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Carol-Lee Zuvich, Matthew Dowd, Vikki Hill; Kenneth Simpson; Stacy v. City of Los Angeles

September 14, 2012


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge



Presently before the court is Defendant City of Los Angeles' Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Claims as to All Plaintiffs ("Motion"). Having reviewed the parties' moving papers and heard oral argument, the court grants the Motion and adopts the following Order.


Over the years, Defendant City of Los Angeles ("City") has adopted and amended a number of versions of Los Angeles Municipal Code ("LAMC") § 42.15, in order to regulate vending on the Venice Beach Boardwalk. This court and the Ninth Circuit have addressed the constitutionality of LAMC § 42.15 in a number of cases, most recently in Hunt v. City of Los Angeles, 601 F. Supp. 2d 1158 (C.D. Cal. 2009), aff'd in part, remanded in part 638 F.3d 703 (9th Cir. 2011), and in Dowd v. City of Los Angeles, No. CV 09-06731 (C.D. Cal. Oct. 21, 2010) (order granting in part preliminary injunction) ("Dowd Order").

The City adopted the version of LAMC § 42.15 at issue here in April 2008 ("2008 Ordinance"). As this court has previously explained:

The latest version of the ordinance divides much of the available space in the heart of the Boardwalk into individual spaces designated as P-Zone spaces and I-Zone spaces. Id. § 42.15(2). In the P-Zone spaces, "persons can perform, engage in traditional expressive speech, and petitioning activities, and vend the following expressive items: newspapers, leaflets, pamphlets, bumper stickers, patches, buttons, or books created by the vendor or recordings of the vendor's own performances . . . ." Id. § 42.15(2)(a). In the I-Zone spaces, "persons may engage in activities permissible in the P-Zone, and also engage in vending of expressive items created by the vendor, or the vending of expressive items that are inextricably intertwined with the vendor's message . . . ." Id. § 42.15(2)(b).

With certain limited exceptions, anyone wishing to use a P-Zone or I-Zone space during Peak Season must apply for an annual permit and enter into a lottery system by which spaces are assigned each day. Program Rules at pp. 2-3. The person to whom the space is assigned has priority to use the space. But, after 12:00 p.m., anyone (with or without a permit) may use any unoccupied space, so long as she engages only in activities approved for the P-Zones and relinquishes the space to the permit-holder if she returns.

Outside of the P and I-Zones, anyone may engage in any activity permitted in the P-Zones and vend expressive items "inextricably intertwined with the vendor's message," so long as she does not "set up a display table, easel, stand, equipment, or other furniture, use a pushcart or other vehicle . . . ." Id. § 42.15(D)(1)(a). On the West side of the Boardwalk, outside of the P and I-Zones, anyone can engage in any permitted P-Zone activity as long as it is "not vending and does not substantially impede or obstruct pedestrian or vehicular traffic, subject to reasonable size and height restrictions on any table, easel, or other furniture . . . ." Id. § 42.15(D)(1)(b).

The ordinance and Program Rules also include noise regulations. LAMC § 42.15(F)(1) provides that noise levels must not exceed seventy-five decibels when measured at a distance of twenty-five feet away or ninety-six decibels when measured from one foot away between nine o'clock in the morning and sunset. Furthermore, LAMC § 42.15(F)(4) bans the use of amplified sound anywhere on the Boardwalk except in specially designated P-Zone spaces between 17th Avenue and Horizon Avenue and between Breeze Avenue and Park Avenue. The Program Rules clarify that amplified sound "is permitted only in the designated spaces in the P-Zones in the locations specified in Section 42.15 between 9:00 a.m. and sunset, and is prohibited after sunset and before 9:00 a.m." Program Rules at p. 4.

Dowd Order at 4-6.

The City argues that it had various compelling reasons for these regulations, but suspended the 2008 Ordinance after this court issued its preliminary injunction in October 2010. The City then repealed and replaced the Ordinance in December 2011.

Plaintiffs filed this action against the City on August 19, 2011, claiming that the 2008 Ordinance violates the First, Fifth, and Fourteenth Amendments of the U.S. Constitution. Plaintiffs challenge the Ordinance "on both facial and as-applied grounds," alleging that it is "impermissibly vague," an "impermissible prior restraint on protected expression in a public forum," and "not a reasonable time, place and manner regulation[]." (Compl. ¶¶ 4-5.) Plaintiffs further allege that they engaged in expressive and vending activities on the Boardwalk while the 2008 Ordinance was in effect, and were cited for violating various provisions of the Ordinance or otherwise harmed by its restrictions.

The City filed this Motion for Summary Judgment on April 12, 2012, arguing - among other things - that: 1) Plaintiffs' facial challenges are ...

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