[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-11499

________________________

D.C. Docket No. 6:12-cv-01560-RBD-GJK

WINNIFRED BELL,

et. al,

Plaintiffs - Appellants,

versus

CITY OF WINTER PARK, FLORIDA,

et. al,

Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(March 20, 2014)

Before TJOFLAT, FAY and ALARCÓN,∗ Circuit Judges.

TJOFLAT, Circuit Judge:

 ∗

 Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting 

by designation.

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Winnifred Bell, Allura Lightfoot, and Deanna Waller (collectively, the 

“Plaintiffs”) challenge the City of Winter Park’s Ordinance No. 2886-12, which 

generally prohibits targeted picketing within 50 feet of a residential dwelling, as an 

unconstitutional infringement on their First Amendment right to freedom of 

speech. The City moved to dismiss the Plaintiffs’ complaint under Federal Rule of 

Civil Procedure 12(b)(6). The District Court, after considering the parties’ 

memoranda in support of and against the City’s motion, granted the motion and 

dismissed the case. The Plaintiffs now appeal.1

 For the reasons outlined below, 

we affirm in part and reverse in part.

I.

The City of Winter Park adopted Ordinance No. 2886-12 on September 24, 

2012,2 after finding that “there has occurred in the City of Winter Park a 

documented series of protest or picketing activity specifically targeted against an 

individual residing in a single family home . . . [and] this individual has feared for 

her safety as a result of this picketing activity,” and that “there have been reported 

 1 Because we are reviewing the District Court’s grant of the City’s motion to dismiss for 

failure to state a claim upon which relief can be granted, we exercise de novo review. See

Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007).

2 In their verified complaint, the Plaintiffs attached a copy of an emergency ordinance the 

City passed prior to Ordinance No. 2886-12. The emergency ordinance was temporary and 

would expire 60 days after its passage unless the City adopted a permanent ordinance. 

Ordinance No. 2886-12 is that permanent ordinance and it is virtually identical in all relevant 

respects to the emergency ordinance. We therefore refer to the permanent ordinance, which was 

submitted as Doc. 16, despite the fact that it was not attached to the Plaintiffs’ complaint.

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instances during the last several years in which the domestic tranquility has been 

disturbed in residential areas by organized picketing and protest in residential areas 

directed against specific targeted residents living in those areas.” Record, Doc. 16, 

at 8. The Ordinance contained seven sections, two of which are relevant in this 

case. Section 2 created a new § 62-79 of the Municipal Code of the City of Winter 

Park, which states:

It shall be unlawful for any person or persons to picket, protest or 

conduct any picketing or protesting activity within a buffer area of 50 

feet from the property line of any dwelling unit in the City of Winter 

Park. It shall also be unlawful for any person or persons to picket, 

protest or conduct any picketing or protesting activity in any park, 

public street, public right-of-way, or on a sidewalk, where such 

activity impedes or interferes with the rights of others to travel on or 

in such areas in a safe manner, consistent with the traditional 

pedestrian, bicycle or motor vehicle use of such areas.

Record, Doc. 16, at 12.3

 Section 3 of the Ordinance amended § 62-77 of the 

Municipal Code to add a new provision, which reads:

 3 The Ordinance defines “picket,” “picketing,” or “protest” to mean 

any assembly of one or more persons, who, through conduct, speech or other form 

of expression, criticize, protest or complain about any matter in which a particular 

person, group of persons or type of person is specifically targeted for protest, 

complaint or criticism, and where such assembly stands, loiters, congregates or 

mills before or about a dwelling unit in which a person who is a target or subject 

of such protest resides or is perceived to reside.

One or more persons may be considered picketing or protesting within the 

meaning of this Section even if the message being communicated is intended to 

be heard or seen by persons in addition to the resident or residents inside a 

dwelling unit.

The Ordinance defines “dwelling unit,” in relevant part, as

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A person regularly residing in a ‘dwelling unit’, as that term is defined 

in Section 62-79, may post a ‘no loitering’ sign on the property of 

such residence in which the person regularly resides, and an officer of 

the City may enforce this section against any person remaining in a 

public area, including a park, sidewalk, street, public right-of-way, 

after the sign is posted, who loiters, stands, sits, or lies before or about 

the dwelling unit on which property the ‘no loitering’ sign is posted, 

or remains on public property within a buffer area as defined in 

Section 62-79, of fifty (50) feet from the property line of such 

residence.

Record, Doc. 16, at 13. The City adopted the Ordinance by a 4–1 vote, with the 

four City Commissioners voting in favor and the Mayor of the City voting against. 

The Ordinance became effective immediately.

On October 16, 2012, the Plaintiffs filed a verified complaint, alleging that 

§§ 62-77 and 62-69 unconstitutionally abridge their freedom of speech.4

 The 

Plaintiffs sought a temporary restraining order, a preliminary injunction, and a 

permanent injunction restraining the City from enforcing the challenged provisions 

of the Municipal Code; a declaration that the challenged portions of the Municipal 

 

a building or portion thereof that is designed for residential occupancy, and shall 

include single family homes, zero lot line residences, townhomes or connected 

homes, and duplexes, and other single and multi-family dwelling units located in 

[particular zoning districts]. Where a single family residence is grandfathered in 

another zoning district and is still used for single family residential purposes it 

shall be included in this definition. Excluded from this definition are apartment 

buildings and condominiums located in a commercial zoning district

Record, Doc. 16, at 11–12.

4 The Plaintiffs also raised a Free Exercise claim under the First Amendment and an 

Equal Protection claim under the Fourteenth Amendment. Those claims were also dismissed, 

but the Plaintiffs do not challenge their dismissal on appeal.

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Code constitute an impermissible restraint of their speech rights; damages; and 

attorney’s fees. The District Court converted the Plaintiffs’ application for a 

temporary restraining order to one seeking a preliminary injunction and took the 

matter under advisement.

The City filed a motion to dismiss the verified complaint and a 

memorandum of law in support of its motion on November 14, 2012. The City 

argued that the Ordinance is facially constitutional because it is a permissible 

content-neutral regulation of speech. On March 7, 2013, the District Court granted 

the City’s motion to dismiss, finding that the Ordinance is content-neutral, serves a 

significant government interest, and is narrowly tailored to achieving those ends. 

This appeal followed.

II.

The First Amendment provides, “Congress shall make no law . . . abridging 

the freedom of speech.” U.S. Const. amend. I.5

 Despite the seemingly clear 

imperative of the text of the First Amendment, the Supreme Court has held that a 

content-neutral restriction of speech6 is constitutional if it “serves a significant 

 5 The First Amendment is made applicable against the states through the Fourteenth 

Amendment’s due process clause. Schneider v. State, 308 U.S. 147, 160, 60 S. Ct. 146, 150, 84 

L. Ed. 155 (1939); see also Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. 

Ed. 1213 (1940). 6 Our principal inquiry in determining whether a restriction on speech is content-neutral 

is “whether the government has adopted a regulation of speech because of disagreement with the 

message it conveys. The government’s purpose is the controlling consideration.” Ward v. Rock 

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government interest,” is “is narrowly tailored” to achieving those ends, and leaves 

ample alternative avenues for speech. Frisby v. Schultz, 487 U.S. 474, 484–85, 

108 S. Ct. 2495, 2502–03, 101 L. Ed. 2d 420 (1988).

7

In Frisby, the Supreme Court upheld a municipal ordinance that prohibited 

“focused picketing taking place solely in front of a particular residence.” Id. at 

483, 108 S. Ct. at 2502. The Court recognized that the government has a 

significant interest in “protecting the well-being, tranquility, and privacy of the 

home,” id. at 484, 108 S. Ct. at 2502 (quoting Carey v. Brown, 447 U.S. 455, 471, 

100 S. Ct. 2286, 2296, 65 L. Ed. 2d 263 (1980)), and in protecting the unwilling 

listener, id. (“Although in many locations, we expect individuals simply to avoid 

speech they do not want to hear, the home is different.” (citations omitted)). The 

ordinance at issue was deemed narrowly tailored because “[t]he type of picketers 

banned by the . . . ordinance generally do not seek to disseminate a message to the 

general public, but to intrude upon the targeted resident, and to do so in an 

especially offensive way.” Id. at 486, 108 S. Ct. at 2503. Finally, the ordinance 

left open ample alternative channels for speech because protestors remained free to 

 

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

omitted). 

7 This is not the same test that applies to content-based restrictions on speech. See

CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1280 (11th Cir. 2006) (“If the 

regulation is content-based, it is subject to strict scrutiny; if the regulation is content-neutral, it is 

subject to intermediate scrutiny.”).

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march through residential areas, to go door-to-door proselytizing their views, and 

to distribute literature. Id. at 484, 108 S. Ct. at 2502. Because the ordinance 

withstood intermediate scrutiny, the Supreme Court held the ordinance was not 

facially unconstitutional. Id. at 488, 108 S. Ct. at 2504.

Section 62-79 is nearly on all fours with Frisby, and we thus hold that the it

is similarly facially constitutional. Section 62-79 does not regulate speech on the 

basis of the content or viewpoint of the speech. Rather, it regulates the time, place, 

and manner in which Plaintiffs can speak. The City did not adopt § 62-79 because 

of any disagreement with any speech’s message. It adopted the Ordinance with a 

stated purpose of safeguarding “the harmony, peace and tranquility of persons 

residing in residential dwelling units” by ensuring that “they feel free in their own 

homes, and safe from protests and picketing activity that targets them or that is 

directed at them.” Record, Doc. 16, at 12. 

Although the Ordinance defines “picketing” to mean criticism, protest, or 

complaint, those words describe picketing generally. See, e.g., Black’s Law 

Dictionary 1264 (9th ed. 2009) (defining “picketing” as “[t]he demonstration by 

one or more persons outside a business or organization to protest the entity’s 

activities or policies”); Webster’s New World Dictionary 1021 (3d College ed. 

1988) (defining “picket” as “a person, as a member of a labor union on strike, 

stationed outside a factory, store, or public building, often carrying a sign, to 

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demonstrate opposition to certain views or practices”). In other words, the 

common use of the term picket denotes criticism; one does not usually picket in 

favor of or in support of something. Section 62-79 is content neutral.

Having determined that § 62-79 is content-neutral, we consider whether it 

withstands intermediate scrutiny. We readily conclude that it does. Section 62-79 

serves the same governmental interests the Supreme Court approved of in Frisby. 

Moreover, § 62-79 is narrowly tailored to achieve those ends. Like the ordinance 

in Frisby, “[t]he type of picketers banned by the [Winter Park] ordinance generally 

do not seek to disseminate a message to the general public, but to intrude upon the 

targeted resident, and to do so in an especially offensive way.” See Frisby, 487 

U.S. at 486, 108 S. Ct. at 2503. And, as the Supreme Court noted, “even if some 

such picketers have a broader communicative purpose, their activity nonetheless 

inherently and offensively intrudes on residential privacy.” Id. Finally, § 62-79 

leaves open alternative channels of speech. Like the protestors in Frisby, the 

Plaintiffs remain free to march, to proselytize, and to distribute literature within 50 

feet of the dwelling unit. They can even picket. If their picketing does not target a 

particular person, group of persons, or type of person who resides in the dwelling 

unit, they can continue to engage in general picketing within the buffer area. 

Moreover, so long as the Plaintiffs remain 51 feet away from a dwelling unit, they 

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remain at liberty to engage in targeted picketing.8 Section 62-79 goes further than 

the one in Frisby, as the Winter Park City Manager is required, on application, to 

make City-owned land reasonably near or abutting a residential area available for 

protest or picketing. The District Court’s dismissal of Plaintiffs’ challenge to § 62-

79 was proper.

III.

Although we believe § 62-79 is facially constitutional, we harbor serious 

concerns as to the constitutionality of the loitering provision of the Ordinance, 

§ 62-77.

9

 Section 62-77 permits private citizens to post no loitering signs on their 

 8 In the District Court, the Plaintiffs argued that the Ordinance’s 50-foot buffer area is 

constitutionally suspect. The District Court, it its order dismissing the verified complaint, 

disagreed, noting:

Plaintiffs’ counsel argued at the hearing that eliminating the buffer zone would 

make the ordinance more narrowly tailored and bring it in line with Frisby. 

Plaintiffs also contend that the ordinance is vague for similar reasons. The Court 

cannot agree. Eliminating the buffer zone would be more restrictive and more 

confusing to the protesters, not less. The way the ordinance is drafted, picketers 

know exactly how close they can get to the targeted residence, unlike in Frisby,

where the ban was simply on picketing “before or about” a residence. The fact 

that this ordinance creates a specific, quantifiable buffer zone makes an even 

stronger case for its constitutionality than the ordinance approved in Frisby.

Record, Doc. 41, at 13 n.13 (citations omitted). On appeal, the Plaintiffs write that “[b]ecause 

the trial court applied a limiting interpretation that removed the buffer zone, Plaintiffs do not 

raise the issue in this appeal.” Appellants’ Br. at 34. However, the District Court’s order did no 

such thing. The court did not apply any sort of limiting principle, nor did it sever the buffer area

provision of the Ordinance. Nevertheless, by not raising the issue on appeal, the Plaintiffs have 

abandoned any argument that the 50-foot buffer area renders the Ordinance unconstitutional. 

See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“[O]ur well established rule is 

that issues and contentions not timely raised in the briefs are deemed abandoned.”).

9 On appeal, the Plaintiffs argue that the District Court did not address the 

constitutionality of § 62-77 and that we therefore ought to remand the case to the District Court 

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property to prevent others from loitering, standing, sitting, or lying before or about 

the dwelling unit on which the sign is posted. Like a no trespassing ordinance,

§ 62-77 permits a private citizen to prevent others from congregating on the 

property. And if that were all § 62-77 did, we likely would find no First 

Amendment problem. Cf. Frisby, 487 U.S. at 485, 108 S. Ct. at 2502

(“[I]ndividuals are not required to welcome unwanted speech into their own homes 

and . . . the government may protect this freedom.”). 

However, § 62-77 goes beyond simply allowing a private citizen to control 

the speech he allows on his property; the section permits private residents to 

control the speech of others within a 50-foot buffer area of the citizen’s property. 

The Ordinance makes clear that the buffer area includes “any park, public street, 

public right-of-way, or sidewalk, located within an area that extends fifty (50) 

linear feet in any direction measured from the property line of a dwelling unit.” 

Record, Doc. 16, at 12. And § 62-77 expressly permits Winter Park police officers 

 

for consideration of the matter. We do not agree. The City moved to dismiss the verified 

complaint in its entirety, and the District Court dismissed the verified complaint in its entirety. 

Although it is true that City did not advance a specific argument on the constitutionality of 

§ 62-77 in its memorandum supporting its motion to dismiss, it made clear that it believed the 

Ordinance, as a whole, was constitutional. We exercise de novo review of a District Court’s 

granting of a motion to dismiss, Griffin Indus., Inc., 496 F.3d at 1199, therefore we are 

conducting an independent review of whether the Plaintiffs’ verified complaint states a claim on 

which relief can be granted. That the District Court’s order did not specifically analyze the 

constitutionality of § 62-77 does not thwart our review of that Section on appeal.

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to enforce the loitering provision against any person “remaining in a public area, 

including a park, sidewalk, street, [or] public right-of way, after the sign is posted.” 

Record, Doc. 16, at 13. In other words, private citizens can decide that they dislike 

the content or viewpoint of a speaker’s message and then contact the Winter Park 

police to enforce § 62-77. 

To be sure, the loitering provision appears to be content neutral; it prohibits 

loitering generally and does not target any particular form of speech or conduct. 

However, § 62-77 grants virtually unfettered discretion in how it is enforced. That 

is, the Ordinance allows private citizens to prohibit speech in traditional public 

fora10 for any reason, including content- and viewpoint-based reasons. This strikes 

us as unprecedented.11 “A grant of unrestrained discretion to an official 

responsible for monitoring and regulating First Amendment activities is facially 

unconstitutional,” Atlanta Journal & Constitution v. City of Atlanta Dep’t of 

Aviation, 322 F.3d 1298, 1310 (11th Cir. 2003) (en banc), and we see little reason 

to believe that a similar grant of unrestrained discretion to private citizens to

summon the police to prohibit First Amendment activities in public fora fares any 

better. Section 62-77 permits private citizens to control the speech of other private 

 10 See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S. Ct. 1125, 1132, 

172 L. Ed. 2d 853 (2009) (describing public streets and parks as traditional public fora).

11 When asked at argument whether the City could cite any case in which private citizens 

were permitted to silence the speech of others in a traditional public fora, counsel for the City 

stated he could not.

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citizens by calling the police. Cf. Shelley v. Kraemer, 334 U.S. 1, 20, 68 S. Ct. 

836, 845, 92 L. Ed. 1161 (1948) (invalidating private racially restrictive covenants 

because the covenants were enforced by the state, which created state action 

sufficient to deny the “equal protection of the laws” guaranteed by that 

Amendment).12

Moreover, § 62-77 states that “an officer of the City may enforce [the 

loitering provision] against any person remaining in a public area . . . after the sign 

is posted.” Record, Doc. 16, at 13 (emphasis added). No definition is provided for 

the term remain, and the common definition—“to stay in the same place,” 

Webster’s New World Dictionary 1134 (3d College ed. 1988)—provides a citizen 

with immense discretion to use the police to enforce the loitering provision and

thus creates a risk of targeted enforcement based on the content or viewpoint of an 

individual’s speech. How long must one stay in the same place to violate § 62-77? 

Five minutes? One minute? Citizens are left to wonder. 

A government regulation that allows arbitrary application is inherently 

inconsistent with a valid time, place, and manner regulation because 

such discretion has the potential for becoming a means of suppressing 

a particular point of view. The lack of objective criteria in the 

governmental exemption readily lends itself to harsh and 

discriminatory enforcement by local prosecuting officials, against 

particular groups deemed to merit their displeasure, [and] results in a 

 12 A person who violates § 62-77 is subject to a $60 civil penalty, a fine not to exceed 

$500, or imprisonment not to exceed 60 days. 

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continuous and pervasive restraint on all freedom of discussion that 

might reasonably be regarded as within its purview. 

CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1279 (11th Cir. 

2006) (internal quotation marks and citations omitted).

The amount of discretion § 62-77 provides is alarming. Private citizens are 

permitted to have the City regulate speech on traditional public fora for any reason. 

Additionally, § 62-77 provides no standards for enforcement, leaving City officers 

free to enforce the prohibition on the basis of the content or viewpoint of an

individual’s speech. We therefore hold that § 62-77 is unconstitutional.

IV.

The Ordinance’s ban on targeted picketing, § 62-79 is content-neutral, 

furthers a significant government interest, is narrowly tailored, and leaves open 

ample alternative channels for speech. It is, therefore, facially constitutional, and 

the District Court properly dismissed the Plaintiff’s challenge as to § 62-79.13 

However, § 62-77 grants private citizens unbridled discretion to invoke the City’s 

power to regulate speech in public fora abutting private residences. We conclude 

that the loitering provision is facially unconstitutional and invalid. The District 

Court’s judgment is, accordingly, 

AFFIRMED in part and REVERSED in part.

 13 In light of the fact that the dismissal of the Plaintiffs’ challenge to § 62-79 was proper, 

we also affirm the District Court’s denial of a preliminary injunction as to that section.

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