The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Cross-Motions for Summary Judgment filed on October 27, 2008]
This case is another in the line of cases challenging, on First Amendment grounds, ordinances regulating vending on the Venice Beach Boardwalk. Asserting an action under 28 U.S.C. § 1983, Plaintiffs seek damages for First Amendment violations of three now-inactive Los Angeles City Ordinances: LAMC § 42.15 (2004), LAMC § 42.15 (2006), and LAMC § 63.44(B)(3), (7), (22) & (23). The parties filed Cross-Motions for Summary Judgment on the constitutionality of these ordinances. After reviewing the materials submitted by the parties and hearing oral argument, the Court grants Plaintiffs' Motion as to the 2004 version of § 42.15 because the ordinance was unconstitutionally vague, and grants Defendant's Motion as to the 2006 version of § 42.15 because Plaintiffs were not engaged in protected speech. Because Plaintiffs agreed at oral argument that their suit centers on the two versions of § 42.15, the Court does not address the challenged provisions of LAMC § 63.44(B).
Plaintiffs Michael Hunt ("Hunt") and Matthew Dowd ("Dowd") (collectively, "Plaintiffs") have brought suit against the City of Los Angeles ("City"), facially challenging various provisions of the Los Angeles Municipal Code.
A. Los Angeles Municipal Code §§ 42.15 (2004) & 42.15 (2006)
Speech and vending regulation on the Venice Beach Boardwalk has an extensive litigation history. As City ordinances have recognized, "the Boardwalk at Venice Beach is world-famous for its free performances and public expression activities." Leung Decl. Ex. 1 at 1 (LAMC § 42.15 (2004)). In addition to the cases on the topic that have come before this Court, the Ninth Circuit has considered prior versions of Los Angeles Municipal Code § 42.15, the ordinance at issue here. See Perry v. Los Angeles Police Dep't, 121 F.3d 1365 (9th Cir. 1997). This case challenges two versions of that ordinance.*fn1 In general, both versions of LAMC § 42.15 at issue here regulate vending on the west side of Venice Beach Boardwalk.
In 2004, City amended a prior version of § 42.15. As amended, § 42.15 (2004) prohibited persons from "hawk[ing], peddl[ing], vend[ing] or sell[ing], or request[ing] or solicit[ing] donations for, any goods, wares, merchandise, foodstuff or refreshments" on the Boardwalk. LAMC § 42.15(A). It contained an exception, however. Section 42.15(C) provided:
Nothing in this section shall be construed to prohibit the sale . . . of newspapers, magazines, periodicals, or other printed matter commonly sold or disposed of by news vendors. . . .
This section shall not prohibit the sale of merchandise constituting, carrying or making a religious, political, philosophical or ideological message or statement which is inextricably intertwined with the merchandise. Nor shall the provisions of this section prohibiting sales or soliciting of donations apply to any performer or musician engaging in constitutionally protected activities, or to any painter, sculptor or photographer, provided the painter, sculptor or photographer is displaying his or her own original creations and/or limited editions.
Additionally, LAMC § 42.15 (2004) set up a permit process and expression "spaces" for sales of exempted items. Subdivision (D) provided that "[n]o person shall receive any payment or accept any donation in connection with any activities not otherwise prohibited by this section unless that person holds a valid 'Public Expression Participant Permit.'" LAMC § 42.15(D). Permit holders were required to remain in their allotted permit space and prohibited from "conduct[ing] any activities requiring a permit outside the boundaries of the permitted space." Id.
In August 2005, City suspended the 2004 version after a group of plaintiffs filed a lawsuit against the City captioned Venice Food Not Bombs v. City of Los Angeles, No. CV 05-04998 DDP (SS) (C.D. Cal. 2005).*fn2 Between September 2005 and January 2006, the City held three televised public hearings to take testimony regarding proposed amendments to the suspended ordinance. On January 30, 2006, the Los Angeles City Council amended section 42.15; the new ordinance took effect on March 25, 2006. According to the City, the Council modeled the amended ordinance on two court decisions, Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006), and People v. Foote, 110 Cal. Rptr. 2d 260 (2001).
The 2006 version of § 42.15 provided that "[n]o person shall engage in vending activity" upon the Venice Beach Boardwalk. Leung Decl. Ex. 2 (LAMC § 42.15 (2006)). It exempts the following:
(1) Any individual or organization vending newspapers, leaflets, pamphlets, bumper stickers or buttons;
(2) Any individual or organization that vends the following items, which have been created, written or composed by the vendor: books, cassette tapes, compact discs, digital video discs, paintings, photographs, sculptures or any other item that is inherently communicative and has nominal utility apart from its communication;
Although an item may have some expressive purpose, it will be deemed to have more than nominal utility apart from its communication if it has a common and dominant non-expressive purpose. Examples of items that have more than nominal utility apart from their communication and thus may not be vended under the provisions of this section, include, but are not limited to, the following: housewares, appliances, articles of clothing, sunglasses, auto parts, oils, incense, perfume, lotions, candles, jewelry, toys, and stuffed animals;
(3) Performances by performing artists and musicians. LAMC § 42.15(c)
Under section 42.15(e), any person engaging in exempt activities on the Venice Beach Boardwalk first was required to obtain a "Public Expression Participant Permit" issued pursuant to the Venice Beach Boardwalk Public Expression Permit Program adopted by the Board of Recreation and Parks Commission.
Permit holders were not guaranteed space on the Boardwalk, however. The Program Rules set up a lottery system to allocate the spaces among permit holders. The permittee to whom the space was assigned pursuant to the program rules had priority to use the space. § 42.15(e). After 12:00 p.m. daily, any person or organization could use any unoccupied space for the remainder of the day "for activities specifically exempted . . . by Subsection (C)," whether or not they held a permit, so long as they relinquished the space upon arrival of a permit holder assigned to the space. Id.
In passing the 2006 version of § 42.15, the City Council adopted a statement of "findings and purpose." It found, inter alia, that unregulated vending "adversely affects the historic character of the Venice Beach Boardwalk by deterring tourists from visiting and shopping along the Boardwalk resulting in an economic and cultural loss to the City"; that it "impedes the orderly movement of pedestrian traffic and may make the Boardwalk unsafe for pedestrians by limiting the City's ability to effect crowd management and control"; that it "may impede the ingress and egress of emergency and public safety vehicles by creating physical obstacles to emergency response and administration of aid to those in need of immediate medical attention and to victims of criminal activity"; that it "undermine[s] the Boardwalk's commercial life by reducing sales from local merchants thereby eroding the City's tax revenues due to unfair competition, and by offering additional opportunity for the sale of stolen, defective or counterfeit merchandise"; and that it "causes visual clutter/blight along the Boardwalk, impeding views of the beach and the Pacific Ocean threatening the City's ability to attract tourists and preserve businesses along the Boardwalk." LAMC § 42.15(a).
In the wake of litigation, City amended § 42.15. The new version took effect on May 19, 2008.
B. Plaintiffs Michael Hunt and Matthew Dowd
Hunt and Dowd sell or solicit donations for merchandise on the Venice Beach Boardwalk as a way of making income. Hunt and Dowd both obtained "Public Expression Permits" under LAMC § 42.15 (2004). Upon applying for the permits, they signed a copy of the "Venice Beach Boardwalk Public Expression Permit Program Rules (rev. 7/13/05)," certifying that they had read and agreed to abide by the rules and LAMC § 42.15. The permits had no expiration date and were lifetime permits unless revoked or lost. Permit holders who did not comply with City laws or the public expression permit program rules were subject to revocation of their permit. A permit could be revoked following three violations of the Program Rules, § 42.15, or a combination thereof.
Hunt is known as "The Butter Man" on the Venice Beach Boardwalk, where he has promoted shea butter for several years. Hunt Decl. ¶¶ 4-5. According to Hunt, shea butter "has healing powers and health benefits derived from an ancient African nut extract"; it "originates from West Africa and is distributed by Muslim mosques." Id. ¶ 4. He sets up his shea butter stand with three different tables, with tablecloths and roses "to make it the Garden of Eve and really just make it really look nice and smell good, as if I was in heaven." Leung Decl., Ex. 5 ("Hunt Depo."), at 12:21-13:2. Hunt has developed a "script" he uses on the Boardwalk. He calls out to passers by, inter alia: "Here's what you gotta ask yourself ... Have you been buttered up today?" Hunt Decl., ¶ 5. When customers approach, he gives them a sample and explains that shea butter "comes from the shea nut from a tree in Africa"; that it has been around for hundreds of years; that it "has Vitamin A and Vitamin E and gets rid of stretch marks, scars, blemishes and eczema." Id. "[A]fter [he] actually [does] some therapeutic healing to their hands and anoint[s] the butter on them, [he] actually [goes] into what [he does] and what the cost is and everything." Hunt Depo., at 16:10-13. Hunt characterizes his message as telling customers to "'Get buttered up and get buttered down.'" Id. at 18:2-6. Hunt has been cited at various points under the provisions at issue here.*fn3
Dowd has developed a unique flavor of hand-made incense called "Pacific Breeze," which he asserts is a famous Venice Beach "original." The flavor combines the scent of coconut, mango, strawberry, and perfume; it is not available commercially. In addition to Dowd's unique incense sticks, Dowd's products include "flat wooden incense holders which bear brass engraved" messages as well as "coffin style wooden boxes for burning incense" from India which bear a number of symbols including the yin-yang, dragon, elephant, stars and moon, and sun, as well as ceramic oil burners. Dowd Decl. ¶ 4; Leung Decl., Ex. 6 ("Dowd Depo.") at 11:14-22. Dowd "believe[s] . . . that the burning of incense symbolizes the breakdown of a being from an organic state into a molecular state, and the release of energy back into the biosphere." Dowd Decl., ¶ 4. Dowd's "coffin box symbolizes a funeral casket, and the resultant ashes are the by-product of the energy transfer by combustion of the organic material." Id. Dowd also notes that "[t]he burning of incense and oils features in the practice of most of the world's religions." Id.
To promote his Pacific Breeze incense, Dowd distributes his card, which operates as a flyer, on the Boardwalk, and also displays a sign that explains the symbols on the coffin boxes. For example, according to the sign, the yin-yang symbol represents "the balance of life and how nothing is black and white and the symbol itself has white inside of black" and "no matter how you try to separate things, there's always going to be the edge where the black touches the white and that point is going to be gray." Dowd Depo. at 13:12-19. Additional literature included leaflets that "explained how to utilize the coffin box and the oil burner" he was selling, and "a small flier which looked a little like a business card, which had [his] address, it had a photo, and it had the name 'Pacific Breeze,' and [Dowd's] email address." Id. at 12:2-9. He handed out those business card fliers "when [he] discussed [his] incense creation with [passers-by]."
As Dowd characterized his activities: "The primary message is my original design incense. The incense holders are an essential device with which to burn the incense; so they're intertwined with the incense in that fashion, but they also hold their own individual symbolism. But they're not the primary message[.]" Rather, the primary message was "[t]hat I've created and designed my own original flavor which I believe is better than a lot of the other commercially available incense that are out there." Id. at 15:15-23.
Dowd has been cited on two occasions, and cautioned against setting up a table displaying his incense products. On April 2, 2006, he received a "Notice of Violation of the Venice Beach Boardwalk Public Expression Permit Program Rules."
Plaintiffs filed this action on July 27, 2006. In February 2007, Magistrate Judge Suzanne Segal granted in part and denied in part City's Motion to Dismiss, with leave to amend. Plaintiffs timely filed a First Amended Complaint ("FAC"), and City answered.
Plaintiffs make facial challenges to the ordinances at issue here. Plaintiffs' FAC sought injunctive and declaratory relief and damages for violations of the First Amendment and the Due Process Clause, pursuant to 42 U.S.C. § 1983, and for violations of Article I, Section 2 of the California Constitution. Because LAMC § 42.15 (2004) and the various sections of LAMC § 63.44 at issue had been amended or suspended prior to the time Plaintiffs filed this case, Plaintiffs sought an injunction as to LAMC § 42.15 (2006) and damages as to all three ordinances. In a further attempt to bring the ordinance into First Amendment compliance, City amended LAMC § 42.15 in 2008.
The parties filed Cross-Motions for Summary Judgment in their favor. Although the parties focus on different arguments at different parts of the papers, their arguments appear to boil down to the following contentions. City argues that Plaintiffs are not engaged in protected speech. Additionally, City argues that the various ordinances pass muster under the First Amendment: (1) to the extent they regulate commercial speech, City argues, they are sufficiently tailored; (2) to the extent they regulate protected speech, they are reasonable time, place, and manner restrictions; and (3) none are void for vagueness or unconstitutionally overbroad. Plaintiffs argue that they are engaged in protected speech. Additionally, Plaintiffs argue that all three ordinances are facially unconstitutional on the ...