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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