In order for the alterations to the 1994 Festival Ordinance to satisfy

this requirement and moot the issues presented on appeal the "gravamen of petitioner's complaint" must have

been changed in some fundamental respect. Northeastern Fla. Chapter, 508 U.S. at 662, 113 S.Ct. at 2301

(reviewing a decision by this court where the City defendant repealed the challenged ordinance and replaced

it with a new ordinance while the appeal was pending before the Supreme Court and noting that, although

the new ordinance differed from the repealed ordinance in three principal respects the case was not moot).

8
The concerns Justice O'Connor voiced in her dissent in Northeastern Fla. Chapter regarding the repeal
of the challenged ordinance and enactment of new legislation are not applicable here. Justice O'Connor
asserted that the majority should have found the controversy moot because when a statute which has been
declared invalid by a lower court has been replaced with more narrowly drawn legislation and the plaintiff
seeks only prospective relief, then an appellate court could not be certain how the statutory changes would
affect the plaintiff's claims and while "[t]he new law ultimately may suffer from the same legal defect as the
old, ... the statute may be sufficiently altered so as to present a substantially different controversy."
Northeastern Fla. Chapter, 508 U.S. at 672-73, 113 S.Ct. at 2306-07 (O'Connor, J. dissenting). In this case,
we are only dealing with portions of the 1994 Festival Ordinance that were declared valid by the district
court. Therefore, any minor alteration of these portions of the 1994 Festival Ordinance which may slightly
narrow the scope of the 2000 Festival Ordinance, do not alter the controversy from that which the district
court originally considered. Compare Atlanta Outdoor Festival Ordinance of 1994, Atlanta, Ga., Code §§
138-187—138-208 (1994) with Atlanta Outdoor Festival Ordinance of 2000, Ordinance No. 99-O-1040.

11
The Supreme Court explained its holding regarding the repeal of challenged statutory language set forth in

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074-75, 71 L.Ed.2d 152

(1982) (holding that a government defendant's repeal of objectionable language from a challenged ordinance

does not render the case moot because the defendant's "repeal of the objectionable language would not

preclude it from reenacting precisely the same provision if the District Court's judgment were vacated") as

follows:

This is an a fortiori case. There is no mere risk that Jacksonville will repeat its allegedly wrongful
conduct; it has already done so. Nor does it matter that the new ordinance differs in certain respects
from the old one. City of Mesquite does not stand for the proposition that it is only the possibility
that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule,
a defendant could moot a case by repealing the challenged statute and replacing it with one that
differs only in some insignificant respect. The gravamen of petitioner's complaint is that its members
are disadvantaged in their efforts.... The new ordinance may disadvantage them to a lesser degree
than the old one, but ... it disadvantages them in the same fundamental way.

Id. at 662, 113 S.Ct. at 2301. Therefore, we must determine if the changes enacted in the 2000 Festival

Ordinance alter the appellants' argument that the ordinance is content-based, is not narrowly-tailored to serve

a significant government interest, and imposes fees on expression of protected speech which are more than

nominal and manipulated according to the content of the speech.9

In order to make this assessment, we must review the portions of the 1994 Festival Ordinance

challenged on appeal to determine whether they have been substantially altered in the 2000 Festival

Ordinance. The City does not suggest that the portions of the 1994 Festival Ordinance which the district

court found to be constitutional have been materially changed or corrected in the 2000 Festival Ordinance.

9
The City contends that this appeal is moot because there is no reasonable expectation of recurring
constitutional violations because the district court's final order prevents enforcement of the unconstitutional
portions of the 1994 Festival Ordinance, the 2000 Festival Ordinance does not contain the unconstitutional
language, and there is no reason to expect the City to reinsert the unconstitutional language in the 2000
Festival Ordinance. This argument misconstrues the issues presented on appeal. The appellants do not
challenge the district court's findings regarding those portions of the 1994 Festival Ordinance which it found
to be unconstitutional. Rather, the appellants argue that the district court erred in finding that some portions
of the 1994 Festival Ordinance did pass constitutional muster. As such, the appellants specifically challenge
the district court's finding that the 1994 Festival Ordinance was content neutral, as well as the conclusion that
§§ 138-187, 138-204, and 138-205 were constitutional.

12
Likewise, our review of the 2000 Festival Ordinance indicates that the portions of the 1994 Festival

Ordinance which are challenged on appeal have not been sufficiently altered so as to eliminate the issues

raised. Compare Atlanta Outdoor Festival Ordinance of 1994, Atlanta, Ga., Code §§ 138-187-138-208

(1994) with Atlanta Outdoor Festival Ordinance of 2000, Ordinance No. 99-O-1040.10 Other than changes

10
The following "red-lined" version of the 2000 Festival Ordinance provides a comparison of the
challenged portions of the 1994 Festival Ordinance and the 2000 Festival Ordinance. Those portions of the
1994 Ordinance which have been deleted from the 2000 Festival Ordinance have been struck out and
language added in the 2000 Festival ordinance has been underlined.

Section 138-187. Definitions.

Extra personnel hours means the total of %(the number of%( all hours worked by all city
employees in the particular departments or areas under consideration for classification purposes in
connection with the production of the %(special events in question%( festival which is the subject
of the application, to the extent that such hours exceed the total number of hours which would have
been worked by those same city employees in the same location had the festival not taken place.
Excluded from this definition are the personnel hours worked by the %(s%(Special %(e%(Events
%(c%(Coordinator %(or by a city employee designated to fulfill the function of special events
coordinator on any particular occasion%(, the personnel hours worked by any person of the level of
bureau director or higher, and the personnel hours worked by police officers.

Outdoor Festival means an outdoor public celebration or gathering which involves either the
use either of public parks belonging to the City or public streets and which includes entertainment,
dancing, music, dramatic productions, art exhibitions, parades or the sale of merchandise, food%(,%(
or alcohol, or any combination of %(such%( the foregoing, and which requires the erection of stages,
barricades, utility poles, booths, tents, or other temporary structures, or the use of parked vehicles
or of permanent structures, and which of necessity requires for its successful execution the provision
and coordination of municipal services to a degree significantly over and above that which the city
routinely provides under ordinary everyday circumstances. The definition of outdoor festival does
not include events which are solely parades, %(footraces or political demonstrations%( unless such
parade%(, footrace or political demonstration%( is proposed as an integral part of a %(larger%(
broader outdoor festival. Also excluded from the definition of "outdoor festival" herein is any event
with a scheduled duration of three (3) hours or less.

Section 138-204. Classification and approval

(a) After reviewing the comments of all the %(other%( departments %(and%( %(the%( or
bureaus %(of buildings%( submitting them, the %(c%(Chief of %(s%(Staff shall approve, deny,
approve with modifications or upon conditions as set forth in Section 138-203. %(or%( %(reject the
application for the permit for an outdoor festival.%( If the application is approved, the %(c%(Chief
of %(s%(Staff, in consultation with the heads of affected departments, shall also impose any
necessary restrictions or conditions as to time, manner and place to be observed in accordance with
the public safety, environmental and administrative considerations %(involved in the particular

13
application%( which appear based upon the application, provided that such considerations shall not
include any consideration of the content of any speech or message which may be conveyed by such
festival, nor by any considerations concerning the identity of associational relationships of the
applicant, nor to any assumptions or predictions as to the amount of hostility which may be aroused
in the public by the content of speech or message conveyed by the festival. [Beginning of a new
paragraph in the 2000 Festival Ordinance] Except as provided in subsection (b) of this section, under
no circumstances shall the %(c%(Chief of %(s%(Staff approve %(the%( any permit %(if the%( which
allows the applicant %(proposes%( to limit the use of public streets by pedestrians using the
street%(s%( to move from location to location or %(if the applicant proposes%( to limit the use of
the public parks when use of the park%(s%( by the general public shall not unreasonably disturb the
activities of the %(planned%( festival. Nothing in this section shall be construed to prohibit the
imposition of reasonable restrictions on the movement of the general public which are necessary for
the carrying out of the festival; however, such restrictions shall not bar the admission of any member
of the public on the grounds of race, color, religion, gender, gender identity, sexual orientation, age,
disability or national or ethnic origin.

(b) Streets may be closed, portions of streets and parks may be gated, and an admission fee
may be charged %(by the applicant%( in connection with an outdoor festival at the discretion of the
%(c%(Chief of %(s%(Staff after consultation with the Chief of P%(p%(olice chief, the %(f%(Fire
%(c%(Chief and c%(C%(ommissioners of %(p%(Public %(w%(Works and of %(p%(Parks,
%(r%(Recreation and %(c%(Cultural affairs, as may be appropriate, %(having%( due regard being
given to %(for%( the public safety and environmental effects of such closing, provided that all
reasonable steps are taken to minimize the adverse effect such closings may have upon the public.
In no event, however, shall Peachtree Street or Peachtree Road or any portion thereof which lies
within the %(c%(City be closed by the %(c%(Chief of %(s%(Staff, without the approval of Council
by resolution %(; authority for the closing of any portion of the Peachtree %(%(Corridor must be
by resolution of the city council%(. In the event that an event is gated, no person shall be barred
from entering the gated area on the grounds of race, color, religion, gender, gender identity, sexual
orientation, age, disability or national or ethnic origin.

(c) For classification purposes, the %(c%(Chief of %(s%(Staff shall evaluate the application
by the following criteria:

(1) The anticipated amount of extra personnel hours [extra personnel hours is italicized in
the 2000 Festival Ordinance], as defined in this article, which shall be required to be furnished by
the %(c%(City in order to accomplish the necessary %(public safety and%( %(sanitation %(
administrative, sanitary, and oversight components of the festival. By agreement, as endorsed upon
the permit or in a separate contract, the applicant may furnish some of the personnel %(to%(
required%(;%(, in which event %(and%( the anticipated calculation of the extra personnel hours
[extra personnel hours is italicized in the 2000 Festival Ordinance] may be %(requirements for
classification purposes shall be considered as %(reduced%(s%( accordingly.

%((2) The type and amount of city services required other than extra personnel hours.%(

(2) %((3)%(The anticipated number of persons attending the event over the entire period of
the festival. In estimating this number, no regard shall be given to any estimate of the number of
persons who may be anticipated to be in the vicinity of the festival as counter-demonstrators or to

14
show hostility to any message the festival may be perceived as having. Nor shall there be any
consideration of the content of any speech or message which may be conveyed by such festival, nor
by any considerations concerning the identity or associational relationships of the applicant, nor to
any assumptions or predictions as to the amount of hostility which may be aroused in the public by
the content of speech or message conveyed by the festival. Unless such estimate shall appear to have
been made in palpable bad faith or otherwise grossly in error, the Chief of Staff shall be guided by
the estimate provided by the applicant. If the Chief of Staff determines not to adopt the estimate
given by the applicant, he shall state the reasons in writing on the permit.

(d) The classes of outdoor festival permits and the evaluated factors %(of%( for each class
shall be as follows:

(1) Class A permit. For a festival which will require between 100 and 300 extra personnel
hours and for which the attendance is anticipated to be in excess of 50,000 persons over the entire
period of the festival.

(2) Class B permit. For a festival which will require between 50 and 100 extra personnel
hours and for which the attendance is anticipated to be between 20,000 and 50,000 persons over the
entire period of the festival.

(3) Class C permit. For a festival which will require between 25 and 50 extra personnel
hours and for which the attendance is anticipated to be between 10,000 and 20,000 persons over the
entire period of the festival.

(4) Class D permit. For a festival which will require between %(three%( 3 and 25 extra
personnel hours and for which %(the anticipated%( attendance is anticipated to be between 2,000
and 10,000 persons over the entire period of the festival.

(5) Class E permit. For a festival which will require between fewer than %(three%( 3 extra
personnel hours and for which the attendance is anticipated to be %(between%( %(100 and%( fewer
than 2,000 persons over the entire period of the festival.

Section 138-205. Permit fees.

[The 2000 Festivals Ordinance does not present the fee schedule in tabular form. Rather than
reproducing the new format of the 2000 Festivals Ordinance fee schedule we have noted the changes
in the tabular format utilized in the 1994 Festivals Ordinance.]

(a) The application fee for each classification of permit shall be as follows: ... (b) %(If%(
After the chief of staff approves the issuance of the permit%(, as provided in section 138-204,%( the
applicant may obtain such permit by agreeing to accept the classification and conditions imposed
%(by the chief of staff%( in accordance with this article and by paying the applicable permit fee and
sanitation deposit fee%(.%(, %(Such%( which fees shall be determined according to the following
schedule:

Appli- Permit Sani- Class Atten- Extra

15
cation Fee tation dance Per-

Fee Deposit sonnel

Fee Hours

$50.00 $6,000.00 $500.00 A 50,000+ 100-

300

50.00 2,000.00 300.00 B 20,000! 50-

50,000 100

50.00 1,000.00 150.00 C 10,000! 25-50

20,000

50.00 500.00 75.00 D 2,000! 3-25

10,000

20.0050.00 75.00 20.00 E 100! 3

2,000 3

%((b)%( (c) To the extent that a%(A%(ny festival may require %(ing in excess of the
%(extra personnel hours [italicized in the 2000 Festival Ordinance] %(and city services%( in excess
of those %(anticipated in the application and%( endorsed up on the permit, the applicant shall be
required to reimburse %( the city for%( the cost of such additional extra %(excess%( personnel
hours [excess personnel hours is italicized in the 2000 Festival Ordinance]%(and services in addition
to the initial permit fee %( to the extent that they exceed the sum of $500.00, and only to such extent,
provided that the Chief of Staff, in order to impose such additional amount, must mail or deliver an
invoice for such additional amount to the applicant no later than sixty (60) days after the last date
of such festival

%((c)%( (d) Upon satisfactory completion of the sanitation deposit agreement, and provided

16
in grammar or word choice, the 2000 Festival Ordinance differs from the 1994 Festival Ordinance in the

following respects: it (1) specifically excludes the hours of police officers from the definition of extra

personnel hours, (2) adds to the definition of outdoor festival the explanation that such a festival "requires

the erection of stages, barricades, utility poles, booths, tents, or other temporary structures, or the use of

parked vehicles or of permanent structures," 2000 Festival Ordinance, § 138-187, (3) removes the exclusion

of political demonstrations from the definition of an outdoor festival, (4) excludes from the definition of an

outdoor festival any event with a scheduled duration of less than three hours, (5) requires that any time, place,

manner restrictions imposed by the chief of staff for the issuance of a permit be based upon constitutional

criteria, (6) adds additional bases—color, gender identity, and disability—upon which festival applicants are

forbidden from discriminating, (7) specifically directs the applicant not to include counter-demonstrators in

their estimate of the anticipated attendance, (8) directs the chief of staff to utilize the applicant's estimated

attendance for classification of the festival unless the estimate was made in bad faith, and (9) establishes a

deadline by which the City must bill the applicant for excess extra personnel hours expended on the festival.

These changes do narrow the scope of events which will be governed by the 2000 Festival Ordinance;

however, they do not substantially alter the appellants' argument that the ordinance is content-based because

it discriminates against various messages based upon the size of crowd gathered and the manner in which the

message is conveyed. The appellants' argument that the narrow-tailoring requirement is not satisfied because

the City does not have a legitimate interest in its stated purpose of assuring security and public safety and

avoiding scheduling conflicts is not affected by the changes incorporated in the 2000 Festival Ordinance.

Similarly, the appellants' argument that the 1994 Festival Ordinance does not leave open adequate alternative

channels of communication is not impacted by the 2000 Festival Ordinance because it neither opens nor

closes any additional channels of communication. Finally, the appellants' arguments that the fee schedule

in the 1994 Festival Ordinance is unconstitutional because the fees imposed are more than nominal and the

that no further amount to due as set forth in subsection (c) above, the sanitation deposit fee shall be
refunded to the applicant.

17
fees are content-based are unaffected because the fees imposed remain almost completely identical and

continue to be calculated based upon a sliding scale considering estimated attendance in the 2000 Festival

Ordinance.11

Accordingly, we conclude that the issues presented on appeal have not been made moot by the repeal

of the 1994 Festival Ordinance and simultaneous enactment of the 2000 Festival Ordinance. See Crosby v.

Hosp. Auth. of Valdosta and Lowndes County, 93 F.3d 1515, 1534 (11th Cir.1996) (" 'Thus a superseding

statute or regulation moots a case only to the extent that it removes challenged features of the prior law.' ")

(quoting Naturist Soc'y, 958 F.2d at 1520).12 It is reasonable to expect that the alleged constitutional

violations resulting from the enforcement of the provisions of the 1994 Festival Ordinance validated by the

district court will continue with the enforcement of the 2000 Festival Ordinance. Therefore, we must consider

the merits of the appellants' arguments by reviewing the 2000 Festival Ordinance. See Naturist Society, 958

at 1519-20 (explaining that "[w]here a statute is amended after the entry of judgment in the trial court, but

before the decision of the appellate court, the appellate court must 'review the judgment of the district court

in light of [the] law as it now stands, not as it stood when the judgment below was entered.' ") (quoting

Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d

567 (1972) (alteration in original)).

11
We note that the 2000 Festival Ordinance's specific directive for applicants not to consider potential
counter-demonstrators when estimating attendance and the removal of the hours worked by police officers
from the extra personnel hours component of the fee schedule make it more difficult for the City to
manipulate the fees based on the content of a festival's message and eliminates a portion of the appellants'
arguments regarding the constitutionality of the fees; however, they do not satisfy all the appellants'
challenges against this portion of the ordinance. Therefore, we conclude that the gravamen of the appellants'
complaint remains unaffected.
12
Additionally, we note that a finding on our part that the provisions of the 1994 Festival Ordinance
challenged on appeal are unconstitutional would provide the appellants relief from those alleged constitutional
deprivations that they have suffered and presumably will continue to endure under the 2000 Festival
Ordinance despite the district court's earlier finding that other portions of the 1994 Festival Ordinance were
unconstitutional. The ability of this court to provide such relief further indicates that this appeal is not moot.
See City of Erie, 120 S.Ct. at 1390 (concluding that "the availability of ... relief is sufficient to prevent the
case from being moot").

18
C. Ripeness

Like mootness, "[t]he ripeness doctrine 'prevent[s] the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements.' " Wilderness Soc'y v. Alcock, 83 F.3d

386, 390 (11th Cir.1996) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18

L.Ed.2d 681 (1967)) (second alteration in the original). Nonetheless, our conclusion that the issues presented

on appeal are not moot does not automatically suggest that the appeal is ripe for adjudication. To determine

whether a claim is ripe we must " 'evaluate both the fitness of the issues for judicial decision and the hardship

to the parties of withholding court consideration.' " Id. Specifically we " must examine ' " 'whether there is

sufficient injury to meet Article III's requirement of a case or controversy, and if so, whether the claim is

sufficiently mature, and the issues sufficiently defined and concrete to permit effective decision-making by

the court.' " ' " Georgia Advocacy Office, Inc. v. Camp, 172 F.3d 1294, 1298-99 (11th Cir.1999) (quoting

Socialist Workers Party, 145 F.3d at 1244 (quoting Digital Properties, Inc. v. City of Plantation, 121 F.3d

586, 589 (11th Cir.1997) (quoting Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir.1995)))).

We acknowledge that changes to the 1994 Festival Ordinance enacted by the City in the 2000

Festival Ordinance have not been reviewed by the district court. We leave it for the appellants to challenge

the constitutionality of those provisions which have been substantially altered by the 2000 Festival Ordinance

in the district court. The district court should review those provisions in the first instance and determine

whether the City's changes to the ordinance comport with the requirements of the district court's order and

whether those provisions, as amended, pass constitutional muster. However, the provisions of the 1994

Festival Ordinance challenged on appeal—those found by the district court to be constitutional—remain

predominantly unchanged by the enactment of the 2000 Festival Ordinance. Therefore, we conclude that the

alleged injury suffered by the appellants via the validated provisions satisfies Article III's requirement of a

case or controversy, their claim is sufficiently mature, and the issues presented on appeal are sufficiently

defined and concrete to permit effective decision-making by the court. Accordingly, the issues presented by

19
the appellants are ripe for our review despite the fact that it remains the province of the district court to review

the material changes enacted by the 2000 Festival Ordinance.

II. CONSTITUTIONALITY

Turning to the merits of the appeal, we review the district court's determination of the "constitutional

facts" in a First Amendment case de novo. Falanga v. State Bar of Ga., 150 F.3d 1333, 1335 (11th Cir.1998).

Additionally, we consider the appellants' arguments that the 1994 Festival Ordinance is unconstitutional by

analyzing the 2000 festival ordinance. See Naturist Soc'y, 958 at 1519-20 ("Where a statute is amended after

the entry of judgment in the trial court, but before the decision of the appellate court, the appellate court must

'review the judgment of the district court in light of [the] law as it now stands, not as it stood when the

judgment below was entered.' ") (quoting Diffenderfer, 404 U.S. at 414, 92 S.Ct. at 575 (alteration in

original)); see also Crosby, 93 F.3d at 1533-34 (reviewing the "current statute as amended" to consider the

issue presented on appeal); Church of Scientology I, 777 F.2d at 606 n. 22. (noting that "[t]here are numerous

cases illustrating the principle that where a challenged ordinance is amended during litigation the appropriate

course is to proceed to a consideration of the amended ordinance").

Like the 1994 Festival Ordinance, the 2000 Festival Ordinance imposes a prior restraint on conduct

protected by the First Amendment. Therefore, in order to be considered constitutional, the 2000 Festival

Ordinance must meet the requirements for reasonable time, place and manner restrictions of protected speech

in public fora. As such, the 2000 Festival Ordinance must be "(1) ... content neutral, (2) ... narrowly tailored

to serve a significant governmental interest, and (3) leave open ample alternative channels for communication

of the information." Int'l Caucus of Labor Comm. v. City of Montgomery, 111 F.3d 1548, 1551 (11th

Cir.1997).

A. Content-Neutrality

20
 We first consider the appellants' argument that the 2000 Festival Ordinance is content-based.13 See

Nationalist Movement v. City of Cumming, Forsyth County, Ga., 913 F.2d 885, 888 (11th Cir.) ("Our method

of determining the constitutionality of the ordinance depends initially on whether it regulates expressive

activity on the basis of content."), vacated and reh'g granted by, 921 F.2d 1125 (1990), reinstated on reh'g,

934 F.2d 1482 (1991), aff'd on other grounds by, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). The

appellants argued that the 1994 Festival Ordinance is content-based and point to the festival ordinance's

distinction between "political demonstrations" and "entertainment, dancing, music, dramatic productions, art

exhibitions, [and] parades" as support for their argument. R1-2-Ex. A, § 138-187. According to the

appellants, because dancing, music, dramatic productions, art exhibitions, and parades are all expressive

activities protected by the First Amendment just as is the expressive conduct associated with a political

demonstration, the 1994 Festival Ordinance's distinction between these forms of expressive conduct equates

to disparate treatment of protected conduct on the basis of its content.

This argument is not relevant to the 2000 Festival Ordinance because it does not make a distinction

between political demonstrations and other forms of expressive conduct. The 1994 Festival Ordinance

defined an outdoor festival in § 138-187 to exclude "events which are solely parades, footraces or political

demonstrations unless such parade, footrace or political demonstration is proposed as an integral part of a

larger festival." The 2000 Festival Ordinance, however, only excludes from the definition of an outdoor

festival those "events which are solely parades, unless such parade is proposed as an integral part of a broader

outdoor festival. Also excluded from the definition of 'outdoor festival' herein is any event with a scheduled

duration of three (3) hours or less." Ordinance No. 99-O-1040, § 138-187.14

13
Although the appellants make all their arguments with regard to the 1994 Festival Ordinance, because
we are required to review the 2000 Festival Ordinance when considering the issues presented on appeal and
because they remain substantially unchanged, we will apply the appellants' arguments to the 2000 Festival
Ordinance.
14
We note that the "savings clause" added to the 2000 Festival Ordinance effectively excludes political
demonstrations from the ambit of the ordinance in the same way that the exclusion of political demonstrations

21
 Like the district court, we conclude that, upon examining the intent behind the 2000 Festival

Ordinance, it is evident that the City adopted the ordinance in an effort to manage effectively and efficiently

the use of the City's parks and other resources by the sponsors of large festivals, not because of a

disagreement with the message conveyed by any particular festival. See Ward v. Rock Against Racism, 491

U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989). The 2000 Festival Ordinance applies equally

to all festivals of any kind without regard to the content of any message the festival sponsor might convey.

The 2000 Festival Ordinance only distinguishes between various festivals or similar gatherings on the basis

of physical attributes, not content. The 2000 Festival Ordinance defines an Outdoor Festival as an event

including various forms of expressive conduct "and which requires the erection of stages, barricades, utility

poles, booths, tents, or other temporary structures, or the use of parked vehicles or of permanent structures."

Ordinance No. 99-O-1940, § 138-187. These criteria attempt to identify those outdoor events which will

require additional municipal services. It does not attempt to create distinctions based upon the content of the

speech and the 2000 Festival Ordinance specifically forbids the Chief of Staff from basing the decision to

grant a festival permit on the content of speech or message conveyed by the festival. See Ordinance No. 99-

O-1940, § 138-203. By distinguishing events which require additional city resources based upon their

physical attributes, the City can schedule and coordinate the municipal services required to ensure public

safety and otherwise accommodate these large public gatherings. Therefore, because the 2000 Festival

Ordinance "serves purposes unrelated to the content of expression" and is " 'justified without reference to the

content of the regulated speech,' " we, like the district court, conclude that it is content-neutral. Ward v. Rock

Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989) (citations omitted).

from the definition of an Outdoor Festival did in the 1994 Festival Ordinance. Compare 1994 Festival
Ordinance § 138-187 (excluding political demonstrations from the definition of an Outdoor Festival and
defining a political demonstration as "a public gathering, procession or parade, the primary purpose of which
is the exercise of the rights of assembly and free speech as guaranteed by the first amendment to the
Constitution of the United States") with 2000 Festival Ordinance § 138-209 (stating that "[n]othing in this
article shall be construed to prevent members of the public from assembling in the parks or streets for the
purpose of making any speech or conveying any message to the public or government without holding an
outdoor festival permit pursuant to this article").

22
B. Narrowly Tailored

The appellants also argue that the 2000 Festival Ordinance is not narrowly tailored to serve a

significant governmental interest. The appellants question the legitimacy of the city's stated purposes of

assuring security and public safety, as well as avoiding scheduling conflicts. "To demonstrate the

significance of its interest, the City is not required to present detailed evidence ...,[but] is 'entitled to advance

its interests by arguments based on appeals to common sense and logic.' " International Caucus of Labor

Comm., 111 F.3d at 1551 (quoting Multimedia Publishing Co. of S. Carolina, Inc. v. Greenville-Spartanburg

Airport, 991 F.2d 154, 160 (4th Cir.1993)). Taking a common sensical approach, we find it obvious that the

City has a significant interest in regulating the use of its parks and streets by large groups. Certainly, the City

needs advance notice and the cooperation of organizers to plan the services, such as security, sanitation, and

traffic control, that are required for an event which, like the Pot Festival, attracts approximately 30,000

participants. It is only logical that a framework is needed for the City to work with the organizers of a large,

multi-faceted event in order to coordinate the City's resources to successfully accommodate the event. The

2000 Festival Ordinance provides such a framework.

Since we conclude that the City's stated purposes for the 2000 Festival Ordinance are legitimate and

significant interests of the City, we must determine whether there is a "reasonable fit" between those interests

and the 2000 Festival Ordinance, as the City's chosen means for serving them. City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 416, 113 S.Ct. 1505, 1510, 123 L.Ed.2d 99 (1993). In this analysis, the City

bears the burden of demonstrating a "logical and practical relationship between the restriction and [its]

interests, so that [we] may determine whether the restriction is substantially broader than is necessary to

achieve those ends." Nationalist Movement, 913 F.2d at 890. However, the City need not prove that the 2000

Festival Ordinance is the least restrictive means of serving them, see Jim Gall Auctioneers, Inc. v. City of

Coral Gables, 210 F.3d 1331, 1333 (11th Cir.2000) (quoting Smith v. City of Fort Lauderdale, Fla., 177 F.3d

954, 957 (11th Cir.1999)); "[t]he requirement of narrow tailoring is satisfied 'so long as the ... regulation

23
promotes a substantial government interest that would be achieved less effectively absent the regulation.' "

Rock Against Racism, 491 U.S. at 799, 109 S.Ct. at 2758 (alteration in original) (citation omitted). The

district court determined that portions of the 1994 Festival Ordinance were not narrowly tailored to meet the

City's interests because they granted the chief of staff unfettered discretion. The appellants challenge the

conclusion that other portions of the 2000 Festival Ordinance satisfy the narrow tailoring requirement.

1. Section 138-187

After reviewing the 2000 Festival Ordinance, we conclude that the district court properly determined

that § 138-187 is narrowly tailored to exclude those events which do not require additional governmental

services and therefore do not logically fit within the scope of the City's interests. We note that the addition

of the description of events "requir[ing] the erection of stages, barricades, utility poles, booths, tents, or other

temporary structures, or the use of parked vehicles or of permanent structures," Ordinance No. 99-O-1940,

§ 138-187, in the 2000 Festival Ordinance further limits the universe of events that will fall within the

parameters of the 2000 Festival Ordinance regulations and, thus, does not burden " 'substantially more speech

than is necessary to further the government's legitimate interest.' " Smith, 177 F.3d at 956 (quoting One

World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1287 (11th Cir.1999)) (second citation

omitted).

2. Section 138-204

The district court also determined that § 138-204(a) and (b) was not unconstitutional because it

primarily granted the Chief of Staff the authority to impose restrictions on the applicants after their festival

permit had been approved. The district court did note that § 138-204 required the chief of staff to deny any

application where the applicant "proposes to limit the use of public streets by pedestrians using the streets to

move from location to location or if the applicant proposes to limit the use of public parks when use of the

parks by the general public shall not unreasonably disturb the activities of the planned festival," but concluded

that this restriction was "narrowly tailored to meet its justification." R2-37 at 34-35. This restriction remains

24
in force in the 2000 Festival Ordinance. We, likewise, conclude that this restriction does not overburden

festival permit applicants because, as the Supreme Court has noted "[m]unicipal authorities, as trustees for

the public, have the duty to keep their communities' streets open and available for the movement of people

and property, the primary purpose to which the streets are dedicated." Schneider. v. State of New Jersey,

Town of Irvington, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). See also Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 296, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984) (recognizing

the government's "substantial interest in maintaining the parks ... in an attractive and intact condition, readily

available to the millions of people who wish to see and enjoy them)." Therefore, we conclude that the district

court properly determined that the above provisions satisfied the requirement of being narrowly tailored to

serve the City's significant interests.

C. Alternative Channels of Communication

The appellants also contend that the 2000 Festival Ordinance does not provide effective access to

alternative avenues for communication of their message. The appellants assert that use of the city park for

the Pot Festival is "absolutely essential" for them to convey their message to the intended audience.

Appellants' Brief at 19. Additionally, the appellants argue that they absolutely require lighting, electricity,

barricades, and stage covers to effectively convey their message.

The City can satisfy the requirement that alternative channels of communication remain open to

CAMP even if those channels "may be less effective than [CAMP] would prefer." ISKCON Miami, Inc. v.

Metropolitan Dade County, 147 F.3d 1282, 1290 (11th Cir.1998). As the district court found when it denied

CAMP's request for a preliminary injunction, CAMP may hold a political demonstration and concert in a city

park without a festival permit. See R2-37 at 6. Therefore, CAMP still has the opportunity to communicate

its message advocating changes in the marijuana laws without a festival permit. Section 138-209 of the 2000

Festival Ordinance specifically limits the application of the 2000 Festival Ordinance and provides that

"[n]othing in this article shall be construed to prevent members of the public from assembling in the parks

25
or streets for the purpose of making any speech or conveying any message to the public or to the government

without holding an outdoor festival permit." Ordinance No. 99-O-1940, § 138-209. Those individuals who

organize an assembly without an outdoor festival permit are only limited in the sense that they are not

"entitled to the benefits of [the new festival ordinance], including but not limited to, the right to erect stages,

barricades, utility poles, booths, tents, or other temporary structures, or the use of parked vehicles or of

permanent structures, or to the assistance of city personnel in carrying out their event." Id. Lighting, stage

covers, electricity, barricades, or any of the other benefits conferred by an outdoor festival permit are not

essential to CAMP's message, rather they are convenient mechanisms for increasing the efficiency with which

CAMP might choose to communicate its message. Accordingly, we conclude that ample alternatives remain

available to CAMP for communicating its message despite the restrictions created by the 2000 Festival

Ordinance.

D. Section 138-205: Festival Permit Fees

The appellants argue that the fees required for the grant of a festival permit are unconstitutional

because the required fees are manipulated according to the content of the speech and they are more than

nominal. The Supreme Court has authorized a municipality to charge "fees for the use of the public streets

only when such fees are both nominal and related to the expenses incidental to the policing of the event" Cent.

Fla. Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1522 (11th Cir.1985) (interpreting Murdock v. Com.

of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943)). In § 138-205, the 2000 Festival

Ordinance requires the each applicant for a festival permit to pay a $50 application fee. Upon approval, each

applicant is required to pay a permit fee and sanitation deposit fee. The total amount of these fees ranges

from $6,500 to $95, based upon a sliding scale which considers the number of persons expected to attend the

event and the number of extra personnel hours which the City will expend on the festival, excluding the hours

spent on the festival by the City's Special Events Coordinator, police officers, and any person with a ranking

of bureau director or higher. Applicants have the opportunity to reduce the fee by supplying some of the

26
personnel required when calculating the extra personnel hours for which the City anticipates paying.

Additionally, the sanitation deposit fee will be returned to the applicant after they have completed the

sanitation deposit agreement by cleaning the festival area of litter and debris and restoring parks and streets

damaged in connection with the festival. The applicant is also required to reimburse the City for the cost of

any extra personnel hours which exceed those provided for in the festival permit fee.

The district court, reviewing the markedly similar fee provisions of the 1994 Festival Ordinance,

found that the initial fee schedule was "both reasonable and content neutral." R2-37 at 38. Additionally, the

district court concluded that the fees satisfied the requirement of being nominal because they "actually reflect[

] administrative costs." Id. at 41 n. 20. Therefore, the district court concluded that the imposition of fees as

provided in § 138-205 "does not unconstitutionally burden the free exercise of speech ... [because a]

municipality can impose a reasonable fee on certain kinds of expressive activities to recover its costs, so long

as the charge imposed does not exceed the administrative costs of regulating the protected activity." Id. at

36.

We agree with the district court that the fees assessed under § 138-205 are content neutral. CAMP

argues that the fees are content-based because (1) they are based on anticipated attendance at the festival and,

thus, discriminate against festivals which attract larger crowds and (2) the number of extra personnel hours

charged to the festival can be manipulated so as to accomplish content-based discrimination.15 The fees are

calculated based upon a sliding scale where the variables only include the extra personnel hours the City will

expend and the anticipated number of individuals who will attend the festival.

15
CAMP specifically argued that the police could clearly manipulate their estimate of the number of
police officers required for the festival. This specific argument is no longer relevant in the context of the
2000 Festival Ordinance because the 2000 Festival Ordinance excludes the hours worked by police officers
from the total number of extra personnel hours expended by the City on a particular festival. Therefore, we
consider their argument in the context of the larger question of whether the extra personnel hours charged to
a festival by the City is manipulable according to the message a festival might seek to convey.

27
 When determining the anticipated attendance for the festival, "the Chief of Staff shall be guided by

the estimate provided by the applicant, ... [u]nless such estimate shall appear to have been made in palpable

bad faith or otherwise grossly in error." Ordinance No. 99-O-1940, § 138-204(c)(2). "If the Chief of Staff

determines not to adopt the estimate given by the applicant, he shall state the reasons in writing on the

permit." Id. Further, the 2000 Festival Ordinance makes clear that "no regard shall be given to any estimate

of the number of persons who may be anticipated to be in the vicinity of the festival as counter-demonstrators

or to show hostility to any message the festival may be perceived as having." Id. These provisions assure that

the estimate of anticipated attendance is not manipulated in order to burden unconstitutionally speech based

upon its content.

Moreover, CAMP's argument that the fee schedule is content-based because higher fees are charged

for those festivals where the anticipated attendance is larger contradicts the reasoning of the Supreme Court

in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). There, the Court, considering

a parade licensing fee which was adjusted to consider the comparatively greater expense of "policing" an

expansive event, rejected the notion that a municipality should charge a flat fee for all parades and explained

that the court "perceived no constitutional ground for denying to local governments that flexibility of

adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the

liberty sought." Id. at 577, 61 S.Ct. at 766. Similarly, in Murdock v. Pennsylvania, 319 U.S. 105, 113-14,

63 S.Ct. 870, 875, 87 L.Ed. 1292 (1943), the Supreme Court found a local ordinance charging a flat fee per

day for a license to canvass or solicit within the locality to be unconstitutional because "the license tax [wa]s

fixed in amount and unrelated to the scope of the activities of petitioners or their realized revenues." It is only

logical that the City's costs for supporting a festival will be increased in some proportion to the number of

individuals attending the festival. Therefore, we conclude that fees based upon a sliding scale considering

the anticipated attendance of the festival are not content-based but, instead, are reasonably related to "the

expenses of policing the activities in question." Murdock, 319 U.S. at 113-14, 63 S.Ct. at 875.

28
 Under the 2000 Festival Ordinance, the number of extra personnel hours required for a festival is

determined by the Chief of Staff. After a completed application has been submitted to the City's Special

Events Coordinator, copies of the application are forwarded to the Departments of Police, Fire, Public Works,

Parks, Recreation and Cultural Affairs, the Bureau of Buildings, and the affected Neighborhood Planning

Unit. These departments each estimate the number of extra personnel hours that will be required by their

department for the festival in question. The definition of extra personnel hours excludes the personnel hours

worked by the City's Special Events Coordinator, any City employee at the level of bureau director or higher,

and all police officers. The applicant may enter a separate contract with the City whereby the applicant

furnishes some of the personnel required and, therefore, reduces the calculation of extra personnel hours and

the associated fee.

While the 2000 Festival Ordinance does not provide the various department heads specific criteria

for determining the number of extra personnel hours that will be required by their department to support a

particular festival, section 138-203(b)(3) provides the admonition that "no consideration may be given to the

message of the festival, nor to the content of speech, nor the identity or associational relationships of the

applicant, nor to any assumptions or predictions as to the amount of hostility which may be aroused in the

public by the content of speech or message conveyed by the festival." Ordinance No. 99-O-1940, § 138-

203(b)(3). Further, § 138-203(b)(5) provides that "[n]o applicant for, or recipient of, an outdoor festival

permit shall be required to provide for, or pay for the cost of, public safety personnel necessary to provide

for the protection of a festival and its attendees from hostile members of the public or counter-demonstrators,

or for traffic control, or for general law enforcement in the vicinity of the festival." Ordinance No. 99-O-

1940, § 138-203(b)(5).

These provisions avoid the problem created by the ordinance which the Supreme Court found to be

facially unconstitutional in Forsyth County, Ga., 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101. That

ordinance authorized the county administrator to assess a fee covering " ' "the expense incident to the

29
administration of the Ordinance and to the maintenance of public order in [the parade, procession, of open

air public meeting] licensed." ' " Id. at 126-127, 112 S.Ct. at 2399 (citations omitted). The county's intent

was for the fee to also cover " 'the cost of necessary and reasonable protection of persons participating in or

observing said ... activit[y].' " Id. at 134, 112 S.Ct. at 2403 (quoting App. to Pet. for Cert. 100) (alteration

in original). The Supreme Court found that this fee scheme was an impermissible content-based restriction

on speech because "[t]he fee assessed will depend on the administrator's measure of the amount of hostility

likely to be created by the speech based on its content." Id. The Supreme Court noted that "[s]peech cannot

be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile

mob." Id. at 134-135, 112 S.Ct. at 2404. See also Cent. Fla. Nuclear Freeze Campaign, 774 F.2d at 1525

(concluding that the presence of out-of-town demonstrators and the potential for hostile counter activity are

factors that "cannot be considered in fixing the costs of protection to those asking to exercise their First

Amendment rights" ). Additionally, the festival applicant's ability to negotiate the number of extra personnel

hours assessed to the festival and enter a separate contract with the City whereby they agree to supply some

of the personnel required in the City's calculation of the extra personnel hours it will expend supporting the

festival strongly mitigates against the danger of any content-based discrimination creeping into the City's

analysis of the number of extra personnel hours required for a festival.

The 2000 Festival Ordinance is not a content-based prior restriction on speech. Not only does the

new festival ordinance specifically direct the chief of staff not to consider "the amount of hostility which may

be aroused in the public by the content of speech or message conveyed by the festival" when determining

where the festival should be classified on the fee scale and what the amount of the resulting permit fee should

be, but it also excludes from the calculation of the permit fee those extra personnel hours expended by the

city for police or other "public safety personnel necessary to provide for the protection of a festival and its

attendees from hostile members of the public or counter-demonstrators, or for traffic control, or for general

law enforcement in the vicinity of the festival." Ordinance No. 99-O-1940, §§ 138-204(a)and 138-203(b)(5).

30
Further, the 2000 Festival Ordinance provides that "no regard shall be given to any estimate of the number

of persons who may be anticipated to be in the vicinity of the festival as counter-demonstrators or to show

hostility to any message the festival may be perceived as having" when estimating the number of individuals

expected to attend the festival and directs the Chief of Staff to use the applicants' estimate of attendance

unless it "appear[s] to have been made in palpable bad faith or otherwise grossly in error." Id. at § 138-

204(c)(2). Therefore, we conclude that the permit fees that festival organizers are required to pay by the 2000

Festival Ordinance are not content-based, nor are subject to manipulation predicated on the content of a

festival's perceived message. Cf. Stonewall Union v. City of Columbus, 931 F.2d 1130, 1135 (6th Cir.1991)

(finding that when an "ordinance contains objective standards related to traffic control and not related to

speculation about the potential for disturbances based on the parade's content, ... [then] the scheme for

assessing the costs of traffic control is not unconstitutional").

The appellants also argue that the fees imposed by the 2000 Festival Ordinance are more than

nominal. In Nationalist Movement, 934 F.2d at 1483, this court, sitting en banc, reinstated the panel decision

which refused to "stake out the outer limits of a 'nominal' charge," but held that a provision requiring "a

permit fee of up to $1,000 for each day that a parade or rally takes place exceeds the constitutional

requirement that such a charge be at most nominal." Nationalist Movement, 913 F.2d at 891. On appeal, the

Supreme Court agreed that the fee provision of the ordinance in question was unconstitutional because it was

a content-based, prior restraint on speech protected by the First Amendment, not because the $1,000 fee

imposed was more than nominal. See Forsyth County, Ga., 505 U.S. at 136, 112 S.Ct. at 2405. The Court

noted that "[a] tax based on the content of speech does not become more constitutional because it is a small

tax." Id. The Supreme Court also discussed our interpretation of Murdock as requiring that permit fees

imposed on protected speech be "nominal" and commented that the Supreme Court's language in Murdock

"does not mean that an invalid fee can be saved if it is nominal, or that only nominal charges are

constitutionally permissible." Id. at 137, 112 S.Ct. at 2405. The Chief Justice, in a dissent joined by Justices

31
White, Scalia, and Thomas, more explicitly explained that "[t]he use of the word 'nominal' in Murdock was

... a mistaken characterization of the fee statute in Cox ... [and] that the Constitution does not limit a parade

license fee to a nominal amount." Id. at 139-140, 112 S.Ct. at 2406 (Rehnquist, C.J. dissenting) (arguing that,

because the lower court had not based its decision upon the analysis adopted by the majority, the court should

remand so that the lower courts could first consider the issues presented).

We need not consider the impact of the Supreme Court's discussion of nominal fees in Forsyth

County, Ga. on our precedent requiring that the fees imposed on constitutionally-protected speech be nominal

because we hold that the fees imposed by the 2000 Festival Ordinance are nominal.16 The nominality of the

fees imposed by the 2000 Festival Ordinance must be considered in the context of the size of the festival to

which they apply. See Ordinance No. 99-01940 §§ 138-204(d) and 138-205(b) (imposing fees of $95 for a

festival where fewer than 2,000 persons are expected to attend and which requires fewer than 3 extra

personnel hours, $575 where expected attendance is between 2,000 and 10,000 people and the extra personnel

hours required are between 3 and 25, $1,150 when estimated attendance is between 10,000 and 20,000 and

16
While we do not specifically address the impact of the Supreme Court's holding in Forsyth County, Ga.
to our precedent, we note that the majority of our sister circuits have interpreted Forsyth County, Ga. as
making it constitutionally permissible for an ordinance regulating constitutionally protected activity to impose
a permit fee which is more than nominal so long as the permit fee is reasonably related to "the expense
incident to the administration of the act and to the maintenance of public order in the matter licensed." Cox
v. State of New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 766, 85 L.Ed. 1049 (1941). See American
Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1249 (10th Cir.2000) (upholding an act imposing a
registration fee on constitutionally protected activity that "does no more than defray reasonable administration
costs"); Northeast Ohio Coalition for the Homeless v. City of Cleveland, 105 F.3d 1107, 1110 (6th Cir.1997)
(holding that "a more than nominal permit fee is constitutionally permissible so long as the fee is 'reasonably
related to the expenses incident to the administration of the ordinance and to the maintenance of public safety
and order' "); MacDonald v. Chicago Park Dist., 132 F.3d 355, 362-63 (7th Cir.1997) (finding it unlikely
that a plaintiff could show that the fee provision of a ordinance was facially unconstitutional when the fees
were set according to a content-neutral schedule); Nat'l Awareness Found. v. Abrams, 50 F.3d 1159, 1165
(2nd Cir.1995) (holding that "fees that serve not as revenue taxes, but rather as means to meet the expenses
incident to the administration of a regulation and to the maintenance of public order in the matter regulated
are constitutionally permissible"); Center for Auto Safety, Inc. v. Athey, 37 F.3d 139, (4th Cir.1994)
(upholding a statute imposing fees on protected speech because the fees were narrowly tailored to further a
legitimate government purpose and the revenues raised by the fees do not exceed the costs of administering
the Statute).

32
25 to 50 extra personnel hours are required, $2,300 when estimated attendance is between 20,000 and 50,000

people and the extra personnel hours required is between 50 and 100, and $6,500 when more than 50,000

attendees are expected and between 100 and 300 extra personnel hours are required). We conclude that the

fees of imposed by the 2000 Festival Ordinance are nominal when balanced against the size of the festival

to which they are applied. The fees are imposed based upon a sliding scale considering the relevant factors

which impact the City's expense in supporting the event. The fees recoup the City's expenses in administering

the 2000 Festival Ordinance and supporting the outdoor festival in question. The parties do not contend that

the fees exceed those expenses or serve as a form of revenue tax. Additionally, applicants for an outdoor

festival permit have the opportunity to reduce the permit fees by entering a separate agreement with the City

whereby the applicant supplies some of the personnel which the City would ordinarily utilize to support the

festival. Similarly, the sanitation portion of the permit fees is returned to the applicant if it cleans up the

public spaces utilized for the festival. Therefore, we conclude that the fee schedule established by the 2000

Festival Ordinance is narrowly tailored to serve the City's legitimate interest in covering the cost of

supporting the outdoor festival and, therefore, is constitutionally permissible. See Murdock, 319 U.S. at 113-

14, 63 S.Ct. at 875 (striking down a fee that was not "imposed as a regulatory measure to defray the expenses

of policing the activities in question").

III. SUPPLEMENTARY JURISDICTION

The appellants argue that the district court erred by not exercising supplementary jurisdiction and

discussing their state law claim that the 1994 Festival Ordinance violated the Georgia Constitution. A court's

exercise of supplemental jurisdiction is statutorily controlled by 28 U.S.C. § 1367.17 As we have previously

17
The relevant portions of § 1367 provide the following:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so related
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. Such supplemental

33
held "whenever a federal court has supplemental jurisdiction under section 1367(a), that jurisdiction should

be exercised unless section 1367(b) or (c) applies." Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559,

1569 (11th Cir.1994) (remanding for the district court to consider, in the first instance, whether it had to

discretion under 18 U.S.C. § 1367(c) not to exercise supplemental jurisdiction over state law claims).

The appellants' state law claims satisfy the "same case and controversy" requirement of section

1367(a); therefore, the district court had the power to consider the appellants' claim that the 1994 Festival

Ordinance violated the Georgia Constitution. However, after stating that the 1994 Festival Ordinance

violated Article 1, Section 1, Paragraph 9 of the Georgia Constitution, see R1-1-3, and listing this alleged

violation as one of the legal issues to be tried in the Joint Preliminary Statement and Scheduling Order, see

R1-7-1, the appellants abandoned this argument. The appellants did not present this argument in their motion

for partial summary judgment, nor did they cite any authority for this argument in their Brief in Support of

Motion for Partial Summary Judgement or their Response to Defendants' Motion For Summary Judgement.

jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded solely
on section 1332 of this title, the district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20,
or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be
joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under
Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332.

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.

28 U.S.C. § 1367

34
See R1-18 at 2 and 4-17; R1-22. After the district court denied both the appellants' and the City's motion for

summary judgment, the appellants did not raise their argument that the 1994 Festival Ordinance violated the

Georgia Constitution in any documents submitted to the district court nor did they urge the issue upon the

district court during the two-day bench trial which it conducted. During his opening statement, counsel for

the appellants made the following statement regarding the scope of their case:

I DON'T WANT TO REPEAT WHAT I'VE SAID IN MY MOTION FOR SUMMARY
JUDGMENT OR WHAT I HAVE SAID IN THE BRIEF THAT I FILED LAST WEEK. JUST
SIMPLY WE WANT TO MAKE THREE POINTS.

ONE IS WE THINK THAT THE ORDINANCE ON ITS FACE IS UNCONSTITUTIONAL
BECAUSE OF THE IMMENSE DISCRETION THAT IT GIVES.

SECOND OF ALL, WE THINK THAT THE THINGS THAT WERE ASKED FOR
ORIGINALLY AND ARE ASKED FOR IN OUR COMPLAINT IN TERMS OF STAGE AND
LIGHTING AND ELECTRICITY AND BARRICADES AND SO ON IS IMPORTANT SOLELY
BECAUSE IT PROVIDES EFFECTIVE ACCESS. AND AS I POINTED OUT IN MY BRIEF, WE
ARE ENTITLED TO EFFECTIVE ACCESS EVEN IF WE ARE NOT ENTITLED TO THE MOST
EFFECTIVE ACCESS.

AND FINALLY I WANT TO POINT OUT THAT WHEN YOU HEAR, AS YOU HAVE
HEARD BEFORE, THE COMMENTS OF THE POLICE THAT YOU SIMPLY CANNOT BAR
AN EVENT BECAUSE OF PAST UNLAWFUL ACTIVITY EVEN, I MIGHT ADD, IF MY
CLIENT WERE THE ONE WHO HAD ADVOCATED THE PAST UNLAWFUL ACTIVITY,
AND THERE IS NO EVIDENCE OF THAT.

R3 at 4-5. The appellants did not discuss their assertion that the 1994 Festival Ordinance violated the Georgia

Constitution during the two-day trial before the district court and never cited any authority in support of the

argument prior to this appeal. The appellants' failure to brief and argue this issue during the proceedings

before the district court is grounds for finding that the issue has been abandoned. Fehlhaber v. Fehlhaber,

681 F.2d 1015, 1030 (5th Cir.1982) (citing U.S. v. Indiana Bonding & Surety Co., 625 F.2d 26, 29 (5th

Cir.1980) (finding that "[e]ven though [an] issue was listed as one of the defendant's contentions in the

pretrial order, and was thus presumably triable, [the defendant's] failure to present evidence in support of the

defense before the district court precludes our review of it [on appeal]")). Cf. McMaster v. United States, 177

F.3d 936, 940-41 (11th Cir.1999) (noting that a claim may be considered abandoned when the allegation is

35
included in the plaintiff's complaint, but he fails to present any argument concerning this claim to the district

court); Lyes v. City of Riviera Beach, Fla., 126 F.3d 1380, 1388 (11th Cir.1997) (noting that " 'the onus is

upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary

judgment are deemed abandoned' ") (citation omitted), reh'g granted and vacated by, 136 F.3d 1295 (1998),

reinstated by, 166 F.3d 1332, 1336 (11th Cir.1999) (en banc ); Road Sprinkler Fitters Local Union No. 669

v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (concluding that a district court "could properly

treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment").

We conclude that, because the appellants effectively abandoned in the district court their argument

that the 1994 Festival Ordinance violated the Georgia Constitution, there was no reason for the district court

to consider whether to exercise its discretion not to exercise supplemental jurisdiction under section 1367(b)

or (c). Accordingly, the district court did not err by failing to exercise supplementary jurisdiction and

discussing the appellants' claim that the 1994 Festival Ordinance violated the Georgia Constitution.

Similarly, because the issue was not appropriately raised in the district court, we will not consider the

appellants' arguments that the 2000 Festival Ordinance violates the Georgia Constitution. See Narey v. Dean,

32 F.3d 1521, 1526-27 (11th Cir.1994) (discussing the general rule that appellate courts do not consider

issues or arguments not raised in the district court and the five exceptions to that rule).

CONCLUSION

Reviewing the 2000 Festival Ordinance promulgated by the Atlanta City Counsel in response to the

district court's finding that portions of the 1994 Festival Ordinance were unconstitutional, we conclude that

those portions of the 2000 Festival Ordinance validated by the district court satisfy the requirements of a

constitutional time, place, manner restriction on constitutionally protected speech. The 2000 Festival

Ordinance is content-neutral, narrowly tailored to serve a significant government interest, and leaves open

ample alternative channels of communication. We also conclude that the appellants abandoned in the district

court their argument that the 1994 Festival Ordinance violated the Georgia Constitution. Therefore, the

36
district court acted properly in not exercising supplementary jurisdiction over this claim and we do not

consider it on appeal. Accordingly, we AFFIRM the holding of the district court.

COX, Circuit Judge, concurring in part and dissenting in part:

I join the part of the court's opinion that concludes that CAMP abandoned in the district court its

claims that the 1994 Festival Ordinance violated the Georgia Constitution. But because it appears to me that

the City of Atlanta's repeal of the 1994 Festival Ordinance and adoption of the 2000 Festival Ordinance moots

the claims that the 1994 Festival Ordinance violates the Federal Constitution, I respectfully dissent.

As the majority observes, "a superseding statute or regulation moots a case only to the extent that it

removes challenged features of the prior law. To the extent that those features remain in place, and changes

in the law have not so fundamentally altered the statutory framework as to render the original controversy

a mere abstraction, the case is not moot." Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th

Cir.1992). But "[w]here a law is amended so as to remove its challenged features, the claim for injunctive

relief becomes moot as to those features." Id. My comparison of the 1994 and 2000 ordinances and analysis

of the parties' arguments leads me to conclude that the superseding ordinance has materially altered the City's

approach to issuing festival permits, removing the challenged features of the prior ordinance and mooting

CAMP's claims for injunctive relief.

First, CAMP's facial attack on the 1994 Festival Ordinance as content-based appears to be moot.

CAMP argued that § 138-187 of the 1994 Festival Ordinance was impermissibly content-based because it

distinguished between "political demonstrations" and "entertainment, dancing, music, dramatic productions,

art exhibitions, [and] parades." As the majority notes, § 138-187 of the 2000 Festival Ordinance (unlike that

section in the 1994 Festival Ordinance) does not distinguish between political demonstrations and other

expressive conduct.1 Furthermore, the 2000 Festival Ordinance explicitly forbids the City's Chief of Staff

1
As noted by the majority, § 138-209 of the 2000 Festival Ordinance effectively excludes purely political
speech from coverage. CAMP has not argued, however, that § 138-209 of the 2000 Festival Ordinance is
impermissibly content-based, and this section provides a different mechanism for excluding purely political

37
from basing a permitting decision on the content of the speech or the message to be conveyed by the festival.

See Ord. No. 99-O-1940, § 138-204. Accordingly, the 2000 Festival Ordinance removed CAMP's

content-based challenge insofar as CAMP argued that the 1994 Festival Ordinance distinguished between

political demonstrations and other expressive conduct.

Also moot is CAMP's argument that the 1994 Festival Ordinance's fees were unconstitutional because

they were manipulable according to the content of the speech.2 CAMP argued that the City could manipulate

both the estimated attendance and the number of police officers required at a festival based on the content of

the message to be delivered. The 2000 Festival Ordinance removes these challenged attributes in four ways:

(1) the Chief of Staff is directed to be guided by the applicant's estimated attendance for classification of the

festival, unless the estimate was "made in palpable bad faith or otherwise grossly in error," and the Chief of

Staff must provide written reasons for declining to adopt the applicant's estimate; (2) the Chief of Staff is

directed not to consider counter-demonstrators in his evaluation of anticipated attendance; (3) the Chief of

Staff is directed not to consider the content of any speech or message to be conveyed by a festival permit

applicant;3 and (4) the personnel hours worked by police officers are excluded from the definition of "extra

personnel hours" to be billed to those who receive festival permits.4 In the absence of these challenged

features, CAMP's claim that the fee provisions are unconstitutional appears to be moot.

Finally, CAMP claimed that the 1994 Festival Ordinance's permitting requirements for "outdoor

festivals" were not narrowly tailored to serve a significant governmental interest and leave open ample

speech.

2
CAMP also argued that under the 1994 Festival Ordinance the permit fees were unconstitutional because
they were "not nominal," since they included the costs of additional police protection. CAMP's "not nominal"
challenge to the fees is intertwined with its content-based challenge. Therefore, I conclude that all of CAMP's
fee challenges are moot.
3
Ord. No. 99-O-1940, § 138-204(c)(2).

4
See Ord. No. 99-O-1940, § 138-187.

38
alternative channels of communication. The 2000 Festival Ordinance is more narrowly tailored and provides

additional alternative channels of communication; therefore, the original controversy between the parties is

no longer before us. The 2000 Festival Ordinance narrows the definition of "outdoor festival" in two ways.

First, an "outdoor festival" includes events that require "the erection of stages, barricades, utility poles,

booths, tents, or other temporary structures, or the use of parked vehicles or of permanent structures," in

addition to meeting the 1994 Festival Ordinance's definition. Ord. No. 99-O-1940 § 138-187. Second, any

event with a scheduled duration of three hours or less does not fall within the new "outdoor festival"

definition.5 See id. This second narrowing of the "outdoor festival" definition also permits additional

alternative means of communication. The 2000 Festival Ordinance also requires any time, place, and manner

restrictions imposed by the City's Chief of Staff to be based on constitutional criteria. See Ord. No. 99-O-

1940 § 138-204(a). The ordinance has been "sufficiently altered so as to present a substantially different

controversy from the one the district court originally decided." Northeastern Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 671, 113 S.Ct. 2297, 2306, 124 L.Ed.2d 586

(1993) (O'Connor, J., dissenting). I would therefore conclude that this claim is moot as well.

There must, of course, be a "present, live controversy in order to avoid advisory opinions on abstract

propositions of law." Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d 598, 604

(11th Cir.1985) (internal citation omitted). Because the 2000 Festival Ordinance removed the challenged

features of the 1994 Festival Ordinance, the original controversy has been rendered a mere abstraction. See

Naturist Soc'y, 958 F.2d at 1520. Accordingly, I would dismiss as moot CAMP's appeal challenging the

district court's conclusion that certain aspects of the 1994 Festival Ordinance are constitutional.

5
Although the majority correctly notes that there has been no alteration in § 138-204's requirement that
the Chief of Staff deny any application where the applicant proposes to limit the use of public streets and
parks under certain conditions, CAMP has not challenged on appeal this attribute of the ordinance.

39