Item 8AAGENDA ITEM #8A
JUNE 12, 2006
'CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Policy on Holiday Displays in Town Center
SUBMITTED BY: Jim Hanson, '
DATE: May 29, 2006
BACKGROUND: The Cities of Atlantic Beach and Neptune Beach have jointly sponsored the
placement of lights and a holiday tree in Town Center each year along with a
tree lighting ceremony that has become a popular holiday tradition, especially
for the younger children. On some occasions in past years, the management
of the Sea Turtle Hotel has contributed to the holiday displays, including the
purchase of the tree in 2005. There have been no religious symbols used to
decorate the tree or on any other public property in the Town Center area until
2005, and there have been no religious aspects associated with the tree
lighting ceremony.
After the holiday tree was placed in Town Center last yeaz, both Atlantic
~" Beach and Neptune Beach received a request for placement of a menorah. The
applicants cited a United States Supreme Court decision as support for their
request. Upon advice of both City Attorneys, the placement of the menorah
~'" was approved adjacent to the holiday tree. Later, the cities received a second
request to install a creche adjacent to the tree and menorah. The City
Attorneys recommended that this request be denied, based also upon the
a.
Supreme Court decision. A suit was then filed against both cities resulting in
a considerable amount of administrative time and cost to defend the suit.
~„ Upon later recommendations of attorneys representing the cities, the case was
settled by allowing the placement of the- creche in Town Center.
,,,, Shortly after the case was settled, Michael Roper of Bell, Leeper and Roper,
P.A., working on behalf of Atlantic Beach, provided a lengthy legal opinion
detailing the issues involved in the recently settled case and offering options
,,~, for future policy. A copy is attached. The options for action in future years
include the following;
1. Disallow all holiday displays at the Town Center traffic circle.
2. Allow privately sponsored holiday scenes displayed, without
discriminating as to viewpoint.
3. Limit any holiday display in this location to a secular holiday tree
which is owned, erected and controlled by the governmental entities.
A.
AGENDA ITE1~1 #8A
JUNE 12, 2006
All requests for private displays in this locale should be denied and
municipalities should exercise complete control over the holiday
display, in this non-public forum.
There are pros and cons to each of the three alternatives. In the first
alternative, eliminating all holiday displays would solve the legal question of
which displays to approve. However, it would also mean the elimination of
`"" future holiday trees and the related tree lighting ceremony. This has become a
much anticipated local tradition and would disappoint hundreds if not
thousands of citizens of the two cities.
Allowing all holiday scenes without discriminating as to viewpoint is the
second alternative. The cities would be viewed as allowing all religious
~"' groups equal access to public property. However, a number of problems
might be created. One is that the cities would give up control over most
aspects of the displays. One exception may be for possibly public safety (if
~`" they become dangerous). Some complaints were received last year about the
quality of the displays being less than what might be appropriate for Town
Center. The city also received complaints as to allowing any religious
displays on public property. Portions of one of the displays was also stolen.
Last, it is possible that the size or number of private displays would be too
much to place around the holiday tree in the traffic circle and that other public
~"" locations in Town Center would have to be used.
The third alternative is to limit any holiday displays to a secular holiday tree
which is owned, erected and controlled by the city governments. It would
cost the cities a little bit more to erect the display without any private
assistance. The cost of the tree with all the decorations has remained under
$1,000 per year. On the other hand limiting the display to one holiday tree
provided by the cities eliminates the need to approve applications from
~„ various private indi -riduals or groups, eliminates complaints about
unsightliness and s~~ould reduce ary problcrns of vandalism or theft.
BUDGET: Disallowing all holiday displays in Town Center would be the least
expensive of the options. Using private contributions is a less expensive
option than the cities paying for the total cost. However, the cost of the
tree and decorations is usually less than $1,000. Regardless of which of
the options is chosen, defending against future suits would cost much
more.
RECOMMENDATION: My recommendation is that the Mayor and Commission vote to limit
holiday displays in the Town Center area to only those that are paid for
~. and erected by the two cities. All other requests for private displays
should be denied.
ATTACHMENTS: Letter from Michael Roper dated December 12, 2005
~- BELLS LEEPER c~ ROPERS P.A.
ATTORNEYS AT LAW
MICHAEL M. BELL
MICHAEL H
BOWLING 2816 EAST ROBINSON STREET 218 ANNIE STREET
~,
.
ERNEST H
KOHLMYER
III' ORLANDO, FLORIDA 32803-5834 ORLANDO, FLORIDA 32806.1208
.
,
ANDREW J
LEEPER' TELEPHONE (407 897-5150 TELEPHONE (407) 488-1881
.
MICHAEL 1. ROPER FAX (407) 897.3332 FAX (407J 488-1999
•AL50 ADMITTED IN GEORGIA E-mail: blr@blrlawfirm.com
www.6lrlawfirm.com
Reply to: Robinson Street
~. December 12, 2005
ATTORNEY CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
' PRIVILEGED -CONFIDENTIAL
~, Mr. Jim Hanson
City Manager
800 Seminole Boulevard
Atlantic Beach, FL 32233-5445
Re: Ken Koenig v. City of Atlantic Beach, Florida and
City of Neptune Beach, Florida
United States District Court, Middle District of
Florida, Jacksonville Division
Case No. 3:05-CV-01244-HES-MMH
Dear Mr. Hanson:
AGENDA ITEM #8A
JUNE 12, 2006
JOHN S. CASTRO
KARA L. DECKER
MARY GRACE DYLESKI
CHARLES P. GUFFORD
CYNTHIA D. LALLY
DOUGLAS J. PETRO
JOSEPH D. TESSITORE
SCOTT P. WILLIAMS
OP COUNSEL
We take this opportunity to provide you with a written explanation of our
analysis of the legal issues which were presented in the above-captioned federal
lawsuit. As you know, it was. our recommendation thatthe..City of Atlantic Beach,
in coordination with the City of .Neptune Beach, grant Mr. Koenig's request to
display a nativity creche in the Town Center. Our recommendation was based upon
our review of the controlling legal precedent in this area of the law, as explained more
fully in this correspondence.
It is important that we preface our discussion with the observation that this
remains a complex and unsettled area of the law. These cases implicate esoteric
~.
constitutional issues such as free speech, the Establishment Clause and Equal
Protection. It is clear that learned scholars and jurists often disagree on the import
~' of both the Constitutiun and prior case law. The cases are often decided on a fact
specific basis and there are certainly nuances in the decisions, depending upon the
forum in which the decision is being rendered. Accordingly, for our analysis of this
case, we focused upon those decisions most relevant to this forum, namely those from
~.
Mr. Jim Hanson
~' December 12, 200
Page 2
AGENDA ITEM #8A
JUNE 12, 2006
the Eleventh Circuit Court of Appeals and the Supreme Court of the United States.
We anticipate that the law in this area will continue to evolve, and accordingly for
fiiture practice and decision making, it will be important to keep abreast of
subsequent rulings.
Summary of Relevant Facts
~' The City of Atlantic Beach and the City of Neptune Beach exercise dominion
and control over a traffic circle located in the vicinity of Atlantic Boulevard, in an
area generally known as "Town Center." Traditionally, those cities have allowed a
private entity, namely The Sea Turtle Inn, to erect a holiday tree in the center of the
grassy area which forms a part of the traffic circle. However, the area is not
~' considered to be a park, and is not an area in which citizens, pedestrians, etc.
generally congregate or otherwise engage in expressive conduct. The holiday tree has
been decorated in a secular fashion and has been incorporated into the City's winter
holiday celebration which has likewise been secular and non-religious in nature.
In October 2005 private parties requested that the cities grant permission to
erect a menorah at the same location as the holiday tree, and allow a menorah lighting
~. ceremony on December 28, 2005, during the holiday of Chanukah. Based upon
advice of counsel, the City granted permission for placement of the menorah with the
admonition that the menorah lighting service must benon-religious in nature. Koenig
initially objected to the place!nen~ of the menorah ora City property by way of a letter
dated November 5, 2005, and subsequently, by way of correspondence dated
~• November 15, 2005, requested permission to erect a nativity creche at the same
location. On November 28, 2005, Koenig was informed by the City of Atlantic
Beach, that his request had been denied based upon the City's review of a decision
from the United States Supreme Court issued in 1989. There is a dispute as to
whether the City of Neptune Beach ever formally denied Koenig's request, but
*~ correspondence and other anecdotal evidence certainly suggest that a similar
conclusion was reached by that municipality.
~.
Ultimately, on December 6, 2005, Koenig filed suit in federal court against
those municipalities, and in his pleading assertzd that the cities had violated the
Establishment Clause and had further violated his rights to freedom of speech and
Nlr. Jim Hanson
December 12, 2005
Page 3
AGENDA ITEM #SA
JUNE 12, 2006
equal protection guaranteed by the United States Constitution. In his Complaint
~. Plaintiff sought issuance of an injunction by the court compelling the cities to allow
his nativity display. He also sought an award of damages for violation of his
Constitutional rights and an award of attorney's fees and costs pursuant to 42 U.S.C.
~.
§ 1988. A hearing was scheduled before U.S. District Court Judge Schlesinger for
December 9, 2005, at 10:30 a.m. for issuance of a temporary restraining
~" order/temporary injunction by the court. However, by virtue of both cities' decision
on December 8, 2005, to allow the display. of the nativity creche, Plaintiff's request
~, for injunctive relief was rendered moot and the hearing was cancelled by mutual
agreement of the parties.
First Amendment - Religious S eech
The First Amendment provides in pertinent part that "Congress shall make no
~, law ...abridging the freedom of speech." U.S. Const. Amend. 1. A citizen's First
Amendment right of freedom of speech is protected from infringement by state
actors, such as municipalities, by the Fourteenth Amendment. See, Everson v.
~" Board of Education, 330 U.S. 1, 8 (1947). In determining whether a public entity's
regulation of speech violates a speaker's First Amendment rights, a court will
consider three issues. First, the court must identify the type of speech which is being
regulated. Secondly, the court must determine the nature of the relevant forum and
the accompanying level of scrutiny which the court must apply in considering
~" regula.tions on speech within ghat forum. Finally.; -the court must assess whether the
justifications for limiting speech in that forum, meet the applicable Constitutional
standards. See, e.g. Parkland Republican Club v City of Parkland, 268 F.Supp. 2"d
1349 (S.D. Fla. 2003).
In determining whether the speech is protected, it is important to note that
there is a crucial difference between government speech endorsing religion, which the
~. Establishment Clause forbids, and private speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect. Board of Education v Mer ens, 496
U.S. 226, 250 (1990). It is well established that private religious speech is protected
~.
by the First Amendment. See, Capitol Sauare Review and Advisorv Board v Pinette,
515 U.S. 753, 760 (1995). Furthermore, the courts have recognized that displaying
a religious symbol constitutes religious speech protected by the First Amendment.
~.
Mr. aim Hanson
~" December 12, 2005
Page 4
AGENDA ITEM #8A
JUNE 12, 2006
See, Snowden v. Town of Bay Harbor Islands Florida, 358 F.Supp. 2°d 1178, 1190
'"' (S.D. Fla. 2004); see also, Calvary Chapel Church Inc. v Broward County Florida,
299 F.Supp. 2°d 1295, 1300 (S.D. Fla. 2003). Therefore, Koenig's requested public
,~ display of the nativity creche would constitute private religious speech protected by
the First Amendment.
~" Constitutionally protected religious expression, however, is not guaranteed
unlimited access to government property. Grossbaum v.Indianapolis-Marion County
Bldg. Authority, 63 F.3d 581, 586 (7`'' Cir. 1995). The right to use government
property for one's private expression depends upon the nature of that property.
Therefore, in analyzing these issues, courts are required to move to the second
inquiry, which is the Supreme Court's forum analysis for determining when the
government's interest in limiting the use of its property to its intended purpose
~, outweighs the interest of those wishing to use the property for other purposes. In
other words, the extent to which the government can control access depends on the
nature of the relevant forum. Properly identifying the relevant forum requires an
' approach that considers the government property at issue, as well as the type of access
sought.
Courts generally have divided governmental property into three categories:
traditional public fora, limited public fora, and non-public fora. See, Perry Education
~" Assoc. v. Perr~Local Educators Assoc ,_4E0 U.S. 37 (1983). A traditional public
forum is a place, like a public park or street, that has traditionally been available for
public expression. International Society for Karisna Consciousness Inc v Lee, 505
U.S. 672 (1992). In a traditional public forum any regulation of speech is governed
under strict scrutiny and regulation of speech must be narrowly drawn and necessary
to achieve a compelling state interest. Calvary Chapel Church Inc v Broward
County, Florida, 299 F.Supp. 2°~ 1295, 1300 (S.D. Fla. 2003).
A limited public forum is a public area that the government "has opened for use
by the public as a place for expressive activity." Id. This type of forum can be
~.
created for a limited purpose such as use by certain groups or for discussion of certain
subjects. See, Carey v. Brown, 447 U.S. 455 (1980). In a limited public forum, the
government may restrict speech to the groups or topics for which the forum has been
~.
~.
Mr. Jim Hanson
~" December 12, 2005
Page 5
AGENDA ITEM #8A
JUNE 13, 2006
created, however any such restriction must be reasonable and must not discriminate
on the basis of viewpoint.
,~ Finally, anon-public forum is one where public property is not by tradition or
designation a forum for public communication. Such a forum exists where the
government acts in its position as proprietor to manage its own internal operations,
~" as opposed to using its power as a regulator or a law maker. Restrictions on speech
in non-public fora are valid if they are reasonable and not an effort to suppress
~, expression merely because public officials oppose the speaker's view. Restrictions
on speech in non-public fora are reasonable when consistent with the government's
legitimate interest in preserving the property for the use to which it is lawfully
dedicated. Viewpoint neutrality demands that the state not suppress speech if the real
rationale for the restriction is disagreement with the underlying ideology or
perspective that the speech expresses. See, Snowden, supra, at 1191.
In analyzing the legal principles enunciated above, in light of the specific facts
in this case, there are two initial conclusions to be drawn. First of all, it is clear that
we are dealing with private speech as opposed to government speech. Secondly,
~. although the traffic circle would probably be considered a traditionally non-public
forum, we believe a court would deem this area to have been transformed into a
limited public forum since the cities have opened it up for use by the public as a place
~.
for expressive ~ctwity, by vi~tpue of the placement of the holiday txee and
subsequently the menorah. Since the cities created a limited public forum, in which
various private parties may recognize the winter holiday season, the cities may
properly exclude other subject matter, but cannot exclude alternative viewpoints with
respect to the holidays.
~.
Under these circumstances, it would be a violation of the parties' First
Amendment rights to exclude its religious viewpoint of the holiday season, including
Christmas. In this case, Koenig was denied permission to erect the nativity scene
because it was religious in nature. Accordingly, the religious viewpoint of his speech
was the stated justification for denying his request. Since the regulation of speech in
a limited public forum or public forum based upon viewpoint is impermissible, said
denial would, in all likelihood, be determined by the court to be a violation of
~.
Mr. Jim Hanson
~' December 12, 2005
Page 6
AGENDA ITEM #8A
JUNE 12, 2006
Plaintiff's First Amendment rights. The cities concern that allowing this religious
display might violate the Establishment Clause is not valid under these circumstances.
Courts have held that when the display involves private speech, any perceived
endorsement of religion in a true public forum is simply misperception; the
Establishment Clause is not, in fact, violated. See, Chabad-Lubavitch of Georgia v
Miller, S F.3d 1383 (11`h Cir. 1993).
There are several decisions from the U.S. Supreme Court and other courts
within the Eleventh Circuit which were dispositive of the issues in this case. A brief
summary of those decisions is set forth below.
~' Snowden ~~. Town o Bay Harbor Islands Florida 358 F.Supp.2~l 1178
(S. D. Fla. 2004). A citizen requested permission to erect a nativity in a
~, grassy area owned by municipality alongside existing holiday
decorations, including a menorah displayed by a private group. The city
denied Snowden's request to display the nativity and was sued under
the Establishment and Freedom of Speech clauses of the First
Amendment. The district court found that the city's denial of the request
~, was not reasonable and granted Snowden's request for preliminary
injunction requiring the city to allow her to place a nativity scene at the
area in question.
Calvary Chapel Church Inc v Broward County Florida 299 '
,~ F.Supp.2d 1295 (S.D. Fla. 2003). A church requested it sponsor a
religious display in the county's annual festival of lights holiday
celebration; the county denied this request. The court found that the
~.
county created a nonpublic forum, or at most a limited public forum in
which sponsors may recognize the winter holiday season including
~• Christmas. Accordingly, the county may exclude other subject matter
but the county may not exclude alternative viewpoints, including
religious viewpoints, with respect to the holidays included in the
holiday festival.
Capitol Sazcare Review & Advisory Bd v Pipette SIS U.S. 753, 115
~.
Mr. Jim Hanson
~' December 12, 2005
Page 7
AGENDA ITEDI #8A
JUNE 12, 3006
S. Ct. 2440 (1995). The Ku Klux Klan requested and was denied a
~. permit to erect a Latin cross in the plaza next to the Ohio state capitol,
an area designated by law as a public forum. The court held that the
state did not violate the Establishment Clause of the First Amendment
by permitting a private party to display an unattended cross on the
grounds of the state capitol.
Chabad-Lubavitch o 'Georgia v Miller S F.3d .1383 (11``` Cir. 1993).
A Jewish group brought action against the state of Georgia ,challenging
the state's denial of permission to display a Chanukah menorah in the
rotunda of the state capitol. The Eleventh Circuit held that the state
~" would not violate the Establishment Clause of the First Amendment by
permitting a religious group to exhibit a menorah on a public plaza
~, during Chanukah under neutral open-access policy. The court also held
that even if the state had a compelling state interest in excluding the
group's menorah from a public plaza during Chanukah, its action did
~' not satisfy strict scrutiny under the free speech provision of the First
Amendment.
In addition to the First Amendment analysis set forth above, the cities'
decision to allow the display of the menorah, while at the same time disallowing the
' displayy o~ the nativity scene., implicates a potential violation of Plaintiff's right to
equal protection as guaranteed by the Fourteenth Amendment. Essentially that claim
~, would be based upon an allegation that the city extended preferential treatment to the
Jewish faith, as opposed to the Christian faith, by approving the menorah while at the
same time disapproving the nativity scene. There is certainly legal authority for the
proposition that the menorah can be considered a secular symbol, i.e. Alle henv,
however many of the cases, including those cited above, conclude that the menorah
~, is primarily a religious symbol relating to a religious holiday. However, for the
purposes of analyzing the cities' liability and making recommendations for future
activities, a full discussion of the Equal Protection issues is beyond the scope of this
~' correspondence.
Based upon the materials which we have reviewed, it is m}~ understanding that
~.
AGENDA ITEM #8A
JUNE 12, 2006
Mr. Jim Hanson
December 12, 2005
Page 8
the cities' original decision to allow the menorah, but disallow the nativity creche,
' was based upon an analysis of the United States Supreme Court's decision in
Alle~heny County v ACLU, 492 U.S. 573, 109 S.Ct. 3086 (1989). In Allegheny
~„ Count, supra., the court analyzed two separate holiday displays, a nativity creche
standing alone on the "grand staircase" of the Allegheny County Courthouse with a
distinctly religious message, and a Christmas tree alongside a menorah placed
~" together outside the City-County Building. The court ultimately held that the display
of creche violated the establishment clause because it appeared as if the county was
,~, sending an unnustakable message that it supports and promotes a Christian message.
On the contrary, the display of the menorah next to the Christmas tree did not have
an unconstitutional effect of endorsing Christian and Jewish faiths. The court found
~' the tree and menorah appeared as a secular celebration of the winter holidays and
cultural diversity.
The Alle henx case is not dispositive to the case involving Mr. Koenig and the
City of Atlantic Beach and City of Neptune Beach. There are important distinctions
' between the facts in Allegheny and the circumstances presented by the case at hand.
As previously explained, the analysis of these issues revolve heavily on the specific
~. facts presented. The Christmas tree and menorah in Allegheny were examples of
public speech, not private speech -the city erected both the tree and the menorah as
part of the city-sponsored holiday display.' Second, the nativity creche display,
«~
while placed by a pri~~ate group with a sign to that effect, stood alone and created .the .
appearance that the county endorsed the celebration of Christ's birth; it was the single
~* element of the display in a prominent location of the county courthouse.
Accordingly, based upon the above-referenced case law, we concluded that
Koenig has the right to freedom of speech in the Town Center traffic circle area by
displaying a nativity creche alongside the holiday tree and menorah (to be placed at
the site on December 24, 2005). In all likelihood, the City would not have prevailed
in the injunction proceedings Koenig filed against the City.
`While the menorah was donated by a private group, the city stored, erected
and removed the display each year.
~.
NIr. Jim Hanson
December 12, 2005
Page 9
AGENDA ITEM #3A
JUNE 12, 2006
Outions Available to City with Resuect to Koenig Suit
~" In order to resolve the suit which has been brought by Koenig, the City of
Atlantic Beach essentially had two options, i.e. eliminate all holiday displays from
the area (including the holiday tree), or allow the requested nativity creche to be
added to the existing holiday displays. Ultimately, the City elected the latter course
of action and agreed to allow Mr. Koenig to place a nativity scene in the Town
"~ Center. In addition, please note that any other requested private displays which are
related to the winter holiday season will need to be approved, in order to pass
„, Constitutional muster. In addition to the above, the City may wish to install a notice
or signage in the vicinity of these displays, indicating that they are privately
sponsored displays and are not sponsored or endorsed by the various cities.2
Recommendations for Future Action
~. In order to address this situation in the future, the City has several available
options, as follows:
1. Disallow all holiday displays at the Town Center traffic circle.
2. Allow privately sponsored holiday scenes displayed, without
discriminating as to viewpoint.
3.. Lirnit.any holiday display in this location to a_~secular holiday tree which
is owned, erected and controlled by the governmental entities. All
requests for private displays in this locale should be denied and the
municipalities should exercise complete dominion and control over the
holiday display, in this non-public forum. Under those circumstances,
the decisions to restrict access regarding the selection of displays in the
area need only be reasonable.
In closing, we simply note that in the event the City is inclined to allow
ZSample language for the sign: "These displays have been erected by private
parties and are not intended to indicate any endorsement of religious beliefs by the
City of Atlantic Beach."
~.
Mr. Jim Hanson
December 12, 2005
Page 10
AGENDA ITEM #3A
JUNE I2, 2006
private parties to erect displays during the holiday season, in this area or on other
"~ public property, we would highly recommend that specific procedures be adopted,
by the City, to approve such displays. Those procedures should, at a minimum, set
~, forth tune periods in which requests will be accepted, the identity of the decision
maker, a description of the approval process, criteria used to grant/deny approvals
and a reasonable time period within which decisions will be made. The criteria must
~" be content and viewpoint neutral, and may only regulate whether or not the content
is appropriate for the purpose of the forum and set forth the fair and content-neutral
,~, procedures for applying for permission to erect a display. Such procedures are
.necessary in order to allow the practice to pass Constitutional muster and avoid
some of the arguments which were raised by Plaintiff in the instant suit.
We trust that this correspondence adequately explains the legal analysis
which led to our recommendation that the City of Atlantic Beach authorize Koenig
to erect a nativity scene in the Town Center traffic circle. In addition, we have
attempted to provide guidance with respect to the City's future actions with respect
to holiday displays, in this complex, disputed and ever changing area of the law.
Should you have any questions regarding the above please do not hesitate to
give me a call and with best regards, I remain
_. Very truly yohrs, r. _ .. 1 _ r
~~ Michael J. Roper
MJR/kc