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UNITED STATES DISTRICT COURT

FILED

FOR THE MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION
20110CT25 PH 1:37

CASE NO:

u.s OISiFtIC"i COURT
rilDQLE bISTH!CT .9F FLORIDA FORT HYEi1S ... LORIDA

OCCUpy FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT MCDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,

Plaintiffs,
v.
CITY OF FORT MYERS, Defendant.
______________________________~I
VERIFIED COMPLAINT (With Injunctive Relief Sought) The PLAINTIFFS hereby commence this civil action, seeking declaratory relief, injunctive relief, and compensatory damages, for ongoing and threatened violation of the First Amendment rights of individuals and an unincorporated association seeking to engage in peaceful expressive conduct within the City of Fort Myers, Florida.

JURISDICTION AND VENUE I. This action seeks declaratory relief, injunctive relief and compensatory damages pursuant to 42 U.S.C. §1983, for ongoing and threatened injury to the First Amendment rights of individuals and an unincorporated association engaged in lawful expressive activity within the City of Fort Myers,

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Florida. This Court accordingly has jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1331 as claims arising under the U.S. Constitution, and pursuant to 28 U.S.C. § 1343 (a), as a civil action to redress the deprivation ofcivil rights and privileges secured by the U.S. Constitution. Further, this court has jurisdiction over Plaintiffs' claims for declaratory relief in accordance with the Declaratory Judgment Act, 28 U.S.C. §§2201 and 2202. 2. Venue is proper in the Middle District ofFlorida- Fort Myers Division, under 28 U.S.C. § 1391(b) (1), insofar as defendant City of Fort Myers is located in Lee County, Florida, and is thereby wholly located within the above-referenced judicial district.
INTRODUCTION 3. The set of Plaintiffs is comprised of thirteen (13) persons who are active in Southwest Florida in bringing awareness of social and economic justice issues through demonstrations, marches, and rallies, and related expressive speech and conduc~ and one (1) unincorporated association whose members are concerned about current political, social and economic issues, including those arising locally, nationally and globally. In the instant civil action, the Plaintiffs challenge several provisions of the City of Fort Myers' Municipal Code ("Fort Myers Code" or "Code"). The City of Fort Myers (hereinafter also "Fort Myers" or "defendant City") employs a pennit scheme, for expressive activity in traditional public fora, that is violative of constitutional safeguards as an unlawful prior restraint, because it is content-based, overbroad, vague, and it suffers from additional infinnities. The pennit scheme requires a "written pennit from the chiefofpolice" for every "parade, procession ... or public open-air meeting." The ordinance lacks sufficient standards in multiple instances, to guide the decision of whether and under what conditions a permit will issue, to ensure that public officials must decide whether to issue or deny a pennit in sufficient time to actually stage the event, and what conditions may be imposed on expressive activities. The absence ofadequate standards in key areas means that the ordinance vests public officials with unbridled discretion and invites content-based decisions based on the nature ofthe speaker. These are forbidden grounds on which
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to base a permit scheme that requires a license to engage in protected speech; the permit scheme violates Plaintiffs' First Amendment rights by impermissibly limiting their rights to speech, association, and assembly. Furthermore, the Fort Myers allows City officials to accommodate "athletic sporting events, or cultural or civic events" after public park closing hours, but allows no provision for accommodation ofthose who are participating in First Amendment-protected activity. This ordinance is content-based on its face and illustrates a governmental policy of preference for non-political speech. For these reasons, defendant City of Fort Myers must be enjoined from prohibiting the lawful exercise of First Amendment-protected activity. Further, the Plaintiffs seek a declaration that the City'S "Park Operating Policy" is facially invalid as violative of protected expressive conduct, and seeks damages for the wrongful abrogation of protected free speech, association and assembly.
PARTIES Plaintiffs 4. Plaintiff OCCUpy FORT MYERS ("alternately "OFM") is an unincorporated association of individuals, mostly from Lee County, Florida and surrounding areas, who a re concerned about the direction ofour country and who have gathered spontaneously to bring visibility to the influence of private money into the nation's political process. [Declaration of Justin Valo, dated October 22, 2011, hereinafter "Valo Decl.," at ~ 3, attached hereto as Exhibit 1]. A core purpose ofOFM is to
bring awareness to the concerns about the U.S. political process and economic policy through symbolic, around-the-clock, peaceful protests referred to as "occupations." [Valo Decl., at ~ 3]. OFM held their first rally and march on October 15, and began occupying Centennial Park in Fort Myers that evening. [Valo Decl. at ~ 5]. 5. Plaintiff CINDY BANYAI is a resident of Lee County, Florida. Plaintiff Banyai received a citation in the amount of$135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No. IB25781]. Plaintiff is asserting her personal
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constitutional right to engage in free speech, assembly and association within the confines ofthe City of Fort Myers. 6. PlaintiffSTEPHANIE DARST is a resident ofLee County, Florida. Plaintiff Darst received two citations in the amount of $135.00 each while involved in symbolic First Amendment-protected speech on the morning of October 22, 2011. [Citation No. IB23023 and 1B23022]. Plaintiff is asserting her personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 7. Plaintiff CHRISTOPHER FAULKNER is a resident of Lee County, Florida [Declaration of Christopher Faulkner, dated October 23, 2011, hereinafter "Faulkner Decl.," at ~2, attached hereto as Exhibit 2]. Plaintiff Faulkner received two citations in the amount of $135.00 each while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011 [Faulkner Decl. at ~ 6]. Plaintiff Faulkner has received multiple citations since October, 20, for a total of eight, each in the amount of $135.00. Plaintiff Faulkner fears the ordinances and policies of the City of Fort Myers will inhibit the exercise of his free speech [Faulkner Decl. at ~8]. 8. Plaintiff F. FRANK GUBASTA is a resident of Lee County, Florida. Plaintiff Gubasta received two citations in the amount of$135.00 each while involved in symbolic First Amendmentprotected speech on the evening ofOctober 21 , 2011 and again on the morning ofOctober 22, 2011. [Citation No. IB26251, IBI8250]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 9. Plaintiff ZACHARY KUHN is a resident of Lee County, Florida. Plaintiff Kuhn received a citation in the amount of$135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No.1 B24948]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines ofthe City of Fort Myers. 10. Plaintiff HILARY MAINS is a resident of Lee County, Florida. Plaintiff Mains received a citation in the amount of$135.00 while involved in symbolic First Amendment-protected speech on
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the evening of October 20, 2011. [Citation No. 1825878]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines ofthe City of Fort Myers. II. Plaintiff MATT MCDOWELL is a resident ofColliler County, Florida. [Declaration ofMatt McDowell, dated October 24,2011, hereinafter "McDowell Decl.," at ~2, attached hereto as Exhibit 3]. Plaintiff McDowell received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech, including participating as a citizen journalist, on the morning ofOctober 22,2011 [McDowell Decl. at ~ 6]. Plaintiff McDowell fears the ordinances and policies of the City of Fort Myers will inhibit the exercise of his free speech [McDowell Decl. at ~8]. 12. Plaintiff MICHELLE N. MEYER is a resident of Lee County, Florida. Plaintiff Meyer received a citation in the amount of$135 .00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No. 1824226]. Plaintiff is asserting her personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 13. PlaintiffLillS OSPINA is a resident ofLee County, Florida [Declaration ofLuis Ospina, dated October 23,2011, hereinafter "Ospina Decl.," at ~2, attached hereto as Exhibit 4]. PlaintiffOspina received a citation in the amount of$135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011 [Ospina Decl. at ~ 6]. Plaintiff Ospina fears the ordinances and policies ofthe City of Fort Myers will inhibit the exercise of his free speech [Ospina Decl. at ~8]. 14. Plaintiff RYAN POGUE is a resident of Lee County, Florida. Plaintiff Pogue received two citations in the amount of $135.00 each while involved in symbolic First Amendment-protected speech on the evening ofOctober 22, 2011. [Citation No. 1823090, 1B23097]. Plaintiffis asserting his personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers.
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15. Plaintiff FRANK PRATT is a resident of Lee County, Florida. Plaintiff Pratt received a citation in the amount of$135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No. IB24949]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines ofthe City of Fort Myers. 16. Plaintiff MARLENE ROBINSON is a resident of Lee County, Florida. Plaintiff Robinson received two citations in the amount of$135.00 each while involved in symbolic First Amendmentprotected speech on the evening of October 22, 2011. [Citation No. I B25061, 1B25060]. Plaintiff is asserting her personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 17. PlaintiffJUSTIN VALO is a resident ofLee County, Florida [Valo Decl., at ~2]. PlaintiffValo participates in ongoing demonstration activities, and assists in the organization ofOFM's activities. [Valo Decl., at ~3]. PlaintiffValo asserts that unconstitutional ordinances being enforced by the City ofFort Myers have hindered and chilled his speech, the speech ofall those who associate with OFM and all who may have wanted to associate with OFM in the future. [Valo Decl., at ~16].
Defendant 18. Defendant CITY OF FORT MYERS is a body corporate and politic, with the capacity to sue and be sued. The City of Fort Myers is the legal entity responsible for the actions of its final policymaker for city policies, the Fort Myers City Council. As such, defendant City is responsible for the passage of City Code Sec. 2-271 to 2-273, Sec. 58-151 to 58-157, and Sec. 78-1 to 78-3 by the City Council, and for the implementation of that city law.
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FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
19. Plaintiffs seek to exercise their First Amendment rights to demonstrate in Centennial Park, public property located in Fort Myers, Florida, in an attempt to bring visibility to the insidious influence of money into the U.S. political process, and to inform members ofthe general public on political issues such as social justice and economic equality.
Interaction Between Event Organizers and City of Fort Myers Officials 20. On or about October 11, 2011, Mark Hetrick, who volunteered his services as a member ofthe OFM Legal Working Team, called the Fort Myers Police Department ("FMPD") to inquire about obtaining a permit for a planned OFM rally and march in downtown Fort Myers on Oct. 15,2011. [Valo Decl., at ~6). 21. FMPD indicated that OFM could rally and march downtown on Oct. 15th, provided that OFM submit to certain restrictions. Specifically, OFM could not: use a megaphone, march in the street, or include "vulgar language" on signs. [Valo Decl., at ~6]. 22. Mr. Hetrick further inquired about OFM's intentions to symbolically "occupy" Centennial Park beginning on the evening of Oct. 15, 2011. An FMPD contact said that the police would not interfere with any overnight "occupation," including allowing the erection of tents, as long as there was no alcohol brought into the park. The FMPD advised OFM to contact the City of Fort Myers Recreation Division to obtain a permit for the overnight occupation. [Valo Decl., at ~6]. 23. On October 15, 2011, OFM held a noon rally at Centennial Park, and then conducted an approximately one mile-long march from Centennial Park to the Bank of America branch on First Street, and then back to Centennial Park. Approximately 500 people showed up to support the Occupy Fort Myers movement. The march and rally remained peaceful and respectful. [Valo Decl., at ~6].
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24. OFM began "occupying" Centennial Park on the evening of October 15th• The General Assembly ofOFM, comprised ofthe entire gathering ofpersons engaged in a group decision-making process, agreed that the "occupiers" would respect the City and park by making sure that the participants maintained quiet after park closing hours, and by thoroughly cleaning up after themselves. The occupiers had no confrontations with members of the public, the City or FMPD from Oct. 15th through Oct. 20th• [Valo Decl., at ~9]. The "occupiers" did continue their political activity by engaging in awareness-building with an information booth for questions for the general public set up at the entranceway of the encampment, print and television media, by displaying
political signs, and through the symbolic presence of tents. [Faulkner Decl., at ~ 3; see also digital
photographs of the OFM encampment area, attached hereto as Exhibit 5]. 25. On October 18, 2011, OFM obtained a "Special Events" pamphlet from the City, enclosed within it was a permitting scheme and a permit application. The "Special Events" pamphlet states that "[t]he Special Events Advisory Board may have final approval of all events as detailed in City Ordiance #30 19." OFM completed a permit application, and submitted it to the Recreation Division. OFM informed the Recreation Division, along with Officer Sanchez of the FMPD, through email communication that Occupy Fort Myers sought to cooperate with the City. [Valo Decl., at ~1 0]. 26. On October 19,2011, at 10:19 a.m., Kelly MacDonald, Senior Program Coordinator in the Recreation Division informed OFM, through email, that, before the Special Event Committee could even review the permit application, OFM would need to obtain a $1 million liability insurance policy and bring the Liability Insurance certificate to the Recreation Administrative Office. Ms. MacDonald informed OFM that the City was prepared to enforce Ordinance Sec. 58-153(3) if OFM did not comply with the liability insurance by 3:00 p.m. on the same day. [Valo Decl., at ~1O]. 27. On October 19,2011, Mark Hetrick contacted Ms. MacDonald by email and phone to let her know that OFM could not possibly comply with the 3:00 p.m. deadline to obtain an insurance policy. The City gave OFM the names ofthree insurance companies, and Ms. MacDonald agreed to allow
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OFM an additional day to attempt to obtain insurance and thereby comply with City regulations. [Valo Decl., at ~10]. 28. On Oct. 19, 2011, OFM informed the City of Fort Myers Recreation Division and Police Department, through email, that the insurance companies designated by the City ofFort Myers would not provide the requested liability insurance policy to OFM. OFM informed Ms. MacDonald, Mr. Saeed Kazemi, the Public Works Director, and Officer Sanchez of the FMPD, through email, that OFM sought understanding and cooperation with the City, that the group would like to obtain a permit, but OFM could not satisfy the City's requirements. OFM asked that the City not attempt to dismantle OFM presence in Centennial Park. [Valo Decl., at ~11]. 29. Even ifan insurer would agree to insure OFM, OFM has absolutely no funds with which to pay for a liability insurance policy and, it was conveyed by City personnel that the City of Fort Myers would require OFM to apply for another permit and obtain a re-issuance or new insurance policy every ten days. [Valo Decl., at ~14]. OFM sought to review the procedures for requesting a waiver of the liability insurance requirement or for appeal of the denial of a permit, but there were no provisions for either to be found in either the City of Fort Myers ordinances or the Special Events pamphlet. [Valo Decl., at ~12]. 30. On October 20,2011, members ofOFM and their legal counsel spent most ofthe day attempting to negotiate, in good faith, with City employees in an attempt to obtain a permit for the ongoing symbolic demonstration. The City would not issue OFM a permit, nor would the City identify any procedure for requesting either waiver or appeal of the City'S decision. [Valo Decl., at ~15]. 31. On the evening of October 20, at approximately 10:45 p.m., members ofthe FMPD showed up at Centennial Park and issued citations of $135 each to any individual who was planning on remaining in the park after 10:30 p.m. [Valo Decl., at ~15; Faulkner Decl., at ~6; Ospina Decl., at
~6].
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32. On the morning of October 22, 2011, FMPD law enforcement officers arrived at OFM encampment area at approximately 6:15 a.m. and demanded the OFM occupiers to leave the park and remove their tents. [McDowell Decl., at ~6]. 33. Humana, the insurance corporation, was sponsoring an Alzheimer's Awareness event in Centennial Park on Saturday, October 22. FMPD Captain Viola informed OFM occupiers that Humana rented "the entire park," and that he didn't wish for OFM members to leave the park completely until noon. When Capt. Viola was further questioned by OFM members, he informed OFM that the Humana representatives did not want the tents in the park during their event. The occupiers who were present each received a citation in the amount of$135 for being in the park after closing hours, even though Humana representatives were also in the park before 6:30 a.m. The occupiers who were present each received a citation in the amount of$135 for being in the park after closing hours, even though Humana representatives were also in the park before 6:30 a.m. [McDowell Decl., at ~6]. 34. As a direct and proximate cause ofthe unconstitutional City ordinances, Plaintiffs have suffered damages, which include violation of their civil rights, limitation of their core political message to those who may be interested in participating in OFM events but whose speech has been chilled, and economic damages, in the nature ofthe value ofthe lost publicity, the value of volunteer staff time to adjust events and notify persons as to governmental harassment, the cost of transportation and related costs to attempt to comply with City demands, costs of litigation, and related expenses.
City of Fort Myers Ordinancesl Provision oftile Special Events Advisory Board Ordinance, Sec. 2-273. 35. The law, entitled "Powers and Duties," is a sweeping set of provisions vesting specific powers within the Special Advisory Board, as follows:
I. Copies of the Challenged City Code sections are attached hereto as Exhibit 6.
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"The special events advisory board shall: (1) Act in an advisory capacity to the city council in matters relating to special events proposed by event managers, which are Ca) Open to the public; (b) held within the city limits in spaces that are overseen by the city; © Expected to attract more than 1,000 people; and (d) Requesting the city council approve a waiver or a reduction of fees or a cash sponsorship.
(3) Recommend to the city council special events that should receive city sponsorship by a reduction or waiver in the fees charged for the use of public property and/or the cost of services to be provided by the city, based on a weighted scale of merit; (4) Recommend regulations for the conduct ofspecial events that will increase interest therein to the citizens, residents and visitors of the city generally ...."
Provision oftl.e Park Operating Policy, Sec. 58.
36. Sec. 58-153, entitled "Recreational activity restrictions," and Sec. 58-154, entitled "Prohibited Behavior," impose impermissibly vague restrictions on symbolic speech and expressive activity, as follows: 58-153 "No unauthorized person in a park shall: (3) Set up tents, shacks, or any other temporary shelters for the purpose of overnight camping. No person shall live in a park beyond closing hours in any movable structure or special vehicle to be used or that could be used for such camping purpose, such as a tent, house-trailer, camp-trailer, camp-wagon or the like." 58-154 "No unauthorized person in the park shall do any of the following: (6) Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace." 37. Sec. 58-156, entitled "Park Operating Policy," is a content-based restriction on symbolic speech and expressive activity, as follows:
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"(a) Hours. .. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the
recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sport events, or cultural or civic activities." 38. Sec. 58-157, entitled "Violations; Penalties" states, as follows: "A violation of this division will subject the violator to a find of not less than $25.00 and not more than $250.00. Such violators may be issued appropriate citations by city policy officers."
Provision oftI,e Parades and Processions Ordinance, Sec. 86.
39. Sec. 86, entitled "Parades and Processions," is a content-based law that has three subsections that outline a permitting scheme without specific factors or guidelines and vests unbridled discretion in the Chief of Police, as follows: 86-153 "(a) No parade or procession upon any street ofthe city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chiefofpolice or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chiefofpolice or some duly authorized member ofthe police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting. (b) The fee for such permit shall be $5.00 ifthe activity permitted requires no extra policing or will cause no extra cost or expense to the city. If such activity will require additional policing or supervision, or otherwise incur additional cost and expense to the city, there shall be charged such fee as will defray such additional cost to be determined by the chief ofpolice. 86-154 "Ifthe chief of police knows or has reasonable grounds to believe that to permit any parade, procession or open-air meeting under this article mayor will result in violence, fighting, disturbance of the peace, or injuries to persons or damage to property, he may refuse to approve issuance of a permit hereunder by endorsing on the application or indicating in writing to the city clerk his reason for his refusal and such permit shall not be issued."
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Application of City Code to OFM Events 40. The City of Fort Myers required OFM to obtain a "special events" permit for their expressive conduct of "occupying" Fort Myers, even though OFM's demonstration does not fall within the definitional parameters of a "special event," especially since there was never any expectation that more than 1,000 would join the overnight encampment. Because the City arbitrarily subjected OFM to the special events requirements, OFM was subjected to restrictive permit requirements not suitable for small, spontaneous First Amendment-protected activity. Furthermore, since OFM was subjected to special events provisions, which are reviewed by the Special Events Advisory Board, City Code Sec. 2-273 allows the Board complete control, without defined appellate procedures, as to whether or not to entertain the waiver of any provisions. 41. The City of Fort Myers has issued citations to members ofOFM for violations of City Code 58153. However, the Code prohibits the erection of tents for the "purpose of overnight camping." The application provision constitutes viewpoint discrimination, and clearly, OFM is not erecting tents for the "purpose ofovernight camping." The presence ofboth OFM-affiliated persons and the tents is in furtherance oftheir fundamental message ofdissatisfaction with the political status quo in this nation. OFM is subject to the provisions ofSec. 58-154. This code is impermissibly vague since OFM would not be aware ofwhat constitutes "boisterousness" or "protracted lounging." Sec. 58-154 also divests members ofOFM ofa liberty interest by penalizing lounging in the park. The City ofFort Myers has issued citations to members ofOFM for violations ofCity Code 58-156. This section ofthe City Code is clearly content-based viewpoint discrimination as it shows a policy ofpreference for non-political speech. The Recreation Manager also has unbridled discretion to extend park hours for sporting, cultural or civic events, but not for First Amendment-protected activity. 42. The FMPD allowed OFM to rally and march, pursuant to City Code 86-153, provided OFM agree to certain ad hoc restrictions. These restrictions reflect city policies vesting unbridled discretion in the Fort Myers Police Department and has an impermissible or, more accurately, an ethereal
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pennitting scheme. Because any "open air meeting" is subject to the provisions of this code, OFM members are divested of an important liberty interest.
CAUSES OF ACTION
43. As to each cause of action delineated below in Counts One, Two, Three, and Four, the plaintiffs advance their federal constitutional claims against the City of Fort Myers in the City's capacity as a state actor, through the operation ofthe Fourteenth Amendment.
COUNT ONE Monell Claim - Official Policy to Suppress Protected Speech and Assembly (42 U.S.C. § 1983 - Violation of First Amendment - Viewpoint Discrimination)
Fort Myers City Code, Sec. 2-273 and Sec. 58-156 By ALL PLAINTIFFS Against CITY OF FORT MYERS
44. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 143, as if set forth at length herein. 45. At all times relevant hereto, the City Council of defendant City of Fort Myers ("Council") was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 46. The Council enacted Ordinance No. 3019, codified as Code Sec. 2-271 to Sec. 2-273 referenced as the "Special Events Advisory Board" Ordinance, precluding OFM's demonstration event without first obtaining a pennit, to be reviewed and recommended by the Special Advisory Board members defined in Sec. 2-271 and 2-272. This ordinance is unconstitutional on its face as an impennissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Board to provide exemption of pennit requirements for commercial speech.
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47. The Council enacted Ordinance 1991, §12-219, now codified as City Code Sec. 58-156 referenced as the "Park Regulations" Ordinance, precluding OFM's demonstration event after park closing hours, defined as 10:30 p.m. to 6:30 a.m. This ordinance is unconstitutional on its face as an impennissible prior restraint, containing tenns which provide for targeted regulation of core political speech while allowing the Recreation Manager to make accommodations by extending park hours for sporting, cultural or civil events. 48. As a content-based regulatory scheme, Code 2-273 is subject to strict scrutiny, mandating that the defendant City establish that its regulatory scheme is (I) narrowly-tailored, and (2) serving a compelling state interest. The broad prohibitions against politically-centered speech and conduct, the application of the pennit schemes to small groups such as OFM, the provision that allows for recommendation of a waiver or reduction of pennitting fees, or even a City cash sponsorship, for preferred commercial speech, the failure to provide for spontaneous speech events, the failure to have fee exemptions for indigent applicants, the lack of an appeals process, and other factors preclude a finding that the ordinance scheme is narrowly-tailored. The contentbased ordinance cannot be fairly said to serve any compelling state interest. 49. As a content-based prohibition, Code 58-156 is subject to strict scrutiny, mandating that the defendant City establish that it be (1) narrowly-tailored, and (2) serving a compelling state interest. The broad prohibitions against politically-centered speech and conduct, while allowing for the accommodation for preferred non-political speech, preclude a finding that the ordinance scheme is narrowly-tailored. The content-based ordinance cannot be said to serve any compelling state interest. 50. The use of Code 58-156 by Defendant has chilled the First Amendment-protected activities of the plaintiffs, has and may continue to cause the citation of members of the plaintiffs, as well as others similarly situated who wish to exercise their rights of free speech, assembly and association.
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51. The adoption by the Fort Myers City Council of the aforementioned ordinances, and the present and future implementation of the ordinances, constitute the proximate causation of the deprivation of the First Amendment rights of the Plaintiffs and other demonstrators for the ongoing events in Centennial Park, and other imminently-scheduled events within the City of Fort Myers. The Plaintiffs seek redress for these violations of the First Amendment through the operation of 42 U.S.C. § 1983.
COUNT TWO MOllell Claim - Official Policy to Suppress Protected Speech and Assembly
(42 U.S.C. § 1983 - Violation of First Amendment - Overbreath) Fort Myers City Code, Sec. 2-273, 58-156 and 86-153
By ALL PLAINTIFFS Against CITY OF FORT MYERS
52. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 143, as if set forth at length herein. 53. At all times relevant hereto, the City Council of defendant City of Fort Myers ("Council") was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 54. The Council enacted Ordinance No. 3019, codified as Code Sec. 2-271 to Sec. 2-273 referenced as the "Special Events Advisory Board" Ordinance, precluding OFM's demonstration event without first obtaining a permit, to be reviewed and recommended by the Special Advisory Board members defined in Sec. 2-271 and 2-272. This ordinance is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Board to provide exemption of permit requirements for commercial speech. 55. As a content-based regulatory scheme, Code 2-273 is subject to strict scrutiny, mandating that the defendant City establish that its regulatory scheme is (1) narrowly-tailored, and (2) serving a
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compelling state interest. The broad prohibitions against politically-centered speech and conduct, the application of the permit schemes to small groups such as OFM, the provision that allows for recommendation of a waiver or reduction of permitting fees, or even a City cash sponsorship, for preferred commercial speech, the failure to provide for spontaneous speech events, the failure to have fee exemptions for indigent applicants, the lack of an appeals process, and other factors preclude a finding that the ordinance scheme is narrowly-tailored. The contentbased ordinance cannot be fairly said to serve any compelling state interest. 55. The Council enacted Ordinance 1991, §§ 17-117-17-118, now codified as Sec. 86-153, referenced as the "Parades and Processions" Ordinance, precluding OFM's rallies and marches without first seeking issuance a permit, to be reviewed and by the Chief of Police of the FMPD, or his designee. This ordinance is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Chief of Police to show preference of non-political speech. 56. As a content-based regulatory scheme, Code 86-153 is subject to strict scrutiny, mandating that the defendant City establish that its regulatory scheme is (1) narrowly-tailored, and (2) serving a compelling state interest. The unbridled discretion vested in the Chief of Police, or a designee, without guidelines for issuing a permit, time limitations on review, guidelines for the imposition of restrictions or requirements, the failure to provide for spontaneous speech, and other factors preclude a finding that the ordinance scheme is narrowly-tailored. The content-based ordinance cannot be said to serve any compelling state interest. 57. The Council enacted Ordinance 1991, §12-219, now codified as City Code Sec. 58-156 referenced as the "Park Regulations" Ordinance, precluding OFM's demonstration event after park closing hours, defined as 10:30 p.m. to 6:30 a.m. This ordinance is unconstitutional on its face as an impermissible prior restraint, vesting unbridled discretion in the Recreation Manager to make accommodations by extending park hours for sporting, cultural or civil events.
Page 17 of 21

Case 2:11-cv-00608-JES-DNF Document 1 Filed 10/25/11 Page 18 of 21 PageID 18
58. As a content-based prohibition, Code 58-156 is subject to strict scrutiny, mandating that the defendant City establish that it be (1) narrowly-tailored, and (2) serving a compelling state interest. The provision vesting unbridled discretion in the Recreation Manager to make accommodations for certain groups, but not for political speech, preclude a finding that the ordinance scheme is narrowly-tailored. The content-based ordinance cannot be said to serve any compelling state interest. 60. The adoption by the Fort Myers City Council of these Codes, and the present and future implementation of the ordinances by Defendant, constitute the proximate causation of the deprivation of the First Amendment rights of the Plaintiffs and other demonstrators for the ongoing events in Centennial Park, and in other public parks, streets or sidewalks in the City. The Plaintiffs seek redress for these violations of the First Amendment through the operation of 42 u.S.C. § 1983.
COUNT THREE Monell Claim - Official Policy to Suppress Protected Speech and Assembly
(42 USC § 1983 - Violation of Fourteenth Amendment - Vagueness) Fort Myers City Code, Sec. 58-153 and Sec. 58-154
By ALL PLAINTIFFS Against CITY OF FORT MYERS
61. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 143, as if set forth at length herein. 62. At all times relevant hereto, the City Council of defendant City of Fort Myers ("Council") was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 63. The Council enacted Ordiance 1991, §§ 12-216-12-217, now codified as City Code Sec. 58153 and 58-154, referenced as the "Park Regulations" Ordinance, subjecting OFM to a regulatory scheme that is impermissibly vague, is unconstitutional on its face. First, this ordinance fails to provide the kind of notice that enables ordinary citizens to understand what precise conduct it
Page 18 of 21

Case 2:11-cv-00608-JES-DNF Document 1 Filed 10/25/11 Page 19 of 21 PageID 19
prohibits; second, it authorizes arbitrary and discriminatory enforcement through its lack of preCISIOn. 64. The use of this code by Defendant has chilled the First Amendment-protected activities of the plaintiffs, has and will continue to cause the issuance citations to the plaintiffs, and others similarly situated who wish to exercise their rights of free speech, assembly and association.
COUNT FOUR Monell Claim - Official Policy to Suppress Protected Speech and Assembly (42 USC § 1983 - Violation of Fourteenth Amendment - Liberty Interest)
Fort Myers City Code, Sec. Sec. 58-154 and Sec. 86-153 By ALL PLAINTIFFS Against CITY OF FORT MYERS
65. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 143, as if set forth at length herein. 66. At all times relevant hereto, the City Council of defendant City of Fort Myers ("Council") was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 67. The Council enacted Ordiance 1991, §§ 12-216-12-217, now codified as City Code 58-154, referenced as the "Park Regulations" Ordinance, subjecting OFM to a regulatory scheme that prohibits "protracted lounging" in City parks is unconstitutional on its face, as a prohibition that has a substantial impact on conduct protected by the Due Process Clause of the Fourteenth Amendment, as members of OFM have a significant liberty interest in lounging on public benches and public places according to their inclination. 68. The Council enacted Ordinance 1991, §§ 17-117-17-118, now codified as Sec. 86-153, referenced as the "Parades and Processions" Ordinance, subjecting OFM to a regulatory scheme that is unconstitutional on its face, as a prohibition that has a substantial impact on conduct
Page 19 of 21

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protected by the Due Process Clause of the Fourteenth Amendment, as members ofOFM have a significant liberty interest in "meeting" with others in "open air" within City limits. 69. The use of these codes by Defendant has chilled the First Amendment-protected activities of the plaintiffs~ has and will continue to cause the issuance citations to the plaintiffs~ and others similarly situated who wish to exercise their rights of free speech~ assembly and association.
PRAYER FOR RELIEF - ALL COUNTS WHEREFORE, Plaintiffs seek judgment against defendant City of Fort Myers for the following relief: 1. A preliminary and permanent injunction, enjoining defendant City of Fort Myers, its officers, employees and agents, from enforcing the Fort Myers City Ordinances challenged in this complaint; 2. A declaration that defendant City of Fort Myers's challenged Ordinances violate Plaintiffs' rights to free speech~ assembly and association, under the First Amendment; 3. Compensatory Damages; 4. Costs of suit pursuant to 42 U.S.C. § 1920 and 42 U.S.C. § 1988; 5. Attorneys' Fees pursuant to 42 U.S.C. § 1988; 6. Such other relief as this Court deems just and proper. DATED: October 25, 2011

orney for Plaintiffs 1136 NE Pine Island Rd., Ste 77 Cape Coral, FL 33909 239.240.5057 jenni fer@keeslerlaw.com

Page 20 of 21

Case 2:11-cv-00608-JES-DNF Document 1 Filed 10/25/11 Page 21 of 21 PageID 21 VERIFICATION
I, JUSTIN VALO, declare: 1. I am a volunteer organizer for Occupy Fort Myers. I submitted a declaration in support of the Emergency Motion for Preliminary Inj unction, and in support of the facts set forth in this Verified Complaint. 2. I have read the Verified Complaint in this action and am familiar with the factual matters set forth in the pleading. I verify that these facts are true and correct. 3. I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct.
Executed on October 25,2011 in Fort Myers, FI0rida_'.y.'~L=---_ =---_________
JUSTINVALO
Page 21 of 21

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 1 of 8 PageID 22
Exhibit 1

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 2 of 8 PageID 23

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CASE NO:
OCCUpy FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT MCDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,
Plaintiffs,
v.
CITY OF FORT MYERS,
Defendant. ______________________________~I

DECLARATION OF JUSTIN VALO

Justin Valo, being of full age, hereby declares the following under penalty of perjury:

1. I have personal knowledge of the facts set forth in this declaration.

2. I am a resident of Fort Myers, Lee County, Florida.

3. Occupy Fort Myers ("OFM") is a group of mostly local citizens who have come

together to discuss common grievances, and hold general assemblies. OFM is an unincorporated

association of individuals concerned about the direction of our country who have spontaneously

gathered together in an attempt to bring visibility to the insidious influence of money into the

people's political process.

OFM seeks to bring awareness to the citizens' concerns

through an around-the-clock, peaceful protest. A core part of OFM's message is in our 24-hour

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 3 of 8 PageID 24
"occupation," which is a symbolic expression of our frustration with the current U.S. political and economic climate. OFM seeks to cooperate with local police departments and city officials. OFM is neither a corporation nor a not-for-profit organization. OFM is not formally affiliated with any national organization or corporation. OFM does not endorse any political candidate or group. OFM has no funds, no bank account, and does not participate in fundraising. I participate in the ongoing OFM demonstration activities and I assist in the organization of the group's activities.
4. I had heard about the Occupy Wall Street movement in Zuccotti Park in New York City beginning in September, 2011, and when I saw that a group of individuals were seeking to come together in Fort Myers in an effort to bring local visibility to Occupy Wall Street, I was excited to participate.
5. Occupy Fort Myers had their first General Assembly on October 8,2011. I attended the General Assembly and, afterwards, was happy to participate and assist in organizational activities. At the first General Assembly, OFM came to a consensus that we would hold our first rally and march on October 15, 2011. The OFM General Assembly agreed to begin "occupying" Centennial Park on First Street in Fort Myers in a show of solidarity with Occupy Wall Street and to bring local visibility to the citizens' concerns.
6. Individual participants agreed to take on certain responsibilities on behalf of OFM in an effort to ensure our right and ability to peacefully demonstrate on October 15. A loosely organized OFM "Legal Working Team," of which I am a participant, agreed to work with the City ofFort Myers and/or the Fort Myers Police Department for approval for our planned demonstrations. Mark Hetrick, who was serving as part ofthe Legal Working Team informed the General Assembly on or about October 11,2011 that the Fort Myers Police Department ("FMPD") said OFM could rally and march downtown on Oct. 15th, provided that we submit to certain restrictions, such as

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 4 of 8 PageID 25
agreeing not to use a megaphone or walk in the street. An FMPD contact said that the police would not interfere with any overnight "occupation," including allowing the erection of tents, as long as there was no alcohol brought into the park. The FMPD advised OFM to contact the City of Fort Myers Recreation Division to obtain a permit for the overnight occupation.
7. On October 11,2011, the Legal Working Team began speaking with employees of the Recreation Division in an attempt to obtain a permit for OFM's First Amendment-protected activity.
8. On October 15,2011, OFM held a noon rally at Centennial Park, and then conducted an approximately one mile long march from Centennial Park to the Bank ofAmerica branch on First Street, and then back to Centennial Park. Approximately 500 people showed up to support the Occupy Fort Myers movement. The march and rally remained peaceful and respectful. There were private birthday parties occurring under the pavilion in Centennial Park after our return from our march. OFM agreed to congregate away from the pavilion so that we would not disturb the private event.
9. OFM began "occupying" Centennial Park on the evening ofOctober 15th• The General Assembly agreed that the occupiers would respect the City and park by making sure that they maintained quiet after park closing hours and by thoroughly cleaning up after themselves. The occupiers had no confrontations with members of the public, the City or FMPD from Oct. 15th through Oct. 20th.
10. On October 14,2011, the Legal Working Team received an email from Peggy Kay, Recreation Administrative Manager. Ms. Kay attached Chapter 58, Art. IV, Div. 2, Sections 58-151 to 58-157 in response to our inquiry about using Centennial Park for our peaceful demonstration. We were then directed to a 34-page Special Events Handbook. The Handbook had, within it, a

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 5 of 8 PageID 26
special events permit application and required a deposit of $50. OFM completed the permit application on October 18,2011, and submitted it to the Recreation Division. OFM informed the Recreation Division, along with Officer Sanchez ofthe FMPD, through email communication that Occupy Fort Myers sought to cooperate with the City. On October 19,2011, at 10: 19 a.m., we heard from Kelly MacDonald, Sr. Program Coordinator in the Recreation Division through email, who informed us that, before the Special Event Committee could even review our permit application, OFM would need to obtain a $1 million liability insurance policy and bring the Liability Insurance certificate to the Recreation Administrative Office. Ms. MacDonald informed OFM that the City was prepared to enforce Ordinance Sec. 58-153(3), which states that "[n]o unauthorized person in a park shall ... set up tents, shacks, or any other temporary shelter for the purpose ofovernight camping," ifOFM did not comply with the liability insurance by 3:00 p.m. on the same day. We immediately contacted Ms. MacDonald that same day by email and phone to let her know that OFM could not possibly comply with the 3:00 p.m. deadline to obtain an insurance policy. We also informed Ms. MacDonald that OFM had no idea how to obtain or who to contact to obtain such a policy. The City gave us the names of three insurance companies-Lot and Gailor, K&K Insurance, and CSI. Ms. MacDonald agreed to allow OFM an additional day to attempt to obtain insurance and comply with City regulations.
11. On Oct. 19, 2011, OFM informed the City of Fort Myers Recreation Division and Police Department, through email, that the insurance companies designated by the City ofFort Myers would not provide the requested liability insurance policy to OFM. Lot and Gailor Insurance Agency said they would not insure OFM because we were not a legal entity. K&K Insurance said that their underwriter would not insure "these types of events." CSI never even returned our call. OFM informed Ms. MacDonald, Mr. Saeed Kazemi, the Public Works Director, and Officer Sanchez of

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 6 of 8 PageID 27
the FMPD, through email, that OFM sought understanding and cooperation with the City, that we would like to obtain a pennit, but we could not satisfy the City's requirements. OFM asked that the City not attempt to dismantle OFM.
12. OFM reviewed both the City of Fort Myers ordinances and the Special Events pamphlet, and saw no provision for seeking a waiver of the liability insurance requirement or a means to seek an appeal of the Recreation Division's refusal to accommodate OFM's request for a pennit.
13. It is my understanding that the City's Ordinance Sec. 2-273(1)(d) allows the Special Events Advisory Board, the entity to which OFM submitted our pennit application, to request that the City Council approve a waiver or reduction offees for special events. Among the problems with the ordinance code is it does not outline specific procedures for obtaining a pennit for First Amendment activity, does not outline any specific procedures to seek a waiver or appeal of permit denial, and contains no exception for spontaneous speech. Additionally, the code gives the Special Events Advisory Board too much discretion in what factors the Board can consider in granting or denying a permit; the ordinances are unduly vague, so that someone would not know what is allowed and what is prohibited (how would we know what constitutes "loud and boisterous" behavior, for instance?); and the ordinances allow for exceptions and accommodations to be made for "athletic sporting events, or cultural or civic activities," but not for political speech, thus showing a clear preference for non-political viewpoints.
14. On October 19,2011, the Legal Working Team informed OFM during General Assembly that OFM's pennit application would be denied, and the City of Fort Myer's Ordinance Sec. 58-153 would be enforced against OFM. After receiving this news, the General Assembly agreed to seek legal advice from an attorney. Even if an insurer would agree to insure OFM, OFM

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 7 of 8 PageID 28
has absolutely no funds with which to pay for a liability insurance policy and, it is my understanding, that the City ofFort Myers would require OFM to apply for another permit and obtain are-issuance or new insurance policy every ten days. It my further understanding that the City ofFort Myers does not allow an indigency exemption from the monetary permitting regulations. The City's requirement that OFM obtain a liability insurance policy has the effect ofbeing a complete prohibition on OFM's core symbolic speech.
15. On October 20,2011, members ofOFM and their legal counsel spent most of the day attempting to negotiate, in good faith, with City employees in an attempt to obtain a legal permit for our symbolic demonstration. Despite everyone's best efforts, the City would not issue OFM a permit. On the evening ofOctober 20, at approximately 10:45 p.m., members ofthe FMPD showed up at Centennial Park and issued citations ofover $1 00 each to any individual who had erected a tent in the park or who was planning on remaining in the park after 10:30 p.m. Since the issuance of citations on Oct. 20th, I have had to field numerous telephone calls and emails from demonstrators and members of the public who are concerned about the threat of harassment and intimidation due to the enforcement ofthese ordinances. OFM held a second downtown march and rally on October 22. Since the City began issuing citations, approximately 100 people attended the OFM events.

Case 2:11-cv-00608-JES-DNF Document 1-1 Filed 10/25/11 Page 8 of 8 PageID 29
16. The City of Fort Myers' unconstitutional ordinance scheme has hindered the free speech of OFM and all of the individuals who associate with the group, or who may have wanted to associate with the group, but are now fearful to demonstrate in solidarity with OFM due to threats ofmonetary sanctions or, even, arrest, ifthey were to participate. OFM's message has been curtailed, and we have suffered constitutional violations as well as monetary damages due to the cost of citations, costs of materials for signs that had to be removed, and because of loss of supplies while rushing to disassemble the encampment area. Also, OFM suffered, and continues to suffer, the loss of valuable media attention that arose from our overnight symbolic expression.
Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this ~ day of October, 20 II.

Case 2:11-cv-00608-JES-DNF Document 1-2 Filed 10/25/11 Page 1 of 4 PageID 30
Exhibit 2

Case 2:11-cv-00608-JES-DNF Document 1-2 Filed 10/25/11 Page 2 of 4 PageID 31
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION CASE NO:
OCCUPY FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT MCDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,
Plaintiffs,
v.
CITY OF FORT MYERS, Defendant.
______________________________~I
DECLARATION OF CHRISTOPHER FAULKNER CHRISTOPHER FAULKNER, being offull age, hereby declares the following under penalty
of perjury:
1. I have personal knowledge of the facts set forth in this declaration.
2. I am a resident of Lehigh Acres, Lee County, Florida.
3. On October 15, 2011, I began organizing and participating in demonstrations at
Centennial Park, 200 West First Street, Fort Myers, Florida. My participation includes attending
marches, gatherings, rallies, general assemblies, and other Occupy events. I have spent numerous
hours the past week in Centennial Park sitting at the Occupy Fort Myers "Information Booth," and speaking to members of the public about our message.
4. I am participating in the Occupy events because I believe that monetary influence has led

Case 2:11-cv-00608-JES-DNF Document 1-2 Filed 10/25/11 Page 3 of 4 PageID 32
to corruption in the U.S. policies and elections. I strongly believe in and support the Occupy ideology.
5. To stand in solidarity with Occupy Wall Street, I planned to and have been symbolically "occupy" Fort Myers by camping overnight in Centennial Park on Thursday, October 20,2011. The Occupy Fort Myers "encampment" is an area ofapproximately 10-12 tents erected in the southwest quadrant ofCentennial Park. At the "entrance way" ofthe encampment area, there is an information booth where members of the general public can stop by to engage in a discussion of our ideas or to ask questions about our views on social justice and economic equality. Behind the information booth, but in front ofthe tent area are handmade signs temporarily erected to communicate our core beliefs to members of the general pUblic.
6. Around 11 :00 p.m. on the evening of Oct. 20, 2011, I was given two citations by a Fort Myers Police Department law enforcement officer, both in the amount of $135.00 for remaining in the park after closing hours and for unlawful construction of a tent on City property. I was advised by the FMPD that I would be issued a citation every night if! intended to symbolically "occupy" the park. Since the original 2 citations were issued, I've received 6 more for a total of 8 citations.
7. It is my understanding that the Fort Myers Police are enforcing the City of Fort Myers ordinances because we were unable to obtain a permit for our symbolic speech. It is my further understanding that the Recreation Division has authority to recommend the issuance ofpermits and to waive certain provisions, but they would not waive those provisions for Occupy Fort Myers.
8. I wish to continue to respectfully and peacefully "occupy" a public area of Fort Myers, but I fear I will suffer further monetary damages and I also fear that, in the future, I could suffer arrest due to the City policies and codes. The monetary loss and threat of arrest intimidates me as I am a single father with a young child. I fear that continued government intrusion will continue to

Case 2:11-cv-00608-JES-DNF Document 1-2 Filed 10/25/11 Page 4 of 4 PageID 33
inhibit the exercise of my First Amendment rights. Pursuantto 28 U.S.C. §1746, I declare under penalty ofperjury that the foregoing is true and
correct. Executed on this1.3 day of October, 2011.
IL&~
Christopher Faulkner

Case 2:11-cv-00608-JES-DNF Document 1-3 Filed 10/25/11 Page 1 of 4 PageID 34
Exhibit 3

Case 2:11-cv-00608-JES-DNF Document 1-3 Filed 10/25/11 Page 2 of 4 PageID 35
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION CASE NO:
OCCUPY FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT MCDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,
Plaintiffs, v. CITY OF FORT MYERS,
Defendant.
------------------------------~/
DECLARATION OF MATT MCDOWELL MATT MCDOWELL, being of full age, hereby declares the following under penalty of
perjury: 1. I have personal knowledge of the facts set forth in this declaration. 2. I am a resident of Naples, Collier County, Florida.
3. I have actively participated with Occupy Fort Myers since its inception. My participation includes attending rallies, organizational meeting, general assemblies, marches and other Occupy events. I have engaged in dialogue regarding the nature and reform ofour system ofgovernment with other members ofOccupy Fort Myers, as well as with member ofthe general public on public streets,

Case 2:11-cv-00608-JES-DNF Document 1-3 Filed 10/25/11 Page 3 of 4 PageID 36
in public parks and in other public spaces in the City of Fort Myers. I also serve as a citizen journalist.
4. I have been participating in Occupy events because I strongly believe in supporting the rights of average people in participating in the policy, economic and social debate of this Country.
5. In an attempt to bring visibility to my concerns about the right of the average person to be heard in the political process, I planned to symbolically "occupy" Fort Myers by camping overnight in Centennial Park on Friday, October 21, 2011.
6. Around 6:15 p.m. on the morning of October 21,2011, I was advised by Capt. Viola of the Fort Myers Police Department that the public park was rented until noon by Humana Insurance Co., a private corporation, for an Alzheimer's Awareness event. Capt. Viola further informed me that Humana representatives approached FMPD and requested that the "occupiers" and our tents be removed from the park, but we could return at noon. I was given a citation by a Fort Myers Police Department law enforcement officer in the amount of$135.00 for remaining in the park after closing hours even though, at the same time ofday I was in the park expressing my political views, Humana representatives were in the park, also, setting up for their Alzheimer's event.
7. It is my understanding that the Fort Meyers Police Department would not issue citations if the City of Fort Myers Recreation Division would accommodate our event by allowing for us to participate in our expressive conduct after park closing hours. It is my further understanding that the City ofFort Myers ordinances require the Recreation Manager to accommodate athletic, cultural and civic events that occur after hours, but the City has refused to accommodate OFM.

Case 2:11-cv-00608-JES-DNF Document 1-3 Filed 10/25/11 Page 4 of 4 PageID 37
8. I desire to symbolically "occupy" a public space in Fort Myers, but the City's enforcement of their policies has chilled my exercise of free speech because I am afraid of additional citations, or even arrest. I am concerned that the City's ordinances and policies will continue to inhibit the exercise of my First Amendment rights.
Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct.
Matt McDowell

Case 2:11-cv-00608-JES-DNF Document 1-4 Filed 10/25/11 Page 1 of 3 PageID 38
Exhibit 4

Case 2:11-cv-00608-JES-DNF Document 1-4 Filed 10/25/11 Page 2 of 3 PageID 39
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION CASE NO:
OCCUPY FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT MCDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,
Plaintiffs,
v.
CITY OF FORT MYERS, Defendant.
______________________________~I
DECLARATION OF LUIS OSPINA LUIS OSPINA, being of full age, hereby declares the following under penalty of perjury: 1. I have personal knowledge of the facts set forth in this declaration. 2. I am a resident of Lehigh Acres, Lee County, Florida. 3. On October 15, 2011, I began organizing and participating in demonstrations at Centennial Park, 200 West First Street, Fort Myers, Florida. My participation includes attending rallies, marches, general assemblies and other Occupy events. I have made and held signs displaying our message to members of the general pUblic. 4. I choose to participate in the Occupy events because I am tired of the suppression of the masses, and the loss of personal fulfillment which has occurred because of the desire of those who

Case 2:11-cv-00608-JES-DNF Document 1-4 Filed 10/25/11 Page 3 of 3 PageID 40
have money to attain more material wealth, and the need ofthose who do not have money to sustain their day-to-day lives.
5. To bring local visibility to my concerns. I planned to symbolically "occupy" Fort Myers by camping overnight in Centennial Park on Thursday, October 20,2011.
6. Around 11 :00 p.m. on the evening ofOct. 20, 2011, I was given a citation by a Fort Myers Police Department law enforcement officer in the amount of$135.00 for remaining in the park after closing hours. I was advised by the Fort Myers Police Department that I would be issued a citation every night ifI intended to symbolically "occupy" the park.
7. It is my understanding that the City of Fort Myers may accommodate sporting or cultural events after park closing hours, but our symbolic speech is not being accommodated by the City.
8. I desire to continue my peaceful "occupation" ofa public area of Fort Myers, but because I am underemployed. the cost of the citation is an economic hardship for me. I am also concerned that more citations, or even arrests, may soon follow. I fear further intimidation or harassment from City employees will continue to inhibit the exercise of my First Amendment rights.
Pursuant to 28 U.S.C. §1746, I declare under penalty ofperjury that the foregoing is true and correct.
Executed on this ?3 day of October, 2011.
Luis Ospina

Case 2:11-cv-00608-JES-DNF Document 1-5 Filed 10/25/11 Page 1 of 3 PageID 41
Exhibit 5

Case 2:11-cv-00608-JES-DNF Document 1-5 Filed 10/25/11 Page 2 of 3 PageID 42

Case 2:11-cv-00608-JES-DNF Document 1-5 Filed 10/25/11 Page 3 of 3 PageID 43

Case 2:11-cv-00608-JES-DNF Document 1-6 Filed 10/25/11 Page 1 of 7 PageID 44
Exhibit 6

Municode Case 2:11-cv-00608-JES-DNF Document 1-h6ttp:/F/liilberadry1.m0u/2ni5co/1de1.comP/aprginet.a2spoxf?c71iPenatlgDe=IID390405&HTMRequ...

Fort Myers, Florida, Code of Ordinances » Subpart A - ADMINISTRATIVE CODE » Chapter 2 ADMINISTRATION » ARTICLE III. - BOARDS, COMMITTEES, COMMISSIONS » DIVISION 9. SPECIAL EVENTS ADVISORY BOARD»
DIVISION 9. - SPECIAL EVENTS ADVISORY BOARD
Sec. 2-271. - Purpose; creation; membership; terms; vacancies; qualifications; nonvoting meeting attendees. Sec. 2-272. - Oath: officers: records: meetings: quorum: attendance: minutes: compensation. Sec. 2-273. - Powers and duties. Sees. 2-274-2-290. - Reserved.
Sec. 2-271. - Purpose; creation; membership; terms; vacancies; qualifications; nonvoting meeting attendees.
(a) Pursuant to Charter section 83, there is hereby created a board of seven members and two alternate members to serve in the absence of a member to be known as the Special Events Advisory Board. The members of such board shall be appointed in the manner and for the duties hereinafter provided. Each council member shall nominate one member and the mayor shall nominate one member and the two alternate members. Each nominee shall be presented to the city council for consideration of appointment. After consideration of each nominee, the city council will make such appointments to the board as it deems appropriate. Nominees that are not appointed by the city council shall be replaced with a new nomination from the person holding the position of the elected official who made the original nomination. The city council will make the final decision on all appointments. The appointment of all members shall be by the city council. The members serve at the pleasure of the city council. Except for ex officio members. no member shall hold any other public office or position for the city.
(b) The members of the board shall serve for a term of three years. Any member may be reappointed from term to term upon nomination by the person holding the position of the elected official making the original nomination and appointment by the city council as provided in subsection (a) of this section.
(e) Appointments to fill vacancies shall be for the remainder of the unexpired term and made in the manner as the Original appointment as provided in subsection (a) of this section.
(d) The board shall consist of members with experience or interest in the following fields of expertise: public relations, community relations, marketing. special event coordination, special event promotion, tourism. fundraising, sponsorship. economic development, educational or sports education, community development, or the entertainment or media industries. The members of this board shall be residents. own property or operate a business within the city limits.
(e) A representative from the police department, recreation division, fire department, public works department and parks division shall attend each meeting of the special events advisory board to provide their expertise and suggestions to the board members and shall be nonvoting attendees.
(Code 1991, § 2-130.51; Oro. No. 3019, § 1. 9-17-2001; OreJ. No. 3439, § 17, 1-22-2008)
Sec. 2-272. - Oath; officers; records; meetings; quorum; attendance; minutes; compensation.
(a) After nomination and appointment, the members of the special events advisory board shall be sworn in by the city clerk to perform the duties of the office. The board shall meet and select a chair and vice-chair from among its members. The term of the chair and vice-chair will be for one year, at which time the chair and the vice-chair must be elected or reelected by the members. The chair and vice-chair may serve for two consecutive years, at which time a new chair and vice-chair must be elected.
(b) The special events advisory board shall prescribe rules for its meetings and shall keep records of its motions, resolutions. transactions, findings and recommendations. which records shall be filed with the city clerk and be public records.
(c) The public relations liason shall be responsible for presenting proposals to the board and keeping the minutes of the board meetings, recording the names of the members appointed, all members attending

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and all members absent, and the vote of each of the members upon decisions, resolutions, and recommendations, and the minutes shall be public records and shall be filed with the city clerk. (d) All meetings shall be held at the call of the chair and at other such times as may be determined by a majority of the board. Notice of the date, time, place and agenda for all meetings, both regular and special, shall be provided to the city clerk's office in a timely manner to be included in the notice of public meetings to comply with the Sunshine Law. All meetings shall be open to the public. At least one meeting will be held each month. (e) A quorum of the board shall consist of a majority of the appointed members, but no less than four members, and an affinnative vote of the majority of the quorum present shall be necessary to pass any motion. (f) If any member fails, without cause, to attend at least 75 percent of all meetings held during any calendar year from the date of apPointment by the city council, the member's seat shall be declared vacant by the chair and such vacancy shall be reported in writing to the city clerk. Such a vacancy shall be filled as provided in this division. (g) All members shall serve without compensation. (Code 1991, § 2-130.52; Ord. No. 3019. § 1. 9-17-2001)
Sec. 2-273. - Powers and duties.
The special events advisory board shall:
(1) Act in an advisory capacity to the city council in matters relating to special events proposed by event managers, which are: a. Open to the public; b. Held within the city limits in spaces which are overseen by the city; c. Expected to attract more than 1,000 people; and d. Requesting the city council approve a waiver or a reduction of fees or a cash sponsorship;
(2) Endeavor to facilitate quality cultural and artistic events that enhance the quality of life for the citizens of the city, and provide exposure and positive social and economic impacts for the city, by either recommending or withholding recommendation of funding to the city council for a special event that meets the four criteria described in subsection (1) of this section, based on a competitive process:
(3) Recommend to the city council special events that should receive city sponsorship by a reduction or waiver in the fees charged for the use of public property and/or the cost of services to be provided by the city, based on a weighted scale of merit:
(4) Recommend regulations for the conduct of special events that will increase interest therein to the citizens, residents and visitors of the city generally, insofar as the same are not in conflict with the city Code and state statutes:
(5) Have such other advisory duties granted by the city council consistent with successful special events held within the city.
(Code 1991, § 2-130.53; Ord. No. 3019, § 1, 9-17-2001; Ord. No. 3439, § 18, 1-22-2008)
Secs. 2-274-2-290. - Reserved.

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Fort Myers, Florida, Code of Ordinances» Subpart A - ADMINISTRATIVE CODE» Chapter 58 -
PARKS AND RECREATION» ARTICLE IV. - PARKS AND OTHER RECREATION FACILITIES »
DIVISION 2. - REGULATIONS»
DIVISION 2. - REGULATIONS
Sec. 58-151. - Malicious mischief; disorderly conduct. Sec. 58-152. - Sanitation. Sec. 58-153. - Recreational activity restrictions. Sec. 58-154. - Prohibited behavior. Sec. 58-155. - Merchandising. Sec. 58-156. - Park operating policy. Sec. 58-157. - Violations: penalties.
Sec. 58-151. - Malicious mischief; disorderly conduct.
No unauthorized person in a park shall:
(1) Willfully mark, deface, spray paint, or disfigure any buildings, benches, railings, signs, art objects, statues, notices or placards, whether temporary or permanent facilities, on park property.
(2) Climb any tree or walk, stand or sit upon monuments, vases, fountains, railings, fences or upon any other property not designated to be customarily used for such purposes. Throwing rocks in a careless or malicious manner and tree climbing are prohibited.
(3) Ride or operate any wheeled conveyance without yielding the right-of-way to pedestrians in all areas of a park. Bicycles and roller skates shall be permitted in areas or on sidewalks designated for each.
(Code 1963, § 24-28(2); Code 1991, § 12-214) Cross reforonc_ Mscellaneous offenses and Clime prevention programs. ch, 5C,
Sec. 58-152. - Sanitation.
(a) Park patrons shall cooperate in maintaining restrooms and washrooms in a neat and sanitary condition. No unauthorized person over the age of six years shall use the restrooms and washrooms designed for the OPPOSite sex, unless medical necessity dictates otherwise.
(b) No unauthorized person in a park shall dump, deposit or leave any bottles, broken glass, ashes, paper, boxes, cans, dirt, rubbish, waste, garbage or refuse or other trash. No such refuse or trash shall be placed in any water in or contiguous to any park, or left anywhere on the grounds thereof, but shall be placed in the proper receptacles where these are provided; however, where receptacles are not so provided, all such rubbish or waste shall be carried away from the park by the person responsible for its presence, and properly disposed of elsewhere. No unauthorized person shall examine, empty, remove, disturb or eat from the contents of any trash receptacle on public property.
(Code 1963, § 24-28(3); Code 1991, § 12-215)
Sec. 58-153. - Recreational activity restrictions.
No unauthorized person in a park shall:
(1) Swim, dive, bathe or wade in any waters, lakes, ponds or waterways in the city limits, except at such places as are provided and designated therefor by signage, and in compliance with such regulations as are herein set forth or may be hereafter adopted. No swimming shall be allowed in any public waters or ponds, unless a "swimming permitted" sign is posted thereon. Diving head first is prohibited in the city limits due to the risk of catastrophic injury, except in athletic diving events or in private swimming pools. No person shall frequent any waters or places customarily deSignated for the purpose of swimming or bathing, or congregate there when such activity is

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prohibited by the recreation manager, upon a finding that such use of the water would be dangerous or otherwise inadvisable. (2) Frequent any ponds or public swimming pools for the purpose of swimming. or congregate there, except during such hours that are designated for that facility by the recreation manager. (3) Set up tents, shacks, or any other temporary shelters for the purpose of overnight camping. No person shall live in a park beyond closing hours in any movable structure or special vehicle to be used or that could be used for such camping purpose, such as a tent, house-trailer, camp-trailer, camp-wagon or the like. (Code 1963, § 24-28(4); Code 1991, § 12-216)
Sec. 58-154. - Prohibited behavior.
No unauthorized person in a park shall do any of the following:
(1) Intoxicating beverages. a. Possess or drink alcoholic beverages at any time in the park. except: 1. At public events or public celebrations, including, but not limited to, festivals, food fairs, Riverfest, Taste of the Town and public holiday activities which have been properly permitted by the recreation manager: 2. At certain specifically designated recreation centers where meals or lunches are served under concession privileges, where the sale of alcoholic beverages by such concessionaire is permitted by the city: or 3. Where alcohol is consumed at an approved city event. b. Enter or be under the influence of intoxicating liquor or illegal drugs.
(2) Domestic animals. Permit the entry of a dog or other domestic animal into areas other than automobile parking concourses and walks immediately adjacent thereto, and in such other areas as may be clearly marked by "domestic animals permitted" signs. Nothing herein shall be construed as permitting the running of dogs at large.
(3) Alms or contributions. Solicit, beg or panhandle for alms or contributions for any purpose, whether public or private, except when done for permitted events, or when done by bona fide and properly licensed public charities with city permission.
(4) Fires. Build or attempt to build a fire, except in such areas for cookouts, barbecues, and other fires permitted by regulations as may be deSignated by the recreation manager. No person shall drop, throw or otherwise scatter lighted matches, burning cigarettes or cigars, tobacco paper or other inflammable material within any park area or on any highway, road, or street abutting or contiguous thereto, except in proper receptacles.
(5) Closed areas. Enter an area posted as "closed to the public," nor shall any person use or abet the use of any area in violation of posted notices.
(6) Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace.
(Code 1963, § 24-28(5); Code 1991, § 12-217)
Sec. 58-155. - Merchandising.
No person in a park shall expose or offer for sale any article or thing, nor station or place any stand, cart, or vehicle for the transportation, sale or display of any such article or thing, except such restrictions shall not apply to any properly licensed concessionaire or when done with the consent of the city as part of an approved public event or public activity.
(Code 1963, § 24-28(6); Code 1991, § 12-218)
Sec. 58-156. - Park operating policy.
(a) Hours. Except for unusual and unforeseen emergencies, parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.
(b) Closed areas. Any section or part of any park may be declared closed to the public by the recreation

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manager at any time and for any interval of time, either temporarily or at regular and stated intervals (daily or otherwise) and either entirely or merely to certain uses, as the recreation manager shall find reasonably necessary. (Code 1963, § 24-28(7); Code 1991, § 12-219)
Sec. 58-157. - Violations; penalties.
A violation of this division will subject the violator to a fine of not less than $25.00 and not more than $250.00. Such violators may be issued appropriate citations by city police officers. (Code 1963, § 24-28(8); Code 1991, § 12-213)

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Fort Myers, Florida, Code of Ordinances» Subpart A - ADMINISTRATIVE CODE » Chapter 86 -
TRAFFIC AND VEHICLES» ARTICLE IV. - PARADES AND PROCESSIONS»
ARTICLE IV.• PARADES AND PROCESSIONS (86)
Sec. 86-152. - Purpose and intent. Sec. 86-153. - Permit required: fees. Sec. 86-154. - Permit denial. Secs. 86-155-86-181. - Reserved.
Sec. 86-152. - Purpose and intent.
It is not the purpose or the intent of this article to curtail, deny or abridge any of the civil liberties accorded by the state or the United States Constitution, but only to give city officials notice, in advance, of such activities in order to afford proper policing, if needed, and to ensure the safety and convenience of the general public in the use of public thoroughfares to prevent violence and disturbance of the peace, and to guard against fraud or illegal activities and otherwise safeguard the public welfare in the interest of all.
(Code 1963, § 32-2; Code 1991, § 17-116)
Sec. 86-153. - Permit required; fees.
(a) No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.
(b) The fee for such permit shall be $5.00 if the activity permitted requires no extra policing or will cause no extra cost or expense to the city. If such activity will require additional policing or supervision, or otherwise incur additional cost and expense to the city, there shall be charged such fee as will defray such additional cost to be determined by the chief of police.
(Code 1963, § 32-1; Code 1991, § 17-117)
Sec. 86-154. - Permit denial.
If the chief of police knows or has reasonable grounds to believe that to permit any parade, procession or open-air meeting under this article mayor will result in violence, fighting. disturbance of the peace, or injuries to persons or damage to property, he may refuse to approve issuance of a permit hereunder by endorsing on the application or indicating in writing to the city clerk his reason for his refusal and such permit shall not be issued.
(Code 1963, § 32-2; Code 1991, § 17-118)
Secs. 86-155-86-181. - Reserved.
FOOTNOTE(S): (86) Cross reference- Streets, sidewalks and other public places, ch. 78. (Back) (86) State Law reference- Authority to regulate parades, proceSSions, etc., F.S. § 316.008(1){c). (Back)

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 Case 2:11-cv-00608-JES-DNF Document 48 Filed 11/15/11 Page 1 of 4 PageID 368

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

OCCUPY FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT McDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,

Plaintiff,

vs.

Case No. 2:11-cv-00608-FtM-29DNF

CITY OF FORT MYERS,

Defendant. ____________________________________

PRELIMINARY INJUNCTION
This matter came before the Court on Plaintiffs’ Motion for Preliminary Injunction, filed on October 25, 2011. (Doc. #74.) Plaintiff’s Verified Complaint (Doc. #1) alleges that four ordinances of the City of Fort Myers, Florida on their face violate plaintiffs’ constitutional rights. For the reasons stated in an Opinion and Order filed November 15, 2011 (Doc. #47), the Court granted in part and denied in part Plaintiffs’ Motion for Preliminary Injunction.
The Court finds, as more fully set forth in the Opinion and Order, which is incorporated herein, the following:
1. Plaintiffs have established that they are substantially likely to succeed on the merits as to the claims that Ordinance 86-153(a) is unconstitutional on its face as a violation of the First Amendment to the United States Constitution. Ordinance 86-153(a) states:
(a) No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of police or some duly authorized member of the police

Case 2:11-cv-00608-JES-DNF Document 48 Filed 11/15/11 Page 2 of 4 PageID 369
department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.
Fort Myers, Fla. Ordinance § 86-153(a).
2. Plaintiffs have established that they are substantially likely
to succeed on the merits as to the claims that the highlighted portion
of Ordinance 58-156(a) is unconstitutional on its face as a violation
of the First Amendment to the United States Constitution. Ordinance
58-156(a) states:
Except for unusual and unforeseen emergencies, parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.
Fort Myers, Fl., Code of Ordinances § 58-156(a).
3. Plaintiffs have established that they are substantially likely
to succeed on the merits as to the claims that the highlighted portion
of Ordinance 58-154(6) is unconstitutional on its face as a violation
of the First Amendment to the United States Constitution. Ordinance
58-154(6) states:
(6) Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace.
Fort Myers, Fl., Code of Ordinances § 58-154(6).
4. Plaintiffs have established that there is a substantial threat
2

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of irreparable injury if a preliminary injunction is not granted which prohibits enforcement of the Ordinance 86-153(a) and the highlighted portions of Ordinance 58-156(a) and Ordinance 58-154(6).
5. Plaintiffs have established that their injury resulting from enforcement of these Ordinances outweighs the potential injury to the City of Fort Myers if the preliminary injunction is granted; and
6. Plaintiffs have established that an injunction barring enforcement of these Ordinances would not harm or do a disservice to the public interest.
Accordingly, it is now
ORDERED:
1. Until further order of the Court, the City of Fort Myers, Florida, and all of its officials, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are enjoined and restrained from taking any action, directly or indirectly, to enforce:
(a) the entirety of Ordinance 86-153(a), which states: No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.
(b) the highlighted portion of Ordinance 58-156(a), which states:
Except for unusual and unforeseen emergencies,
3

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parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.

(c) The highlighted portion of Ordinance 58-154(6), which states:

(6) Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace.

2. Plaintiffs shall post a cash or surety bond with the Clerk of Court

of $100.00 within five (5) days of this Preliminary Injunction for the

payment of such costs and damages as may be incurred or suffered by

defendant should it later be determined that defendant was wrongfully

enjoined.

3. This Preliminary Injunction is binding upon defendant, its

officers, agents, servants, employees, and attorneys, and upon those

persons in active concert or participation with them who receive actual

notice of the Preliminary Injunction by personal service or otherwise.

DONE AND ORDERED at Fort Myers, Florida, this

15th day of

November, 2011.

Copies: Counsel of record
4

 
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION CASE NO: 2:11-CV-00608-JES-DNF
OCCUPY FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT MCDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,
Plaintiffs, v. CITY OF FORT MYERS,
Defendant. /
FIRST AMENDED COMPLAINT (With Injunctive Relief Sought)
The PLAINTIFFS hereby commence this civil action, seeking declaratory relief, injunctive relief, and compensatory damages, for ongoing and threatened violation of the First Amendment and Fourteenth Amendment rights of individuals, and those of an unincorporated association, seeking to engage in peaceful expressive conduct within the City of Fort Myers, Florida.
JURISDICTION AND VENUE 1. This action seeks declaratory relief, injunctive relief and compensatory damages pursuant to 42 U.S.C. §1983, for ongoing and threatened injury to the First Amendment rights of individuals and an unincorporated association engaged in lawful expressive activity within the City of Fort Myers,

Case 2:11-cv-00608-JES-DNF Document 49 Filed 11/21/11 Page 2 of 27 PageID 373
Florida. This Court accordingly has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1331 as claims arising under the U.S. Constitution, and pursuant to 28 U.S.C. § 1343 (a), as a civil action to redress the deprivation of civil rights and privileges secured by the U.S. Constitution. 2. Venue is proper in the Middle District of Florida - Fort Myers Division, under 28 U.S.C. §1391(b) (1), insofar as defendant City of Fort Myers is located in Lee County, Florida, and is thereby wholly located within the above-referenced judicial district.
INTRODUCTION 3. The set of Plaintiffs is comprised of thirteen (13) persons who are active in Southwest Florida in bringing awareness of social and economic justice issues through demonstrations, marches, and rallies, and related expressive speech and conduct, and one (1) unincorporated association whose members are concerned about current political, social and economic issues, including those arising locally, nationally and globally. In the instant civil action, the Plaintiffs challenge several provisions of the City of Fort Myers’ Municipal Code (“Fort Myers Code” or “Code”). The City of Fort Myers (hereinafter also “Fort Myers” or “defendant City”) employs a permit scheme, for expressive activity in traditional public fora, that is violative of the First and Fourteenth Amendments as an unlawful prior restraint, because it is content-based, overbroad, lacks sufficient procedural safeguards, and it suffers from additional infirmities. The permit scheme lacks sufficient standards in multiple instances, for example: to guide the decision of whether and under what conditions a permit will issue; to ensure that public officials must decide whether to issue or deny a permit in sufficient time to actually stage the event; fails to make exceptions for small-group political events or for spontaneous speech; or to delineate with clarity what conditions may be imposed on expressive activities. The absence of adequate standards in key areas means that the ordinance vests public officials with unbridled discretion and invites content-based decisions based on the nature of the speaker. These are forbidden grounds on which to base a permit scheme that requires a license to engage in protected speech; the permit scheme violates Plaintiffs’ First Amendment rights by
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impermissibly limiting their rights to speech, association, and assembly. Furthermore, the Fort Myers allows City officials to accommodate “athletic sporting events, or cultural or civic events” after public park closing hours, but allows no provision for accommodation of those who are participating in First Amendment-protected activity. Thus, the permit scheme in general, and the Parks ordinance in particular, are content-based on their face and illustrate the governmental policy of preference for non-political speech. For these reasons, defendant City of Fort Myers must be enjoined from prohibiting the lawful exercise of First Amendment-protected activity. Further, the Plaintiffs seek a declaration that the City’s “Special Events Permitting Scheme,” “Park Operating Policy,” and “Parade and Processions Ordinance” are facially invalid as violative of protected expressive conduct, and seeks damages for the wrongful abrogation of protected free speech, association and assembly.
PARTIES Plaintiffs 4. Plaintiff OCCUPY FORT MYERS (“alternately “OFM”) is an unincorporated association of individuals, mostly from Lee County, Florida and surrounding areas, who are concerned about social injustice in our country and who have gathered spontaneously to generate awareness of the corrupting influence of massive amounts of money in the nation’s political process. [Valo Decl. [D.E. 1-1], at ¶ 3]. A core purpose of OFM is to bring awareness to the concerns about the U.S. political process and economic policy through symbolic, around-the-clock, peaceful protests referred to as “occupations.” [Valo Decl. [D.E. 1-1], at ¶ 3]. OFM held their first rally and march on October 15, and began occupying Centennial Park in Fort Myers that evening. [Valo Decl. [D.E. 11] at ¶ 5]. 5. Plaintiff CINDY BANYAI is a resident of Lee County, Florida. Plaintiff Banyai received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No. 1B25781]. Plaintiff is asserting her personal
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constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 6. Plaintiff STEPHANIE DARST is a resident of Lee County, Florida. Plaintiff Darst received two citations in the amount of $135.00 each while involved in symbolic First Amendment-protected speech on the morning of October 22, 2011. [Citation No. 1B23023 and 1B23022]. Plaintiff is asserting her personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 7. Plaintiff CHRISTOPHER FAULKNER is a resident of Lee County, Florida [Declaration of Christopher Faulkner, dated October 23, 2011, hereinafter “Faulkner Decl. [D.E. 1-2],” at ¶2]. Plaintiff Faulkner received two citations in the amount of $135.00 each while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011 [Faulkner Decl. [D.E. 1-2] at ¶ 6]. Plaintiff Faulkner has received multiple citations since October, 20, for a total of eight, each in the amount of $135.00. Plaintiff Faulkner fears the ordinances and policies of the City of Fort Myers will inhibit the exercise of his free speech [Faulkner Decl. [D.E. 1-2] at ¶8]. 8. Plaintiff F. FRANK GUBASTA is a resident of Lee County, Florida. Plaintiff Gubasta received two citations in the amount of $135.00 each while involved in symbolic First Amendmentprotected speech on the evening of October 21, 2011 and again on the morning of October 22, 2011. [Citation No. 1B26251, 1B18250]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 9. Plaintiff ZACHARY KUHN is a resident of Lee County, Florida. Plaintiff Kuhn received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No.1B24948]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 10. Plaintiff HILARY MAINS is a resident of Lee County, Florida. Plaintiff Mains received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech on
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the evening of October 20, 2011. [Citation No. 1B25878]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 11. Plaintiff MATT MCDOWELL is a resident of Colliler County, Florida. [Declaration of Matt McDowell, dated October 24, 2011, hereinafter “McDowell Decl. [D.E. 1-3],” at ¶2]. Plaintiff McDowell received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech, including participating as a citizen journalist, on the morning of October 22, 2011 [McDowell Decl. [D.E. 1-3] at ¶ 6]. Plaintiff McDowell fears the ordinances and policies of the City of Fort Myers will inhibit the exercise of his free speech [McDowell Decl. [D.E. 1-3] at ¶8]. 12. Plaintiff MICHELLE N. MEYER is a resident of Lee County, Florida. Plaintiff Meyer received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No. 1B24226]. Plaintiff is asserting her personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 13. Plaintiff LUIS OSPINA is a resident of Lee County, Florida [Declaration of Luis Ospina, dated October 23, 2011, hereinafter “Ospina Decl. [D.E. 1-4],” at ¶2]. Plaintiff Ospina received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011 [Ospina Decl. [D.E. 1-4] at ¶ 6]. Plaintiff Ospina fears the ordinances and policies of the City of Fort Myers will inhibit the exercise of his free speech [Ospina Decl. [D.E. 1-4] at ¶8]. 14. Plaintiff RYAN POGUE is a resident of Lee County, Florida. Plaintiff Pogue received two citations in the amount of $135.00 each while involved in symbolic First Amendment-protected speech on the evening of October 22, 2011. [Citation No. 1B23090, 1B23097]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers.
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15. Plaintiff FRANK PRATT is a resident of Lee County, Florida. Plaintiff Pratt received a citation in the amount of $135.00 while involved in symbolic First Amendment-protected speech on the evening of October 20, 2011. [Citation No. 1B24949]. Plaintiff is asserting his personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 16. Plaintiff MARLENE ROBINSON is a resident of Lee County, Florida. Plaintiff Robinson received two citations in the amount of $135.00 each while involved in symbolic First Amendmentprotected speech on the evening of October 22, 2011. [Citation No. 1B25061, 1B25060]. Plaintiff is asserting her personal constitutional right to engage in free speech, assembly and association within the confines of the City of Fort Myers. 17. Plaintiff JUSTIN VALO is a resident of Lee County, Florida [Valo Decl. [D.E. 1-1], at ¶2]. Plaintiff Valo participates in ongoing demonstration activities, and assists in the organization of OFM’s activities. [Valo Decl. [D.E. 1-1], at ¶3]. Plaintiff Valo asserts that unconstitutional ordinances being enforced by the City of Fort Myers have hindered and chilled his speech, the speech of all those who associate with OFM and all who may have wanted to associate with OFM in the future. [Valo Decl. [D.E. 1-1], at ¶16].
Defendant 18. Defendant CITY OF FORT MYERS is a body corporate and politic, with the capacity to sue and be sued. The City of Fort Myers is the legal entity responsible for the actions of its final policymaker for city policies, the Fort Myers City Council. As such, defendant City is responsible for the passage of City Code Sec. 118.3.5(E)(1) which authorizes the use of the Special Events Handbook for all events on public land, including the Occupy Fort Myers demonstration, Sec. 2-273, Sec. 58-154(6), Sec. 58-156(a), Sec. 58-157, and Chapter 86 by the City Council, and for the implementation of such city laws.
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FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
19. Plaintiffs seek to exercise their First Amendment rights to assemble and demonstrate in Centennial Park, and on other public property located in Fort Myers, Florida, to bring visibility to the insidious influence of money on the U.S. political process, and to inform members of the general public on political issues such as social justice and economic equality.
Interaction Between Event Organizers and City of Fort Myers Officials 20. On or about October 11, 2011, Mark Hetrick, who volunteered his services as a member of the OFM Legal Working Team, called the Fort Myers Police Department (“FMPD”) to inquire about obtaining a permit for a planned OFM rally and march in downtown Fort Myers on Oct. 15, 2011. [Valo Decl. [D.E. 1-1], at ¶6]. 21. FMPD indicated that OFM could rally and march downtown on Oct. 15th, provided that OFM submit to certain restrictions. Specifically, OFM could not: use a megaphone, march in the street, or include “vulgar language” on signs. [Valo Decl. [D.E. 1-1], at ¶6]. 22. Mr. Hetrick further inquired about OFM’s intentions to symbolically “occupy” Centennial Park beginning on the evening of Oct. 15, 2011. An FMPD contact said that the police would not interfere with any overnight “occupation,” including allowing the erection of tents, as long as there was no alcohol brought into the park. The FMPD advised OFM to contact the City of Fort Myers Recreation Division to obtain a permit for the overnight occupation. [Valo Decl. [D.E. 1-1], at ¶6]. 23. On October 15, 2011, OFM held a noon rally at Centennial Park, and then conducted an approximately one mile-long sidewalk procession from Centennial Park to the Bank of America branch on First Street, and then back to Centennial Park. Approximately 500 people showed up to support the Occupy Fort Myers movement. The march and rally remained peaceful and respectful. [Valo Decl. [D.E. 1-1], at ¶6].
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24. OFM began “occupying” Centennial Park on the evening of October 15th. The General Assembly of OFM, comprised of the entire gathering of persons engaged in a group decision-making process, agreed that the “occupiers” would respect the City and park by making sure that the participants maintained quiet after park closing hours, and by thoroughly cleaning up after themselves. The occupiers had no confrontations with members of the public, the City or FMPD from Oct. 15th through Oct. 20th. [Valo Decl. [D.E. 1-1], at ¶9]. The “occupiers” did continue their political activity by engaging in awareness-building with an information booth for questions for the general public set up at the entranceway of the gathering, print and television media, by displaying political signs, and through the symbolic presence of tents. [Faulkner Decl. [D.E. 1-2], at ¶ 3; see also digital photographs of the OFM encampment area [D.E. 1-5]]. 25. On October 18, 2011, OFM obtained a “Special Events” pamphlet from the City, enclosed within it was a permitting scheme and a permit application. The “Special Events” pamphlet states that “[t]he Special Events Advisory Board may have final approval of all events as detailed in City Ordiance #3019.” [See Special Events Pamphlet, [D.E. 30-1]]. OFM completed a permit application, and submitted it to the Recreation Division. OFM informed the Recreation Division, along with Officer Sanchez of the FMPD, through email communication that Occupy Fort Myers sought to cooperate with the City. [Valo Decl. [D.E. 1-1], at ¶10]. 26. On October 19, 2011, at 10:19 a.m., Kelly MacDonald, Senior Program Coordinator in the Recreation Division informed OFM, through email, that, before the Special Event Committee could even review the permit application, OFM would need to obtain a $1 million liability insurance policy and bring the Liability Insurance certificate to the Recreation Administrative Office. Ms. MacDonald informed OFM that the City was prepared to enforce Ordinance Sec. 58-153(3) if OFM did not comply with the liability insurance by 3:00 p.m. on the same day. [Valo Decl. [D.E. 1-1], at ¶10]. 27. On October 19, 2011, Mark Hetrick contacted Ms. MacDonald by email and phone to let her know that OFM could not possibly comply with the 3:00 p.m. deadline to obtain an insurance policy. The City gave OFM the names of three insurance companies, and Ms. MacDonald agreed to allow
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OFM an additional day to attempt to obtain insurance and thereby comply with City regulations. [Valo Decl. [D.E. 1-1], at ¶10]. 28. On Oct. 19, 2011, OFM informed the City of Fort Myers Recreation Division and Police Department, through email, that the insurance companies designated by the City of Fort Myers would not provide the requested liability insurance policy to OFM. OFM informed Ms. MacDonald, Mr. Saeed Kazemi, the Public Works Director, and Officer Sanchez of the FMPD, through email, that OFM sought understanding and cooperation with the City, that the group would like to obtain a permit, but OFM could not satisfy the City’s requirements. OFM asked that the City not attempt to dismantle the OFM presence in Centennial Park. [Valo Decl. [D.E. 1-1], at ¶11]. 29. Even if an insurer would agree to insure OFM, OFM has absolutely no funds with which to pay for a liability insurance policy, and it was conveyed by City personnel that the City of Fort Myers would require OFM to apply for another permit and obtain a re-issuance or new insurance policy every ten days. [Valo Decl. [D.E. 1-1], at ¶14]. OFM sought to review the procedures for requesting a waiver of the liability insurance requirement or for appeal of the denial of a permit, but there were no provisions for either waiver or for appeal, located in either the City of Fort Myers ordinances or the Special Events pamphlet. [Valo Decl. [D.E. 1-1], at ¶12]. 30. On October 20, 2011, members of OFM and their legal counsel spent most of the day attempting to negotiate, in good faith, with City employees in an attempt to obtain a permit for the ongoing symbolic demonstration. The City would not issue OFM a permit, nor would the City identify any procedure for requesting either a waiver or an appeal of the City’s decision. [Valo Decl. [D.E. 1-1], at ¶15]. 31. On the evening of October 20, at approximately 10:45 p.m., members of the FMPD showed up at Centennial Park, and issued citations of $135 each to any individual who was planning on remaining in the park after 10:30 p.m. [Valo Decl. [D.E. 1-1], at ¶15; Faulkner Decl. [D.E. 1-2], at ¶6; Ospina Decl. [D.E. 1-4], at ¶6].
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32. On the morning of October 22, 2011, FMPD law enforcement officers arrived at OFM encampment area at approximately 6:15 a.m. and demanded the OFM occupiers to leave the park and remove their tents. [McDowell Decl. [D.E. 1-3], at ¶6]. 33. Humana, the insurance corporation, was sponsoring an Alzheimer’s Awareness event in Centennial Park on Saturday, October 22. FMPD Captain Viola informed OFM occupiers that Humana rented “the entire park,” and that he didn’t wish for OFM members to leave the park completely until noon. When Capt. Viola was further questioned by OFM members, he informed OFM that the Humana representatives did not want the tents in the park during their event. The occupiers who were present each received a citation in the amount of $135 for being in the park after closing hours, even though Humana representatives were also in the park before 6:00 a.m. The occupiers who were present each received a citation in the amount of $135 for being in the park after closing hours, even though Humana representatives were also in the park before 6:00 a.m. [McDowell Decl. [D.E. 1-3], at ¶6]. 34. On November 2, 2011, the City of Fort Myers agreed to extend a Special Events permit to Occupy Fort Myers for a period of 10 days, with an option to renew, if Occupy Fort Myers agreed to voluntarily vacate Centennial Park for the weekend’s Taste of the Town event. [See Declaration of Christopher Faulkner, dated November 18, 2001, hereinafter “Faulkner Decl. 11/18,” attached hereto as “Exhibit 1,” at ¶ 4.] 35. On November 7, 2011, the City of Fort Myers issued Occupy Fort Myers a 10-day permit. [Faulkner Decl. 11/18, at ¶ 5; Exhibit B, attached to Faulkner Decl. 11/18]. The agreed upon permit provisions stated that the City could refuse or rescind the permit if the event was hazardous or if there was an emergency situation in the City of Fort Myers. The agreed upon permit provisions further stated that “[f]ailure to meet the requirements of this agreement may result in future rental (sic) requests being denied.”
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36. On November 15, 2011, this Court issued a preliminary injunction enjoining the City from enforcing certain provisions of their Parades and Processions Ordinance and their Park Regulations Ordinance. [D.E. 48]. 37. On November 17, 2011, members of Occupy Fort Myers went to the City of Fort Myers Recreation Division to obtain a re-issuance of their permit. Kelly MacDonald, the City of Fort Myers Sr. Program Coordinator, told OFM that she was instructed to state that the permit request was denied.1 She refused to disclose why the permit request was being denied, and was unable to inform OFM how to appeal the denial other than to say that OFM should “contact the Legal Department.” 38. On November 17, 2011, at approximately 11:00 p.m., law enforcement officers in the Fort Myers Police Department went to Centennial Park and demanded that all members of OFM leave the park immediately or face arrest. One member of OFM was arrested for trespass. 39. As a direct and proximate cause of the unconstitutional City ordinances, Plaintiffs have suffered damages, which include violation of their civil rights, limitation of their core political message to those who may be interested in participating in OFM events but whose speech has been chilled, and economic damages, in the nature of the value of the lost publicity, the value of volunteer staff time to adjust events and notify persons as to governmental harassment, the cost of transportation and related costs to attempt to comply with City demands, costs of litigation, and related expenses.
City of Fort Myers Policies2 The Special Events Permitting Scheme 40. The Temporary Land Uses Code, Sec. 118.3.5(E)(1), entitled “Temporary Uses and Structures,” comprises a portion of the City’s standardless and ad hoc permitting scheme, as follows:
1 In Ms. MacDonald’s affidavit, filed with the Court on November 4, 2011 [D.E. 36-1], at ¶ 4, Ms. MacDonald stated under oath that “never in my tenure has an application been denied.”
2 Copies of the Challenged City Code sections are attached hereto as Exhibit 2.
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The term ‘special events’ shall mean an event held on public land . . . Any person or entity requesting to conduct a special event on public land . . . shall follow provisions in the city’s special events handbook.
41. The Special Events Handbook3 create a content-based permitting scheme vesting unbridled
discretion in City Officials, as follows:
The City of Fort Myers recognizes that special events play a significant role in the life of a community. Special events enhance a community by providing recreation, cultural and educational opportunities; they foster a sense of belonging and collective identity among residents; they provide economic support for both the not-for-profit and business communities; and they provide opportunities for the development of tourism. . . Special events present a unique opportunity to invigorate community spirit and contribute substantial economic and social benefits. . . The Special Event Advisory Board may have final approval of all events as detailed in City Ordinance # 30194. . . Upon receipt of your application, copies are reviewed by affected city departments to assess site availability, quality and goal of the event, compliance with city ordinances, permits required, security deposit required and an estimated cost of all city fees that will be incurred.
42. The Special Events Advisory Board Ordinance 3019, Codified as Sec. 2-273, entitled “Powers and Duties,” is a sweeping set of provisions vesting specific powers within the Special Advisory Board, as follows:
The special events advisory board shall: (1) Act in an advisory capacity to the city council in matters relating to special events proposed by event managers, which are (a) Open to the public; (b) held within the city limits in spaces that are overseen by the city;(c) Expected to attract more than 1,000 people; and (d) Requesting the city council approve a waiver or a reduction of fees or a cash sponsorship. . . . (3) Recommend to the city council special events that should receive city sponsorship by a reduction or waiver in the fees charged for the use of public property and/or the cost of services to be provided by the city, based on a weighted scale of merit; (4) Recommend regulations for the conduct of special events that will increase interest therein to the citizens, residents and visitors of the city generally . . . .
3 See D.E. 30-1. 4 For the codification information of Ordinance No. 3019, see ¶ 42, infra.
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43. All provisions of the special events permitting scheme are silent as to the standards for approval or denial of a permit, the standard for the imposition of any fees, or the process to appeal the denial of a permit or appeal any permit provision.
Park Operating Policies 44. Sec. 58-154(6)5, entitled “Prohibited Behavior,” imposes impermissibly vague restrictions on symbolic speech and expressive activity, as follows:
No unauthorized person in the park shall do any of the following: . . . Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace. 45 . Sec. 58-156(a)6, entitled “Park Operating Policy,” is a content-based restriction on symbolic speech and expressive activity, as follows: Hours. . . Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sport events, or cultural or civic activities.
5 Enacted in City Code of 1963, Sec. 24-28(5); City Code of 1991, Sec. 12-217. 6 Enacted in City Code of 1963, Sec. 24-28(7); City Code of 1991, Sec. 12-219.
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46. Sec. 118.3.6(C) defines “Civic Use Categories.” The extensive list of civic use categories,7 which
goes on for pages, does not include political rallies or demonstrations. The Park and Open spaces
category does not include political expression as a principal use or as an accessory use.
47. Sec. 58-1578, entitled “Violations; Penalties” states, as follows: A violation of this division will subject the violator to a find of not less than $25.00 and not more than $250.00. Such violators may be issued appropriate citations by city policy officers.
48. There is no authority for arrest in the penalties section of the Park Regulations Code.
Parades and Processions Policy
49. Chapter 86, entitled “Parades and Processions,” is a content-based law that has three
subsections that outline a permitting scheme without specific factors or guidelines and vests
unbridled discretion in the Chief of Police, as follows:
86-153 (a) No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit
7 1. Community service. Uses of a public, nonprofit, or charitable nature providing ongoing public safety, educational, training, or counseling to the general public on a regular basis, without a residential component. 2. Day care. Uses providing care, protection, and supervision of children or adults on a regular basis away from their primary residence. Care is typically provided to a given individual for fewer than 18 hours each day, although the facility may be open 24 hours each day. 3. Educational facility. Public and private (including charter or religious) schools at the primary, elementary, middle, junior high, or high school level that provide basic academic education. Also includes colleges and other institutions of higher learning that offer courses of general or specialized study leading to a degree usually in a campus setting. 4. M edical facility. Uses providing medical or surgical care to patients. Some uses may offer overnight care. 5. Park and open space. Uses focusing on natural areas consisting mostly of vegetation, passive or active outdoor recreation areas, or community gardens, and having few structures. 6. Passenger terminal. Public or commercial facilities for the takeoff and landing of airplanes and helicopters, and terminals for taxi, rail or bus service. 7. Place of worship. Places of assembly that provide meeting areas for religious practice. 8. Social service. Uses that primarily provide treatment of those with psychiatric, alcohol, or drug problems, and transient housing related to social service programs. 9. Utilities. Public or private infrastructure serving a limited area with no on-site personnel (Minor Utility) or the general community and possibly having on-site personnel (Major Utility).
8 Enacted in City Code of 1963, Sec. 24-28(8); City Code of 1991, Sec. 12-213.
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shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting. (b) The fee for such permit shall be $5.00 if the activity permitted requires no extra policing or will cause no extra cost or expense to the city. If such activity will require additional policing or supervision, or otherwise incur additional cost and expense to the city, there shall be charged such fee as will defray such additional cost to be determined by the chief of police.
86-154 “If the chief of police knows or has reasonable grounds to believe that to permit any parade, procession or open-air meeting under this article may or will result in violence, fighting, disturbance of the peace, or injuries to persons or damage to property, he may refuse to approve issuance of a permit hereunder by endorsing on the application or indicating in writing to the city clerk his reason for his refusal and such permit shall not be issued.
Application of City Code to OFM Events 50. The City of Fort Myers required OFM to obtain a “special events” permit as required in City Code Sec. 118.3.5(E)(1) for their expressive conduct of “occupying” Fort Myers, even though OFM’s demonstration does not fall within the definitional parameters of a “special event.” Because the City has no provision in their ordinance scheme for First Amendment activity, the City arbitrarily subjected OFM to the standardless and content-based permitting requirements identified in the Special Events Handbook. Furthermore, since OFM was subjected to special events provisions, which are reviewed by the Special Events Advisory Board, City Code Sec. 2-273 allows the Board complete control, without defined appellate procedures, as to whether or not to entertain the waiver of any provisions. 51. The City of Fort Myers has issued citations to members of OFM, and has begun arresting members of OFM, for violations of City Code 58-156(a). This section of the City Code is clearly content-based viewpoint discrimination as it shows a policy of preference for non-political speech. The Recreation Manager also has unbridled discretion to extend park hours for sporting, cultural or
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civic events, but not for First Amendment-protected activity. OFM is subject to the provisions of Sec. 58-154(6). This code is impermissibly vague since OFM would not be aware of what constitutes “boisterousness” or “behavior tending to the breach of the peace” or “protracted lounging.” Further, at a political rally in Centennial Park on Saturday, November 19, 2011, a speaker cautioned an activist not to utilize “f-- k” or other 4-letter words that might be deemed insulting or indecent. Citizens are engaging in “self-censorship” to avoid violating Fort Myers vague and unconstitutionally overbroad “Park Speech Code.” 52. The FMPD allowed OFM to rally and march on a sidewalk, pursuant to City Code 86-153, provided OFM agree to certain ad hoc restrictions. These restrictions reflect city policies vesting unbridled discretion in the Fort Myers Police Department and comprise an impermissible and ethereal permitting scheme. Because any “open air meeting” is subject to the provisions of this code, OFM members are divested of First Amendment rights and an important liberty interest.
CAUSES OF ACTION
53. As to each cause of action delineated below in Counts One through Six, the plaintiffs advance their federal constitutional claims against the City of Fort Myers in the City’s capacity as a state actor, through the operation of the Fourteenth Amendment.
COUNT ONE Monell Claim - Official Policy to Suppress Protected Speech and Assembly (42 U.S.C. § 1983 - Violation of First Amendment - Viewpoint Discrimination) City of Fort Myers’ Permitting Scheme (Fort Myers City Code, Sec. 2-273, and the Special
Events Handbook as ratified by Sec. 118.3.5(E)(1) By ALL PLAINTIFFS Against CITY OF FORT MYERS
54. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 153, as if set forth at length herein.
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55. At all times relevant hereto, the City Council of defendant City of Fort Myers (“Council”) was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 56. The Council enacted Ordinance No. 3422 §6 on January 14, 2008, codified as Code Sec. 118.3.5(E)(1). This Ordinance ratifies the use of the “Special Events Handbook” as City policy for the application of all permits on public land within the City of Fort Myers. The Special Events Handbook is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in City officials to approve or deny permits, or to create permit provisions and set fees and requirements without identifiable standards. Neither the Special Events section of the Code, Sec. 118.3.5(E)(1), nor the Special Events Handbook have any provision to appeal decisions made by City officials in their permitting decisions. 57. The Council enacted Ordinance No. 3019, on September 17, 2001, codified as Code Sec. 2271 to Sec. 2-273 referenced as the “Special Events Advisory Board” Ordinance, precluding OFM’s demonstration event without first obtaining a permit, to be reviewed and recommended by the Special Advisory Board members, defined in Sec. 2-271 and 2-272. 58. The Special Events Permitting Scheme is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Board to provide for the exemption of permit requirements for favored speech, including commercial speech. 59. As part of a content-based regulatory scheme, the Special Event Handbook is subject to strict scrutiny, mandating that the defendant City establish that its regulatory scheme is: (1) narrowlytailored; and (2) serving a compelling state interest. The broad prohibitions against politicallycentered speech and conduct, the application of the permit schemes to small groups such as OFM, the preference for commercial speech, the failure to provide for spontaneous speech events, the
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failure to have fee exemptions for indigent applicants, the lack of an appeals process, and other factors preclude a finding that the ordinance scheme is narrowly-tailored. The content-based permitting scheme does not serve any compelling state interest. 60. The use of the Special Events Permitting Scheme by Defendant has chilled the First Amendment-protected activities of the plaintiffs; has caused and will continue to cause the citation of members of the plaintiffs, and has and will continue to cause the arrest of members of OFM, as well as others similarly situated, who wish to exercise their rights of free speech, assembly and association. 61. The adoption by the Fort Myers City Council of the Special Events Permitting Scheme as City policy, and the present and future implementation of this permitting scheme, constitute the proximate causation of the deprivation of the First Amendment rights of the Plaintiffs and similarly-situated persons for the ongoing events in Centennial Park, and other imminentlyscheduled events elsewhere within the City of Fort Myers. The Plaintiffs seek redress for these violations of the First Amendment through the operation of 42 U.S.C. § 1983.
COUNT TWO Monell Claim - Official Policy to Suppress Protected Speech and Assembly (42 U.S.C. § 1983 - Violation of First Amendment - Viewpoint Discrimination)
Fort Myers City Code, Sec. 58-156(a) - Park Operating Policy By ALL PLAINTIFFS Against CITY OF FORT MYERS
62. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 153, as if set forth at length herein. 63. At all times relevant hereto, the City Council of defendant City of Fort Myers (“Council”) was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City.
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64. The Council enacted Ordinance 1991, §12-219, now codified as City Code Sec. 58-156(a), referenced as the “Park Operations Policy”, precluding OFM’s demonstration event after park closing hours, defined as 10:30 p.m. to 6:00 a.m. This ordinance is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing the Recreation Manager to make accommodations by extending park hours for sporting, cultural or civil events. 65. As a content-based prohibition, Code 58-156(a) is subject to strict scrutiny, mandating that the defendant City establish that it be (1) narrowly-tailored, and (2) serving a compelling state interest. The broad prohibitions against politically-centered speech and conduct, while allowing for the accommodation for preferred non-political speech, preclude a finding that the ordinance scheme is narrowly-tailored. The content-based ordinance cannot be said to serve any compelling state interest. 66. The use of Code 58-156(a) by Defendant has chilled the First Amendment-protected activities of the plaintiffs, has and may continue to cause the citation of plaintiffs and other persons similarly situated who wish to exercise their rights of free speech, assembly and association.
COUNT THREE Monell Claim - Official Policy to Suppress Protected Speech and Assembly
(42 U.S.C. § 1983 - Violation of First Amendment - Overbreadth) Fort Myers City Permitting Scheme (Fort Myers City Code, Sec. 2-273, and the Special
Events Handbook as ratified by Sec. 118.3.5(E)(1) By ALL PLAINTIFFS Against CITY OF FORT MYERS
67. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 153, as if set forth at length herein. 68. At all times relevant hereto, the City Council of defendant City of Fort Myers (“Council”) was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other
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policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 69. The Council enacted Ordinance No. 3422 §6, on January 14, 2008, now codified as Code Sec. 118.3.5(E)(1). This Ordinance ratifies the use of the “Special Events Handbook” as City policy for the application of all permits on public land within the City of Fort Myers. The Special Events Handbook is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in City officials to approve or deny permits, or to create permit provisions and set fees and requirements without identifiable standards. Neither the Special Events section of the Code, Sec. 118.3.5(E)(1), nor the Special Events Handbook have any provision to appeal decisions made by City officials in their permitting decisions. 70. The Council enacted Ordinance No. 3019, codified as Code Sec. 2-271 to Sec. 2-273 referenced as the “Special Events Advisory Board” Ordinance, precluding OFM’s demonstration event without first obtaining a permit, to be reviewed and recommended by the Special Advisory Board members defined in Sec. 2-271 and 2-272. 71. The Special Events Permitting Scheme is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Board to provide exemption of permit requirements for favored speech, including commercial speech. 72. As part of a content-based regulatory scheme, the Special Events Permitting Scheme is subject to strict scrutiny, mandating that the defendant City establish that its regulatory scheme is (1) narrowly-tailored, and (2) serving a compelling state interest. The overly-broad prohibitions against politically-centered speech and conduct, the application of the permit schemes to small groups such as OFM, the provision that allows for recommendation of a waiver or reduction of permitting fees, or even a City cash sponsorship, for preferred commercial speech, the failure to provide for spontaneous speech events, the failure to have fee exemptions for indigent applicants,
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the lack of an appeals process, and other factors preclude a finding that the ordinance scheme is narrowly-tailored. The content-based permitting scheme does not serve any compelling state interest. 73. The adoption by the Fort Myers City Council of the Permitting Scheme, and the present and future implementation of it by Defendant, constitute the proximate causation of the deprivation of the First Amendment rights of the Plaintiffs and other demonstrators for the ongoing events in Centennial Park, and in other public parks, streets or sidewalks in the City. The Plaintiffs seek redress for these violations of the First Amendment through the operation of 42 U.S.C. § 1983.
COUNT FOUR Monell Claim - Official Policy to Suppress Protected Speech and Assembly
(42 U.S.C. § 1983 - Violation of First Amendment - Overbreadth) Fort Myers City Code, 86-153 - Parades and Processions/Fees By ALL PLAINTIFFS Against CITY OF FORT MYERS
74. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 153, as if set forth at length herein. 75. At all times relevant hereto, the City Council of defendant City of Fort Myers (“Council”) was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 76. The Council enacted Ordinance 1991, §§17-117–17-118, now codified as Sec. 86-153(a) and (b), referenced as the “Parades and Processions” Ordinance, precluding OFM’s rallies and marches without first seeking issuance a permit, to be reviewed and by the Chief of Police of the FMPD, or his designee. This overly-broad ordinance is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Chief of Police to show preference of non-political speech. Code Sec. 86-153(a) allows the Police Chief to grant or deny a permit at his whim, with no
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guidelines, no time restrictions for approval or denial, and no appellate process. Code Sec. 86153(b) allows the Police Chief to make staffing requirements without guidelines, and to impose additional costs and fees without guidelines or restrictions. 77. As part of a content-based regulatory scheme, Code 86-153 is subject to strict scrutiny, mandating that the defendant City establish that its regulatory scheme is (1) narrowly-tailored, and (2) serving a compelling state interest. The unbridled discretion vested in the Chief of Police, or a designee, without guidelines for issuing a permit, time limitations on review, guidelines for the imposition of restrictions or requirements, the failure to provide for spontaneous speech, and other factors preclude a finding that the ordinance scheme is narrowly-tailored. The content-based ordinance cannot be said to serve any compelling state interest. 78. The adoption by the Fort Myers City Council of this Code, and the present and future implementation of this code section by Defendant, constitute the proximate causation of the deprivation of the First Amendment rights of the Plaintiffs and other demonstrators for the ongoing events in Centennial Park, and in other public parks, streets or sidewalks in the City. The Plaintiffs seek redress for these violations of the First Amendment through the operation of 42 U.S.C. § 1983.
COUNT FIVE Monell Claim - Official Policy to Suppress Protected Speech and Liberties
(42 USC § 1983 – Violation of Fourteenth Amendment - Vagueness) Fort Myers City Code, Sec. Sec. 58-154(6) - Parks/Prohibited Behavior
By ALL PLAINTIFFS Against CITY OF FORT MYERS
79. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 153, as if set forth at length herein. 80. At all times relevant hereto, the City Council of defendant City of Fort Myers (“Council”) was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City.
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81. The Council enacted Ordinance 1991, §§12-216–12-217, now codified as City Code 58154(6), referenced as the “Park Regulations” Ordinance, subjecting OFM to a regulatory scheme that is impermissibly vague, is unconstitutional on its face. First, this ordinance fails to provide the kind of notice that enables ordinary citizens to understand what precise conduct it prohibits; second, it authorizes arbitrary and discriminatory enforcement through its lack of precision. The lack of definition of words and phrases, including “loud, boisterous . . . insulting or indecent language”will cause Plaintiffs and others to censor constitutionally-protected speech and expressive conduct. 82. The use of this code section by Defendant has chilled the First Amendment-protected activities of the plaintiffs, has and will continue to cause self-censorship on the part of the plaintiffs, and others similarly situated who wish to exercise their rights of free speech, assembly and association.
COUNT SIX Monell Claim - Official Policy to Suppress Protected Speech and Assembly (42 USC § 1983 – Violation of Fourteenth Amendment - Liberty Interest) Fort Myers City Code, Sec. 58-154(6) - Park Regulations and Sec. 86-153(a) and (b) - Parades
and Processions By ALL PLAINTIFFS Against CITY OF FORT MYERS
83. Plaintiffs reallege and incorporate each jurisdictional and factual allegation of Paragraphs 153, as if set forth at length herein. 84. At all times relevant hereto, the City Council of defendant City of Fort Myers (“Council”) was the final policymaker for the City of Fort Myers, for the purpose of adopting ordinances and other policies regulating constitutionally-protected speech, expressive conduct, and assembly within the boundaries of the City. 85. The Council enacted Ordinance 1991, §§12-216–12-217, now codified as City Code 58154(6), referenced as the Prohibited Behavior section of the “Park Regulations” Ordinance, subjecting OFM to a regulatory scheme that prohibits “protracted lounging” in City parks is unconstitutional on its face, as a prohibition that has a substantial impact on conduct protected by
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the Due Process Clause of the Fourteenth Amendment, as members of OFM have a significant liberty interest in lounging on public benches and public places, according to their inclination. 86. The Council enacted Ordinance 1991, §§17-117 to 17-118, now codified as Sec. 86-153(a) and (b), referenced as the permit section of the “Parades and Processions” Ordinance, subjecting OFM to a regulatory scheme that is unconstitutional on its face, as a prohibition that has a substantial impact on conduct protected by the Due Process Clause of the Fourteenth Amendment, as members of OFM have a significant liberty interest in “meeting” with others in “open air” within City limits. 87. The use of these code sections by Defendant has chilled the First Amendment-protected activities of the plaintiffs, and others similarly situated who wish to exercise their rights of free speech, assembly and association.
PRAYER FOR RELIEF - ALL COUNTS WHEREFORE, Plaintiffs seek judgment against defendant City of Fort Myers for the following relief: 1. A preliminary and permanent injunction, enjoining defendant City of Fort Myers, its officers, employees and agents, from enforcing the Fort Myers City Code Sections challenged in this First Amended Complaint; 2. A declaration that defendant City of Fort Myers’ challenged Code Sections violate Plaintiffs’ rights to free speech, assembly and association, under the First Amendment, and/or liberty interests protected by the Fourteenth Amendment; 3. Compensatory Damages; 4. Costs of Suit pursuant to 42 U.S.C. § 1920 and 42 U.S.C. § 1988; 5. Attorneys’ Fees pursuant to 42 U.S.C. § 1988;
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6. Such other relief as this Court deems just and proper.

DATED: November 21, 2011

s/Jennifer Lucas Keesler Jennifer Lucas Keesler FBN 67374 1136 NE Pine Island Rd., Suite 77 Cape Coral, FL 33991 Tel: (239) 240-5057 Jennifer@keeslerlaw.com

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Case 2:11-cv-00608-JES-DNF Document 49 Filed 11/21/11 Page 26 of 27 PageID 397 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21st day of November, 2011, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.
s/Jennifer Lucas Keesler Jennifer Lucas Keesler
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Case 2:11-cv-00608-JES-DNF Document 49 Filed 11/21/11 Page 27 of 27 PageID 398 SERVICE LIST Grant Alley galley@cityftmyers.gov Mark Moriarty mmoriarty@cityftmyers.gov Fort Myers City Attorney’s Office 2200 Second Street Fort Myers, FL 33901 Tel: (239) 321-7052 via CM/ECF Electronic Delivery
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Case 2:11-cv-00608-JES-DNF Document 49-2 Filed 11/21/11 Page 1 of 18 PageID 409
DIVISION 9. - SPECIAL EVENTS ADVISORY BOARD
Sec. 2-271. - Purpose; creation; membership; terms; vacancies; qualifications; nonvoting meeting attendees.
Sec. 2-272. - Oath; officers; records; meetings; quorum; attendance; minutes; compensation.
Sec. 2-273. - Powers and duties.
Secs. 2-274—2-290. - Reserved.
Sec. 2-271. - Purpose; creation; membership; terms; vacancies; qualifications; nonvoting meeting attendees.
(a)
Pursuant to Charter section 83, there is hereby created a board of seven members and two alternate members to serve in the absence of a member to be known as the Special Events Advisory Board. The members of such board shall be appointed in the manner and for the duties hereinafter provided. Each council member shall nominate one member and the mayor shall nominate one member and the two alternate members. Each nominee shall be presented to the city council for consideration of appointment. After consideration of each nominee, the city council will make such appointments to the board as it deems appropriate. Nominees that are not appointed by the city council shall be replaced with a new nomination from the person holding the position of the elected official who made the original nomination. The city council will make the final decision on all appointments. The appointment of all members shall be by the city council. The members serve at the pleasure of the city council. Except for ex officio members, no member shall hold any other public office or position for the city.
(b)
The members of the board shall serve for a term of three years. Any member may be reappointed from term to term upon nomination by the person holding the position of the elected official making the original nomination and appointment by the city council as provided in subsection (a) of this section.
(c)
Appointments to fill vacancies shall be for the remainder of the unexpired term and made in the manner as the original appointment as provided in subsection (a) of this section.
(d)
The board shall consist of members with experience or interest in the following fields of expertise: public relations, community relations, marketing, special event coordination, special

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event promotion, tourism, fundraising, sponsorship, economic development, educational or sports education, community development, or the entertainment or media industries. The members of this board shall be residents, own property or operate a business within the city limits.
(e)
A representative from the police department, recreation division, fire department, public works department and parks division shall attend each meeting of the special events advisory board to provide their expertise and suggestions to the board members and shall be nonvoting attendees.
(Code 1991, § 2-130.51; Ord. No. 3019, § 1, 9-17-2001; Ord. No. 3439, § 17, 1-22-2008)
Sec. 2-272. - Oath; officers; records; meetings; quorum; attendance; minutes; compensation.
(a)
After nomination and appointment, the members of the special events advisory board shall be sworn in by the city clerk to perform the duties of the office. The board shall meet and select a chair and vice-chair from among its members. The term of the chair and vice-chair will be for one year, at which time the chair and the vice-chair must be elected or reelected by the members. The chair and vice-chair may serve for two consecutive years, at which time a new chair and vice-chair must be elected.
(b)
The special events advisory board shall prescribe rules for its meetings and shall keep records of its motions, resolutions, transactions, findings and recommendations, which records shall be filed with the city clerk and be public records.
(c)
The public relations liason shall be responsible for presenting proposals to the board and keeping the minutes of the board meetings, recording the names of the members appointed, all members attending and all members absent, and the vote of each of the members upon decisions, resolutions, and recommendations, and the minutes shall be public records and shall be filed with the city clerk.
(d)
All meetings shall be held at the call of the chair and at other such times as may be determined by a majority of the board. Notice of the date, time, place and agenda for all meetings, both regular and special, shall be provided to the city clerk's office in a timely manner to be included in the notice of public meetings to comply with the Sunshine Law. All meetings shall be open to the public. At least one meeting will be held each month.

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(e) A quorum of the board shall consist of a majority of the appointed members, but no less than four members, and an affirmative vote of the majority of the quorum present shall be necessary to pass any motion. (f) If any member fails, without cause, to attend at least 75 percent of all meetings held during any calendar year from the date of appointment by the city council, the member's seat shall be declared vacant by the chair and such vacancy shall be reported in writing to the city clerk. Such a vacancy shall be filled as provided in this division. (g) All members shall serve without compensation. (Code 1991, § 2-130.52; Ord. No. 3019, § 1, 9-17-2001) Sec. 2-273. - Powers and duties. The special events advisory board shall: (1) Act in an advisory capacity to the city council in matters relating to special events proposed by event managers, which are: a. Open to the public; b. Held within the city limits in spaces which are overseen by the city; c. Expected to attract more than 1,000 people; and d. Requesting the city council approve a waiver or a reduction of fees or a cash sponsorship; (2)

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Endeavor to facilitate quality cultural and artistic events that enhance the quality of life for the citizens of the city, and provide exposure and positive social and economic impacts for the city, by either recommending or withholding recommendation of funding to the city council for a special event that meets the four criteria described in subsection (1) of this section, based on a competitive process;
(3)
Recommend to the city council special events that should receive city sponsorship by a reduction or waiver in the fees charged for the use of public property and/or the cost of services to be provided by the city, based on a weighted scale of merit;
(4)
Recommend regulations for the conduct of special events that will increase interest therein to the citizens, residents and visitors of the city generally, insofar as the same are not in conflict with the city Code and state statutes;
(5)
Have such other advisory duties granted by the city council consistent with successful special events held within the city.
(Code 1991, § 2-130.53; Ord. No. 3019, § 1, 9-17-2001; Ord. No. 3439, § 18, 1-22-2008)
Secs. 2-274—2-290. - Reserved.

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118.3.5. - Temporary Uses and Structures.
A.
Applicability. Certain uses and structures are temporary in character. They vary in type and degree, as well as length of time involved. Such uses and structures may have little impact on surrounding and nearby properties or they may present questions involving potential incompatibility of the temporary use or structure with existing uses. Unless otherwise specified elsewhere in this Land Development Code, the following regulations shall govern temporary uses and structures.
B.
Permit required. No temporary use or structure shall be established or maintained unless a permit for the compliance of such use with the provisions of this Land Development Code shall have first been issued in accordance with the provisions set forth below.
C.
Fee required. Any person or entity requesting to conduct temporary use on private land shall complete a temporary use application and pay applicable fees. Private events held by a resident of a single-family residence on property with a RS-District are exempt from these provisions, including use of tents.
D.
General requirements.
1.
All temporary uses shall meet the appropriate requirements of the building code, electrical code, fire (life safety) code and plumbing code.
2.
All temporary uses are prohibited unless applications for all required permits have been submitted and fees paid five business days in advance of the first day of the event, and the permit is issued in compliance with all code requirements. Applications for carnivals must be applied for and fees paid at least 30 days in advance of the first day of the event.
3.
A copy of the completed application shall be provided to the city councilperson representing the ward where the event is to be held.

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4.
The community development director and police chief shall review and grant approval of temporary use application.
5.
Exceptions to the advanced five-day or 30-day requirement due to unforeseen time constraints may be granted by the community development director with concurrence of the police chief and shall be subject to double fees.
6.
Governmental entities are exempt from the requirements of this section.
7.
Temporary uses are allowed in specified districts, provided required parking for the primary use is not blocked off for such activities and written, notarized consent from the property owner is provided to the city.
8.
Approval of a temporary use may be withheld by the city due to an apparent or past record of adverse impacts to the surrounding neighborhood. An appeal of the decision by the city is to the board of adjustments and subject to the provisions of section 98.3.7
9.
Temporary uses are temporary in nature and valid for only the dates as specified on the permit.
E.
Permitted temporary uses. The following temporary uses are allowed in the frequency stated below.
1.
Special events. The term "special events" shall mean an event held on public land or held in or at a public facility or a combination of both public land and public facility. Any person or entity requesting to conduct a special event on public land, not totally within a facility, shall follow provisions in the city's special events handbook. Special events totally contained within a public facility are exempt from the city's special events handbook and are subject to the facilities event fee structure.

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2.
Fundraising, entertainment events. Events such as fundraising, entertainment, carnivals, arts and crafts festivals, fireworks, Christmas tree or pumpkin sales are allowed at a specific location for 90 days per calendar year in the CG, CI, IL, IH, district, urban core, urban center, and urban general districts. This does not include businesses selling goods customarily sold at a business location. Such activities may be permitted in other districts than those listed above for a period not to exceed 60 days per calendar year and shall be limited in hours of operation to 8:00 a.m. to 10:00 p.m. All carnivals must have written approval of the councilmember in whose ward the event is to be located and must obtain a temporary occupational license.
3.
Off-site sales. Outdoor sales of goods by a business at a place other than the normal place of business, which owns or operates an ongoing licensed business with a fixed facility in the county may be permitted on property within the CG, CI, IL, and IH districts for a period of time not to exceed 30 days per calendar year.
4.
On-site sales. Outdoor sales of goods by licensed businesses at their permanent location are permitted for a period of three days with a minimum of 30 days between sales.
5.
Food vending carts.
a.
Food vending carts use in conjunction with a permitted temporary use. Food vending carts approved by the county health department and the fire marshal may be permitted in conjunction with a permitted temporary use and must obtain a temporary occupational license.
b.
Food vending carts not used in conjunction with a permitted temporary uses. All food vending carts must be approved by the county health department. Approval by the county health department must be submitted to the development services manager, as well as compliance with the following conditions, prior to issuance of an occupational license:
1)
Applicability. Food vending carts are a permitted use in the CI, IL, and IH districts. Food vending carts may be located within the downtown redevelopment area on property designated as urban core, urban center, urban general, and district if they are operated and located at an existing

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restaurant business that has an current outside cafe license and, provided, they can meet the location criteria for safe ingress and egress.
2)
Notarized letter. The applicant shall provide a notarized letter from the property owner giving permission for the use of the property.
3)
Code compliance.
a)
All food vending carts, vans and trailers shall be built in compliance with all applicable codes and shall be located in an area which does not detract in any way from visibility at intersections, block or cause blockage of any driveway, fire lane or fire hydrant, or cause any parking problem affiliated with any usage or patronage of the food vending cart, van or trailer.
b)
The fire marshal shall inspect a temporary food vending cart, van or trailer prior to issuance of the occupational license. The temporary food vending cart, van or trailer shall be maintained in working order and shall not create an adverse view or vista.
4)
Site plan required.
a)
A site plan shall be submitted showing the layout of the area, including the location of food vending carts, vans, trailers, parking spaces, aisle ways for pedestrians and any seating area. All carts, vans or trailers shall be located on either an asphalt or concrete surface. The dimensions for setbacks shall be determined by the development services manager depending on the district where the vending cart, van or trailer is to be located.
b)
All temporary food vending carts, vans or trailers shall be located in areas which do not detract in any way from visibility at intersections, block or cause obstruction to any driveway, fire lane, or fire hydrant, or cause any parking problem affiliated with any usage or patronage of the food vending cart.
5)

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General requirements.
a)
Support equipment and accessories shall not be placed around a temporary food vending cart, van or trailer during operation and shall not extend more than three feet from the edge in any direction.
b)
No temporary food vending cart, van or trailer shall be placed within public rights-of-way, except within the downtown redevelopment area.
c)
Temporary food vending carts, vans or trailers shall be removed each evening.
d)
Food vending carts, vans or trailers are temporary in nature, vesting no permanent rights, and the license to operate may be revoked for any reason by the development services manager upon 30 days notice or without notice if the cart poses a health safety or welfare violation. The license may be revoked for a violation of any provision of this section or other applicable regulations.
e)
Responsibility for sanitary facilities for employees rests with the occupational license holder.
6)
Movement of facility. If a food vending cart, van or trailer is moved from either its designated place of business or its designated place of storage, the operator must notify the fire marshal in writing. In addition, a satisfactory inspection is required for the new location, including payment of any required fees for an inspection at the newly designated place of business and for an inspection at the newly designated place of storage.
7)
Transfer of permit. Permits will be issued for individual carts, vans or trailers at specified locations and will be nontransferable. Change in ownership of a cart, van or trailer, or location shall require the owner to apply for a new permit. Permits and licenses are issued to individual temporary food vending carts, vans or trailers for specific locations and are not transferable.
8)

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Number. There shall be no more than one temporary food vending cart, van or trailer located within 150 feet of another temporary food vending cart, van or trailer. No individual temporary food vending cart, van or trailer shall exceed 400 square feet in size.
9)
Signage. Advertising signs may be permitted upon the temporary food vending cart, van or trailer and not on the sidewalk or street area.
10)
Alcohol. No alcoholic beverages are to be sold or consumed from temporary food vending carts, vans or trailers.
c.
All other vending carts. All other vending carts, vans, trucks, trailers, wagons and the like, used for, but not limited to, the sale of flowers, souvenirs or paintings, and which are not part of a permitted special event or temporary outdoor activity are prohibited, except if granted by the city council.
6.
On-site temporary signage. On-site temporary signage, including use of banners, shall be allowed for the duration of the temporary use and shall not require a permit. The location of the signage shall comply with the requirements set forth in subsection 126-91(c) and shall not create a nuisance or hazard to public safety.
7.
Trailers, semi-trailers, boat trailers, and RVs. It shall be unlawful to use any trailer, semi-trailer, boat trailer or recreational vehicle (RV) for the purpose of an office or business headquarters, or for the conduct of any business activity in the city, except as specified below.
a.
A temporary permit may be issued by the development services manager for a period not to exceed six months or upon approval of the city council for periods exceeding six months to permit a trailer, or mobile office unit to be used to allow business continuation during a major renovation program of an existing building or when a building loss is caused by fire or an act of nature, provided that the unit meets all necessary state and City Code pertaining to tie-downs, electrical and plumbing. All temporary permits issued will be valid from the date of the renovation permit issuance until seven calendar days after issuance of the certificate of occupancy or any termination date set by the development services manager or city council.

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b.
A trailer, semi-trailer or container may be used for loading or unloading purposes for a period not to exceed two days in a residential district or seven calendar days in any other non-industrial district. A trailer, semi-trailer or container may be parked or placed in an industrial district for loading, unloading and storage purposes.
c.
In CG, CI, IL, and IH districts the following shall apply:
1)
A fully enclosed trailer, semi-trailer or cargo container approved by the development services manager may be used for storage purposes for a period of time not to exceed 120 days in any 12-month period. A permit shall be obtained from the community development department in order to utilize the trailers or containers. Along with the building permit, the applicant shall also provide five copies of a site plan showing the proposed location and size of the trailers and containers. A representative from the community development, planning and public works departments shall review and approve the plan before a permit is issued.
2)
If the plan is approved, there will be a $500.00 fee charged each month per trailer or container for up to four months.
3)
After the first 12-month period, an applicant may reapply for a permit for another four months maximum. There is a maximum two-year period established for the temporary use of trailers and containers. No more permits will be issued after that date.
d.
A boat trailer or recreational vehicle may be parked or stored in the side or rear yard of the owner's residence or place of business, provided that it shall not be used for sleeping purposes or any purpose which violates the provisions of this section or any other applicable provision of the City Code.
F.
Temporary buildings or structures, and mobile offices.
1.

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Temporary buildings or structures, or mobile offices required for a construction project of any kind shall be permitted in every district, provided that such buildings or structures shall be removed from the site immediately upon completion of the project.
2.
Accessory structures such as manufactured homes or offices shall be permitted in conjunction with a temporary use the duration of the temporary use for office purposes. Use of accessory structures for living purposes is prohibited. Any such office use shall require toilet facilities, with a signed maintenance contract.
G.
Model homes. Model homes may be permitted in any district and are subject to the following requirements.
1.
One sign per model home. The sign shall not exceed 12 square feet, and shall be used for temporary identification/sales purposes.
2.
Time limit on approval shall be five years maximum or the completion of lot sales in the subdivision, whichever comes first. A one-time extension of approval (up to three additional years) may be granted by the board of adjustments.
3.
Parking areas must be able to accommodate four cars. Parking areas may be provided at a central sales facility parking lot, or in driveways. Parking may be reduced to two spaces per model when there is more than one model, models are centrally located, and sidewalks connect the models. The reduction to two spaces must be reviewed and approved through the administrative review process.
4.
Security bond required shall be $3,500.00.
5.
Limited hours of operation shall be from 8:00 a.m. to 6:00 p.m., seven days a week.
6.

Case 2:11-cv-00608-JES-DNF Document 49-2 Filed 11/21/11 Page 13 of 18 PageID 421
Outside lighting is prohibited between the hours of 10:00 p.m. and 7:00 a.m. 7. For security lighting, two lights shall be permitted, one in the front and one in the rear of the building. 8. Model homes shall be used exclusively for display purposes and lot sales within the subdivision only. No construction offices or other business offices are permitted. (Ord. No. 3422, § 6, 1-14-2008)

Case 2:11-cv-00608-JES-DNF Document 49-2 Filed 11/21/11 Page 14 of 18 PageID 422
ARTICLE IV. - PARADES AND PROCESSIONS [86]
Sec. 86-152. - Purpose and intent.
Sec. 86-153. - Permit required; fees.
Sec. 86-154. - Permit denial.
Secs. 86-155—86-181. - Reserved.
Sec. 86-152. - Purpose and intent.
It is not the purpose or the intent of this article to curtail, deny or abridge any of the civil liberties accorded by the state or the United States Constitution, but only to give city officials notice, in advance, of such activities in order to afford proper policing, if needed, and to ensure the safety and convenience of the general public in the use of public thoroughfares to prevent violence and disturbance of the peace, and to guard against fraud or illegal activities and otherwise safeguard the public welfare in the interest of all.
(Code 1963, § 32-2; Code 1991, § 17-116)
Sec. 86-153. - Permit required; fees.
(a)
No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.
(b)
The fee for such permit shall be $5.00 if the activity permitted requires no extra policing or will cause no extra cost or expense to the city. If such activity will require additional policing or supervision, or otherwise incur additional cost and expense to the city, there shall be charged such fee as will defray such additional cost to be determined by the chief of police.
(Code 1963, § 32-1; Code 1991, § 17-117)
Sec. 86-154. - Permit denial.
If the chief of police knows or has reasonable grounds to believe that to permit any parade,

Case 2:11-cv-00608-JES-DNF Document 49-2 Filed 11/21/11 Page 15 of 18 PageID 423
procession or open-air meeting under this article may or will result in violence, fighting, disturbance of the peace, or injuries to persons or damage to property, he may refuse to approve issuance of a permit hereunder by endorsing on the application or indicating in writing to the city clerk his reason for his refusal and such permit shall not be issued. (Code 1963, § 32-2; Code 1991, § 17-118) Secs. 86-155—86-181. - Reserved. FOOTNOTE(S): (86) Cross reference— Streets, sidewalks and other public places, ch. 78. (Back) (86) State Law reference— Authority to regulate parades, processions, etc., F.S. § 316.008(1)(c). (Back)

Case 2:11-cv-00608-JES-DNF Document 49-2 Filed 11/21/11 Page 16 of 18 PageID 424
Sec. 58-154. - Prohibited behavior. No unauthorized person in a park shall do any of the following: (1) Intoxicating beverages. a. Possess or drink alcoholic beverages at any time in the park, except: 1. At public events or public celebrations, including, but not limited to, festivals, food fairs, Riverfest, Taste of the Town and public holiday activities which have been properly permitted by the recreation manager; 2. At certain specifically designated recreation centers where meals or lunches are served under concession privileges, where the sale of alcoholic beverages by such concessionaire is permitted by the city; or 3. Where alcohol is consumed at an approved city event. b. Enter or be under the influence of intoxicating liquor or illegal drugs. (2) Domestic animals. Permit the entry of a dog or other domestic animal into areas other than automobile parking concourses and walks immediately adjacent thereto, and in such other areas as may be clearly marked by "domestic animals permitted" signs. Nothing herein shall be construed as permitting the running of dogs at large. (3) Alms or contributions. Solicit, beg or panhandle for alms or contributions for any purpose, whether public or private, except when done for permitted events, or when done by bona fide and properly licensed public charities with city permission.

Case 2:11-cv-00608-JES-DNF Document 49-2 Filed 11/21/11 Page 17 of 18 PageID 425
(4)
Fires. Build or attempt to build a fire, except in such areas for cookouts, barbecues, and other fires permitted by regulations as may be designated by the recreation manager. No person shall drop, throw or otherwise scatter lighted matches, burning cigarettes or cigars, tobacco paper or other inflammable material within any park area or on any highway, road, or street abutting or contiguous thereto, except in proper receptacles.
(5)
Closed areas. Enter an area posted as "closed to the public," nor shall any person use or abet the use of any area in violation of posted notices.
(6)
Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace.
(Code 1963, § 24-28(5); Code 1991, § 12-217)
Sec. 58-155. - Merchandising.
No person in a park shall expose or offer for sale any article or thing, nor station or place any stand, cart, or vehicle for the transportation, sale or display of any such article or thing, except such restrictions shall not apply to any properly licensed concessionaire or when done with the consent of the city as part of an approved public event or public activity.
(Code 1963, § 24-28(6); Code 1991, § 12-218)
Sec. 58-156. - Park operating policy.
(a)
Hours. Except for unusual and unforeseen emergencies, parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.
(b)
Closed areas. Any section or part of any park may be declared closed to the public by the recreation manager at any time and for any interval of time, either temporarily or at regular and stated intervals (daily or otherwise) and either entirely or merely to certain uses, as the recreation

Case 2:11-cv-00608-JES-DNF Document 49-2 Filed 11/21/11 Page 18 of 18 PageID 426
manager shall find reasonably necessary. (Code 1963, § 24-28(7); Code 1991, § 12-219) Sec. 58-157. - Violations; penalties. A violation of this division will subject the violator to a fine of not less than $25.00 and not more than $250.00. Such violators may be issued appropriate citations by city police officers. (Code 1963, § 24-28(8); Code 1991, § 12-213)

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 Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 1 of 68 PageID 429

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

CASE NO.: 2:11-CV-608-FtM-29DNF

____________________________________________________________

OCCUPY FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT McDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,

Plaintiffs,

Fort Myers, Florida

vs.

October 31, 2011

1:32 p.m.

CITY OF FORT MYERS,

Defendant. ____________________________________________________________

TRANSCRIPT OF ORAL ARGUMENT RE PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
HELD BEFORE THE HONORABLE JOHN E. STEELE UNITED STATES DISTRICT COURT JUDGE

- - -

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 2 of 68 PageID 430 2

A P P E A R A N C E S

FOR Plaintiffs:

JENNIFER LUCAS KEESLER, ESQ. 1136 N.E. Pine Island Road Suite 77 Cape Coral, FL 33909
MARA SHLACKMAN, ESQ. 757 SE 17th St PMB 309 Fort Lauderdale, FL 33316

FOR DEFENDANT:

MARK C.S. MORIARTY, ESQ. City of Fort Myers P.O. Box 2217 2200 Second Street Fort Myers, FL 33902-2217

REPORTED BY:

JEFFREY G. THOMAS, RPR-CP Official Federal Court Reporter U.S. Courthouse 2110 First Street, Suite 2-194 Fort Myers, FL 33901 (239) 461-2033

* * *

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 3 of 68 PageID 431 3

I N D E X October 31, 2011 Preliminary Discussions Argument by Ms. Keesler Argument by Mr. Alley Argument by Ms. Keesler Argument by Mr. Alley Argument by Ms. Keesler Argument by Mr. Alley Argument by Ms. Keesler Argument by Mr. Alley Argument by Ms. Keesler Certificate of Court Reporter
* * *

Vol. 1 1 1 1 1 1 1 1 1 1 1

Page 4 5 6 9
11 19 30 36 37 67 68

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 4 of 68 PageID 432 4

1

THEREUPON, the above-entitled case having been called

2 to order, the following proceedings were held herein,

3 to-wit:

4

- - -

5

THE COURT: This is the case of Occupy Fort Myers

6 and others versus the City of Fort Myers. It is Case 2:11

7 Civil 608.

8

Counsel, if you'd identify yourselves and your

9 respective clients, please, beginning with counsel for the

10 Plaintiff?

11

MS. KEESLER: Yes, Your Honor. May it please the

12 Court. Jennifer Keesler, from Cape Coral, on behalf of the

13 Plaintiffs.

14

MS. SHLACKMAN: May it please the Court, Mara

15 Shlackman from Fort Lauderdale, on behalf of the Plaintiffs.

16

THE COURT: All right. Thank you.

17

MR. ALLEY: Grant Alley, City Attorney, Fort

18 Myers.

19

MR. MORIARTY: Mark Moriarty, Assistant City

20 Attorney, Fort Myers.

21

THE COURT: We are here for Plaintiffs' motion for

22 a preliminary injunction. I've received what the city has

23 called a partial response. Looks like it was filed

24 yesterday. I saw it this morning.

25

Both sides ready?

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 5 of 68 PageID 433 5

1

MS. KEESLER: Yes, Your Honor.

2

MR. ALLEY: Yes, Your Honor.

3

THE COURT: All right. I saw, this morning, in

4 the newspaper, that the issue of the insurance had been

5 resolved, although a permit had not yet issued. Is there

6 any change in that? And if a permit has issued, does that

7 moot the injunction portion of this? I guess let me look to

8 counsel for the Plaintiff, first.

9

MS. KEESLER: Your Honor, to the best of my

10 knowledge, a permit has not yet issued. I am aware that

11 members of the Plaintiffs' group went to the City Recreation

12 Department on Friday afternoon, and they attempted to obtain

13 a permit. And they had indicated to me they were told that,

14 today, the Special Events Advisory Board would consider it.

15 I have not heard that they've received one yet.

16

In the event that a permit is received, I do not

17 believe it would moot this issue. It is my understanding

18 that permits are only issued for ten days. Therefore, this

19 would fall under the bourgeois standard of capable of

20 repetition yet evading review, because we --

21

THE COURT: I'm not suggesting the case would be

22 mooted. What I'm suggesting is the need for an injunction

23 would be mooted. And I suppose the answer, in part, depends

24 on whether the permit expires in ten days, and all that does

25 is postpone the issue for ten days. I'm not suggesting the

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 6 of 68 PageID 434

ARGUMENT BY MS. KEESLER

6

1 case would be mooted even with a permit.

2

MS. KEESLER: Yes, Your Honor.

3

THE COURT: What's your thought as to that? I

4 mean, if a permit gets issued, and it's -- let's assume it's

5 forever -- does that moot the need for an injunction, or is

6 there something else to be enjoined?

7

MS. KEESLER: I would . . . I would submit that

8 there would be other ordinances that would need to be

9 enjoined; specifically, the loitering ordinance, which I

10 believe could be used, even if there is a permit, to attempt

11 to dissuade speech. And again, there is the issue of, in

12 ten days, we may be right back in here even if we do get a

13 ten-day permit.

14

THE COURT: And what part of your complaint talks

15 about the loitering? Or have you called it something else?

16

MS. KEESLER: It was Count 3 and 4 of the verified

17 complaint. It was the 14th Amendment liberty interest and

18 the 14th Amendment vagueness challenge.

19

THE COURT: Three and four. The liberty interest

20 is sit wherever you want to sit. Whenever you want to sit.

21

All right. Mr. Alley, what, if anything, do you

22 know with regard to permits and if one is issued, whether

23 that moots the injunction part of this or not?

24

MR. ALLEY: May it please the Court, did you say

25 we could sit?

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 7 of 68 PageID 435

ARGUMENT BY MR. ALLEY

7

1

THE COURT: I didn't, but if you'd like to, you

2 may.

3

MR. ALLEY: I apologize. Your Honor, as of, my

4 understanding is, late Friday, after work hours, that there

5 was an insurance that was provided, and the city's in the

6 process of reviewing that insurance; and the city's position

7 is that, if a permit is issued, that that would -- it would

8 moot the need for an injunction.

9

The Plaintiffs have indicated that -- at least to

10 the media, that they're going to be vacating the park during

11 another event in the park, and then they would go to another

12 park. And so the city's position is that it would render

13 the need for an injunction moot under the mootness doctrine.

14

With respect to the loitering ordinance, it's the

15 city's position that the Plaintiff has not asked this Court

16 to enjoin the loitering ordinance, that the Plaintiff has

17 filed a temporary restraining order ex parté, what the city

18 has referred to as a sneak attack, while the city was

19 negotiating with the Plaintiffs, and they have not asked to

20 enjoin that section of the code in their pleading for the

21 temporary restraining order. The Court denied the temporary

22 restraining order on procedural grounds.

23

And on the emergency motion for a preliminary

24 injunction, the Plaintiff has not sought to enjoin, in an

25 emergency fashion, or even ask this Court to enjoin the --

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 8 of 68 PageID 436

ARGUMENT BY MR. ALLEY

8

1 what they call loitering ordinance. The loitering ordinance

2 that they refer to in their verified complaint is contained

3 in Section 58-154. And they've asked, in their verified --

4 they've asked, in their emergency injunction and in their

5 temporary restraining order, to enjoin four sections of the

6 city code, that being 58-153, 58-156, 2-273, and 86-153.

7

THE COURT: If the city does issue the permit, is

8 it valid for ten days, or some other length of time, or

9 what's the situation there?

10

MR. ALLEY: I don't know the answer to that.

11

THE COURT: The Plaintiffs' complaint pleads that

12 they were told, I don't remember by whom, that they would

13 need to go through the process of getting a permit and

14 insurance, essentially, every ten days. Do you know if

15 that's accurate?

16

MR. ALLEY: I have no reason to disbelieve the

17 Plaintiffs' counsel's representation. The Special Events

18 Permits, that's controlled under 2-273, and they are seeking

19 to enjoin that in an emergency fashion. And that -- that --

20 what they're seeking to enjoin is the Special Events

21 Advisory Board. And they're not seeking to enjoin the

22 creation of it or the processes that they follow, they're

23 seeking to enjoin all of the powers and duties of the

24 Special Events Advisory Board.

25

The Special Events Advisory Board is going to, as

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 9 of 68 PageID 437

ARGUMENT BY MR. ALLEY

9

1 Plaintiffs' represent, is going to be meeting to decide --

2 to make a decision on some aspect of the Plaintiffs' permit

3 request, as the Plaintiffs' attorney represents. I'm not

4 aware of that. But what I'm aware of is that special events

5 get granted for protests, special events get granted for

6 sporting events, but if there's somebody else that is using

7 the park exclusively because they have a prior special event

8 that's been issued, or if there's someone else that's using

9 that portion of the park, then the -- then the permit will

10 be denied. If the park's open, then the permit will be

11 granted. And there's a Taste of the Town event coming up in

12 the City of Fort Myers, and I know, during that period of

13 time, that the park has been already . . . already permitted

14 for the Taste of the Town event.

15

THE COURT: All right.

16

Ms. Keesler, you may proceed.

17

MS. KEESLER: Thank you, Your Honor. Your Honor,

18 do you prefer that we speak from the counsel table or from

19 the lecturn?

20

THE COURT: I prefer the lecturn, but it's up to

21 your preference.

22

MS. KEESLER: Thank you. Good afternoon, Your

23 Honor.

24

The Plaintiffs requested today's hearing to ask

25 the Court to enjoin Defendant City of Fort Myers from

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 10 of 68 PageID 438

ARGUMENT BY MS. KEESLER

10

1 enforcing several provisions of their city code. These code

2 sections have chilled and precluded core political speech,

3 conduct and assembly that's protected by the First

4 Amendment; and unless it's enjoined, it will continue to

5 infringe upon such protected rights of the Plaintiffs and

6 others similarly situated. Accordingly, my clients have

7 launched a special challenge to the certain sections of the

8 City of Fort Myers code. I would like to deal with the

9 easiest section first.

10

Section 86-153 is the Parades and Processions

11 Ordinance. It's a prior restraint as a permit from the

12 Chief of Police is required parades, processions, and

13 open-air meetings.

14

THE COURT: Is this the one that the city says

15 they don't --

16

MS. KEESLER: Yes.

17

THE COURT: -- there's a resolution that says they

18 don't enforce it?

19

MS. KEESLER: Yes, Your Honor. Based on the

20 documents filed yesterday, the city, in 2004, during a

21 different ordinance challenge, voluntarily agreed to stop

22 enforcing the parade ordinance. However, it does still

23 remain officially on the books, and it appears to have been

24 renumbered in the most recent 2006 enactment of the Code.

25 Therefore, groups and individuals who seek to have a parade,

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 11 of 68 PageID 439

ARGUMENT BY MS. KEESLER

11

1 or procession, or an open-air rally, look to the Code.

2

THE COURT: I'm sorry, let me stop you. This may

3 be the easiest.

4

Let me just hear from the city. I mean, you've

5 got an ordinance on the books that, in 2004, you promised

6 not to enforce? What's that all about? Why shouldn't I

7 enjoin from you enforcing that?

8

MR. ALLEY: We believe it's moot. It is not being

9 enforced. We've submitted Docket Number 28, which is the

10 correspondence from the City Attorney and the protestors

11 Mr. Green and Mr. Thomas, dated October, 2011; and, in that

12 correspondence, it says a permit is not required.

13

We submitted documentation of a legal memorandum

14 of October 17, 2011, the City Attorney to the City Manager,

15 saying a permit is to -- in affect, a permit is not required

16 under the First Amendment, that they would just have to

17 comply with state laws and other sections of the city code,

18 regarding obstruction of traffic, that the Plaintiffs have

19 not challenged.

20

We've submitted additional correspondence, dated

21 April 7, 2006, to the Immigration Latin United of Florida

22 and the City of Fort Myers, which was a protest that was

23 supposed to have a hundred thousand people in the City of

24 Fort Myers. That's what was being organized. It didn't

25 turn out that way, but it was a rather large protest. And

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 12 of 68 PageID 440

ARGUMENT BY MR. ALLEY

12

1 that correspondence to those parties to the organizers of

2 that protest basically provided, in a two-page letter, that

3 they needed to contact the city to identify what areas and

4 what -- where they were marching, what streets would need to

5 be closed, and are they providing for portable toilets,

6 water, food, because the city has limited resources. It

7 told them they didn't need to get a permit, but we were

8 going to hold them responsible to any damages to persons or

9 properties that their event caused, as organizers of the

10 event.

11

We submitted in that -- in support of that, also,

12 a -- the Code Article Parades and Processions, and excerpts

13 from the December 13, 2004, City Council meeting where the

14 City Council passed a resolution abating enforcement of not

15 only the section the Plaintiffs are complaining about, which

16 is 86-153, but also we abate 86-152 and 86-154. It somehow

17 got codified in the books after it was abated. It used to

18 be under Section 17, and then it somehow got codified in

19 Section 86.

20

The city does not enforce it. We believe it is

21 moot as applied to these Plaintiffs. The Plaintiffs were

22 never asked to get a permit under this section, the

23 Plaintiffs were never given a citation under this section,

24 and the Plaintiffs have been able to freely protest on the

25 city streets and sidewalks.

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 13 of 68 PageID 441

ARGUMENT BY MR. ALLEY

13

1

In the Plaintiffs' verification, they indicate

2 that they contacted the police department, and the response

3 from the police department was stay off the city streets,

4 don't go on to the city streets, don't block the city

5 streets, and don't use . . . I can't think of the terms, but

6 not blow horns to magnify your voice. In fact, they did.

7 They were on city streets, and, in fact, they did use those

8 blow -- megaphones.

9

And, finally, the -- the permit requirement has

10 never been applied to this Plaintiff, has never been applied

11 to anyone with respect to the Plaintiff, and the Court can

12 take -- we believe that that matter is rendered moot because

13 it has no applicability here, and because the city is not

14 enforcing that by the actions of City Council.

15

THE COURT: When you say the city, by resolution

16 in 2004, abated enforcement, why was it abated?

17

MR. ALLEY: It was abated because the city and

18 the -- the city entered into an agreement, a settlement

19 agreement, that the city was not going to enforce section --

20 any section of its parade ordinance, that entire article.

21 Not just Section 86-153, but also the purpose clause and the

22 penalties clause; 86-152 and 86-154.

23

The city entered into a settlement agreement that

24 the city was not going to enforce that section of the Code,

25 and that the city would be repealing that section of the

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 14 of 68 PageID 442

ARGUMENT BY MR. ALLEY

14

1 Code. And the city entered into a settlement agreement that

2 said that the city would be repealing a provision of the

3 Special Events Permit application process that had -- that

4 contained language that they -- that protestors could not

5 hand out leaflets or pamphlets. And there were some other

6 complained-of materials on that case approximately seven or

7 eight years ago.

8

THE COURT: And the city reneged because it didn't

9 repeal?

10

MR. ALLEY: No. The city abated enforcement of

11 the ordinance. And it was under Section 17, and it somehow

12 got recodified when the Code got recodified. It -- the old

13 Code was repealed, the new Code language was codified under

14 a new section. It was -- the language was divided in --

15 what was originally contained in two paragraphs was switched

16 to three separate sections.

17

THE COURT: So anyone who looks at the city code

18 today would see that that is still an ordinance that, at

19 least on its face, would apply to them.

20

MR. ALLEY: The Court's correct, and the city is

21 acting posthaste, as we've advised Plaintiffs' counsel this

22 morning -- or a lawyer from Plaintiffs' counsel. I'm not

23 sure if -- if they're admitted in the Middle District or

24 not, but we work -- the lawyers are working well together.

25 At least that's my perception. We've advised them we're

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 15 of 68 PageID 443

ARGUMENT BY MR. ALLEY

15

1 taking it off the books posthaste, and we wanted to discuss

2 other sections of the litigation.

3

THE COURT: When you say you're taking it off the

4 books, what does that mean?

5

MR. ALLEY: Well, we had permission to advertise

6 to repeal and repealing. We believe it has no legal effect

7 right now, and we've provided that information. We believe

8 it has no legal effect because the Court has jurisdiction

9 and federal law trumps our Code.

10

THE COURT: So what you're saying is it has no

11 binding effect because it's obviously unconstitutional?

12

MR. ALLEY: I'm saying it has no binding effect in

13 the settlement agreement that the city entered into. The

14 city did not make an admission of -- it did not address the

15 constitutionality of the Code provisions. The city entered

16 into a settlement agreement saying that it would repeal

17 those sections of the Code.

18

THE COURT: A settlement agreement has nothing to

19 do with me, I don't think. Or this case. I mean, it seems

20 to me -- and perhaps I'm reading between the lines

21 unnecessarily, but if it says what counsel says it says, it

22 virtually has to be unconstitutional, and I would presume

23 that's why the city agreed to abate enforcement, whatever

24 that means. And, for whatever . . . however it happened,

25 it's still on the books.

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 16 of 68 PageID 444

ARGUMENT BY MR. ALLEY

16

1

How is it that this group of Plaintiffs isn't

2 going to win on that? Other than, I suppose, the argument

3 is a standing one, since no one has tried to apply to it

4 them. But it's pretty clear, isn't it, to the extent that

5 that provision is still on the books, it can't possibly be

6 constitutional?

7

MR. ALLEY: Your Honor, when the city entered into

8 the settlement agreement which the Court has reserved

9 jurisdiction to enforce, the city did not concede that

10 the -- that that ordinance -- that those ordinance sections

11 were unconstitutional. The city did not concede that. The

12 city agreed that they would repeal that provision of the

13 ordinance, and the city immediately enacted a resolution

14 abating any enforcement of that -- of those ordinance

15 sections, and the city has not enforced that ordinance

16 section against anybody, and -- since the city entered into

17 that settlement agreement.

18

When it was under Section 17 . . . it's no longer

19 under Section 17. When the Code got recodified, the old

20 Code got repealed, and now the language shows up in three

21 paragraphs under Section 86. It shouldn't be there. And

22 we're -- the Plaintiffs' litigation, we identified it's in

23 the books, and when they filed their litigation, the Court

24 denied the temporary restraining order; however, the Court

25 granted an expedited hearing, and we've had three or four

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 17 of 68 PageID 445

ARGUMENT BY MR. ALLEY

17

1 days to research this, and it -- we're moving posthaste to

2 get it off the books. However, we have established that we

3 have not -- we have not utilized this ordinance, and we have

4 not applied it to these Plaintiffs. And there are sections

5 of the city code, that aren't being challenged, that say you

6 can't block streets and you can't block sidewalks. It has

7 no other prohibitions. And there are also sections of state

8 law that state that. So we need to get those sections off

9 the book. Admittedly, we didn't concede, in the litigation,

10 that it was unconstitutional on its face.

11

THE COURT: So it's still a live issue, I guess.

12

MR. ALLEY: Your Honor, respectfully, the . . . we

13 have passed -- we've taken official action by the highest

14 authority the city has, the governing body, and adopted a

15 resolution that the city is not enforcing -- the city will

16 not enforce --

17

THE COURT: You tell me what the difference is

18 between agreeing not to enforce it and not taking it off the

19 books.

20

MR. ALLEY: We should have taken it off the books.

21

THE COURT: And all they did in 2004 is to abate

22 enforcement of it, and it's been on the books for the next

23 seven years.

24

MR. ALLEY: It was in Section 17. It's now in --

25

THE COURT: Moving sections doesn't change

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 18 of 68 PageID 446

ARGUMENT BY MR. ALLEY

18

1 anything. All you're doing is maybe trying to hide it. But

2 you agreed to repeal it, you didn't repeal it, you abated

3 it, and it's still on the books. Why doesn't that make it a

4 live issue?

5

MR. ALLEY: Because it has not been applied to the

6 Plaintiffs, and they have not been -- there were 73 -- as of

7 the 20 . . . . On Docket Number 23, as of October 26th,

8 there were 73 citations issued, and they were -- none of

9 them were issued for this section of the Code as applied to

10 the -- as applied to the Plaintiffs. In the Plaintiffs'

11 verified complaint, they indicate that they contacted the

12 FMPD, the Fort Myers Police Department, and they were told

13 don't block the streets, and don't use the megaphone. And

14 the city has shown a history in its not enforcement this

15 section of the Code because it's not applicable. Both in

16 court --

17

THE COURT: Not enforcing a Code and leaving it on

18 the books so anyone who is doing legal research who wants to

19 check can find it, how does that possibly not chill

20 someone's exercise of First Amendment rights when they look

21 it up and city ordinance says they can't do any of these

22 things.

23

MR. ALLEY: Your Honor, it clearly is a violation

24 if there is an unconstitutional order -- if there is an

25 unconstitutional code if it's in the Code. That clearly is

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 19 of 68 PageID 447

ARGUMENT BY MR. ALLEY

19

1 a violation. And it does have a chilling affect, and

2 there's no disagreement. And that's what the severability

3 clause of the Code of Ordinance is for and that's what

4 the -- the city, in passing a resolution that says that the

5 city is not enforcing this provision of the Code, and when

6 it got recodified, it shouldn't have been put in, and it was

7 put in. It was put in in the form of three paragraphs.

8

THE COURT: All right. If you want to lose

9 ground, go ahead and argue that, but I understand that

10 issue.

11

MS. KEESLER: Thank you, Your Honor. I'd like to

12 move on to the park regulations ordinance. On Page 3 of the

13 Plaintiffs' Amended Motion for Preliminary Injunctive

14 Relief, Plaintiff does ask in their wherefore clause, to

15 have this Court enjoin Sections 58-153 through 58-156.

16 Plaintiffs' attorney apologizes for not being clearer.

17

After reviewing Defendant's response, Plaintiffs'

18 stipulate that they only seek to enjoin the sections of the

19 park regulations code that are either vague, overbroad, or

20 content-based viewpoint discrimination; specifically,

21 Section 58-153, Subsection 3; Section 58-154 Section 6; and

22 Section 58-156 in its entirety.

23

The first two, 58-153, Subsection 3; and 58-154

24 Subsection 6, are impermissibly vague and violate due

25 process for the reasons that the Plaintiffs outlined in

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 20 of 68 PageID 448

ARGUMENT BY MS. KEESLER

20

1 their memorandum of law, specifically quoting city -- or

2 City of Chicago versus Morales, they failed to establish

3 standards for the police and public that are sufficient to

4 guard against arbitrary deprivation of liberty interests.

5

Section 58-156, Subsection A of the park

6 regulations regarding operating hours closes the city parks

7 to everyone from 10:30 in the evening until 6:00 a.m. in the

8 morning, except for when the recreation manager shall make

9 accommodations for a sporting, cultural or civic event.

10 Exempting preferred speech from city regulations makes an

11 ordinance content based on its face.

12

Section 58-156, Subsection B vests unbridled

13 discretion on the recreation manager to close the park at

14 his whim during normal operating hours. While these are

15 being challenged facially, Plaintiffs have been issued

16 citations under both subsections.

17

THE COURT: Say that last part again.

18

MS. KEESLER: Plaintiffs have received citations,

19 monetary citations, under both of those subsections.

20

THE COURT: But, for all of your claims, what

21 you've alleged is facial claims for all four counts?

22

MS. KEESLER: Yes, Your Honor. These are all

23 facial challenges.

24

Regarding the Special Events Advisory Board --

25

THE COURT: Let me go back a minute to the park

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 21 of 68 PageID 449

ARGUMENT BY MS. KEESLER

21

1 regulations. Is it your position that the city cannot close

2 a public park?

3

MS. KEESLER: No, that is not my position. The

4 Plaintiffs' position is that exempting certain types of

5 events, such as sporting, cultural, or civic events, shows a

6 preference for nonpolitical speech.

7

THE COURT: If the ordinance was just 156-A,

8 saying the hours of the park are whatever they are, end of

9 ordinance, is there anything unconstitutional with that?

10

MS. KEESLER: No, Your Honor.

11

THE COURT: So it's only the impact of 156(b),

12 that has this exception, that causes the ordinance, in your

13 view, to be content based, and therefore a violation of the

14 1st Amendment?

15

MS. KEESLER: Subsection (a), 58-156,

16 Subsection (a) is the section that indicates that the

17 recreation manager can keep the park open for specific types

18 of events.

19

THE COURT: I'm sorry. So it's two sentences, or

20 whatever, but all of 156(a)?

21

MS. KEESLER: Yes.

22

THE COURT: All right.

23

MS. KEESLER: And --

24

THE COURT: So, but for that sentence -- I'm sorry

25 for stepping on you, but, but for that sentence, the second

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 22 of 68 PageID 450

ARGUMENT BY MS. KEESLER

22

1 sentence, as I understand your position, there's no claim

2 that the city has to have a park open 24/7.

3

MS. KEESLER: No, Your Honor.

4

THE COURT: All right. And it's only because of

5 the sentence that gives somebody the authority to make an

6 exception for certain types of events that creates this

7 1st Amendment problem, in your view?

8

MS. KEESLER: Yes, Your Honor.

9

THE COURT: Okay. Go ahead.

10

MS. KEESLER: The Special Events Advisory Board,

11 the city code 2-273. According to Page 5 of the special

12 events pamphlet, the Special Events Advisory Board, which is

13 created in the Code Section 2-271 through 2-273, has final

14 approval of all events in the city. Also, according to the

15 same pamphlet, any events on public property requires a

16 Special Events Permit. This requires anybody wanting to

17 protest within city limits, on public property, to go

18 through the Special Events Advisory Board.

19

Pursuant to the challenge section, the Special

20 Events Advisory Board is to advise the City Council as to

21 all special events with an eye toward: One, facilitating

22 quality cultural and artistic events; and, two, to provide

23 exposure and positive social and economic impacts for the

24 city. This is to be done by either recommending or

25 withholding recommendation of funding for special events

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 23 of 68 PageID 451

ARGUMENT BY MS. KEESLER

23

1 open to the public and held within city limits.

2

Subsection 3 of the same ordinance gives the same

3 advisory board authority to recommend events that should

4 either be given reduced fees or even monetary sponsorship by

5 the city based upon an undefined weighted scale of merit.

6

Subsection 4 of the Code gives the board authority

7 to recommend regulations for the conduct of special events

8 based only on the criteria of whether it will "Increase

9 interest to the citizens, residents, and visitors," of the

10 city.

11

In analyzing and striking down a similar special

12 events committee in Bledsoe versus city of Jacksonville

13 Beach, the Middle District Court noted that this type of

14 content filtering, although quaint in a Mayberry RFD

15 aspirational way, takes on an Orwellian aspect when applied

16 in the real world.

17

In order for the Special Events Advisory Board to

18 determine the fees and regulations of special events, the

19 board must look at each event with an eye to the interest of

20 the citizens, and they have to assign each event on a

21 weighted scale of merit. Under this Code, the Special

22 Events Advisory Board, or whomever makes the determination,

23 cannot help but to examine the content of the message of

24 each event in order to determine fees, conditions, and even

25 issuance of a permit.

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 24 of 68 PageID 452

ARGUMENT BY MS. KEESLER

24

1

Both the park regulations and the special events

2 code vest unbridled discretion on city officials. There's

3 nothing in the ordinance that prevents city officials from

4 applying one standard to one group while applying an

5 entirely different standard to a different group.

6

Under Bourgeois versus Peters, this is considered

7 an unconstitutional content-based restriction. There are no

8 parameters to consider, no internal guidance to granting

9 permits. The government regulation that allows arbitrary

10 application is inherently inconsistent with a valid time,

11 place, and manner regulation, quoting Forsyth versus The

12 Nationalist Movement.

13

Finally, the City's policy fails to provide a

14 procedural guideline as outlined in Freedman versus

15 Maryland, which is needed on a content-based scheme. And

16 that is noted in Burk versus Augusta County in their

17 Footnote 12.

18

Because these are content-based ordinances, the

19 city has the burden of advancing a necessary compelling

20 interest to survive a facial challenge. The city's interest

21 in esthetics and public safety are unsufficient to justify

22 content-based codes.

23

It is difficult to comprehend how a dozen

24 individuals in the park will cause more destruction of park

25 facilities than teams of athletes and hundreds or maybe even

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 25 of 68 PageID 453

ARGUMENT BY MS. KEESLER

25

1 thousands of spectators at sporting events. It's difficult

2 to understand how a dozen individuals in the park will be a

3 greater threat to public safety than potentially intoxicated

4 members of the public leaving local bars about at 2:00 a.m.

5

Furthermore the enforcement of these content-based

6 regulations is not the least restrictive means available to

7 the city, as the city already has the ability to enforce

8 state penal codes should any individual threaten harm.

9

For these reasons, the Plaintiff respectfully

10 requests that this Court grant their amended motion for

11 emergency injunctive relief.

12

Also, Your Honor, as I did not use my entire 30

13 minutes, if I may just reserve a few minutes for rebuttal

14 after the city's argument, I would prefer it.

15

THE COURT: You may, but I've got some questions

16 for you.

17

MS. KEESLER: Yes, Your Honor.

18

THE COURT: Going back to the park regulation

19 ordinance and the extension of the time for, I think the

20 phrase is civic events --

21

MS. KEESLER: Yes.

22

THE COURT: -- the city argues that they have

23 interpreted that to include Occupy Fort Myers as a civic

24 event. First of all, is that correct?

25

MS. KEESLER: Factually, they are enforcing this

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 26 of 68 PageID 454

ARGUMENT BY MS. KEESLER

26

1 particular ordinance against members of Occupy Fort Myers.

2 I believe the city had just indicated that 73 citations have

3 been written out on the section of that code -- you know,

4 Subsection (a) -- which discusses the exceptions for civic

5 events. So it is being applied to my clients as we speak.

6

Additionally, if the city were to say that the

7 accommodations were open to everybody, and all types of

8 speech, it could have simply said that it was open to

9 everybody, and all types of speech, instead of carving out

10 exceptions for civic and cultural events.

11

THE COURT: With regard to the Special Events

12 Advisory Board issue, what is the authority of that board to

13 decide things, and to make decisions, as opposed to make, as

14 the title indicates, advisory opinions?

15

MS. KEESLER: The Code gives the Special Events

16 Advisory Board an advisory capacity for special events.

17 However, the pamphlet -- the Special Events Pamphlet, which

18 Plaintiffs filed at approximately 2:00 a.m. this morning,

19 actually indicates that the Special Events Advisory Board

20 has the authority to deny permits. There are no standards,

21 either within the city's Code or that I could find in the

22 Special Events Pamphlet, that identify under what authority,

23 or why they would deny permits; but that authority is listed

24 in the pamphlet. And, indeed, in the pamphlet, when it

25 lists that authority, it says pursuant to Ordinance 30-19,

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 27 of 68 PageID 455

ARGUMENT BY MS. KEESLER

27

1 which is codified as Section 2-273.

2

THE COURT: So you're saying there's an

3 inconsistency between the pamphlet and the ordinance?

4

MS. KEESLER: There is either an inconsistency, or

5 there has been authority given to the board that is not

6 listed in any of the city ordinances. Indeed, the final

7 subsection of 2-273 -- I don't remember the exact language,

8 but I believe it says that the board has any other authority

9 given to it by the City Council. So it may be that it's in

10 there somewhere.

11

THE COURT: And how would one know whether

12 authority has been given to that?

13

MS. KEESLER: I have no idea.

14

THE COURT: You're wrong person to ask.

15

All right. Let me go back to basics. Other than

16 the issues with regard to the parade that we talked about

17 earlier, what is the 1st Amendment activity that you claim

18 your clients are entitled to perform that are being impacted

19 by the park regulation ordinance and the Special Events

20 Advisory Board ordinance?

21

MS. KEESLER: Our clients, in solidarity with

22 hundreds of similar occupy movements throughout the country,

23 are participating in a symbolic occupation of the City of

24 Fort Myers. What this symbolic occupation is, is it is a

25 demonstration that's protesting economic unfairness and

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 28 of 68 PageID 456

ARGUMENT BY MS. KEESLER

28

1 social justice issues. As part of the symbolic protest,

2 which again is occurring in cities throughout the country,

3 the Plaintiffs have set up tents to symbolize their

4 occupation of the city. These tents -- at the moment, I

5 believe Occupy Fort Myers has approximately 10 to 12 tents

6 set up. However, those individuals demonstrating 24 hours a

7 day, in the evening is about four to five every evening

8 right now. So it's mostly a symbolic event.

9

Outside of the tents there is an information booth

10 that's set up, where the Plaintiffs hand out pamphlets; and,

11 when members of the public stop by and want to talk, they

12 talk to them about their ideas, their beliefs, and how we

13 can change our economic system. This is the speech that I

14 believe is protected.

15

THE COURT: Are your clients claiming that the

16 1st Amendment encompasses a right to camp? Or to sleep?

17

MS. KEESLER: Not to camp.

18

THE COURT: It obviously encompasses the right to

19 set up information booths, and pass out literature, and talk

20 about it; but it seems like, in part -- and I want to make

21 sure that I understand it right -- that they're claiming a

22 constitutional right to sleep on public property, and to set

23 up what could be called camping, if they're setting up tents

24 and living in the tents.

25

MS. KEESLER: Yes, Your Honor. The Plaintiffs are

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 29 of 68 PageID 457

ARGUMENT BY MS. KEESLER

29

1 not claiming that they should be allowed to live in the

2 tents or on public property. As a matter of fact, the

3 Plaintiffs tend to rotate in and out. They go home to

4 shower, or go to work, or anything like that. They live

5 their normal lives.

6

As far as the issue of sleeping, it is an

7 overnight symbolic area, and I . . . will submit that some

8 of them fall asleep. However, in Clark versus Community for

9 Creative Nonviolence, the Supreme Court did say, while they

10 did not completely decide the issue, they assume that

11 sleeping could be protected under the 1st Amendment if it

12 was in concert with other symbolic activity.

13

THE COURT: So I guess my question is are you

14 asserting that sleeping is one of those activities that your

15 clients want to do, and which they assert is protected by

16 the 1st Amendment?

17

MS. KEESLER: Yes, Your Honor.

18

THE COURT: Do they cook there? I mean, you talk

19 about them rotating in and out, and going home. Are these

20 just tents, or are they having bonfires, or cooking meals?

21 I mean, what is it that, other than the tents, that

22 constitute occupying?

23

MS. KEESLER: They do not have campfires set up.

24 It is my understanding, from talking with my Plaintiffs,

25 there was one grill there; however, I believe they did not

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 30 of 68 PageID 458

ARGUMENT BY MS. KEESLER

30

1 use it. I believe it was an electric grill. And the

2 electricity was turned off.

3

They have volunteer members from the public

4 bringing them food to eat during the day or in the evenings.

5 And they do not shower in the public restrooms. They don't

6 keep suitcases of clothing there to change.

7

THE COURT: So essentially you have a -- your

8 symbolism is the tent, and then people, that may or may not

9 be sleeping in it, doing whatever else they do.

10

MS. KEESLER: Yes, Your Honor. The symbolism is

11 the tent, and there are individuals who protest 24 hours a

12 day, moving in and out.

13

THE COURT: Thank you.

14

MS. KEESLER: Thank you, Your Honor.

15

THE COURT: Mr. Alley? Mr. Alley, let me ask you,

16 first, for the record, to describe Centennial Park. Those

17 of us from Fort Myers know what we're talking about, but the

18 record may not. I know because I can see it from my office.

19 But why don't you tell me what you want the record to know

20 about that park.

21

MR. ALLEY: May it please the Court. Centennial

22 Park is a gift to the public that was created through the

23 cooperation of the City of Fort Myers, the State of Florida,

24 and the federal government, namely the National Park

25 Service. The city obtained a grant from the federal

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 31 of 68 PageID 459

ARGUMENT BY MR. ALLEY

31

1 government which was used in the ability and to facilitate

2 the park for the public's use. The city's been authorized

3 to maintain and regulate the ongoing use of the park,

4 including shared competing uses in the park; and, in order

5 to fulfill the responsibility bestowed upon it, the City of

6 Fort Myers has created guidelines and restrictions in order

7 to preserve and manage the park and ensure accessibility for

8 long-term use by the public.

9

The city has to ensure financial accountability

10 for injuries to persons and/or property caused on the park,

11 primarily for injuries caused to persons on the park; and

12 the city has an obligation to coordinate multiple uses of

13 limited space, and to ensure the preservation of facilities,

14 prevent damages, and prevent unlawful or impermissible

15 behavior.

16

THE COURT: Do you know the acreage?

17

MR. ALLEY: One moment.

18

I do not know the acreage.

19

THE COURT: Does the city actually own the park?

20

MS. KEESLER: Yes.

21

MR. ALLEY: Yes; the city owns the park. It is

22 bordered by the Caloosahatchee River, Heitman Street, and

23 West First Street, and the city does own the park. However,

24 there are grant obligations the city has to meet with

25 respect to the National Park Service and the federal

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 32 of 68 PageID 460

ARGUMENT BY MR. ALLEY

32

1 government.

2

THE COURT: When you say grant obligations, you

3 mean from the grant that was used to purchase the land that

4 the park is on?

5

MR. ALLEY: The federal government gave the city

6 some money for the park, and there are grant -- I don't know

7 if it was used to actually purchase the land, or if it was

8 used to build structures in the park or infrastructure in

9 the park. The park has pavilions, the park has electricity,

10 the park has staging areas, the park has restrooms.

11

THE COURT: And do you know how long that area has

12 served as a public park?

13

MR. ALLEY: I can find out during the course of

14 this hearing.

15

THE COURT: It's probably not essential that I

16 know that. I was curious.

17

Is there any question in your mind that the

18 Centennial Park is a public forum within the meaning of the

19 1st Amendment?

20

MR. ALLEY: No, Your Honor. It clearly is a

21 traditional public forum.

22

THE COURT: All right. Go ahead, please.

23

MR. ALLEY: In Thomas v. Chicago Park District,

24 the United States Supreme Court, in 2002, upheld an

25 ordinance that did not contain procedural safeguards

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 33 of 68 PageID 461

ARGUMENT BY MR. ALLEY

33

1 applicable to content-based regulations, and they upheld the

2 ability of the municipal park ordinance requiring

3 individuals to obtain a permit before conducting more than

4 50-person events. That was challenged by the Plaintiffs in

5 that case, saying that it was a content-based attack. A

6 content -- a reg -- valid time, place, and manner

7 restriction that is content neutral.

8

Even in light of the 11th Circuit's ruling and the

9 District Court's ruling in . . . . Bledsoe v. City of

10 Jacksonville, the United States Supreme Court and the . . .

11 the U.S. Court of Appeals for the 11th Circuit has ruled

12 that a content neutral time, place, and manner restriction

13 is subject to the intermediate level of scrutiny; and that

14 is, if it applies to everybody, if it's narrowly tailored to

15 achieve a significant government interest and there are

16 alternative avenues for communication.

17

Plaintiffs are seeking to strike four sections of

18 the ordinance, the city ordinances, the code of ordinances.

19 And I'm referring to Docket Number 10 that says Plaintiffs'

20 Amended Emergency Motion for Preliminary Injunction and

21 Request for Expedited Hearing with Incorporated Memorandum

22 of Law. Page 2, I read, "Plaintiffs seek a preliminary

23 injunction enjoining Defendant City of Fort Myers, its

24 officers, employees, and agents, from enforcing Fort Myers

25 City Code provisions challenged in this complaint:

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 34 of 68 PageID 462

ARGUMENT BY MR. ALLEY

34

1 Specifically, Code Section 2-273, city code Section 58-153

2 and 58-156, and city code Section 86-153; or from issuing

3 additional criminal penalties to the Plaintiff."

4

In their wherefore clause in that, they state,

5 "wherefore, Plaintiffs ask this Court to set a hearing, in

6 an expedited manner, concerning issuance of a preliminary

7 injunction enjoining the City of Fort Myers from enforcing

8 city code Section 2-273, 58-153 to 58-156, and 86-153." And

9 then it goes on. The misunderstanding is because, in the

10 Plaintiffs' pleading, when they specifically cite the Code

11 section, and in Paragraph 2 they did not reference 58-154.

12

The City of Fort Myers has park operating rules

13 and policies and procedures, and it's basically contained --

14 excuse me. Under Chapter 58, Titled, "Parks and

15 Recreation," Article IV is titled, "Parks and Other

16 Recreational Facilities." 58-131 provides definition.

17 58-151 provides malicious, disorderly conduct. 58-152

18 provides sanitation. And in the case that the -- 58-153,

19 recreational activity restrictions. This is a section the

20 Plaintiff is seeking to enjoin.

21

58-154, prohibited behavior, this is a section

22 that the Plaintiff, through their oral arguments on this

23 emergency hearing, are seeking to enjoin. And 58-156, park

24 operating policy, they are seeking to enjoin that.

25

When you look at 58-153, recreational activity

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 35 of 68 PageID 463

ARGUMENT BY MR. ALLEY

35

1 restrictions, there are three sections to 58-153. The first

2 section says, "No unauthorized person in a park shall."

3 This is Subsection Number 1. There are three. "Swim, dive,

4 bathe, or wade in any waters, lakes, ponds, or waterways in

5 the city limits, except that such places as are provided and

6 designated therefor by signage and in compliance with the

7 sign regulations as herein sets forth or may be hereinafter

8 adopted."

9

And then it goes on to talk about you're not

10 allowed to swim in the public waters and ponds unless

11 swimming is permitted, it talks about you're not allowed to

12 dive head first. It is prohibited in the city limits

13 unless -- due to risk of catastrophic injury, except in

14 athletic diving events or private swimming pools.

15

No, the city code does not permit head-first

16 diving for 1st Amendment expression. "No person shall

17 frequent any waters or places customarily designated for

18 swimming, or bathing, or congregating where such activity is

19 prohibited by the recreation manager upon a finding that

20 such use of the water would be dangerous or otherwise

21 inadvisable."

22

The nucleus of operative facts that the Plaintiffs

23 have presented in this court in its verified complaint and

24 its temporary restraining order, and its preliminary

25 injunction, has nothing to do with swimming, diving, or

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 36 of 68 PageID 464

ARGUMENT BY MR. ALLEY

36

1 bathing in the waters, and the -- no Plaintiffs have been

2 cited for bathing in Centennial Park or for bathing in the

3 Caloosahatchee River.

4

THE COURT: Don't you think the Plaintiffs agree?

5 What I heard is that, basically, to the extent that that is

6 set forth in their prior papers, they were abandoning that

7 issue? Sounds like they probably didn't really intend to

8 bring it in the first place, but to the extent they did,

9 certainly seems to me that they're abandoning any claim

10 about swimming in the public parks. Do you not see it that

11 way?

12

MR. ALLEY: It's in their pleadings that they want

13 to strike 58-153. It doesn't say 58-153, Section 3, it says

14 58-153; and it contains three sections.

15

THE COURT: And you don't think she's bound by

16 what she told me earlier today, that what she wants is

17 58-153(3)?

18

MR. ALLEY: Your Honor, I was paying attention to

19 something else. If she's dropping 58-153(1) and (2), I

20 won't address them.

21

THE COURT: Let me verify that. That's my sense

22 of what they did.

23

MS. KEESLER: Yes. Plaintiffs' stipulate that we

24 only seeks to enjoin sections of the Code that pertain to

25 content-based, overbroad, or vague issues; specifically,

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 37 of 68 PageID 465

ARGUMENT BY MS. KEESLER

37

1 58-153, Subsection 3; 58-154, Subsection 6; and all of

2 58-156.

3

THE COURT: All right. That's what my notes say,

4 as well.

5

MR. ALLEY: Thank you, Your Honor.

6

58-152, recreation activity restrictions,

7 Section 3. The Code provides no unauthorized person in the

8 park shall set up tents, shacks, or other temporary shelters

9 for the purpose of overnight camping. No person shall live

10 in a park beyond the closing hours in any moveable structure

11 or special vehicle to be used or that could be used for such

12 camping purpose, such as a tent, house trailer, camp

13 trailer, camp wagon, or the like.

14

This rule is not aimed at -- it does not target

15 political speech, it does not apply to favored speakers, and

16 exempts -- it does not -- the rule isn't exempted for

17 favored speakers and applied to non-favored speakers. That

18 would clearly be unconstitutional. This is -- on its face,

19 the rule applies to everybody. You are not allowed to set

20 up temporary or permanent living structures, you can't live

21 in the park, and you can't camp in the park overnight.

22

The Plaintiff argues that, because there are

23 possibilities for exemptions to camp in the park, or to stay

24 overnight in the park, that that renders those regulations

25 facially invalid because it makes them content based and

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ARGUMENT BY MR. ALLEY

38

1 therefore would have to survive the strict scrutiny

2 standard.

3

The affidavit filed by the public works director,

4 Documents Number 24 and 25 for the record, of Saeed Kazemi,

5 provides that the City of Fort Myers has, in the past,

6 extended operating hours for events such as Occupy Fort

7 Myers, as well as the Cancer Relay for Life events. The

8 city has permitted Occupy Fort Myers to camp in the park,

9 and the city has permitted Relay for Life to camp in the

10 park, as evidenced by the affidavit of Mr. Kazemi. But it's

11 not for an indefinite period of time. It can't go on

12 forever. It can't be kept a secret of how long protestors

13 plan to live in the park. They are not allowed to live in

14 the park.

15

This is not about esthetics and beauty only. This

16 is about fundamental aspects of safety. Setting up

17 temporary structures in a public park, and anywhere else in

18 the city, you have to get permits to see if the design is

19 safe. You have to get permits to make sure that the

20 electricity, the application of electricity to the

21 structures, is safe. You have to apply for permits. And

22 there are regulations regarding building codes that have to

23 be -- have to be at least looked at with respect to

24 safety -- health, safety, and welfare of the -- not only the

25 people camping or living in the park, but also innocent

Case 2:11-cv-00608-JES-DNF Document 51 Filed 11/28/11 Page 39 of 68 PageID 467

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39

1 bystanders that choose to also share and use the park.

2

The Plaintiffs have, in oral arguments, stated,

3 58-154, they're not seeking to strike any section but

4 Section 6, the loitering and boisterousness, sleep,

5 protractively lounge; and then 58-156, park operating hours,

6 hours (a), and hours in Section (b) is closed areas.

7

The government has a compelling government

8 interest in being able to close its parks, and the

9 compelling government interest is we -- the city owns the

10 land, it was a gift to the city, Centennial Park, in

11 particular, was a gift to the city. But these regulations

12 they're asking to strike aren't just Centennial Park. These

13 are all the city parks. This isn't limited to Centennial

14 Park. This is limited to parks where there aren't

15 pavilions. They are not limiting their occupation of a park

16 like Centennial Park, they are asking the Court to enjoin

17 the parks -- all of the recreation facilities.

18

The title of 58-156 -- the title of 58-153 says,

19 "Recreation Activity Restrictions," and it talks about it

20 doesn't limit -- it's not limited to Centennial Park only.

21 And the city has parks that have nothing but playground

22 equipment for kids. And that park is different than

23 Centennial Park. Centennial Park has pavilions. Centennial

24 Park is a larger park. But what they're asking this Court

25 to enjoin is a city from enforcing its regulations on all of

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ARGUMENT BY MR. ALLEY

40

1 the parks. And there are parks where it would be absolutely

2 unsafe. And there's no facts presented where overnight

3 camping, or living, or staying beyond park hours of

4 operation, would be -- would be safe.

5

THE COURT: How many parks does the city operate?

6

MR. ALLEY: I believe the city has over two dozen

7 parks. Some of the parks are strictly designed for

8 children. They have playground equipment, swing sets,

9 slides. Some of the parks are passive parks, with picnic

10 benches and cooking grills. And some of the parks have

11 large staging events and areas, and pavilions.

12

The park operating policy establishes hours. The

13 city has a compelling government interest in being able to

14 establish the hours of the park. The Plaintiff had -- and

15 the park's operating hours are from 6:00 a.m. to 10:30 p.m.

16 unless otherwise -- unless posted otherwise by the

17 recreation manager.

18

The city -- the code provides that the hours shall

19 be deemed extended by the recreation manager as necessary to

20 accommodate athletic sports events or cultural or civic

21 activities. If you look up the word "Civic" in a

22 dictionary, it's of or relating to a citizen, or of or

23 relating to a city. It includes the -- it includes

24 protests.

25

Occupy now has been given extended hours in the

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41

1 protest. Tickets weren't being written when they first

2 started occupying Centennial Park. They have been occupying

3 Centennial Park for weeks. The affidavit of the chief shows

4 when -- illustrates when the tickets were first started,

5 when the city first started writing tickets for violation of

6 58-156. All but three were written for (a), staying beyond

7 the hours. Three tickets . . . in the amended affidavit we

8 filed this morning, of the chief of police, three tickets

9 were for the closed areas.

10

My written brief, the city's written brief says

11 that -- argues that (b) should be -- isn't in issue because

12 no tickets were written on (b). And we correct that this

13 morning in our oral arguments from our brief. We did

14 write -- the city did write three tickets for

15 Section 58-156(b).

16

As of October 26th, there were 73 citations for --

17 and those citations, all but three of them were limited to a

18 violation of 58-153(3), and that is the prohibition on

19 setting up shelters or camping or living in the park against

20 the rules; and 58-156(a), which is the park hours. And I'd

21 like to address the Court on the park hours.

22

6:00 to 10:30. The Plaintiffs can express their

23 1st Amendment conduct and expression between the hours

24 of 6:00 to 10:30 every day, any day that they want to. And

25 there is -- there is little harm to the Plaintiff by not

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ARGUMENT BY MR. ALLEY

42

1 being able to engage in their expressive conduct of camping

2 or engage in their expressive conduct of speech, of speech

3 through any activities they're doing, or just actual speech,

4 between the hours of 6:00 a.m. and 10:30 p.m.

5

THE COURT: Do you agree that, under the facts of

6 this case, camping and sleeping and pitching tents in

7 Centennial Park is expressive conduct that's within the

8 scope of the 1st Amendment?

9

MR. ALLEY: Your Honor, I look to the -- I look to

10 the case law to answer that. And I note that the Supreme

11 Court made that assumption when they upheld a sleeping ban

12 in Clark.

13

THE COURT: So what's your position? More

14 particularly, what's the city's position?

15

MR. ALLEY: I'm sorry, Your Honor. The city's

16 position on whether sleeping is expressive conduct?

17

THE COURT: In this case, does the city concede

18 that camping, setting up tents, sleeping in the park, in

19 this context, all qualify as expressive conduct?

20

MR. ALLEY: No. The city does not agree that the

21 setting up of structures is expressive conduct. The city

22 does not agree that camping is expressive conduct protected

23 by the 1st Amendment under the strict scrutiny or

24 intermediate scrutiny task.

25

THE COURT: Tell me why. Because if you're right,

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43

1 this case is over now, if we don't have anything going on

2 with the 1st Amendment. So why isn't, in the context of

3 Occupy Fort Myers, setting up a tent, and sleeping, and

4 camping, symbolic expressive speech?

5

MR. ALLEY: Living is not symbolic expressive

6 speech. Camping is an act. It's not symbolic expressive

7 speech. The Plaintiffs argue that it's expressive conduct.

8 Under the Plaintiffs' argument, everything is expressive

9 conduct. Under the Plaintiffs' argument, when I get up in

10 the morning, and I put my pants on, I'm expressing conduct.

11 But there has to be some limitations prescribed on what

12 conduct is expressive and what conduct is not expressive

13 with respect to what the 1st Amendment affords, what

14 protections the 1st Amendment affords.

15

What we're talking about here, Your Honor, are

16 freedoms. And it's critical to protect the 1st Amendment.

17 The 1st Amendment is one of the greatest amendments in our

18 federal constitution and in our state constitution, but

19 there is some expressive conduct that is not protected by

20 the 1st Amendment; and the Plaintiffs allegation that living

21 in a park is expressive --

22

THE COURT: You said there is some expressive

23 conduct that is not protected by the amended motion. Did

24 you mean that?

25

MR. ALLEY: Under the Plaintiffs' . . . no. No.

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ARGUMENT BY MR. ALLEY

44

1 Under the Plaintiffs' analysis that everything is expressive

2 conduct, living, living is expressive conduct under the

3 Plaintiffs' analysis. Putting -- tying my shoes is

4 expressive conduct under the Plaintiffs' analysis. That's

5 not expressive conduct that's protected by the

6 1st Amendment.

7

The Supreme Court assumed that it is expressive

8 conduct to have homeless -- for the homeless to sleep in a

9 park. They assumed that. And when the Plaintiffs -- when

10 the demonstrators wanted to set up tents that could

11 basically provide sleeping quarters for approximately up to

12 150 homeless individuals, the Supreme Court made an

13 assumption that it's expressive conduct. They did not find

14 it as expressive conduct, but they made that assumption.

15

The city is not conceding that camping is

16 expressive conduct. The city is saying that living in

17 Centennial Park is not expressive conduct. The city --

18

THE COURT: Go ahead.

19

MR. ALLEY: The city is saying that camping in

20 Centennial Park is not expressive conduct. The city is

21 saying that the express -- and the city is also saying that

22 the Plaintiffs are able to camp in Centennial Park while the

23 park is -- they can do their symbolic camping in the park

24 while the park is open, 16 and a half hours out of 24 hours

25 a day.

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45

1

It's disingenuous to tell this Court that it's a

2 symbolic 24-hour protest. It's not. It's an unlimited,

3 indefinite, with no limit -- a secret on how long it's to

4 be. When we argue why the Plaintiffs should have to post a

5 bond, we don't know what -- if it's a year, the bond should

6 be a lot higher than if it's a week or two weeks. We don't

7 know how long they want to live in Centennial Park.

8

THE COURT: Did you find any cases that has held

9 that things like sleeping and camping are not expressive

10 conduct protected by the 1st Amendment?

11

MR. ALLEY: We got the emergency -- we got the

12 court order on, I believe, Wednesday or Thursday, and . . .

13 we weren't watching the Eagles beat the Cowboys last night

14 at 11:30. We were able to file by midnight, and give

15 opposing counsel a copy of our brief. But no, we have not

16 fully briefed this issue.

17

THE COURT: All right. Go ahead. It seems to me

18 there are a number of cases that, like the Supreme Court in

19 Clark, assumed such conduct was within the 1st Amendment,

20 and then, for the most part, addressed the validity of the

21 regulation. I was wondering whether you found any case --

22 it's not intuitive that sleeping is expressive conduct, no

23 matter what the Supreme Court has assumed. So I was just

24 wondering what you had found.

25

All right. Go ahead.

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46

1

MR. ALLEY: In Clark, the United States Supreme

2 Court stated, "It is urged by the respondents, and the Court

3 of Appeals was of this view, that the symbolic city of tents

4 was to be permitted if demonstrators did not intend to cook,

5 dig, or engage in aspects of camping other than sleeping.

6 The incremental benefit to the parks could not justify the

7 ban on sleeping, which was here an expressive activity, and

8 which" -- I'm sorry. "Which was here an expressive activity

9 said to enhance the message concerning the plight of the

10 poor and homeless.

11

"We cannot agree." This is the United States

12 Supreme Court talking. "We cannot agree. In the first

13 place, we seriously doubt that the 1st Amendment requires a

14 park service to permit a demonstration in Lafayette Park and

15 the mall involving a 24-hour vigil and the erection of tents

16 to accommodate 150 people.

17

"Furthermore, although we have assumed, for

18 present purposes, that a sleeping ban in this case would

19 have an expressive element, it is evident that its major

20 value to this demonstration for this would be facilitative.

21 Without a permit to sleep, it would be difficult to get the

22 poor and homeless to participate, or be present at all."

23 486 U.S. 288, 104 Supreme Court 3065.

24

There the Supreme Court assumed that it was

25 expressive, but the Supreme Court did not agree. And here

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47

1 they're trying to strike the park -- they're trying to

2 overturn the ban on setting up temporary . . . tents,

3 shacks, or otherwise temporary shelters, overnight camping,

4 living in a park beyond closing hours, or using moveable --

5 or putting moveable structures in the park. The sleeping

6 ban was upheld by the U.S. Supreme Court.

7

Now to the park operating policy, the hours. 16

8 and half hours out of 24 hours a day, they can do any

9 expressive conduct and expressive speech they want. Their

10 argument is that the city, because there's a nonexclusive

11 way to get an extension in the code to extend park hours --

12 Occupy now got extended park hours, Cancer -- the Cancer

13 Relay for Life got extended park hours -- because there are

14 nonexclusive methods to extend park hours, that the Court

15 should render this a content-based restriction and strike

16 it. Or enjoin it.

17

If the Court is of that mind, the Court -- as the

18 Court knows, Florida law favors severability. The Florida

19 Supreme Court and the federal courts recognize this as a

20 federal doctrine, recognizing the obligation of the

21 judiciary to uphold the constitutionality of legislative

22 enactments where possible, to strike only the

23 unconstitutional portion.

24

There is a four-part test in Florida, as the

25 federal courts recognize, as this Court knows, that was

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48

1 identified in the Solantic v. Neptune Beach in the 11th

2 Circuit Court of Appeals in 2005. Can the language -- the

3 unconstitutional provisions be separated from the

4 constitutional provisions? Does the legislative purpose

5 remain intact? Can the Court determine what the legislative

6 intent would be? What the governing body would do if those

7 provisions were separated out. And then, what's left, is

8 that an act, complete and of itself, remains after the

9 severance.

10

The intention of the city counsel, is identified

11 in the city code that says, basically, it's hereby declared

12 to be intent of the city counsel that these sections,

13 paragraphs sentences, clauses, and phrases of the code are

14 severable; and if any phrase, clause, sentence, paragraph,

15 or section of this code shall be declared unconstitutional

16 by the valid judgment or decree of any court of competent

17 jurisdiction, such unconstitutionality shall not affect any

18 other remaining phrases, clauses, sentences, paragraphs in

19 the sections of this code, since same would have been

20 enacted by the City Council without the incorporation in

21 this code of any such unconstitutional phrase, clause,

22 sentence, paragraph or section.

23

THE COURT: Well, before you get into severance,

24 let me get you back to whether the hours provision is

25 content based. If it is content based, that doesn't

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49

1 necessarily make it unconstitutional, that just tells me to

2 apply a different test. Is it your view that that provision

3 is not content based?

4

MR. ALLEY: Yes. You cannot read this -- the city

5 is at a loss as to how the Plaintiff can argue with a

6 straight face that this is content-based.

7

Hours. Park operating policy. "Except for

8 unusual and unforeseen emergencies, parks shall be open to

9 the public every day of the year during designated hours.

10 The opening and closing hours shall be posted for public

11 information. Normal park hours are 6:00 a.m. to 10:30 p.m.

12 unless posted otherwise by the recreation manager. Such

13 hours shall be deemed extended by the recreation manager as

14 necessary to accommodate athletic sports events, or cultural

15 or civic activities."

16

THE COURT: Isn't the last sentence the part that

17 Plaintiffs say makes it content based because the recreation

18 manager has to decide whether a particular event falls

19 within any of those categories?

20

MR. ALLEY: The Plaintiffs' position is that that

21 section adds language. And I'm reading from Page 10 of

22 Document Number 10. The Plaintiff states, "Fort Myers City

23 Code 86-152 prohibits any parade" -- let me get to . . . .

24 "Further, Fort Myers City Code 58-156" -- that's what we're

25 talking about -- "Governing park policy, by its terms,

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50

1 targets all political speech and conduct to be burdened with

2 the requirement of shutting down at 10:30 p.m. or not

3 beginning by 6:30 a.m." The hours are 6:00 to 10:30,

4 not 6:30; but that's not the point.

5

The point is it says, "While exempting athletic

6 events, cultural and civic activities," and then the

7 Plaintiff adds, "And other nonpolitical association and

8 assembly." That's not in the code. That language isn't

9 there. It says while --

10

THE COURT: I heard what you read, what was in the

11 code. I read your brief. I know she added language that's

12 not there. Dealing with language that is there, how is that

13 not content based when someone has to decide whether the

14 event that is proposing to be permitted there, or is taking

15 place there, is a civic event, or a sporting event, or a

16 cultural event? Someone has to make that decision. Doesn't

17 that inherently make it content based?

18

MR. ALLEY: No. No. The fact that city

19 officials, or government officials, or persons of authority

20 have to make decisions interpreting codes does not render

21 them content-based regulations. That has to be -- that --

22 government officials have to make decisions regulating codes

23 every day of the year, hundreds of times a day, all across

24 the country. And, no, the fact that a government official

25 has to make that decision does not render it -- does not

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51

1 make it a targeted political speech and put it under a

2 content-based regulation. Or to content-based scrutiny

3 level by the Court.

4

THE COURT: Somebody has to decide the content of

5 the event. Someone has to decide whether it's a sporting

6 event, a cultural event or a civic event. Don't they?

7

MR. ALLEY: Yes. Yes, they do. Somebody does

8 have to make that decision.

9

THE COURT: Doesn't that make it content based

10 then? Unless those are the only three possibilities in the

11 world.

12

MR. ALLEY: Of or relating to a city covers

13 everything because it is a city park.

14

THE COURT: So that is meaningless. So what

15 you're saying is, under that provision, every event of any

16 description is within the phrase, "Civic event".

17

MR. ALLEY: Under the affidavit filed by the

18 public works director, Docket Number 25, he specifically

19 states Section 58-156 of the Fort Myers City Code does not

20 exclude any categories of events seeking to extend the

21 operating park -- the operating hours of the park. So the

22 Court is correct.

23

THE COURT: So, no matter what the event was, it

24 would qualify for an extension under the ordinance.

25

MR. ALLEY: It would qualify for consideration of

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52

1 extension under the ordinance.

2

THE COURT: And then what does the recreation

3 manager use to decide whether to grant that extension.

4

MR. ALLEY: The recreation manager applies the

5 rules of the park and the recreation activities under the

6 city code, the parks and recreation. Competing interests

7 for the park. Which park is it? What are they actually

8 applying for? What hours do they want an extension for?

9

As in the case of Occupy now, they were granted

10 hours to go 24/7 until it became clear that they weren't

11 going to be getting -- or they were challenging permit --

12 getting insurance to cover personal injury damage to any of

13 their participants, or to innocent bystanders, or to cover

14 property damage.

15

The park -- the parks and recs manager has to make

16 a number of determinations. Has anyone else rented the park

17 for that day? Is anyone else using the park for that day?

18 Can we provide police services? It's a standard interaction

19 between somebody who wants to go to the property owner and

20 ask if they can stay beyond the hours of closing, and the

21 determination is made in the management of the facility.

22

THE COURT: Has the city ever denied an extension

23 to a group because it wasn't one of those three categories

24 of events?

25

MR. ALLEY: The city has denied extensions of

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53

1 hours going for 24 hours. The city is denying that right,

2 now, to Occupy. To the Plaintiffs. But the city has never

3 denied consideration for extended hours.

4

THE COURT: So essentially you're saying that last

5 sentence really has no meaning, because the city will

6 consider any request for extension?

7

MR. ALLEY: I'm not arguing that it has no

8 meaning. There is legislative intent behind it. It says,

9 "Such hours shall be deemed extended by the manager as

10 necessary to accommodate," and then it says, "Athletic ports

11 events, or cultural or civic activities." And those

12 athletic sports events, or cultural or civic activities

13 covers everything.

14

THE COURT: So what you're saying is what it could

15 have said is to accommodate any event.

16

MR. ALLEY: Yes.

17

THE COURT: All right. Go ahead.

18

MR. ALLEY: The fact that it's possible for a

19 government official to favor some speakers, and grant

20 exemption to favored speakers, and to deny exceptions to the

21 rules to unfavored speakers, because that's possible, and

22 that clearly would be unconstitutional because that's

23 possible, that doesn't render a -- the regulation content

24 based, and provide it in the highest tier of scrutiny by

25 this Court.

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54

1

In the Chicago Park case, the United States

2 Supreme Court, in 2002 -- this is the case where they upheld

3 a 50-person event -- the Supreme Court said, "Granting

4 waivers to favored speakers, denying them to disfavored

5 speakers, would, of course, be unconstitutional; but we

6 think that this abuse must be dealt with if and when a

7 pattern of unlawful favoritism appears, rather than by

8 insisting upon a degree of rigidity that is found in few

9 legal arrangements. On Plaintiffs' theory," and then it goes

10 on to criticize the Plaintiffs' theory".

11

The Plaintiff can't show any evidence, there is no

12 evidence, that the city is favoring some parties and not

13 favoring another. In the Plaintiffs' own verified complaint

14 they are acknowledging they were able to stay in the park

15 beyond the park hours. They have been occupying the park

16 for weeks.

17

There are alternatives. The Plaintiffs can

18 express themselves, and express their symbolic camping, and

19 express their -- whatever . . . whatever their message is,

20 they can express that 16 and a half hours a day out of a

21 24-day -- out of a 24-hour day. There are ample

22 alternatives.

23

And it's not only expressive conduct. They also

24 have commercial speech here. They're soliciting donations.

25 They're soliciting material. This isn't -- this isn't all

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55

1 about complaining about their social injustices worldwide,

2 or infinite complaints about social ills worldwide. This is

3 also soliciting. Please bring us supplies, please bring

4 us . . . it's commercial speech. They're making

5 solicitations that are covered under a completely separate

6 portion of the code that you're not supposed to use the

7 public lands to solicit money or to -- for your

8 organization, or to solicit supplies.

9

THE COURT: Are they in violation of any city

10 ordinance during the 16 and a half hours or so that the park

11 is open?

12

MR. ALLEY: The setting up of structures and the

13 setting up of tents is not permitted in the park. You can

14 get a Special Events Permit for it, and the Special Events

15 Permit requires a description of what you plan on setting up

16 and where you plan on setting it up. Do you plan on digging

17 into the ground and possibly hitting wires? How big is the

18 structure going to be? And, if it's a large structure, it

19 gets inspected. It gets inspected to make sure it doesn't

20 fall on somebody. It gets inspected to make sure the

21 electric outlets are fine.

22

It's just not -- the 1st Amendment doesn't afford

23 somebody the right to go up and set up a structure in a park

24 and -- an unsafe structure. They believe it's safe when

25 they set it up, but an unsafe structure. And it doesn't

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56

1 protect that.

2

THE COURT: You said they could set up their

3 symbolic tenting, I forget your exact phrase, but almost

4 anywhere. Is that literally true? Where can they set up

5 tents in the City of Fort Myers other than a public park?

6

MR. ALLEY: The city did not provide -- the city

7 has areas zoned where camping is permitted, but city-owned

8 property? The city does not provide campgrounds for

9 residents at this time. And it's not because the city's

10 anti-camping, it's simply because this is -- the public

11 lands are limited lands, and there's a higher priority of

12 use for playgrounds, passive parks, and other recreation

13 parks. The city does not have a campground park; however,

14 the city does accommodate camping through zoning.

15

The Plaintiffs would argue that they can -- they

16 can set up tents on public rights of way, or tents on

17 sidewalks. And that issue has yet to be litigated. The

18 state laws provide, and the city code provides, that you

19 cannot obstruct the sidewalks. So that issue has to be

20 litigated. If it's a tent large enough for a human being,

21 and the sidewalk is big enough, then that's a different

22 issue than if the sidewalk is a difficult sidewalk, and

23 they're setting up a tent on the sidewalk.

24

THE COURT: Okay.

25

MR. ALLEY: Another section that they're striking

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57

1 is 58-156(b), and that's closed areas. The city has a

2 compelling -- and three tickets have been written for the

3 closed areas. The city has a compelling government interest

4 and it would survive the strict scrutiny standard were the

5 Court to find this content based. And the city believes

6 it's content neutral, and it's in the intermedial level of

7 scrutiny by this Court; but, irrespective of that, the city

8 believes that it's -- they have a compelling interest in the

9 ability to open and close its parks. Or a portion of their

10 parks.

11

No, the city can't close a park to prevent

12 political speech; but the city has a compelling interest to

13 closing a park that has electrical problems, or where

14 there's going to be a capital improvement built, like a

15 pavilion maintained, or a pavilion built, or something along

16 those lines.

17

The violations section of these codes provides for

18 a violation for a fine between $25 and $250, and the

19 Plaintiffs allege that it's a criminal citation. In Thomas

20 v. State, the Supreme Court has said that municipal

21 violation ordinances are not noncriminal, but they are not

22 criminal either. So what it is, is it's a municipal

23 ordinance violation citation.

24

THE COURT: Can you go to jail?

25

MR. ALLEY: Not from the city code. There are

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1 sections in any code, antiquated sections; and that's why a

2 code has severability clauses. The city used to have a

3 municipal jail, decades ago. It does not have a municipal

4 jail now. There are references to the municipal jail in the

5 city code.

6

THE COURT: But for any of the violations issued

7 to people involved in this case, is there the possibility of

8 jail time?

9

MR. ALLEY: Not under the city code.

10

THE COURT: That's what the citations were issued

11 under; correct.

12

MR. ALLEY: I don't see. Yes.

13

THE COURT: All right.

14

MR. ALLEY: The next section the Plaintiffs are

15 seeking to strike is Section 2-273, which is the Special

16 Events Advisory Board. This is a group of volunteer

17 citizens that are appointed by the City Council to make

18 advisory recommendations to city officials to make, and

19 rendering the decisions that they make, to make advisory

20 recommendations to the City Council, and what type of events

21 would be good for the City of Fort Myers, and what type of

22 events would be bad for the City of Fort Myers, and to

23 make -- and the events -- for events over 1,000 people.

24

It's not applicable here. Even on their best day

25 it's 500 people in their verified complaint, and they're

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ARGUMENT BY MR. ALLEY

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1 complaining about those numbers being dwindled down because

2 citations have been written for people living in the park or

3 camping in the park beyond hours of operation, and citations

4 have been written for people setting up tents or moveable

5 structures.

6

When I say bad events, I'm talking about events

7 that the Special Events Advisory Board decides that they

8 don't -- they don't like, they don't think is good for the

9 City of Fort Myers. And when -- in permitting an event,

10 that's exactly what a property owner does. They sit back

11 and they say okay, these events, this event is an event I

12 would like in the City of Fort Myers.

13

When the City of Fort Myers decides to put a

14 pavilion in the city park, they sit down, and city officials

15 sit back, and they make a decision we want to put a pavilion

16 there because we want shelter. We don't like the fact that

17 there is not shelter there. We want to put shelters up.

18 When we put a playground in a park, we make a decision, a

19 government official makes a decision, we don't want this a

20 passive park for sporting events. We want this to have

21 playground facilities for children to play on. The city

22 makes those types of decisions every day.

23

And for an appointed board -- an unpaid, appointed

24 board that makes recommendations on what type of events they

25 would like to see in the city, and this is what type of

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1 events they would not like to see in the city, they can make

2 that decision, and it has absolutely no binding authority.

3 They cannot deny a permit. The ordinance facially speaks

4 for itself. They cannot deny a permit. That authority

5 doesn't rest with that board. They can make

6 recommendations.

7

There are city officials every day, across this

8 country, that make recommendations, and individuals that

9 make recommendations, that are not constitutional. The fact

10 of the matter that they're making a recommendation that's

11 not constitutional does not render the city's regulation or

12 the action the city is taking as unconstitutional. That

13 happens every day, in every city in this country, where

14 people make recommendations on things that are bad ideas.

15 It doesn't comply with state law, doesn't comply with the

16 city code, or doesn't comply with federal law.

17

THE COURT: So what does this Special Events

18 Advisory Board do that is binding on the city, if anything?

19

MR. ALLEY: Absolutely nothing. It actually is an

20 extra shield, or an extra layer of review of decisions made

21 by city officials, and their criteria is outlined and

22 specified for what type of events that they review based on

23 size, based on what type of commercial activity it brings to

24 the city, what type of benefits it brings to the city, are

25 they -- is it Cancer for Life, those types of situations.

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ARGUMENT BY MR. ALLEY

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1

The Plaintiffs represent that they have been told

2 that the special events board is going to be making a

3 recommendation on whether they should be exempt from the

4 insurance requirement, for a Special Events Permit. Their

5 decision is not binding on anybody. It's an advisory board

6 by its express terms.

7

THE COURT: Does it carry any extra weight in

8 comparison with somebody else who may call and express an

9 opinion?

10

MR. ALLEY: It depends on the subject. The

11 person -- or the entity, if it's a City Council, which the

12 code provides for an appeal of any person aggrieved by

13 decision of any city official, you can appeal it to the City

14 Council. It's their subjective weight that they give it.

15 They don't have to -- it's not a -- it's not a -- if they

16 vote -- if special events recommends no, you must say no,

17 it's not that, for the City Council to say yes, they must

18 get the Special Events Advisory Board to say yes.

19

What they do is they give advice and they make

20 recommendations. They have no decision-making authority.

21 In some cases it may carry weight, and in some cases it may

22 not carry weight.

23

But the Plaintiffs are asking for more than just

24 striking Section 2-273, because if you strike that

25 section -- 2-271 is a purpose creation, membership, terms,

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ARGUMENT BY MR. ALLEY

62

1 vacancies, qualifications, nonvoting meeting attendees; and

2 Section 2-272, is the oaths, officers, records, meetings,

3 quorum attendance, and minutes. Those two sections, if you

4 strike the powers and duties of the Special Events Advisory

5 Board, you're in affect rendering those two sections of the

6 code without meaning and effect, because if they have no

7 powers and authorities, then those other two sections have

8 no meaning and effect.

9

What the Special Events Advisory Board is, is it's

10 a determination by the legislative branch of the City of

11 Fort Myers that they want an advisory board to give advice

12 and recommendations to various city officials, and to

13 themselves, the governing body, on special events. And on

14 issues related to special events. And there is a separation

15 of powers.

16

It's well settled in court, and this Court has

17 recognized in thousands of cases with respect to the

18 separation of powers between the judiciary and the

19 legislature, and creating an advisory board with no

20 authority other than to make recommendations doesn't violate

21 any federal laws even if they're making recommendations that

22 don't comport -- even if they're making a recommendation

23 that doesn't comport to federal law.

24

And, in their powers and duties section that the

25 Plaintiff is seeking to strike, there is a clause that says

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ARGUMENT BY MR. ALLEY

63

1 recommend regulations for the conduct of special events that

2 will increase interests therein to the citizens, residents,

3 and visitors to the city generally, insofar as the same are

4 not in conflict with city code and state statutes.

5

In and of itself, their express powers have a

6 prophylactic protection against violating state statutes.

7 To strike the Special Events Advisory Board would be

8 basically to render two other sections of the code that

9 they're not asking for meaningless, and it would not offer

10 any relief to the Plaintiff either. The Special Events

11 Advisory Board doesn't make the decisions. So striking the

12 Special Events Advisory Board doesn't -- someone has to make

13 a decision. Some city official has to make a decision.

14

THE COURT: What is the procedure for the

15 Plaintiffs to challenge the decision of whatever official it

16 is to either deny the permit or to deny a waiver of the

17 insurance requirement?

18

MR. ALLEY: Some provisions of the code outline

19 and specific procedure. Other provisions of the code, you

20 go to the City Manager, who is the chief administrative

21 officer under the city charter.

22

THE COURT: Tell me how it works for this.

23

MR. ALLEY: I'm sorry?

24

THE COURT: Tell me how it works for this.

25

MR. ALLEY: If somebody on Section 2-273?

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ARGUMENT BY MR. ALLEY

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1

THE COURT: No. I'm sorry. If the Plaintiffs are

2 dissatisfied with the city's decision not to waive the

3 insurance requirement, and are dissatisfied with the

4 decision not to issue a permit, how do they challenge that?

5

MR. ALLEY: They can come before the City Council

6 and so state what you stated, and say we would like to have

7 the insurance requirement waived, and here is what we would

8 like. And City Council, the governing body, can make the

9 decision.

10

THE COURT: And where is that set forth in the

11 code?

12

MR. ALLEY: The city code is adopted by the City

13 Council. In some cases, there are specified provisions for

14 appeal; but, as a matter of general law, any decision made

15 under the city code, unless otherwise prescribed, is

16 appealable to the City Council.

17

THE COURT: When you say general law, do you have

18 a cite for me?

19

MR. ALLEY: The City Council can waive their code.

20 A Florida statute section -- the home rule powers. I

21 believe it's Florida Statute 163, it may be 166. It's the

22 home rule powers. The City Council has the authority to

23 amend its code.

24

THE COURT: What does that have to do with

25 appealing? They're not asking you to -- well, maybe they

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ARGUMENT BY MR. ALLEY

65

1 are asking to you amend the code, but in terms of the

2 decision as to whether they get a permit or not, all they're

3 asking is for the permit.

4

MR. ALLEY: They can come before the City Council

5 and say we have applied for a permit, and the city said we

6 need to have insurance, and we don't want to have insurance.

7 We would like the City Council to approve this without

8 insurance.

9

THE COURT: That's what I'm asking, what is the

10 cite that says that?

11

MR. ALLEY: It's the home rule powers. The

12 Florida Supreme Court -- the Florida Constitution was

13 amended in 1969 and in 1973, and what it did is, previously

14 the powers of a municipality had to be expressly granted to

15 the municipality by the state government; and, with the

16 enactment of the home rule powers constitutional revision,

17 the government has all authority and powers unless

18 specifically preempted by the state.

19

THE COURT: So that says that anytime a citizen is

20 unhappy with the decision of the city official, he or she

21 can file an appeal with the City Council?

22

MR. ALLEY: No, Your Honor, it does not expressly

23 say that.

24

THE COURT: That's what I'm looking for. You're

25 saying that's what happened. Now tell me, if I'm their

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ARGUMENT BY MR. ALLEY

66

1 lawyer, where do I find that? Where do I find their

2 appellate process that they go through?

3

MR. ALLEY: The four sections that are seeking to

4 enjoin the appellate process is not outlined in the code.

5

THE COURT: Does that mean there is no appellate

6 process?

7

MR. ALLEY: There is. They can appeal to the City

8 Council. They can come to the City Council and --

9

THE COURT: Don't go in circles. Give me the cite

10 that says that these people can go to the City Council.

11

MR. ALLEY: Your Honor, it's the Florida home rule

12 powers doctrine.

13

THE COURT: I want you to give me a citation. I

14 don't mean today. Or at least I don't mean right now. I

15 want you to tell me what cite these lawyers can go to that

16 will say when my clients are unhappy with the lack of a

17 waiver, the appellate process is to go to City Council. And

18 I'd be amazed if that's in the home rule statute.

19

MR. ALLEY: No, it's not, in the home rule

20 statute, expressly stated that way.

21

THE COURT: Tell me where it is expressly stated.

22 If it's not expressly stated, you don't have it. You can't

23 just say, oh, you can always go to the City Council. How is

24 a litigant to know that? I want you to -- you can file it

25 as a submission. Just give me a cite to the ordinance and

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67

1 to the state statute, whatever it is, you're relying upon,

2 that tells people how they appeal from the denial -- or from

3 the decision of a city official. That's what I'm looking

4 for.

5

All right. What's next?

6

MR. ALLEY: Your Honor, I briefly touched on

7 severability, and the four-part test, and the intention of

8 City Council that the city would argue that these challenge

9 provisions, should the Court find them unconstitutional are

10 severable, that there are severable provisions should the

11 Court find that unconstitutional.

12

And the city would like to preserve two minutes.

13 Thank you.

14

THE COURT: You may do so.

15

Ms. Keesler?

16

MS. KEESLER: Your Honor, thank you for affording

17 me the time, but the Plaintiffs will rest on their papers

18 and prior oral argument.

19

THE COURT: All right.

20

Do you want another two minutes?

21

MR. ALLEY: No, thank you, Your Honor.

22

THE COURT: All right. Let me just go through my

23 notes, here, before I let you go.

24

All right. Those are all the questions I have.

25 Thank you very much. I will get an order out as soon as I

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ARGUMENT BY MS. KEESLER

68

1 can.

2

We'll be in recess.

3

-- -- -- -- -- -- -- --

4

(Thereupon, at 3:15 o'clock p.m., the above-entitled

5

matter was concluded.)

6

-- -- -- -- -- -- -- --

7

CERTIFICATE

8

I CERTIFY THAT THE FOREGOING TRANSCRIPT IS A TRUE AND

9 ACCURATE TRANSCRIPT FROM THE ORIGINAL STENOGRAPHIC RECORD IN

10 THE ABOVE-ENTITLED MATTER.

11

12

Dated this 28th day of November, 2011.

13

14

/s/ Jeffrey G. Thomas

JEFFREY G. THOMAS, RPR

15

16

17

18

19

20

21

22

23

24

25

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

OCCUPY FORT MYERS, CINDY BANYAI, STEPHANIE DARST, CHRISTOPHER FAULKNER, F. FRANK GUBASTA, ZACHARY KUHN, HILARY MAINS, MATT McDOWELL, MICHELLE MEYER, LUIS OSPINA, RYAN POGUE, FRANK PRATT, MARLENE ROBINSON, and JUSTIN VALO,

Plaintiff,

vs.

Case No. 2:11-cv-00608-FtM-29DNF

CITY OF FORT MYERS,

Defendant. _____________________________________

OPINION AND ORDER This matter comes before the Court on Plaintiffs’ Amended Emergency Motion for a Preliminary Injunction and Request for Expedited Hearing (Doc. #10) filed on October 26, 2011. Plaintiffs, Occupy Fort Myers, Cindy Banyai, Stephanie Darst, Christopher Faulner, F. Frank Gubasta, Zachary Kuh, Hilary Mains, Matt McDowell, Michelle Meyer, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, and Justin Valo (collectively, “plaintiffs” or “Occupy Fort Myers”), seek to enjoin the defendant, the City of Fort Myers (“defendant” or “City”), its officers, employees, and agents, from enforcing certain provisions of the Fort Myers City Code of Ordinances and from issuing additional criminal penalties to plaintiffs based upon violations of these ordinances. Plaintiffs assert that the challenged city ordinances

on their face violate plaintiffs’ rights to free speech, assembly, and association under the First Amendment to the United States Constitution and/or their substantive due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiffs filed a Verified Complaint (Doc. #1) which attached a number of affidavits, a Memorandum of Law (Doc. #5), and an exhibit (Doc. #30) in support of their request for a preliminary injunction.
The City opposes the preliminary injunction, filing a Response (Doc. #29), various affidavits in opposition (Docs. #23, 24, 25, 31), and exhibits (Docs. #27, 28). The Court heard oral argument on October 31, 2011. The City thereafter filed supplemental authority (Doc. #36) as requested by the Court during oral argument, and several additional exhibits (Docs. ##35, 37). Plaintiffs filed a Response (Doc. #38) to the additional filings. At the request of the Court, the City then filed a Response (Doc. #42) to one of the issues raised at oral argument.
I. According to the Complaint, Occupy Fort Myers (“Occupy Fort Myers” or “OFM”) is an unincorporated association of individuals who have gathered in Fort Myers, Florida “to bring visibility to the influence of private money into the nation’s political process” (Doc. # 1, ¶4) and “attempt to bring visibility to the insidious influence of money into the U.S. political process, and to inform members of the general public on political issues such as social
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justice and economic equality.” (Doc. #1, ¶19). “A core purpose of [Occupy Fort Myers] is to bring awareness to the concerns about the U.S. political process and economic policy through symbolic, around-the-clock, peaceful protests referred to as ‘occupations.’” (Doc. #1, ¶4.)
Prior to a planned rally, Occupy Fort Myers contacted the Fort Myers Police Department (FMPD) to inquire about obtaining a permit for the rally and march in downtown Fort Myers. Occupy Fort Myers was told it could rally and march on October 15, 2011, if it did not use a megaphone, march in the street, or include vulgar language on signs. (Id. at ¶21). As to the symbolic occupation of Centennial Park, the FMPD advised Occupy Fort Myers to contact the City’s Recreation Division for a permit for overnight occupation. Occupy Fort Myers held a noon rally and march on October 15, 2011, and began “occupying” Centennial Park that evening without a permit. From October 15, 2011, through October 19, 2011, members of Occupy Fort Myers were allowed to “occupy” Centennial Park overnight without a permit. (Id. at ¶24.)
On October 18, 2011, the City provided Occupy Fort Myers with a “Special Events” pamphlet (Doc. #30) which included information and an application for a permit to remain in the City parks overnight. Occupy Fort Myers completed the permit application and submitted it to the City’s Recreation Division on the same day. (Id. at ¶25.)
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On October 19, 2011, the City informed Occupy Fort Myers that before its permit application could be reviewed it was necessary for it to obtain a $1 million liability insurance policy and bring the insurance certificate to the City. Occupy Fort Myers was informed that the City intended to enforce the ordinance which prohibits setting up tents and overnight camping in a park beyond closing hours if Occupy Fort Myers did not comply with the insurance requirement. Under that ordinance, city parks are open from 6:00 a.m. until 10:30 p.m. Although the City initially required insurance from Occupy Fort Myers by October 18, 2011, at 3:00 p.m., the City extended the time to comply until October 19, 2011. (Id. at ¶¶26-27.)
On October 19, 2011, Occupy Fort Myers informed the City that it could not comply with the insurance requirement. The City gave Occupy Fort Myers the names of three insurance companies and agreed to allow an additional day for Occupy Fort Myers to obtain insurance. (Id. at ¶27.) Later on October 19, Occupy Fort Myers informed the City that the three insurance companies would not provide an insurance policy, and that Occupy Fort Myers could not comply with the insurance requirement. (Id. at ¶28). In any event, Occupy Fort Myers asserts it has no funds to pay for insurance even if it was available. (Id. at ¶29). The City also informed Occupy Fort Myers that it would be required to obtain another permit and an insurance policy every ten days. (Id.)
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Occupy Fort Myers asserts that there are no procedures to appeal the City’s denial of their request for a waiver of insurance or the denial of the permit. (Id.)
On October 20, 2011, Occupy Fort Myers continued to negotiate with the City for a permit, but the City would neither issue a permit nor identify any procedure for requesting either waiver or appeal. (Id. at ¶30.) Accordingly, on the evening of October 20, 2011, at approximately 10:45 p.m., the FMPD began issuing citations to individuals for violating City ordinances. According to the Complaint, eleven of the twelve individual plaintiffs have received at least one $135 citation between October 20 and 22, 2011, for their involvement in “symbolic First Amendment-protected speech.” (Id. at ¶¶5-16.)1 The twelfth individual plaintiff, while not cited, participates and assists in OFM activities, and feels that his and others’ speech rights have been hindered and chilled by the alleged unconstitutional ordinances. (Id. at ¶17.)
Plaintiffs filed a four-count Complaint (Doc. #1) pursuant to 42 U.S.C. § 1983. Count One asserts that Ordinances §§ 2-271 through 2-273 (the “Special Events Advisory Board Ordinance”) and Ordinance § 58-156 (the “Park Regulations Ordinance”) are unconstitutional on their face as “viewpoint discrimination” in violation of the First Amendment. Count Two asserts that the
1The Chief of Police has filed Affidavits stating that as of October 26, 2011, seventy-three (73) citations have been issued. (Docs. #23, 31).
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Special Events Advisory Board Ordinance, Ordinance § 86-153 (the “Parades and Processions Ordinance”), and the Park Regulation Ordinance are unconstitutionally overbroad on their face. Count Three asserts that the Park Regulation Ordinance is impermissibly vague and unconstitutional on its face. Count Four alleges that the Park Regulation Ordinance and the Parades and Processions Ordinance on their face violate plaintiffs’ Fourteenth Amendment liberty interests to lounge on public benches and places “according to their inclination” and to “meet” with others in “open air” places within the City limits. Plaintiffs correctly assert the Court has jurisdiction pursuant to 28 U.S.C §§ 1331 and 1343(a), and incorrectly allege jurisdiction pursuant to 28 U.S.C. § 2201 and §2202.2
II. A federal court has inherent authority to issue an injunction to remedy a violation of constitutional rights. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004). “The purpose of the preliminary injunction is to preserve the positions of the parties as best we can until a trial on the merits may be held.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
2GTE Directories Pub. Corp. v. Trimen Am., 67 F.3d 1563, 1567 (11th Cir.1995)(“At the outset we note that the Declaratory Judgment Act does not enlarge the jurisdiction of the federal courts but rather is operative only in respect to controversies which are such in the constitutional sense.... Thus the operation of the Declaratory Judgment Act is procedural only.” (internal citation and punctuation omitted)).
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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.NRDC, 555 U.S. 7, 20 (2008). The Eleventh Circuit has described the four “well known” prerequisites for such a preliminary injunction as follows:
A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). The burden of persuasion for each of the four requirements is upon the party seeking the preliminary injunction. Siegel, 234 F.3d at 1176. These same standards apply in cases involving the First Amendment. E.g., Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1217 (11th Cir. 2009); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1253 n.3 (11th Cir. 2005). “[A] preliminary injunction in advance of trial is an extraordinary remedy.” Bloedorn, 631 F.3d at 1229.
III. The overarching issue is whether plaintiffs have satisfied all four prerequisites to obtain a preliminary injunction as to any of
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the challenged ordinances. The Court discusses each requirement in turn. A. Substantial Likelihood of Success on the Merits
The bulk of the arguments and issues focus on this prong of the requirements for a preliminary injunction. If an ordinance does not violate the First Amendment, plaintiffs cannot show a likelihood of success on the merits as to that ordinance. Gold Coast Publ’g, Inc. v. Corrigan, 421 F.3d 1336, 1343 (11th Cir. 1994). If plaintiffs are unable to show a substantial likelihood of success on the merits, the Court need not consider the other requirements for a preliminary injunction. Bloedorn, 631 F.3d at 1229.
(1) First Amendment Applies to Municipal Governments: To start at the beginning, the First Amendment to the U.S. Constitution provides in pertinent part that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.” U.S. Const. amend. I. The Supreme Court has long held that the First Amendment applies to the States through the Fourteenth Amendment. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 792 n. 2 (1984), citing Lovell v. Griffin, 303 U.S. 444, 450 (1938) (“Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal
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rights and liberties which are protected by the Fourteenth Amendment from invasion by state action” (citing cases)). Likewise, “municipal ordinances adopted under state authority constitute state action and are within the prohibition of the [First] [A]mendment”. Lovell, 303 U.S. at 450. No party disputes that the First Amendment applies to the City of Fort Myers ordinances.
(2) First Amendment Framework: It is well settled that the First Amendment protection of speech and assembly is not absolute. Thus, while the First Amendment applies to the City’s conduct, a city government “need not permit all forms of speech on property that it owns and controls.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). A three step process is useful when assessing whether government restrictions are valid under the First Amendment: “[F]irst, determining whether the First Amendment protects the speech at issue, [second,] identifying the nature of the forum, and [third,] assessing whether the . . . justifications for restricting [ ] speech ‘satisfy the requisite standard.’” Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C. Cir. 2011), quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).
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(3) Is Conduct Within Protection of the First Amendment:
“As a threshold matter, we must ask whether the First
Amendment protects the conduct at issue in the challenged ordinance
. . . .” DA Mortg., Inc., 486 F.3d at 1265-66. Plaintiffs bear
the burden of establishing that the First Amendment applies to
their conduct. Clark v. Community for Creative Non-Violence, 468
U.S. 288, 293 n.5 (1984); United States v. Gilbert, 920 F.2d 878,
883 (11th Cir. 1991). “Whether certain activity or speech is
protected by the first amendment is a question of law for the
district court.” Sykes v. McDowell, 786 F.2d 1098, 1103 (11th Cir.
1986).
“[I]t has been universally recognized that one of the primary
purposes of the First Amendment is to ‘protect the free discussion
of governmental affairs’ because the maintenance of a responsible
democratic government depends upon it.” Cooper v. Dillon, 403 F.3d
1208, 1214 (11th Cir. 2005), quoting Landmark Comm’s., Inc., 435
U.S. 829, 838 (1978). As the Supreme Court recently stated:
Speech on matters of public concern is at the heart of the First Amendment's protection. The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. That is because speech concerning public affairs is more than self-expression; it is the essence of self-government. Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.
Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011)(internal citations
and punctuation omitted). “Speech deals with matters of public
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concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder, 131 S. Ct. at 1215 (citations and internal punctuation omitted).
There is no dispute that much of the conduct by Occupy Fort Myers and its participants falls within the protection of the First Amendment. The City does not dispute that plaintiffs’ efforts involving rallies, marches, distribution of literature, displaying signs and posters, and engaging in conversations regarding the topics which prompted the “occupation” are matters of public concern and are well within the protection of the First Amendment.
More problematic is the claim to First Amendment protection for what are essentially sleeping and camping activities. At oral argument, counsel for plaintiffs described the current conduct in Centennial Park as setting up 10-12 tents, with four or five people staying within the tents twenty-four hours a day and the remaining participants “rotating” in and out. The participants eat food brought in by others, but do not cook food at the location. No fixed numbers of people or fixed duration of the occupation have ever been specified, so this description appears to be inherently fluid. The City argues that this type of conduct, even if confined to that described currently, is outside the protection of the First Amendment.
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Plaintiffs view their “occupation” as symbolic expression, and as such protected by the First Amendment. “[T]he First Amendment protects symbolic conduct as well as pure speech.” Virginia v. Black, 538 U.S. 343, 360 n.2 (2003). Symbolic expression delivers a message by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative. Clark, 468 U.S. at 294. The Eleventh Circuit has found that sleeping out-of-doors is not a fundamental right per se, Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000), and the First Circuit has stated that “[t]he act of sleeping in a public place, absent expressive content, is not constitutionally-protected conduct.” Whiting v. Westerly, 942 F.2d 18, 21 (1st Cir. 1991). Most courts have assumed, without deciding, that sleeping and/or camping could be expressive conduct under appropriate circumstances. Thus, in Clark, the Supreme Court assumed without deciding that overnight sleeping in a public park was expressive conduct protected by the First Amendment. 468 U.S. at 293. See also Gilbert, 920 F.2d at 883-84 (expressing “doubts” that sleeping was entitled to First Amendment protection, but assuming it was); Hershey v. Clearwater, 834 F.2d 937, 940 (11th Cir. 1987)(assuming that sleeping can be expressive conduct); Stone v. Agnos, 960 F.2d 893, 895 (9th Cir. 1992)(“Although sleeping
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would seem to be the antithesis of speaking, we need not determine whether Stone's conduct was a form of expression.”)3
The Court finds that in the context of this case the tenting and sleeping in the park as described by plaintiffs’ counsel is symbolic conduct which is protected by the First Amendment. The conduct of tenting and sleeping in the park 24 hours a day to simulate an “occupation” is intended to be communicative and in context is reasonably understood by the viewer to be communicative. This expressive conduct relates to matters of public concern because it can be fairly considered as relating to matters of political, social, or other concern to the community and is a subject of general interest and of value and concern to the public.4
At oral argument, the City asserted that plaintiffs are engaging in commercial speech by soliciting donations of money, food, and supplies. Assuming this is factually correct, which seems likely, such conduct would also fall within the protection of the First Amendment, although subject to different standards. Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011); Milavetz,
3Such an assumption only works, of course, if the ordinance is later found to be constitutional. If the ordinance is later found unconstitutional, a court is forced to actually resolve the threshold issue.
4While the conduct may change over time, the Court addresses only the current conduct of plaintiffs. Changed conduct can be addressed if and as it occurs.
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Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40
(2010).
Accordingly, the Court finds for purposes of the motion for a
preliminary injunction that all the current conduct by plaintiffs
at issue in this case is within the protection of the First
Amendment. Having done so, “[t]he validity of restrictions on
protected First Amendment expression depends upon the type of
speech and the type of forum being regulated.” Gold Coast Publ’ns,
Inc., 42 F.3d at 1344; Thomas v. Howze, 348 F.App’x 474, 477 (11th
Cir. 2009). The Court addresses these matters in reverse order.
(4) Is Centennial Park a Public Forum:
The second step is to determine the type of forum in which the
speech is taking place. The Supreme Court has recognized a “forum
based” approach for assessing the validity of restrictions placed
on the use of government property.
Under this approach, regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest. The second category of public property is the designated public forum, whether of a limited or unlimited character-property that the State has opened for expressive activity by part or all of the public. Regulation of such property is subject to the same limitations as that governing a traditional public forum. Finally, there is all remaining public property. Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view.
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Krishna Consciousness, 505 U.S. at 679. A public park is among those venues which have historically
been considered public forums closely associated with the free exercise of expressive activities. In Hague v. CIO, 307 U.S. 496, 515, 516 (1939) the Court found that “streets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Since then, numerous cases have referred to public parks as being public forums within the meaning of the First Amendment. E.g., Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1182 (11th Cir. 2009)(“Amnesty also has a constitutional right to engage in peaceful protest on public land, such as in a city park.”); Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1521-23 (11th Cir. 1992)(same).
Centennial Park is a City-owned and operated park in downtown Fort Myers bordered by the Caloosahatchee River on one side and several side streets on the other sides. The City concedes, and the Court agrees, that Centennial Park is a public forum for First Amendment purposes.
(5) Standards for Justification of Restrictions: Finding all the conduct is protected by the First Amendment and that Centennial Park is a public forum “only begins the inquiry.” Clark, 468 U.S. at 293; Black, 538 U.S. at 361. “Even the prohibition against content discrimination that we assert the
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First Amendment requires is not absolute.” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 (1992). See also Snyder, 131 S. Ct. at 1218 (“Even protected speech is not equally permissible in all places and at all times.”); Bloedorn, 631 F.3d at 1230 (“It is by now clear that the First Amendment does not guarantee access to property just because it is owned by the government.”); Naturist Soc’y, 958 F.2d at 1523 (“Even though [the park] is a public forum, the Naturists are not free to exercise First Amendment rights in any way they see fit.”) Rather, conduct protected by the First Amendment is “subject to reasonable time, place, or manner restrictions that are consistent with the standards announced in this Court's precedents.” Snyder, 131 S. Ct. at 1218, citing Clark, 468 U.S. at 293. See also First Vagabonds Church of God v. City of Orlando, Fla., 638 F.3d 756,761 (11th Cir. 2011)(en banc). The “standards announced in this Court’s precedents,” Snyder, 131 S. Ct. at 1218, depend largely on whether the restrictions on the activities are content-based or content-neutral. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258 (11th Cir. 2005).
(a) Content-Neutral Restrictions: Content neutral restrictions on conduct protected by the First Amendment in a public forum are proper if “they are narrowly tailored to serve a significant governmental interest, and [ ] they leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791
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(1989) quoting Clark, 468 U.S. at 293 (internal citations omitted).
See also Snyder, 131 S. Ct. at 1218; Amnesty Int’l, 559 F.3d at
1182. Symbolic expression “may be forbidden or regulated if the
conduct itself may constitutionally be regulated, if the regulation
is narrowly drawn to further a substantial governmental interest,
and if the interest is unrelated to the suppression of free
speech.” Ward, 468 U.S. at 294.
To determine whether an ordinance is content-neutral, a court
generally looks to the terms of the ordinance to see if the
ordinance “distinguish[es] favored speech from disfavored speech on
the basis of the ideas or views expressed.” Solantic, 410 F.3d at
1259 and n.8, quoting Turner Broad. Sys., v. FCC, 512 U.S. 622, 643
(1994). If content neutral, the government restriction:
need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. The validity of time, place, or manner regulations does not turn on a judge's agreement with the responsible decision maker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted.
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Ward, 491 U.S. at 798-99. “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.” Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1318 (11th Cir. 2000)(citations omitted.) To establish an ordinance is narrowly tailored, the Court must determine whether there is a “reasonable fit” between the governmental interests and the ordinance. Cincinnati v. Discovery Network, 507 U.S. 410, 416 (1993). See also Coalition for the Abolition of Marijuana Prohibition, 219 F.3d at 1318; International Caucus of Labor Comms. v. City of Montgomery, 111 F.3d 1548, 1551 (11th Cir. 1997). Finally, a content-neutral restriction must allow ample alternative channels of communication. The City can satisfy this requirement even if the other channels may be less effective than plaintiffs would prefer. Coalition for the Abolition of Marijuana Prohibition, 219 F.3d at 1319.
(b) Content-Based Restrictions: Content-based restrictions on conduct protected by the First Amendment require heightened judicial scrutiny. Sorrell, 131 S. Ct. at 2653. Content-based restrictions are found where the statute’s prohibition is “directed only at works with a specified content.” Simon & Schuster, Inc. V. N.Y. State Crime Victims Bd., 502 U.S. 622, 643 (1994). A content-based regulation is
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presumptively invalid, and the government has the burden to rebut that presumption. United States v. Stevens, 130 S. Ct. 1577, 1584 (2010); DA Mortg., 486 F.3d at 1266 n.8. With a content-based restriction, the government must show: (1) that the regulation is necessary to serve a compelling state interest; and (2) that regulation is narrowly drawn to achieve that end. Boos v. Barry, 485 U.S. 321, 321-22 (1988).
In sum, if restrictions on conduct protected by the First Amendment in a public forum are content neutral, they are lawful if: (1) there is a significant governmental interest in restricting the conduct; (2) the restriction is narrowly tailored to achieve that government interest; and (3) the restriction leaves open ample alternative channels for protected expression. If, on the other hand, restrictions on conduct protected by the First Amendment in a public forum are content based, they are lawful if: (1) there is a compelling governmental interest; (2) the restriction is necessary to serve that interest; and (3) the restriction is narrowly drawn to achieve the interest.
(6) The Challenged Ordinances: As the Complaint states, and as counsel for plaintiffs confirmed at the oral argument, all four counts are facial challenges to the City ordinances. A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself. And, when a plaintiff mounts a facial challenge to a statute or regulation, the plaintiff bears the
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burden of proving that the law could never be applied in a constitutional manner. This is because a party who asserts a facial challenge to a statute is seeking not only to vindicate his own rights, but also those of others who may be adversely impacted by the statute. DA Mortg., 486 F.3d at 1262 (internal citations and punctuation omitted). See also Jacobs v. The Fla. Bar, 50 F.3d 901, 906 n.20 (11th Cir. 1995).
(a) Ordinance 2-273: Plaintiffs challenge Ordinances 2-271 to 273, entitled the “Special Events Advisory Board” Ordinance, as “unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Board to provide exemption of permit requirements for commercial speech.” (Doc. #1, Count One, ¶46). Plaintiffs also allege that this ordinance “is unconstitutional on its face as an impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing unbridled discretion in the Board to provide exemption of permit requirements for commercial speech.” (Doc. #1, Count Two, ¶54.) The motion for a preliminary injunction only seeks to enjoin the enforcement of Ordinance 2-273. (Doc. #10, p. 2, ¶2.) The Special Events Advisory Board Ordinance, a copy of which is attached to the Complaint, creates a Special Events Advisory Board and provides it with the following powers and duties:
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The special events advisory board shall:
(1) Act in an advisory capacity to the city council in matters relating to special events proposed by event managers, which are:
a. Open to the public b. Held within the city limits in spaces
which are overseen by the city; c. Expected to attract more than 1,000
people; and d. Requesting the city council approve a waiver
or a reduction of fees or a cash sponsorship;
(2) Endeavor to facilitate quality cultural and artistic events that enhance the quality of life for the citizens of the city, and provide exposure and positive social and economic impacts for the city, by either recommending or withholding recommendation of funding to the city council for a special event that meets the four criteria described in (1) of this section, based on a competitive process;
(3) Recommend to the city council special events that should receive city sponsorship by a reduction or waiver in the fees charged for the use of public property and/or the cost of services to be provided by the city, based on a weighted scale of merit;
(4) Recommend regulations for the conduct of special events that will increase interest therein to the citizens, residents and visitors of the city generally, insofar as the same are not in conflict with the city Code and state statutes;
(5) Have such other advisory duties granted by the city council consistent with successful special events held within the city.
Fort Myers, Fla. City Ordinance § 2-273.
It is clear, as the City stated at oral argument, that this
ordinance creates a content-based advisory group. The very purpose
of the Special Events Advisory Board is to form content-based
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opinions and make content-based recommendations to the City Council.
The ordinance is not a violation of the First Amendment, however, because the ordinance gives the Board no power to implement any of its recommendations. “A municipal governing body may be held liable for acts or policies of individuals to whom it delegated final decision making authority in a particular area. A member or employee of a governing body is a final policy maker only if his decisions have legal effect without further action by the governing body.” Holloman v. Harland, 370 F.3d 1252, 1291-92 (11th Cir. 2004)(citations omitted). Plaintiffs have failed to establish a substantial likelihood that Ordinances §§ 2-271 to 2-273 are unconstitutional on their face as a violation of the First Amendment. Accordingly, the request for a preliminary injunction as to these ordinances is denied.
The Court recognizes that the pamphlet given to Occupy Fort Myers (Doc. #30, p. 5) states: “The Special Event Advisory Board may have final approval of all events as detailed in City Ordinance #3019.” Neither party has provided the Court with Ordinance #3019, and the Court has been unable to find such an ordinance. In any event, the challenged ordinances simply do not contain such authority. Therefore, the facial challenge to the ordinance is unlikely to succeed.
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(b) Ordinance 86-153:
Plaintiffs challenge Ordinance 86-153, entitled the “Parades
and Processions” Ordinance, which requires a City permit from the
police department prior to parades or processions on any city
street and any open air public meeting on any public property.
Plaintiffs allege that this ordinance “is unconstitutional on its
face as an impermissible prior restraint, containing terms which
provide for targeted regulation of core political speech while
allowing unbridled discretion in the Chief of Police to show
preference of non-political speech.” (Doc. #1, Count Two, ¶55.)
Plaintiffs also challenge this ordinance as vague (Count Three) and
a violation of their liberty interests (Count Four).
Section 86-153 states in relevant part:
(a) No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.
Fort Myers, Fla. Ordinance § 86-153(a).
The City has not responded to the merits of plaintiffs’ claims
as to this ordinance. Rather, the City asserts that it does not
enforce this ordinance, and it did not enforce this ordinance
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against plaintiffs, thus rendering the claim moot. The City’s argument is based on the following: On November 9, 2004, an unrelated group of plaintiffs filed a Complaint in Case No. 2:04cv-551 challenging this and other City of Fort Myers ordinances under the First Amendment. On December 13, 2004, the City Council issued Resolution No. 2004-74 abating enforcement of these ordinances until the lawsuit could be evaluated. (Doc. #28, p. 16). On December 21, 2004, the undersigned entered a Consent Judgment and Order (Doc. #33, Case No. 2:04-cv-551) at the request of the parties. This Consent Judgment and Order noted that the City agreed to repeal certain sections of the Parades and Processions ordinance and not to enforce them against plaintiffs “and those similarly situated.” The Court then ordered the City and its employees not to enforce the ordinance against those plaintiffs “and those similarly situated,” noting again that the City had agreed to repeal the ordinances.
The City now reports that the ordinance was not repealed. Indeed, in 2006 it was re-promulgated under the current number. The City and its Chief of Police assert that despite its presence on the books, it was not enforced as to plaintiffs in this case. The City has also produced two letters in which it told citizens that a permit was not required. (Doc. #28).
Under these facts it would be virtually impossible to find the issues moot. The City told this Court almost seven years ago that
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the ordinance would be repealed. Not only did the City not repeal the ordinance, it re-enacted it in 2006. Plaintiffs are not required to rely upon the City’s representations that it will not enforce the ordinance as to them. “The whim, self restraint, or even the well reasoned judgment of a government official cannot serve as the lone safeguard for First Amendment rights.” Florida Cannabis Action Network, Inc. v. City of Jacksonville, 130 F.Supp. 2d 1358, 1362 (M.D. Fla. 2001).
After oral argument, the City filed a Notice of Filing (Doc. #35) attaching a Proposed Emergency Ordinance to be considered by the City Council on November 7, 2011. This emergency ordinance would finally repeal these ordinances. “Generally when an ordinance is repealed any challenges to the constitutionality of that ordinance become moot.” Coalition for the Abolition of Marijuana Prohibition, 219 F.3d at 1310. If damages are properly recoverable, however, the case may proceed despite the repeal. In this case, plaintiffs seek compensatory damages (Doc. #1, p. 20), but such monetary damages are precluded as a matter of law in their facial challenge. DA Mortg., 486 F.3d at 1260 and cases cited therein. A repeal followed by a superceding amendment to an ordinance usually, Covenant Christian Ministries, Inc. v. City of Marietta, 654 F.3d 1231, 1239 (11th Cir. 2011), but not always, Horton v. City of St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001)(citing cases), moots a request for injunctive relief. While
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voluntary cessation of conduct by a government agency is entitled to a rebuttable presumption that the objectionable behavior will not recur, Nat’l Ass’n of Bds. of Pharm. v. Bd. of Regents, 633 F.3d 1297, 1310 (11th Cir. 2011), the past conduct of the City of Fort Myers regarding this ordinance would certainly test such a presumption. The Court need not resolve that issue, however, because there is no record evidence that the City repealed the ordinance.
Accordingly, the Court must determine whether plaintiffs have a substantial likelihood of success on the merits as to the constitutionality of this ordinance. Plaintiffs contend that the subject ordinance is unconstitutional because it is a prior restraint on First Amendment speech. The Court agrees.
Prior restraints are presumptively unconstitutional and face strict scrutiny. Burk, 365 F.3d at 1251; United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000); Church of Scientology Flag Serv. v. City of Clearwater, 2 F.3d 1514, 1547-48 (11th Cir. 1993). It is clear that a parade or procession on a city street or an open-air public meeting on public property is conduct protected by the First Amendment. Both streets and public parks are traditional public forums. Although the ordinance is content-neutral, it does not serve as a valid time, place, and manner restriction. There has been no showing of a significant governmental interest in requiring a police permit before any
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parade or procession on a public street or before any open-air public. Additionally, there has been no showing that the restriction is narrowly tailored to achieve a significant public interest, or that ample alternative channels for protected expression exist. As such, the ordinance does not survive strict scrutiny. Therefore, plaintiffs have demonstrated a substantial likelihood of succeeding on the merits as to the unconstitutionality of this ordinance.
(c) Ordinance Section 58-156:
Plaintiffs challenge Ordinance 58-156, entitled the “Park Regulation” Ordinance, as “unconstitutional on its face as an
impermissible prior restraint, containing terms which provide for targeted regulation of core political speech while allowing the Recreation Manager to make accommodations by extending park hours for sporting, cultural or civil events.” (Doc. #1, Count One, ¶47). Plaintiffs also allege that this ordinance is overbroad. (Doc. #1, Count Two). At oral argument, plaintiffs’ counsel identified § 58-156(a) as the specific provision being challenged. This provision states:
Except for unusual and unforeseen emergencies, parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities. Fort Myers, Fl., Code of Ordinances § 58-156(a).
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At oral argument, plaintiffs’ counsel advised that plaintiffs do not contend a public park has to be open twenty-four hours a day, and were not challenging the hours of operation set forth in the ordinance. Rather, plaintiffs challenge the portion of the ordinance providing for extended hours, specifically the sentence stating: “Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.” Plaintiffs argue that this is a content-based provision which gives unbridled discretion to the recreation manager and thus on its face violates the First Amendment.
The City responds that the ordinance is content-neutral because the park hours apply equally to everyone, and the fact that the hours can be extended does not render it content-based. The City argues that not only has it interpreted the phrase “civic activities” to include plaintiffs’ protest activities, but that “civic activities” is interpreted by the City to simply relate to activities by its citizens, and therefore effectively means any activities.
The Court declines to read the ordinance in such a way as to render the phrase used by the City Council to be effectively meaningless. Murray v. Mariner Health, 994 So. 2d 1051, 1061 (Fla. 2008)(“A second relevant rule of statutory construction is that a statutory provision will not be construed in such a way that it
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renders meaningless or absurd any other statutory provision.”) Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879)(“It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word.”); see also United States v. Nordic Village, Inc., 502 U.S. 30, 36 (1992). The City has cited no case which has ever interpreted “civic activities” in an ordinance to mean “any activities.” The City wants the Court to interpret the sentence as if it was “Such hours shall be deemed extended by the recreation manager as necessary.” This is not what the City Council wrote, and the City Council presumably meant something when it restricted the recreation manager to a necessary accommodation of only “sporting events, or cultural or civic activities.” The Court finds that the plain language of this provision requires the recreation manager to examine the nature of the activity in making a decision to extend park hours. As such, this provision is content-based, and therefore subject to strict scrutiny.
In any event, the last sentence of this provision cannot withstand either content-based or content-neutral scrutiny. Under a strict scrutiny evaluation, there has been no showing of a compelling governmental interest in restricting the extension of park hours to only sporting events, cultural activities or civic activities. Even if content-neutral, there has been no showing of a significant governmental interest in restricting the extension of
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park hours to only sporting events, cultural activities or civic
activities, and no showing that such restriction is narrowly
tailored. The Court therefore concludes that plaintiffs are
substantially likely to prevail on their claim that the last
sentence of this ordinance is unconstitutional on its face.
The Court need not enjoin enforcement of the entire ordinance
when only a portion of that ordinance is likely unconstitutional.
The extension of park hours is wholly independent of the other
provisions in Ordinance § 58-156(a), and “a federal court should
not extend its invalidation of a statute further than necessary to
dispose of the case before it.” Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 503 (1985). Additionally, the challenged ordinance contains a severability clause5, and “[s]everability of a local
ordinance is a question of state law.” Covenant Christian
Ministries v. City of Marietta, 654 F.3d 1231, 1240 (11th Cir.
2011). Severance is permissible because “the legislative purpose
5Fort Myers, Fla. Code of Ordinances § 1-10 provides:
It is hereby declared to be the intention of the city council that the sections, paragraphs, sentences, clauses and phrases of this Code are severable, and if any phrase, clause, sentence, paragraph or section of this Code shall be declared unconstitutional by the valid judgment of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Code, since the same would have been enacted by the city council without the incorporation in this Code of any such unconstitutional phrase, clause, sentence, paragraph, or section.
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expressed in the valid provisions can be accomplished independently of those [provisions] which are void . . . .” Presbyterian Homes of Synod v. Wood, 297 So. 2d 556, 559 (Fla. 1974). Plaintiffs do not contest the first part of the ordinance which provides for nightly closure of Fort Myers’s City parks. The general intent of the City Council’s desire to close the parks at night will remain accomplished if the provision providing for extensions of park times is severed. Accordingly, the Court will enjoin the City from enforcing only the last sentence of this ordinance.
(d) Ordinance 58-153(3): Plaintiffs allege that ordinance § 58-153 is impermissibly vague on its face (Doc. #1, Count Three). At oral argument, plaintiffs’ counsel identified § 58-153(3) as the specific provision being challenged. Section 58-153(3) states: No unauthorized person in a park shall: Set up tents, shacks, or any other temporary shelters for the purpose of overnight camping. No person shall live in a park beyond closing hours in any movable structure or special vehicle to be used or that could be used for such camping purpose, such as a tent, house-trailer, camp-trailer, camp-wagon or the like. Fort Myers, Fl., Code of Ordinances § 58-153(3). Plaintiffs argue this ordinance fails to provide notice of what precise conduct it prohibits and authorizes arbitrary and discriminatory enforcement due to its lack of precision. (Doc. #1, Count Three). An ordinance is void on its face if it is so vague that persons “of common intelligence must necessarily guess at its
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meaning and differ as to its application.” Connally v. Gen.
Constr. Co., 269 U.S. 385, 391 (1926). A plaintiff asserting that
a statute is void for vagueness must show either: (1) the statute
fails to give fair notice of wrongdoing; or (2) the statute lacks
enforcement standards such that it might lead to arbitrary or
discriminatory enforcement. Grayned v. City of Rockford, 408 U.S.
104, 108-09 (1972). “[T]he Constitution demands a high level of
clarity from a law if it threatens to inhibit the exercise of a
constitutionally protected right, such as the right of free speech
or religion.” Konikov v. Orange Cnty., Fla., 410 F.3d 1317, 1329
(11th Cir. 2005). In the context of a facial challenge, the
Eleventh Circuit has recently stated:
In bringing a facial challenge to an ordinance for vagueness, a party “‘who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’” Holder v. Humanitarian Law Project, –– U.S. ––, 130 S. Ct. 2705, 2719, 177 L. Ed. 2d 355 (2010) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982)) . . . If Plaintiffs' own conduct is clearly proscribed by the terms of the ordinance, this “necessarily precludes a finding of facial vagueness.” High Ol' Times, Inc. v. Busbee, 673 F.2d 1225, 1228 (11th Cir. 1982).
Catron v. City of St. Petersburg, 658 F.3d 1260(11th Cir. 2011).
If the conduct is not clearly proscribed by the terms of the
ordinance, the court “must decide whether ‘what the ordinance as a
whole prohibits . . . in the vast majority of its intended
applications’ is clear enough.” Id., citing Hill v. Colorado, 530
U.S. 703 (2000) (quotations and citations omitted)).
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Plaintiffs have not shown that this ordinance is unconstitutionally vague on its face as to the conduct they are challenging. By the express terms of the ordinance, it is clear to the public that it may not set up tents, shacks, or other temporary shelters to camp in the park overnight, and may not live in the park beyond closing hours in any movable structure or vehicle. Persons of ordinary intelligence are not left to guess at what conduct is prohibited, and the ordinance does not create the risk of arbitrary application. Plaintiffs have failed to demonstrate a substantial likelihood of succeeding on their facial attack of this ordinance, and a preliminary injunction as to it will be denied.
(e) Ordinance 58-154(6): Plaintiffs challenge Ordinance 58-154(6) as vague and as violating their liberty interests under the Due Process Clause of the Fourteenth Amendment on its face. (Doc. #1, Count Four). Section 58-154(6) states that unauthorized persons in a park are prohibited from: (6) Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace. Fort Myers, Fl., Code of Ordinances § 58-154 (6). Plaintiffs argue that this provision is vague because it creates uncertainty as to the type of loitering or boisterous behavior which would be
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considered offensive conduct, and which conduct would fall within the “sweep” of the ordinance. (Doc. #10, p. 18.) Further, plaintiffs contend that they have liberty interests in lounging on public benches and public places “according to their inclination” and in meeting with others in open air within City limits. (Doc. #1, Count Four).
In response, defendants contend that a preliminary injunction should be denied because no arrests have been made pursuant to this ordinance, no arrests have been threatened, and plaintiffs have now acquired a permit which allows them to be in the park. Defendants also argue that the ordinance only applies to “unauthorized persons,” and plaintiffs’ presence in the park is “authorized” by its permit. Defendant argues that the request for a preliminary injunction as to this ordinance is therefore moot, plaintiffs lack standing, and the issue is not ripe for review. Alternatively, defendant contends that any offending language should be severed rather than enjoining the entire ordinance. In support, defendants provided an affidavit of Mike Viola, Captain of the Fort Myers Police Department. (Doc. # 42-1.)
The crux of defendant’s argument is that because plaintiffs have not been charged with any violations of this ordinance, and because the City does not intend to enforce this ordinance against plaintiff, there is no imminent fear of injury and therefore no actual case or controversy. This argument is without merit.
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Captain Viola’s affidavit simply states that, “[d]ue to the issuance of the [permit], enforcement of §58-154(6) is unlikely.” (Doc. # 42-1, p. 2)(emphasis added). Thus, the City has not ruled out enforcement of this ordinance against plaintiffs. Additionally, the City permit is revocable without cause with ten days notice. As such, the Court finds that there remains a case or controversy which is ripe and not moot for which plaintiffs have standing.
(1) Vagueness: Applying the vagueness principles set forth above, the Court finds that a portion of this ordinance is unconstitutionally vague. While the meaning of sleeping on seats, benches, and other areas is clear, there is no established meaning to “protractedly lounge” which would advise a person of ordinary intelligence when he or she was required to vacate the seat, bench, or other area in a City park. An “allcases” computer search revealed not a single case where the phrase “protractedly lounge” was ever used. Because the ordinance fails to define this crucial term, and it is not clear from the ordinance as a whole that the vast majority of its intended application is clear enough, it is likely to be unconstitutionally vague on its face. Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011); Easy Way of Lee Cnty., Inc. v. Lee Cnty., 674 So. 2d 863, 866 (Fla. Dist. Ct. App. 2d
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Dist. 1996)(county noise ordinance failed to define crucial terms and was therefore vague).
The meanings and application of both “disorderly conduct” and “breach of the public peace” are well established under Florida law. Fla. Stat. § 877.03; K.M.D. v. State, 69 So. 3d 311, 313 n.4 (Fla. Dist. Ct. App. 4th Dist. 2011); C.N. v. State, 49 So. 3d 831, 832 (Fla. Dist. Ct. App. 5th Dist. 2003); Macon v. State, 854 So. 2d 834, 837 n.1 (Fla. 5th DCA 2003). Thus, this portion of the ordinance satisfies notice requirements. On the other hand, “behavior tending to” breach of the peace has no established meaning, and is not comprehensible to persons of ordinary intelligence. Florida interprets it laws in such a way that conduct such as “loud, boisterous, threatening, abusive, insulting or indecent language” are limited by the First Amendment and as such are constitutional. Macon, 854 So. 2d at 837 n.1. In any event, plaintiffs do not assert that their conduct was threatening, abusive, insulting, or indecent.
In sum, the Court finds that plaintiffs are likely to succeed only as to a portion of their challenge to this ordinance. Plaintiffs are likely to succeed as to the provisions which prohibits “protracted lounging” and conduct “tending” towards breach of the public peace. The Court will grant a preliminary injunction as to these portions of the ordinance.
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(2) Liberty Interests: “Plaintiffs have a constitutionally protected liberty interest to be in parks or on other city lands of their choosing that are open to the public generally . . . Plaintiffs possess a private liberty interest in lawfully visiting city property that is open to the public . . . .” Catron, 658 F.3d 1260, at *7, 8, 12 (11th Cir. 2011). “All Florida citizens have a right under the Florida Constitution to ‘chat[ ] on a public street,’ ‘stroll[ ] aimlessly,’ and ‘saunter down a sidewalk.’” Catron, 658 F.3d at *20, 21, citing State v. J.P., 907 So. 2d 1101, 1113 (Fla. 2004), (quoting Wyche v. State, 619 So. 2d 231, 235 (Fla. 1993)). This liberty interest does not include sleeping or camping in a public park, Joel, 232 F.3d at 1357, and in any event can be forfeited by “trespass or other violation of the law.” Catron, 658 F.3d at *7, 8, citing Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994). The Court concludes that plaintiffs have not established that they are likely to succeed on their claims to a fundamental right to lounge where, when, and for how long they wish in a public park or to meet in a public park during hours it is closed to the public. The preliminary injunction as to this ordinance will therefore be denied as to the liberty claims. B. Irreparable Injury Having determined that plaintiffs have demonstrated a substantial likelihood of succeeding on the merits as to their
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constitutional challenges of Ordinances 86-153 and portions of 58156, and 58-154(6), the Court turns to the remaining factors for the issuance of a preliminary injunction.
“A showing of irreparable injury is the sine qua non of injunctive relief.” Siegel, 234 F.3d at 1176 (quoting Northeastern Fla. Chapter of Ass’n of General Contractors v. Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (internal quotations omitted)). “Regarding irreparable injury, it is well established that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-72 (11th Cir. 2006) (citations and internal punctuation omitted). The nature of the injuries in this case flowing from the portions of the ordinances which the Court has found to be in likely violation of the First Amendment are such that they cannot be cured by the award of monetary damages. The Court finds that plaintiffs have satisfied their burden to show irreparable injury stemming from these ordinances. C. Balance of Injuries, Public Interest
Plaintiffs must also establish that the threatened injury to them outweighs the harm a preliminary injunction may cause to the defendant and that an injunction would not harm or do a disservice to the public interest. Siegel v. LePore, 234 F.3d at 1176. “As noted, even a temporary infringement of First Amendment rights constitutes a serious and substantial injury, and the city has no
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legitimate interest in enforcing an unconstitutional ordinance. For similar reasons, the injunction plainly is not adverse to the public interest. The public has no interest in enforcing an unconstitutional ordinance.” KH Outdoor, 458 F.3d at 1272. Both factors favor issuance of a preliminary injunction as to those portions of the ordinances the Court has found to likely violate the First Amendment. D. Bond Requirement
Plaintiffs contend that because they seek to vindicate constitutional rights they ought not be required to post security as a condition of the preliminary injunction, as otherwise required by Federal Rule of Civil Procedure 65(c). Defendant opposes this request, contending that the City would incur substantial financial costs should the Court enjoin the City from closing Centennial Park from 10:30 through 6:00 a.m. and the City will not be able to recover the additional costs to the taxpayers from plaintiffs.
Rule 65(c) of the Federal Rules of Civil Procedure provides that a court “may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
[B]efore a court may issue a preliminary injunction, a bond must be posted, but it is well-established that “the amount of security required by the rule is a matter within the discretion of the trial court . . . and the
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court may elect to require no security at all.” Bellsouth Telecomm., Inc. V. MCI Metro Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005) (internal citations omitted). Given the limited scope of the of the new matters in the preliminary injunction to be issued, the Court finds it appropriate to require a nominal $100 bond to be posted. Accordingly, it is now ORDERED: Plaintiffs’ Motion for a Preliminary Injunction is GRANTED IN PART AND DENIED IN PART as set forth above. A separate preliminary injunction will be entered. DONE AND ORDERED at Fort Myers, Florida, this 15th day of November, 2011.
Copies: Counsel of record
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 Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 1 of 11
ADMCLOSED
U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:11−cv−00608−JES−DNF

Occupy Fort Myers et al v. City of Fort Myers Assigned to: Judge John E. Steele Referred to: Magistrate Judge Douglas N. Frazier Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/25/2011 Date Terminated: 10/19/2012 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Occupy Fort Myers

represented by Jennifer Lucas Keesler Jennifer L. Keesler Suite 77 1136 NE Pine Island Rd Cape Coral, FL 33909 Email: jennifer@keeslerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross Robert W. Ross, Jr. 8891 Brighton Lane Suite 103 Bonita Springs, FL 34135 Email: rob@rosslawfla.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Cindy Banyai

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Stephanie Darst

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Christopher Faulkner

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 2 of 11

ATTORNEY TO BE NOTICED

Plaintiff F. Frank Gubasta

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Zachary Kuhn

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Hilary Mains

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Matt McDowell

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michelle Meyer

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Luis Ospina

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 3 of 11

ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Ryan Pogue

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Frank Pratt

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Marlene Robinson

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Justin Valo

represented by Jennifer Lucas Keesler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of Fort Myers

represented by David C. Potter Fowler White Boggs 2235 First St PO Box 1567 Ft Myers, FL 33901 239−985−4809 Fax: 239−425−6390

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 4 of 11
Email: david.potter@fowlerwhite.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant W. Alley City of Fort Myers 2200 Second St PO Box 2217 Ft Myers, FL 33902−2217 239/321−7050 Fax: 239−344−5916 Email: galley@cityftmyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody B. Vaughan−Birch City of Fort Myers 2200 Second St PO Box 2217 Ft Myers, FL 33902−2217 Email: cvaughanbirch@cityftmyers.com ATTORNEY TO BE NOTICED
Mark C.S. Moriarty City of Fort Myers 2200 Second St PO Box 2217 Ft Myers, FL 33902−2217 239/321−7056 Fax: 239/344−5916 Email: mmoriarty@cityftmyers.com ATTORNEY TO BE NOTICED

Date Filed 10/25/2011
10/25/2011 10/25/2011
10/25/2011 10/25/2011
10/25/2011

# Docket Text
1 VERIFIED COMPLAINT (with Injuction Relief Sought) against City of Fort Myers (Filing fee $ 350 receipt number FTM002037) filed by Justin Valo, Marlene Robinson, Zachary Kuhn, Ryan Pogue, Cindy Banyai, Christopher Faulkner, F. Frank Gubasta, Michelle Meyer, Matt McDowell, Occupy Fort Myers, Frank Pratt, Luis Ospina, Hilary Mains, Stephanie Darst. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(SPB) (Entered: 10/25/2011)
2 DECLARATION of Jennifer Lucas Keesler. (SPB) (Entered: 10/25/2011)
3 EMERGENCY MOTION for temporary restraining order by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (Attachments: # 1 Text of Proposed Order)(SPB) (Entered: 10/25/2011)
4 MOTION for preliminary injunction, MOTION for Hearing by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (SPB) (Entered: 10/25/2011)
5 MEMORANDUM in support re 4 Motion for preliminary injunctionMotion for Hearing, 3 Motion for temporary restraining order filed by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (SPB) (Entered: 10/25/2011)
Summons issued as to City of Fort Myers. (SPB) (Entered: 10/25/2011)

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 5 of 11

10/25/2011 10/26/2011 10/26/2011
10/26/2011 10/26/2011 10/26/2011
10/26/2011 10/27/2011 10/27/2011 10/27/2011 10/27/2011 10/27/2011 10/27/2011
10/27/2011 10/28/2011
10/28/2011

6 STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Divisional Judges on 12/7/09. (SPB) (Entered: 10/25/2011)
7 ORDER denying 3 Motion for temporary restraining order; taking under advisement 4 Motion for preliminary injunction and for hearing pending proper service of process. Signed by Judge John E. Steele on 10/26/2011. (SVC) (Entered: 10/26/2011)
8 PROOF of service by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo (Attachments: # 1 Exhibit 1 − Proof of Service)(Keesler, Jennifer) (Entered: 10/26/2011)
9 ORDER that the 4 MOTION for preliminary injunction and Hearing remain under advisement until such time that proof of service has been filed. Signed by Judge John E. Steele on 10/26/2011. (SVC) (Entered: 10/26/2011)
10 Amended MOTION for preliminary injunction Emergency, and incorporated memo of law by All Plaintiffs. (Keesler, Jennifer) (Entered: 10/26/2011)
11 ORDER denying as moot 4 Motion for preliminary injunction and for hearing based on Amended filing. The Court will hear oral argument on Monday, October 31, 2011, and each party shall have 30 minutes to present their arguments. A separate notice will issue. Counsel for plaintiffs shall serve a copy of this Order and the Notice on opposing counsel by noon on October 27, 2011. Signed by Judge John E. Steele on 10/26/2011. (RKR) (Entered: 10/26/2011)
12 NOTICE of Hearing on 10 Amended MOTION for preliminary injunction: Motion Hearing set for 10/31/2011 at 1:30 PM in Ft. Myers Courtroom 6 A before Judge John E. Steele. (RKR) (Entered: 10/26/2011)
13 NOTICE by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo of Service of Court's Order (Keesler, Jennifer) (Entered: 10/27/2011)
14 NOTICE of Appearance by Grant W. Alley on behalf of City of Fort Myers (Alley, Grant) (Entered: 10/27/2011)
15 NOTICE of Appearance of Co−Counsel Appearance by Mark C.S. Moriarty on behalf of City of Fort Myers (Moriarty, Mark) (Entered: 10/27/2011)
16 MOTION to allow electronic equipment, specifically Cellular Telephone by City of Fort Myers. (Alley, Grant) (Entered: 10/27/2011)
17 Second MOTION to allow electronic equipment, specifically Laptop/Notebook Computer by City of Fort Myers. (Alley, Grant) (Entered: 10/27/2011)
18 ORDER granting 16 Motion to allow electronic equipment, specifically cellular telephone; granting 17 Motion to allow electronic equipment, specifically laptop. Extending courtesy to counsel for plaintiffs. Both subject to security considerations as set forth in the Order. Signed by Judge John E. Steele on 10/27/2011. (RKR) (Entered: 10/27/2011)
19 MOTION to extend time to 10/31/11 to File Partial Response to Plaintiffs' Amended Emergency Motion by City of Fort Myers. (Alley, Grant) (Entered: 10/27/2011)
20 RESPONSE to motion re 19 MOTION to extend time to 10/31/11 to File Partial Response to Plaintiffs' Amended Emergency Motion In Support of Defendant's Motion filed by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (Keesler, Jennifer) (Entered: 10/28/2011)
21 ORDER granting 19 Motion for Leave to File Partial Response to Plaintiffs' Amended Emergency Motion for Preliminary Injunction. The requirements of Local Rule 6.06(b)(3) are hereby waived as to the 7−day requirement. Counsel for

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 6 of 11

10/28/2011
10/28/2011 10/28/2011 10/29/2011 10/30/2011
10/30/2011 10/30/2011 10/30/2011 10/31/2011
10/31/2011 10/31/2011
10/31/2011 10/31/2011 11/04/2011 11/04/2011 11/04/2011

the Defendant shall file its response by October 30, 2011. Signed by Magistrate Judge Douglas N. Frazier on 10/28/2011. (brh) (Entered: 10/28/2011)
22 AMENDED ORDER granting 19 Motion for Leave to File Partial Response to Plaintiffs' Amended Emergency Motion for Preliminary Injunction. The requirements of Local Rule 4.06(b)(3) are hereby waived as to the 7−day requirement. Counsel for the Defendant shall file its response by October 30, 2011. Signed by Magistrate Judge Douglas N. Frazier on 10/28/2011. (brh) (Entered: 10/28/2011)
23 AFFIDAVIT of Chief Douglas Baker by City of Fort Myers. (Alley, Grant) (Entered: 10/28/2011)
24 AFFIDAVIT of Saeed Kazemi by City of Fort Myers. (Alley, Grant) (Entered: 10/28/2011)
25 AFFIDAVIT of Saeed Kazemi Second Affidavit by City of Fort Myers. (Alley, Grant) (Entered: 10/29/2011)
26 NOTICE of supplemental authority re 10 Amended MOTION for preliminary injunction Emergency, and incorporated memo of law by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo (Keesler, Jennifer) (Entered: 10/30/2011)
27 NOTICE by City of Fort Myers Notice of Filing Documents (Attachments: # 1 Exhibit)(Alley, Grant) (Entered: 10/30/2011)
28 NOTICE by City of Fort Myers Amended Notice of Filing Documents (Alley, Grant) (Entered: 10/30/2011)
29 RESPONSE re 10 Amended MOTION for preliminary injunction Emergency, and incorporated memo of law filed by City of Fort Myers. (Alley, Grant) (Entered: 10/30/2011)
30 NOTICE by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo of filing exhibit (Attachments: # 1 Exhibit 1 − Special Events Pamphlet)(Keesler, Jennifer) (Entered: 10/31/2011)
31 AFFIDAVIT of Douglas Baker Amended Affidavit by City of Fort Myers. (Alley, Grant) (Entered: 10/31/2011)
32 Minute Entry. Proceedings held before Judge John E. Steele: Motion Hearing held on 10/31/2011 re 10 Amended MOTION for preliminary injunction Emergency, and incorporated memo of law filed by Stephanie Darst, Frank Pratt, Matt McDowell, Cindy Banyai, Ryan Pogue, Hilary Mains, Christopher Faulkner, Marlene Robinson, F. Frank Gubasta, Luis Ospina, Justin Valo, Occupy Fort Myers, Zachary Kuhn, Michelle Meyer. Court Reporter: Jeffrey G. Thomas (BMA) (Entered: 10/31/2011)
33 INTERESTED PERSONS ORDER. Certificate of interested persons and corporate disclosure statement due by 11/14/2011. Signed by All Divisional Judges on 10/31/2011. (BJH) (Entered: 10/31/2011)
34 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 − track 2. Notice of pendency of other actions due by 11/14/2011. Signed by All Divisional Judges on 10/31/2011. (BJH) (Entered: 10/31/2011)
35 NOTICE by City of Fort Myers Notice of Filing (Alley, Grant) (Entered: 11/04/2011)
36 NOTICE by City of Fort Myers Notice of Filing Authority (Attachments: # 1 Exhibit Affidavit of Kelly MacDonald)(Alley, Grant) (Entered: 11/04/2011)
37 NOTICE by City of Fort Myers Notice of Filing (Alley, Grant) (Entered: 11/04/2011)

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 7 of 11

11/08/2011
11/08/2011 11/10/2011 11/10/2011 11/11/2011 11/14/2011 11/14/2011
11/14/2011 11/15/2011 11/15/2011 11/15/2011
11/18/2011 11/21/2011 11/28/2011

38 RESPONSE re 35 Notice (Other), 36 Notice (Other) filed by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (Attachments: # 1 Exhibit McDowell Declaration, # 2 Exhibit Permit)(Keesler, Jennifer) (Entered: 11/08/2011)
39 ORDER re 10 Amended MOTION for preliminary injunction; Defendants may provide a written response to plaintiffs' request to enjoin City of Fort Myers, FL Ordinance 58−154(6) no later than Friday, November 11, 2011, at 5:00 P.M. Signed by Judge John E. Steele on 11/8/2011. (SVC) (Entered: 11/08/2011)
40 MOTION to extend time to December 4, 2011 Defendants' Motion to Extend Time in Which to Respond to Plaintiff's Complaint by City of Fort Myers. (Moriarty, Mark) (Entered: 11/10/2011)
41 ENDORSED ORDER granting 40 Unopposed Motion to Extend Time in Which to Respond to Plaintiff's Complaint. The City of Fort Myers shall have until December 5, 2011 in which to file a response. Signed by Magistrate Judge Douglas N. Frazier on 11/10/2011. (brh) (Entered: 11/10/2011)
42 RESPONSE re 39 Order Defendant's Response to Plaintiff's Oral Request at Emergency Hearing to Enjoin City Code Section 58−154(6) filed by City of Fort Myers. (Attachments: # 1 Exhibit Affidavit of Captain Mike Viola)(Moriarty, Mark) (Entered: 11/11/2011)
43 CERTIFICATE of interested persons and corporate disclosure statement re 33 Interested persons order by City of Fort Myers. (Alley, Grant) (Entered: 11/14/2011)
44 NOTICE of pendency of related cases re 34 Related case order and notice of designation of track 2 per Local Rule 1.04(d) by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. Related case(s): No (Keesler, Jennifer) (Entered: 11/14/2011)
45 CERTIFICATE of interested persons and corporate disclosure statement re 33 Interested persons order by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (Keesler, Jennifer) (Entered: 11/14/2011)
46 NOTICE of pendency of related cases re 34 Related case order and notice of designation of track 2 per Local Rule 1.04(d) by City of Fort Myers. Related case(s): n (Moriarty, Mark) (Entered: 11/15/2011)
47 OPINION AND ORDER granting in part and denying in part 10 Motion for preliminary injunction as set forth in the opinion. A separate preliminary injunction will be entered. Signed by Judge John E. Steele on 11/15/2011. (SVC) (Entered: 11/15/2011)
48 PRELIMINARY INJUNCTION pursuant to 47 Opinion and Order on motion for preliminary injunction enjoining and restraining the enforcement of City of Fort Myers Ordinance 86−153(a) and portions of Ordinances 58−156(a) and 58−154(6) as specified in the preliminary injunction. Plaintiffs shall post a cash or surety bond with the Clerk of Court of $100 within five (5) days of this preliminary injunction. Signed by Judge John E. Steele on 11/15/2011. (SVC) (Entered: 11/15/2011)
50 REGISTRY MONIES received by Plaintiffs. $100.00 FTM002151 (SPB) (Entered: 11/21/2011)
49 AMENDED COMPLAINT (First) against City of Fort Myers filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Faulkner Declaration, # 2 Exhibit 2 − Ordinances, # 3 Affidavit Keesler)(Keesler, Jennifer) (Entered: 11/21/2011)
51 TRANSCRIPT of Oral Argument held on 10/31/11 before Judge John E. Steele. Court Reporter/Transcriber Jeffrey G. Thomas,Telephone number (239) 461−2033.

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 8 of 11

11/28/2011
12/05/2011 12/30/2011 12/30/2011
12/30/2011 01/04/2012 01/04/2012 01/10/2012 01/11/2012
01/20/2012
01/25/2012 03/01/2012 04/15/2012
04/18/2012

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 12/19/2011, Redacted Transcript Deadline set for 12/29/2011, Release of Transcript Restriction set for 2/27/2012. (JGT) (Entered: 11/28/2011)
52 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Jeffrey G. Thomas (JGT) (Entered: 11/28/2011)
53 Defendant City of Fort Myers' ANSWER and affirmative defenses to Complaint Plaintiffs' First Amended Complaint by City of Fort Myers.(Alley, Grant) (Entered: 12/05/2011)
54 MOTION to strike 53 Answer to complaint affirmative defenses by All Plaintiffs. (Keesler, Jennifer) (Entered: 12/30/2011)
55 NOTICE by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo re 54 MOTION to strike 53 Answer to complaint affirmative defenses of Striking (Keesler, Jennifer) (Entered: 12/30/2011)
56 MOTION to strike 53 Answer to complaint Affirmative Defenses by All Plaintiffs. (Keesler, Jennifer) (Entered: 12/30/2011)
57 CASE MANAGEMENT REPORT. (Keesler, Jennifer) (Entered: 01/04/2012)
58 ORDER deeming withdrawn 54 Motion to strike; granting 55 Notice of striking. Signed by Judge John E. Steele on 1/4/2012. (RKR) (Entered: 01/04/2012)
59 MOTION to amend/correct 53 Answer to complaint Motion Seeking Leave to Amend Answer and Affirmative Defenses and Memorandum of Law by City of Fort Myers. (Alley, Grant) (Entered: 01/10/2012)
60 ORDER denying as moot 56 Motion to Strike Defendant City of Fort Myers' Affirmative Defenses; and, granting 59 Motion Seeking Leave to Amend Answer and Affirmative Defenses. Within 14 days from the date of this Order, the City of Fort Myers shall file its Amended Answer and Affirmative Defenses. Signed by Magistrate Judge Douglas N. Frazier on 1/11/2012. (brh) (Entered: 01/11/2012)
61 CASE MANAGEMENT AND SCHEDULING ORDER: Final Pretrial Conference set for 2/19/2013 at 09:00 AM in Ft. Myers Courtroom 6 A before Judge John E. Steele, Bench Trial set for trial term commencing 3/4/2013 before Judge John E. Steele. Signed by Judge John E. Steele on 1/20/2012. (BMA) (Entered: 01/20/2012)
62 Amended ANSWER and affirmative defenses with Jury Demand to 49 Amended complaint by City of Fort Myers.(Alley, Grant) (Entered: 01/25/2012)
63 NOTICE of Appearance by Robert W. Ross on behalf of Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo (Ross, Robert) (Entered: 03/01/2012)
64 MOTION for partial summary judgment by All Plaintiffs. (Attachments: # 1 Exhibit Certified Code, # 2 Exhibit Faulkner Declaration 12/29, # 3 Exhibit Surf &Song Permit, # 4 Exhibit Advertisement, # 5 Exhibit Special Events Handbook, # 6 Exhibit Webpage, # 7 Exhibit Certified Ordinance)(Keesler, Jennifer) (Entered: 04/15/2012)
65 SUMMARY JUDGMENT NOTICE re 64 MOTION for partial summary judgment (SPB) (Entered: 04/18/2012)

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 9 of 11

04/19/2012 04/29/2012
05/03/2012
08/08/2012
09/05/2012 09/12/2012 09/12/2012 09/18/2012 09/24/2012 09/24/2012 09/26/2012 09/26/2012 09/27/2012

66 MOTION to extend time to November 5, 2012 Defendant City of Fort Myers' Motion to Extend Time to Respond to Plaintiffs' Final Partial Motion for Summary Judgment and Memorandum of Law by City of Fort Myers. (Alley, Grant) (Entered: 04/19/2012)
67 RESPONSE in opposition re 66 MOTION to extend time to November 5, 2012 Defendant City of Fort Myers' Motion to Extend Time to Respond to Plaintiffs' Final Partial Motion for Summary Judgment and Memorandum of Law filed by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (Keesler, Jennifer) (Entered: 04/29/2012)
68 OPINION AND ORDER granting 66 Motion to extend time to respond to Plaintiffs' Motion for Final Partial Summary Judgment and Memorandum of Law 64 . The City of Fort Myers shall file a response to the Plaintiffs' Motion for Final Partial Summary Judgment 64 NO LATER THAN NOVEMBER 5, 2012. Signed by Judge John E. Steele on 5/3/2012. (SVC) (Entered: 05/03/2012)
69 MOTION for protective order by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Interrogatories to Plaintiff Occupy Fort Myers, # 2 Exhibit 2 − Interrogatories to Individual Plaintiff, # 3 Exhibit 3 − Declaration of J. Walker, # 4 Exhibit 4 − Declaration of C. Faulkner)(Keesler, Jennifer) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 08/08/2012)
70 ORDER granting 69 Motion for Protective Order as to Invocation of Their First Amendment Rights. See Order for details. Signed by Magistrate Judge Douglas N. Frazier on 9/5/2012. (brh) (Entered: 09/05/2012)
71 Joint MOTION for referral to mediation before US Magistrate Judge by All Parties. (Keesler, Jennifer) (Entered: 09/12/2012)
72 ORDER granting 71 Motion for referral to mediation and the case is referred to the Honorable Sheri Polster Chappell to conduct a settlement conference and to enter any related Orders as deemed appropriate. Signed by Judge John E. Steele on 9/12/2012. (RKR) (Entered: 09/12/2012)
73 NOTICE of Appearance by David C. Potter on behalf of City of Fort Myers (Potter, David) (Entered: 09/18/2012)
74 NOTICE of Hearing: Settlement Conference set for 10/15/2012 at 09:00 AM in Ft. Myers Courtroom 5 D before Magistrate Judge Sheri Polster Chappell (LMF) (Entered: 09/24/2012)
75 ORDER Setting Hearing. Settlement Conference set for 10/15/2012 at 09:00 AM in Ft. Myers Courtroom 5 D before Magistrate Judge Sheri Polster Chappell Signed by Magistrate Judge Sheri Polster Chappell on 9/24/2012. (LMF) (Entered: 09/24/2012)
76 MOTION for miscellaneous relief, specifically Voluntary Dismissal as to Plaintiffs Darst, Kuhn, Meyer, Ospina, Pogue and Pratt by Stephanie Darst, Zachary Kuhn, Michelle Meyer, Luis Ospina, Ryan Pogue, Frank Pratt. (Keesler, Jennifer) (Entered: 09/26/2012)
77 MOTION for extension of time to complete discovery by City of Fort Myers. (Potter, David) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 09/26/2012)
78 RESPONSE in opposition re 77 MOTION for extension of time to complete discovery filed by Cindy Banyai, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (Attachments: # 1 Exhibit 1 − Email, # 2 Exhibit 2 − Email Response, # 3 Exhibit 3 − Robinson Declaration, # 4 Exhibit 4 − Ps Deposition Dates, # 5 Exhibit 5 − Request for Admissions to Def, # 6 Exhibit 6 − Defs Response to Admissions)(Keesler, Jennifer) (Entered: 09/27/2012)

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 10 of 11

10/05/2012 10/07/2012
10/07/2012 10/10/2012 10/10/2012
10/12/2012 10/12/2012 10/12/2012
10/12/2012 10/12/2012 10/15/2012 10/17/2012

79 ORDER granting 77 Motion to Enlarge Discovery Deadline. The discovery deadline is extended to November 2, 2012, for the sole purpose of allowing the Defendant to take the Plaintiffs depositions. The parties shall cooperate in the scheduling of the Plaintiffs' depositions. Signed by Magistrate Judge Douglas N. Frazier on 10/5/2012. (brh) (Entered: 10/05/2012)
80 MOTION to compel Discovery Responses by All Plaintiffs. (Attachments: # 1 Exhibit 1 − 9/7 letter, # 2 Exhibit 2 − 10/4 email, # 3 Exhibit 3 − 9/17 email, # 4 Exhibit 4 − 9/19 email, # 5 Exhibit 5 − Plaintiffs Req for Admissions, # 6 Exhibit 6 − Defs Response to Admissions, # 7 Exhibit 7 − 9/25 memo, # 8 Exhibit 8 − Defs Response to Req for Production, # 9 Exhibit 9 − 9/28 email, # 10 Exhibit 10 − 10/3 email, # 11 Exhibit 11 − 10/4 letter, # 12 Exhibit 12 − 10/4 email, # 13 Exhibit 13 − Kazemi Memo, # 14 Exhibit 14 − 10/4 email, # 15 Exhibit 15 − 10/5 email, # 16 Exhibit 16 − 10/5 email, # 17 Exhibit 17 − Response Cover)(Keesler, Jennifer) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 10/07/2012)
81 APPEAL of Magistrate Judge ruling to District Court re 79 Order on motion for extension of time to complete discovery (Keesler, Jennifer) (Entered: 10/07/2012)
82 RESPONSE to motion re 76 MOTION for miscellaneous relief, specifically Voluntary Dismissal as to Plaintiffs Darst, Kuhn, Meyer, Ospina, Pogue and Pratt filed by City of Fort Myers. (Potter, David) (Entered: 10/10/2012)
83 RESPONSE re 81 APPEAL of Magistrate Judge ruling to District Court re 79 Order on motion for extension of time to complete discovery filed by City of Fort Myers. (Attachments: # 1 Exhibit 1 −− E−Mail Dated 9.18.12 from David Potter, # 2 Exhibit 2 −− 9.19.12 E−Mail from Jennifer Keesler, # 3 Exhibit 3 −− E−Mail Dated 9.19.12 from Grant Alley, # 4 Exhibit 4 −− E−Mail Dated 9.19.12 from Robert Ross, # 5 Exhibit 5 −− E−Mail Dated 9.19.12 from David Potter, # 6 Exhibit 6 −− E−Mail Dated 9.19.12 from David Potter, # 7 Exhibit 7 −− E−Mail Dated 9.20.12 from Robert Ross, # 8 Exhibit 8 −− E−Mail Dated 9.20.12 from David Potter, # 9 Exhibit 9 −− E−Mail Dated 9.24.12 from Robert Ross, # 10 Exhibit 10 −− E−Mail Dated 9.25.12 from Robert Ross, # 11 Exhibit 11 −− Letter Dated 9.25.12 from David Potter, # 12 Exhibit 12 −− E−Mail Dated 9.25.12 from Robert Ross, # 13 Exhibit 13 −− Deposition Transcript of Cindy Banyai)(Potter, David) (Entered: 10/10/2012)
84 ORDER overruling objections and denying 81 APPEAL of Magistrate Judge ruling to District Court. Signed by Judge John E. Steele on 10/12/2012. (RKR) (Entered: 10/12/2012)
85 MOTION to Appear Telephonically to Mediation as to Plaintif Mains by All Plaintiffs. (Keesler, Jennifer) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 10/12/2012)
86 ENDORSED ORDER granting 85 Plaintiff Hilary Mains' Motion to Appear Telephonically at Mediation. Plaintiff Mains may give full settlement authority to his counsel who may appear on his behalf at the settlement conference. Accordingly, Plaintiff Mains is excused from attending the settlement conference in−peron, but Mr. Mains needs to be available by phone throughout the entirety of the settlement conference in case circumstances would require counsel to communicate with Mr. Mains. Signed by Magistrate Judge Sheri Polster Chappell on 10/12/2012. (BLW) (Entered: 10/12/2012)
87 NOTICE of Appearance by Cody B. Vaughan−Birch on behalf of City of Fort Myers (Vaughan−Birch, Cody) (Entered: 10/12/2012)
88 RESPONSE to motion re 80 MOTION to compel Discovery Responses and Incorporated Memorandum of Law In Support filed by City of Fort Myers. (Attachments: # 1 Exhibit Exhibits 1 through 10)(Vaughan−Birch, Cody) (Entered: 10/12/2012)
89 Minute Entry. Proceedings held before Magistrate Judge Sheri Polster Chappell: Settlement Conference held on 10/15/2012. The parties convened to participate in settlement negotiations. Outcome: Settlment reached. (LMF) (Entered: 10/15/2012)
90 Joint MOTION to stay this Action and for an Enlargement of All Remaining Deadlines for Sixty (60) days by All Parties. (Potter, David) (Entered: 10/17/2012)

Case: 2:11-cv-00608-JES-DNF As of: 03/04/2014 02:41 PM EST 11 of 11

10/18/2012 12/14/2012 12/17/2012 02/14/2013
02/15/2013
02/15/2013 02/22/2013 03/04/2013 03/06/2013

91 ORDER granting 90 Motion to stay and directing administrative closure for a period of 60 days. The Clerk shall terminate all pending motions and deadlines in light of the administrative closure. Signed by Judge John E. Steele on 10/18/2012. (RKR) (Entered: 10/18/2012)
92 Joint MOTION for extension of time to file document (Stipulation of Dismissal) by Cindy Banyai, City of Fort Myers, Christopher Faulkner, F. Frank Gubasta, Hilary Mains, Matt McDowell, Occupy Fort Myers, Marlene Robinson, Justin Valo. (Keesler, Jennifer) (Entered: 12/14/2012)
93 ORDER granting 92 Motion for extension of time to file stipulation of dismissal and the administrative closure is extended for 60 days from this Order. Signed by Judge John E. Steele on 12/17/2012. (RKR) (Entered: 12/17/2012)
94 MOTION for Extension of Time to File to File a Stipulaton of Dismissal and Motion for Continuation of Settlement Conference by City of Fort Myers. (Attachments: # 1 Exhibit 1 −− Settlement Agreement, # 2 Exhibit 2 −− Proposed Amendments, # 3 Exhibit 3 −− Memo from Plaintiffs, # 4 Exhibit 4 −− E−Mail from Plaintiffs Counsel, # 5 Exhibit 5 −− E−Mail Regarding Requested Relief)(Potter, David) (Entered: 02/14/2013)
95 RESPONSE in Opposition re 94 MOTION for Extension of Time to File to File a Stipulaton of Dismissal and Motion for Continuation of Settlement Conference filed by Cindy Banyai, Christopher Faulkner, F. Frank Gubasta, Hilary Mains, Matt McDowell, Occupy Fort Myers, Marlene Robinson, Justin Valo. (Attachments: # 1 Exhibit 1 − Fully Executed Settlement Agreement, # 2 Exhibit 2 − Email Exchange 01/10/13, # 3 Exhibit 3 − Alley Correspondence 01/17/13, # 4 Exhibit 4 − Potter Email 01/25/13)(Keesler, Jennifer) (Entered: 02/15/2013)
96 ORDER denying 94 Motion for Extension of Time to File and Motion for continuation of settlement conference. Signed by Judge John E. Steele on 2/15/2013. (RKR) (Entered: 02/15/2013)
97 STIPULATION of Dismissal by Cindy Banyai, City of Fort Myers, Stephanie Darst, Christopher Faulkner, F. Frank Gubasta, Zachary Kuhn, Hilary Mains, Matt McDowell, Michelle Meyer, Occupy Fort Myers, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, Justin Valo. (Keesler, Jennifer) (Entered: 02/22/2013)
98 ORDER dismissing case with prejudice, dissolving 48 Preliminary Injunction; and releasing and discharging Bond (FTM 002151) to counsel for plaintiffs. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 3/4/2013. (RKR) (Entered: 03/04/2013)
99 JUDGMENT. Signed by Deputy Clerk on 3/6/2013. (SPB) (Entered: 03/06/2013)