### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 16, 2003 THOMAS K. KAHN CLERK

* Honorable

John F. Nangle, United States District Judge for the Eastern

District of Missour

i, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-15350

________________________ D. C. Docket No. 00-07195 CV-J AL UPTOWN PAWN & JEWELRY, INC., a Florida Corporat

ion, Plaintiff-Appel lant,
versus CITY OF HOLLYWOOD, a Florida Municipal

Corporation, Defendant-Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (July 16, 2003) Before ANDERSON and COX, Circuit Jud ges, and NANGLE * , District Judge. PER CURIAM:1 The vendor i n charge of selling the advertising space owns the bus benches, not the Cit y. (R.1-1, Ex. A at 1.)

2 Uptown also made a

Fourteenth Amen

dment Equal Protec

tion argument an

d asserted state law claims, but they are not issues in this appeal. 2 Uptown Pawn & Jewelry, I nc. (“Uptow

n”) appeals the distr

ict court’s grant

of summary judgment in

favor of the City of Hollywood, Florida (“the City ”), thereby upholding the City’s pol icy of no t all owing pawn shops, am ong other types of businesses, to advertise on bus benche s on the City’s ri ghts-o f-way. 1 In its motion for summary judgment, Uptown asserted thatthe City’s policy of not allowi ng pawn shops to advertise on

bus benches violated U

ptown’s First A

mendment r

ights. 2 The City coun ter-f iled a motio n for s ummary ju dgmen t urgi ng th at as a nonp ubli c foru m, th e City’s policy survived the lower level of scrutiny applied to such fo rums. Th e district courtfound that the bus benches were a nonpubl ic forum, and t hus the Ci ty’s policy need only be rea

sonable and viewpoint

neutral. The district court determined that the City’s goal of

raising revenue

made the policy of limiting advertising space to more reputable advertisers a reasonable, and therefore constitutional, lim itation on Uptown’s First

Amendment rights. Uptown appeals, arguing that the bus benches are
apublic forum or, in the alternative, that if they are not a pu blic forum, th en the City’s poli cy is un reaso nabl e. We af firm.3 I. BACKGROUND The City contracts

with private entiti

es, giving them t

he right to place entityownedbus benches on City rights-of-way and sell advertising space on the benches. Prior to January 2000,

the City contra

cted with Holly wood Jaycees ( “Jaycees”) to have the Jaycees se

ll advertising s

pace on the benches. Adverti sers wishing to purchasead space contr

act ed with the Jaycees, but the City owned the rights to the
a dvertising on the benches. Und er this contract,

the Jaycees w

ere prohibited from sellingadvertisement

s for liquor, tobacc

o, X-rated m

ovies, or mass age parlors. Advertisemen

ts by pawnbrokers

were permi

tted. (R.1-92 at 2.) I

n fact, for fourteen years, Uptow

n Pawn, a duly

licensed pawnbroke

r, placed ads on the

bus benches. In November 1999, with the Jaycees’ contract set to expire, the City

issued a Request for Proposal (“RFP”) for Bus Bench Advertising, seeking to replace the contractwith the Jaycees. Acco rdin g the the RFP, the City would be entitled to an agreed percentage of the

gross advertising re

ceipts generated by the advertis ing. The RFP provided that the enti ty chosen would be

authorized to sell

advertising space on the benches provided tha t “th ere shall be no liquor , tobacco, X-r

ated movies, a

dult book store, massage parlor, pawn shop, tattoo parlor or che ck cashing advertisi

ng of any nature whatsoever placed upon the p ublic bench es.” (R.1-1, Ex A. at 2.) G at eway Advertising won the

contract and began a

dministering its provisions in4

January 2000. That same month, Uptown was precluded from purchasing bus bench advertising because

of the quoted provision o f the contract. Uptown filed suit against the City seeking declaratory relief, preliminary injunctive

relief, and dam

ages. Uptown fil

ed a mot ion for summary judgment; the City responded and filed a

counter-motion

for summary

judgment. The district court determined

that the bus benches are not a public forum, therefore regulation of speech
on the benches need only be rea sonable and not viewpoint discriminat ory. The City arguedthat the justifica

tionfor the decision not t o allow certain ty

pes of businesses to advertise on bus benches was that the revenue the City earns i s based upon advertising

rates, which in turn is based upon perceived class and consumer friendliness

of the businesses adver

tising on the benches (i.e., if advertisers perceived bus benches as a me

dium for advertising lower caliber businesses, then advertising rates and reven ue w ould decl ine). The di strict cou rt conclud ed that th e City’s
concern for its revenue str eam and corre sponding policy lim it in g bus bench advertisers were reasonab le. The district court also n oted that the presence of
numerous alternative avenue s for

pawnshop advertisem

ents supportsthe conclusion that the City’s proprietary decision to not allow pawnshop advertising is reasonable. Finall y, the district court f ound that the City’ s policy was not v iewpoint3 Uptown concedes that the benches a

re not a traditiona

l public forum. 5 discriminatory

because there is no viewpoint that is being suppressed. Thus, the court denied Uptown’s m

otion for summ

ary judgm

ent and granted the C

ity’s mot ion. II. ISSUES ON APPEAL First, we must

determine wh

ether the bus benche s constitute a created public forum

3 or a nonpublic forum

. Our conclusion

on that issue will

determine what level of scrutiny

to apply: restri

ctions on speech in

a publi c forum re ceive s trict s crutin y, whereas restrictions

on nonpublic forums need only be reasonable and not viewpoint discri minator y. Because we conclude that the bus benches are a nonpublic foru m, we must then determine whether the City’s policy is reasonable. W

e do not engage in a viewpoint

analysis becaus e Uptown does not cont end that the City ’s policy is viewpo int dis criminat ory. We review a grant of summary judgment de novo. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11t h Cir.1999). Sum

mary judgment is proper when "there is no genuine issu e as to any m aterial fact and . . . the mov ing party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).6 III. DISCUSSION A. Created Publ

ic or Nonpublic Foru

m As a general rule , government ow nership of property does not automatica lly open that property to the pu blic. United States v. Koki nda , 497 U.S. 720, 725, 110 S. Ct. 3115, 3119 (199 0). The extent to which a governm

ent may con

trol access to government

property turns

on the nature of the fo rum. Id. at 726, 110 S. Ct. at 3119. Regulation

of speech activity

on government pr

operty that has b een traditionally open to the public, such as streets and parks, is examined under strict scrutiny. Id. at 730, 110 S. Ct. at 3121. Similarly, regulation of speech on property that the government has expressly dedicated to speech activity (a created public forum) is also exam ined understrict scrutiny. Id. But regulation of speech activity where the government has not dedicat ed th e property to Fi rst Amendm

ent activity (a

nonpublic forum)

is examined for reasonableness an d viewp oint neutrality (nonpublic forum scrutiny). Id. The Supreme Cour t has held that t

he gover nment does not cr eate a public forum by permitting limited discourse; instead, the government m ust inten tiona lly open a nontraditional for

um for public

discourse. Id. , quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. , 473 U.S. 788, 802, 105 S. Ct. 3439, 3449 (1985). To ascertain whethe

r the governmen

tintended to designate a place not traditio nally4 The Lehman court actua lly descri bed the standard of review as asking if the state action was “arbitrary, capricious, or invidious.” 418 U.S. at 303, 94 S . Ct. at 2717 . However, since Lehman , the Court has re ferred to the standard of review as “reasonableness” review. See, e.g., 7 open to assembly

and debate as a public

forum, the Court has examined factors such
as the policy and pr

actice of the gover

nment , the nature of the pr operty, and its compatibility

with expressive acti vity. Cornelius , 4 73 U.S. at 800, 105 S. Ct. at 3447-48. However, the

Courthas stated that it is a “long-settled principle” that when the government act

s in its position as a propriet or to manage its

internal operations , as opposed to using its power as a regulator or lawmaker

, those governm

ental actions
are subject to a lower

level of First Amendment scruti ny. Kokinda , 497 U.S. at 725, 110 S. Ct. at 3119. With these fundamentals of

public forum law in mind, Uptown contends that the bus benches are a c

reated public forum

. Uptown argues t

hat it was error for

the district court to rely on Lehman v. City of Shaker Heights , 418 U.S. 298, 94 S. Ct. 2714 (1974) in de claring that the bu s benches are not a creat ed public forum. In Lehman , the issue before the Court was whether the city could ban political adver tiseme nt s on city-owned bu ses while allowing commerc ial advertisem

ents. The Courtconcluded that the ci ty had not created a public

forum so much as it had created
acommercial

venture in the sale o f advertising. Id. at 303, 94 S. Ct. at 2717. Thus, the appropriate standa

rd of review was

to ask if the state action was reasonable. 4 Id
.Conrelius , 473 U.S. at 800, 105 S. Ct. at 3448 (“Access to a nonpublic forum . . . can be restricted as long as the restrictions are ‘reasonable . . .’”); Kokinda , 497 U.S. at 727, 110 S. Ct. at 3119-20 (“regulation

of speech activi

ty where th

e Governme

nt has not dedicated its pro perty to Fir

st Amendment

activity is examined only for reasonableness.”) . For ease of discussion, we refer to the standard of revi

ew as reasonabl

eness. 8 The Court determined that because there were “ reasonable legislative objectives advancedby

the city in a pro

prietary capa

city,” ( “ to minimize

chances of

abuse, the appearance of favoritism, and the risk of imposing upon a captive audience”), there was no First Amendment violati on. Id. at 304, 94 S. Ct. at 2718. Uptown contends that the dist rict cou rt understood Lehman to mean that a municipality ’s intent to raise money is, ipso facto , evidence that it d id not intend to createa public forum.We disagree. The district court consid ered the fact that the City’s purpose in creating the bus bench forum was to generate revenue, a fact which Uptown concedes. (Uptown Br. at 11.) Hence, the court concluded that the City was actingin a proprietary

capacity whe

n it decided to limit the busine sses that could advertise on the benches. But the district cour t also considered the

City’s prior

policy of not allowing

advertisement

s for liquor, tobacco, X-rated m ovies, adult bookstore s, and m assa ge parlors. We

agree with the dist

rict court that the p

revious policy of limiting ad vert isers also evidence s an intent by the C ity to raise the

most funds possible and not an inten t to create a public

forum open to al

l advertisers.9

Uptown also contends that the exclusion of ca tego ries of speech does n ot create
anonpublic forum,

and that inst ead we must examine the natureof the excluded categorie s of speech to determine whether the government intended to create a d esignated public forum or a nonpublic forum . Uptown directs us to cases whe

r e other circuits have found an advert ising medium to be a public forum b ecause in those cases the cities allowed bo th commercial and political ad vertising. Uptown
c l aims that because the Ci ty’s contrac

t does not distinguish betw een categories of speech, allowing both commercial and political advertising, then this evidences an intent to create a public f

orum. We d

isagree. As the

district court noted,

the City has always had a policy of e xcluding certain ca

tegories of adverti s ing from its bus benches. Contrary to U

ptown’s argum

ent, the City has never a

ccepted “virt

ually all types of advertising” the way that the cities in the cases Uptown cites had done. Finall y, Uptown a

rgues that the fact

that the intended purp ose for the bus benches is consi stent with t he use to whi ch Upt own wa nts t o put the fo rum, evidences the existence of a publi c forum. In conju nction with this argument, Uptown notes that it had ad vertised on the bus benches for 14 years without incident as further evidence that the nature of th e for um of bus benches is com

patible with the use to which Uptown wants to

put the forum. Uptown’s argum ent is not persuasive. Wh

ile the bus benches do have an inte nded purpose of carr

ying advertising,

they also have10

an intended purpose of generating revenue. If the City perceives that all

owing certain kinds of advertising will discourage “hig

her caliber” adve

rtisers from buying bus bench ads and thereby reduce revenue, then allowing “low caliber” advertising would be inconsistent with the

City’s intend

ed use of the

bus benches: to generate as much
revenue as possibl e. Th e fact that pawn sh ops had previously b een allowed to advertise on the bus benches does not change our conclusion. The bus benches are
acommercial venture, and as such, “ [i]n much the same way that a n ew spaper or periodical, or even a radio or tele visio n stati on, nee d not ac cept ev ery proffer o f advertising

from the gener

al public, a city

. . . has dis cre tion to develop and m ake reasonable

choices concerning the type of advertising that may be displayed . .
. .” Lehman , 418 U.S. at 303, 94 S. Ct. at 2717. In fact, the City is doing w

hat this circuit has authorized in a

nonpublic forum: making distinctions based upon content in order to preserve the bus ben

ches for the intended use of

generating revenue. See ISKCON Miami, Inc., v. Met

ropolitan Dade County

, 147 F.3d 1282, 1287 n.5 (11th Cir. 1998). B. Nonpublic Forum Review Havingconcluded that the City’s bus benches are a nonpublic forum , we must
nowdetermine whether the City’s poli cy is reasonable. Kokinda , 497 U.S. at 730 , 110 S. Ct. at 3121. Control over access to a nonpublic forum can be based on speaker identity or subject matter so long as the distinction s drawn by theCity are rea sonable11

in light of the purpose served by the forum and are viewpoint n eutral. Id. at 730, 110 S. Ct. at 3121-22. T

he City’s dec

ision to restrict access to the bus benches need only be reasonable ; it need not be the most reasonable

or the only

reasonable lim

itation. Id. at 730, 110 S. Ct. at 3122. Uptown first attacks the reasonableness of the Ci ty’s pol icy by arguing that there is no support for it in th e record. Uptow

n urges that the City

must point to evidence in the record to suppor t the reasonableness of i

ts policy and that the City’s fa ilure to do so pre clud es jud gment i n the C ity’s f avor. In sup port o f its a rgume nt , Uptown directs us to Sear ce y v. Harris , 888 F.2d 1314 (11th C ir. 1989), a Firs

t Ame ndment

ca se where this cour

t stated that it could n

ot “ infer the reasonableness of a regulation from

a vacant record.” Id. at 1322 (emphasis in original). In that case, the school board advance d no argu ment , and hence pointed t o no evidence in the record, to explain why th e limitation

it had imp osed on the nonpublic forum of a school’s career day event was reasonabl e. Id. at 1321. Searcy did not, however, hol

d that reasonableness must

be supported by record evidence. To the contrary, the court implied that if the reasona

bleness of the school bo ard’s po licywas “intuitive ly obvious,” then perhaps it could w ithstand reasona

ble ness scrutiny. Id. (“It is not intuitively

obvious that individuals

who are no longer affiliate d with a career w

ould [present less effective career information or be less effective role models] ; nor is it12

obvious that such an individual would be more likely [to abuse the Career Day forum].”) More definitively , the Supreme

Court has stated tha

t “comm on sense . . . is sufficient in this Court to uphold a re gulation under rea sonableness revie w.” Kokinda , 497 U.S. at

734-35, 110 S. Ct. at 3124. Hence, we need only ask whether itis intuitively obvio

us or commo

n sensical that the

Ci ty’s limitation on bus bench advertising is reasonable. Turning to the merits, U

ptown contends

that the City’ s policy is unrea sonable because the City would a

llow Uptown to build i

ts own benches and adv

ertise on City rights -of-way, but Uptown ca nnot ad vertis e on the bus ben ches mana ged by Gat eway. Uptown asserts that the logi c of preserving the

higher caliber

bus bench advertising must fail in light of the fact that Uptown could advertise on its own neighboring

bus bench. Uptown focuses on the fac t tha t the City’s m otion for summ

ary judgm

ent statedthat the contra ct wi th Gateway is a non-exclusive agreement and that “UPTOWN could put up itsown bus benches on the City’s rights-of-way, if they so choose, provided they meet with all city ordinance re quiremen ts. Simil arly, UPTOWN can contract with any other bus benc

h company

to place itsadvertising on city rights-of-way.” (R.2-58 at 4.) If i t be true that Uptown co uld place its own5 We do not mean to say that Uptown coul d , in fact , pl ace b ench es o n Ci ty ri ghts -of -way. We have no evidence that the City would permit Uptown to place the benches on City rights-of-way or that there are other bus bench companies with which Uptown could advertise, nor do we know how Cit y ord ina nces mig ht c irc ums cri be U pto wn’ s ab ili ty to pla ce be nch es o n Ci ty ri ghts -of -way. 13 benches on city r ights -of-way, 5 it does not follow tha t the City’s l

imitation on who may advertise on Gate

way bus benches

in an effort to prote

ct the revenue stre

am and “marke tthose businesses which [the City] is most proud of, and which are t hough t to be consistent with its long-term economic health” is unreasonable. (City Br. at32.) In point of fact, we

find that commo

n sense supports the ide

a that it is reasonable for the City to limit “less desirable” businesses’ access to bus bench advertising in hopes that the limitation wil l encourage “more desirable” adv ertisers. Furthermore, the presence of num erou s alternative chann

els for pawnshop advertisement

s also supp orts the conclusion tha t the City’s pr

oprietary dec

ision to limit advertising

on bus benches is re asonable. See Perry Educ. Assn. v. Perry Local Educators’

Assn. , 4 60 U.S. 37, 53-54 , 103 S. Ct. 948, 959 (1983) (“[T

]he reasonableness

of the limitati

ons on PLEA’s a

ccess to the school mail s

ystem is al so supported by the substantial alternative channe

ls that remain

open for union-teacher communica

tionto take place. . . . The variety a nd type of alter

native modes of

access present here compare favorably with thos e in other nonpub lic forum cases where we have upheld restrictions o n a ccess.”) Uptown has mad e no showing that it is14

preventedfrom advertising using other mediums of comm unication such as newspaper, radio, television, etc. Finall y, Uptown contends that if the Cit y’ s rationale is to lim

it the access of “less desirable” business es to bus bench advert ising, then there are still many classes of “lower cali

ber” businesses who could have access to the bus be nc hes. While Uptown may be cor

rect, the Suprem

e Court has instructe

d that the government ’s limitation on speech in a

nonpublic forum “need only be reasonable ,” not “the m ost reasonable” or “the only

reasonable

limitation,” j ust reasonable
. Kokinda , 497 U.S. at 730, 110 S. Ct. at 312 2. The City’s limitation satisfi es this requirement. We need not

discuss the viewpoint neutrality of the City’s

limitation beca

use Uptown does not conte

nd that the City’ s policy is not view point neutral. IV. CONCLUSION The City has alwa

ys precluded ce

rtain businesses fro

m being able to a

dvertise
on City busbench es. This preclusi on evidences an intent

, not to create a p

ublic forum, but

to act in a proprieta

ry capacity

to manage a commercial venture. Hence, the bus benches are anonpublic forum.As such, any limitations the C

ity places on freedom of expression in the no

npublic forum need only be reasonable

in light of the purpose served by the fo rum and viewpoi

nt neutral . We find that be cause the undisputed purpose of the forum is to earn revenue, and beca

use the City fears that15

allowing businesses such as pawnshops to advertise on the bus

benches might inh

ibit “more desirable” business es from buy ing advertising on the be nc hes , and thus negativel yaffect revenue, the City’s li

mitation is rea

sonable. Because

we find the lim itatio n reasonable and bec ause Uptown does not c ontend on appeal that th e limitati on is viewpoint discrim inatory, we h

old that the City’ s limitation surv iv e s nonpublic forum scrutiny and is const itutional. Thus, the dis trict court proper ly granted the City ’s motion for summary judgment. AFFIRMED.