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Freepb.Org v. City of San Diego

February 7, 2013


The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge



Plaintiff challenges a provision of San Diego Municipal Code section 63.0103 -- the so-called summer moratorium -- that bars the grant of all space reservations for special event permits in Mission Bay Park during certain months of the year without a waiver.

Plaintiff filed its initial complaint on January 6, 2012. (ECF No. 1.) Prior to transfer to this Court, Judge Anello granted Defendant's Motion to Dismiss Plaintiff's initial complaint on July 25, 2012. (ECF No. 14.) Plaintiff thereafter filed its First Amended Complaint. (ECF No. 15.)

Before the Court is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. (ECF No. 16.) Plaintiff has filed an opposition to the Motion to Dismiss, (ECF No. 20), and Defendant has filed a reply, (ECF No. 21). After considering the record in this matter and the parties' submissions, and for the reasons that follow, the Court GRANTS Defendant's Motion to Dismiss.


The City of San Diego is the eighth largest city in the country, with 1.3 million residents and many more millions in visitors each year. San Diego encompasses fifty-two individual communities and more than one hundred identified neighborhoods within those communities. Among these neighborhoods, some of the more densely-populated communities are those along San Diego's beaches. Mission Bay Park is one such community and contains many parks, playgrounds, beaches, and other popular recreation areas. During the summer months, tourists from the County of San Diego, neighboring counties, neighboring states, and many places far away visit San Diego's beach communities. The resulting challenge for the City is maintaining the balance between managing the large crowds that invariably overwhelm San Diego's beaches and surrounding parks every summer and allowing special events access to beaches and parks.

A. General Permit and Special Event Permit Requirements

In general, San Diego Municipal Code section 63.0102 regulates the use of public parks and beaches with the intent to "regulate and prohibit certain activities . . . in the interest of protecting the enjoyment and safety of the public . . . as well as the natural resources" of the City. San Diego Mun. Code § 63.0102(a). Specifically, this section prohibits the gathering of groups of fifty or more persons without first obtaining a permit or permission from the City Manager. Id. § 63.0102(b)(24). Other activities in parks and beaches that require a permit or approval include discharging fireworks, destruction of plants in City parks, sale of merchandise, solicitation for commercial purposes, and concerts and other performances. Id. § 63.0102(b)(3)-(4), (b)(13)-(15). To obtain the City Manager's permission to conduct any of the above activities, one must simply submit an application at least ten days before the date of the activity and state the date, time, location, description, and participants of the activity. Id. § 63.0103(a)-(b). The SDMC requires the City Manager to issue a "permit, permission, or consent" within three days of the application "if there is capacity for the proposed activity." Id. § 63.0103(c)-(d).

If the beach or park activity qualifies as a "special event," however, the process is more involved, and an event organizer must obtain both a special event permit, which requires a "reservation of space." Id. § 63.0103(d)(1). The SDMC defines a "special event," in part, as "any organized assemblage of seventy-five (75) or more Persons at any public beach or public park which is to gather for a common purpose under the direction and control of a Person." Id. § 22.4003. Examples include "concerts, parades, circuses, fairs, festivals, block parties, mass participation sports . . . , or spectator sports . . . ." Id. Furthermore, "it is unlawful for any person to consume any alcoholic beverage at any time, upon all public beaches" unless, among other things, the City Manager has issued a special event permit. Id. § 56.54(f)-(g).

Certain activities in parks and beaches are exempt from the special event permit requirement above. For example, lawful picketing on sidewalks, certain fireworks displays, and "Demonstrations" do not require a special event permit. Id. § 22.4005(c). The Municipal Code defines "Demonstration" as any "formation, procession or assembly" of more than seventy-five persons, who meet "for the purpose of Expressive Activity." Id. § 22.4003. The SDMC further defines "Expressive Activity" as "conduct, the sole or principal object of which is the expression, dissemination or communication by verbal, visual, or auditory means of opinions, views or ideas and for which no fee or donation is charged or required as a condition of participation in or attendance at such activity." Id. Thus, if an event is held "for the purpose of Expressive Activity," the SDMC does not require a special event permit or space reservation to hold the event.

B. The Summer Moratorium

As explained above, San Diego is a popular tourist destination in the summer months. In particular, San Diego's beach communities experience a sharp and sustained increase of visitation and usage. To manage the issues attendant to this sharp increase in citywide visitation, if the special event falls during the time period between Memorial Day and Labor Day and will be held in certain parks or beaches, including Mission Bay Park, additional restrictions apply to those who seek special event permits. See generally id. § 63.0103(d)(A). Specifically, the longstanding so-called "summer moratorium" was for many years an uncodified practice of suspending the issuance of the space reservations required to obtain special events permits in certain parks, including Mission Bay Park, during the summer months. In 2011, the City amended the SDMC and codified the summer moratorium.

Effective December 14, 2011, San Diego City Ordinance 20111 amended section 63.0103 and formally added the summer moratorium to the SDMC. As codified, the summer moratorium is a general ban on all grants of space reservations from the "Saturday prior to Memorial Day . . . through Labor Day." San Diego Mun. Code § 63.0103(d)(1)(A). The moratorium is in effect in Balboa Park, Mission Bay Park, Presidio Park, and the Shoreline Parks, which are defined as "those parks contiguous to the shoreline or beach in the communities in Ocean Beach, Mission Beach, Pacific Beach, and La Jolla." Id.

Despite this general ban on granting space reservations in certain communities, a select few events are exempt from the moratorium. In Mission Bay Park, where Plaintiff wishes to hold its event, three long-running events are exempt: the Old Mission Bay Athletic Club's yearly Over the Line tournament, the yearly Rock and Roll Marathon, and the yearly Kai Elua outrigger canoe race. Id. §

63.0103(d)(1)(A)(ii). All other event organizers who wish to secure a special event permit and space reservation in Mission Bay Park during the summer moratorium must apply for a waiver from the moratorium.

To secure a waiver, an applicant must submit a written request for waiver to the City Manager at least 120 days from the date of the event. Id. § 63.0103(d)(1)(B). The waiver request must describe the nature of the special event and explain why the City Manager should issue the waiver. Id. Within ten days of the waiver request, the City Manager must "place the item on the next available agenda for the appropriate park advisory committee." Id. Once the assigned park advisory committee votes on the waiver request, the City Manager "shall issue a final decision" on the waiver within ten days of the committee's vote. Id. Reading the summer moratorium and special events ordinances together, a "Demonstration" is exempt from the summer moratorium because organizers of such events need not obtain special events permits in the first place and therefore need not obtain a waiver from the summer moratorium.

C. Plaintiff's First Amended Complaint

In its First Amended Complaint ("FAC"), Plaintiff asserts three causes of action: Count 1 (Violation of First Amendment with Summer Moratorium), Count 2 (Violation of First Amendment with Subjective Summer Moratorium Waiver, and Count 3 (Violation of ...

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