Appendix — Church of Scientology Flag Service Organization, Inc. v. City of Clearwater
Supreme Court brief1986
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85-1553 7/
o No. 85-
In THE a.
Supreme Court of the United States
Octroser Term, 1985
Cuurcnu or Screntotocy Fuiac Service One., Inc.,
Petitioner,
—against—
Crry or Ciearwater, Tuomas Bustin, City Attorney
of the City of Clearwater, and Lucie WiiuiaMs,
City Clerk of the City of Clearwater,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
oOOoOoOOOOjlCeee=mmamaja]}jl_l_eS=l_aesaa—a—esEeE======SSSSSSE===EEE
APPENDIX TO THE PETITION FOR A WRIT
OF CERTIORARI
March 1986
. Eric M. Lizserman, Esq.
Counsel for Petitioner
Rasrnowitz, Boupin, STanpDagp,
Krinsky & Lieserman, P.C.
740 Broadway, Fifth Floor
New York, New York 10003-9518
(212) 254-1111
ee
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
TABLE OF CONTENTS
Opinion of the United
States Court of Appeals
for the Eleventh
Cerne a bok ee 6 0608 60%
Opinion and Order of
United States District
Court for the Middle
District of Florida on
Application for A Pre-
liminary Injunction
Enjoining Enforcement
of Ordinance
No. Deen eas cscecsocece
Order of the United
States District Court
For the Middle Dis-
trict of Florida
temporarily restraining
enforcement of Ordi-
nance No. 3479-84.....
Oral Opinion of the
United States Dis-
trict Court for the
Middle District of
Florida on the Pacial
- Validity of Ordinance
No. 34 79—-B4 cocccccecce
Page
Al1-49
B1-23
C1-6
D1-16
APPENDIX E
APPENDIX FP
APPENDIX G
APPENDIX H
APPENDIX I
Order of the United
States District Court
for the Middle Dis-
trict of Florida on
the Facial Validity
of Ordinance No.
POTPOES i tccawesonvcesse Bie
Order of United States
District Court For the
Middle District of
Florida partially
enjoining Ordinance
NO. 3479-84. wcccccccee F1I=2
Order of United States
District Court For the
Middle District of
Florida denying appli-
cation for preliminary
injunction on ground
that Ordinance No.
3479-84 is unconsti-
tutional as applied... Gl-2
Order of the United
States Court of
Appeals for the Elev-
enth Circuit granting
leave to appeal and
Staying enforcement
of Ordinance No.
3479-84 pending
QPPOAlecccccccccccesce Hl-2
Order of the United
States Court of Appeals
for the Eleventh Cir-
cuit Denying Petition
ii
APPENDIX J
for Rehearing and Sug-
gestion of Rehearing
En BanCecccceccccceccoces
Clearwater Ordinance
No. poy, 2 | rr
iii
Tl-2
J1-54
APPENDIX A
Opinion of the United States Court of
Appeals for the Eleventh Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 84-3252
CHURCH OF SCIENTOLOGY FLAG
SERVICE ORG., INC.,
Plaintiff-Appellee,
- against -
CITY OF CLEARWATER, ET AL.,
Defendants-Appelilants.
Wo. 84-3236
AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE, ET AL.,
‘Plaintiffs-Appellees,
- against -
CITY OF CLEARWATER, FLORIDA ETC., ET AL.,
Defendants-Appellants.
Nos. 84-3543, 84-3547,
84-3545, 84-3546,
85-3574
CHURCH OF SCIENTOLOGY FLAG
SERVICE ORG., INC.,
Plaintiff-Appellant,
- against -
CITY OF CLEARWATER, ET AL.,
Defendants-Appellees.
O~. 0.8
AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE, ET AL.,
Plaintiffs-Appellants,
- against -
CITY OF CLEARWATER, FLORIDA, ET AL.,
Defendants-Appellees.
Appeals from the United States District
Court for the Middle District of Florida
(November 13, 1985)
“efore TJOFLAT and KRAVITCH, Circuit
Judges, and DUMBAULD’, District Fudge.
. Honorable Edward Dumbauld, 0.8.
District Judge for the Western District
of Pennsylvania, sitting by designation.
A 2
TJOFLAT, Circuit Judge:
These consolidated appeals involve
challenges brought by two separate
plaintiff groups to the constitutionality
of a repealed City of Clearwater, Florida
ordinance and its successor ordinance,
both of which regulated charitable
solicitation.1/ The district court
1/ The plaintiffs’ challenges were
brought pursuant to 42 U.S.C. § 1983
(1982), which provides:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory or
the District of Columbia, subjects, or
causes to be subjected, any citizen of
the United States or other person within
the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution
and laws, shall be liable to the party
injured in an action at law, suit in
eguity, or other proper proceeding for
redress. For the purposes of this
section, any Act of Congress applicable
exclusively to the District of Columbia
shall be considered to be a statute of
the District of Columbia.
(footnote continued)
A 3
declared the first ordinance unconstitu-
tional and permanently enjoined its
enforcement. The district court declared
the second ordinance facially constitu-
tional and certified the issue to this
court for interlocutory appeal pursuant
to 28 U.S.C. § 1292(b) (1982).
We vacate the district court's
first decision for want of a case or
controversy. We decline to pass on its
second decision because leave to appeal
pursuant to section 1292(b) was improvi-
dently granted.
(footnote continued from previous page)
The district court's jurisdiction over
these claims was conferred by 28 U.S.C.
§ 1331 (1982) and 28 U.S.C. § 1343(a)(3)
(1982).
I.
A.
On October 6, 1983, the City of
Clearwater enacted Ordinance No. 3091-83
which sought to regulate charitable
solicitations. The ordinance required
charitable organizations that wished to
solicit funds in Clearwater to register
with the City, maintain certain records,
disclose the sources and uses of their
contributions, refrain from engaging in
fraudulent solicitation practices, and
submit to an investigation by the City
Attorney on the complaint of ten or more
individuals. The operative provisions of
the ordinance were to become effective on
January 31, 1984.
A5
Americans United for Separation of
Church and State and several other named
plaintiffs (collectively "Americans
United") brought a ten-count action in
the district court on January 20, 1984 to
enjoin the City and its officers from
enforcing the ordinance. Each count
raised a discrete constitutional claim.2/
On January 23, the Church of Scientology
Flag Service Organization, Inc. ("Church
of Scientology”) brought a separate
twelve-count action for injunctive relief
on grounds similar to those raised by
2/ americans United alleged that the
ordinance violated the due process and
equal protection clauses of the
fourteenth amendment; the free speech,
free press, free exercise and
establishment of religion clauses of the
first amendment; the commerce clause; and
the right to privacy guaranteed by the
first, fourth, fifth, and ninth
amendments.
A 6
Americans United.3/ Both plaintiffs
moved the court for a temporary
restraining order pursuant to Fed. R.
Civ. P. 65(b); such an order became
unnecessary, however, when the City
agreed not to enforce the ordinance
pending a final determination on the
merits.
The court scheduled a final hearing
on the plaintiff's prayers for a perma-
nent injunction4/ on March 9, 1984. At
the hearing, the. parties requested the
court to limit the scope of the hearing
3/ The district court took no formal
action on the City's motion to
consolidate the two cases. It therefore
entered duplicate orders whenever an
issue arose common to both cases.
4/ The plaintiffs prayed for preliminary
and permanent injunctive relief. Fed. R.
Civ. P. 65(a)(2) authorized the court to
consolidate their application for a
preliminary injunction with the trial of
the action on the merits.
A 7
to the facial validity of the ordinance
and defer to a subsequent hearing its
decision on the plaintiffs’ claims that
the ordinance was unconstitutional as
applied. The court granted the parties’
request and confined the hearing to the
facial constitutionality of the ordi-
nance. The parties presented no evidence
save a brief stipulation between the
Church of Scientology and the City. They
Stipulated to the existence of _ the
ordinance, that the City was a munici-
pality of the state, that the Church of
Scientology was a Florida corporation,
and that it sells books and pamphlets and
pays some Scientologists commissions on
funds they solicit. These parties also
stipulated that the court had subject
matter jurisdiction over their case and
that venue was proper. Finally, the City
advised the court that it would not
challenge the Church of Scientology's
standing to bring the suit, except as to
those claims alleging that the ordinance
violated the freedom of religion clauses
of the first amendment.
Americans United and the City
stipulated to nothing. On the standing
issue, the City maintained an inconsis-
tent position. The City advised the
court that it would not contest any of
the Americans United plaintiffs’ standing
to sue; at the same time, the City said
it reserved the right to challenge the
standing of any of such plaintiffs to
prosecute any of their claims. The court
did not resolve this inconsistency.
A 9
After entertaining argument from
counsel on the facial validity of the
ordinance, the court directed counsel to
file post-hearing memorandums by March
16. On March 15, the City Commission
enacted an emergency ordinance, No.
3479-84, as an amendment to Ordinance No.
3091-83. The amended ordinance consisted
of a comprehensive scheme to regulate
charitable solicitation, making substan-
tial modifications to Ordinance No.
3091-83. It provided for the repeal of
any conflicting ordinance, thereby
effectively repealing Ordinance No.
3091-83. As an emergency ordinance, it
would have automatically expired at the
A 10
end of ninety days, if not passed as a
non-emergency ordinance within that
time. 5/
The City promptly notified the
district court '- and the plaintiffs’
counsel of the amended ordinance. Rather
than allowing the plaintiffs to amend
their complaints and adjudicate’ the
validity of the new ordinance,’ the
district court, on March 28, proceeded to
determine the facial validity of repealed
Ordinance No. 3091-83. Without specify-
ing which of the several counts of the
plaintiffs’ complaints it was deciding,
the court declared the repealed ordinance
unconstitutional and permanently enjoined
5/ The emergency ordinance explicitly
provided for its expiration in 90 days.
The Clearwater City Charter also mandated
a 90-day expiration period for emergency
ordinances.
A ll
its application and enforcement. The
court held that the ordinance was overly
burdensome of first amendment’ rights,
given the legitimate state interest
involved, and was also impermissibly
vague and discriminatory.
The court justified its jurisdic-
tion to adjudicate the validity of the
repealed ordinance on two grounds.
First, a finding of no jurisdiction would
encourage cities to enact laws affecting
the constitutional rights of its citizens
and, if challenged in court, simply amend
such laws, thereby prolonging the period
of uncertainty as to citizens’ rights.
Second, the court, noting. the large
number of cases pending on its docket,
stated that it could not permit the
litigants to delay the completion of
their cases by amending their pleadings
at the eleventh-hour and thereby occupy
"someone else's day” in court. Accord-
ingly, an immediate decision terminating
the instant cases was mandated. The
court terminated the Americans United
case by granting the injunctive relief
sought and “dismissing” the case.§/ The
6/ As we indicate in the text supra,
Americans United's complaint containe 0
counts. The district court's dispositive
order, however, did not indicate the
count or counts on which the court
granted relief. ‘We do know that the
court did not adjudicate the counts
alleging that the ordinance was
unconstitutional as applied. As to these
counts, the dispositive order dismissing
the case is open to two interpretations:
the court either dismissed them with
prejudice, i.e., on the merits, or
without prejudice, meaning that_ the
plaintiffs could refile their suit if the
district court's order was reversed on
appeal. The problem such an order
presents a litigant occupying Americans
United's position is that it must cross
appeal from the district court's
disposition of the dismissed counts. If
(footnote continued)
A 13
court similarly terminated the Church of
Scientology case, granting the relief
sought and dismissing eleven of the
twelve counts of the plaintiff's
complaint .2/ The court's dispositive
order failed to dispose of the twelfth
count, however. Consequently, the court
retained jurisdiction of that much of the
Church of Scientology case.
(footnote continued from previous page)
not, it runs the risk that a subsequent
court could read the district court's
dispositive order as dismissing the
presumably “unadjudicated” counts on the
merits, thus barring the plaintiff from
litigating such counts. This problem
will not arise in this instance, however,
because we vacate the district court's
order and direct the dismissal of the
case without prejudice.
7/ The court did not indicate whether
these counts were being dismissed with or
without prejudice, thus raising’ the
problem we discuss supra note 6.
A 14
The City appealed the court's
injunctive orders. We assume jurisdic-
tion of these appeais pursuant to 28
U.S.C. § 1292(a)(1) (1982) .8/
B.
On April 20, 1984, the Church of
Scientology, seeking to enjoin the
emergency ordinance, No. 3479-84, moved
the district court for leave to amend the
remaining count of its complaint. Its
proposed amendment presented the same
constitutional challenges that had been
addressed to the original ordinance. At
the same time, the Church of Scientology
moved the court to issue a temporary
8/ 28 U.S.C. § 1292(a)(1) (1982)
provides that the courts of appeals shall
have jurisdiction of appeals from
interlocutory orders of the district
courts granting or refusing to grant
injunctions. These appeals are Nos. 84-
3232 (Church of Scientology) and 84-3236
(Americans United).
A i5
=
*»
‘
;
restraining order prohibiting the City
from enforcing Ordinance No. 3479-84. A
hearing on these motions commenced one
hour after they were filed. The Church
of Scientology appeared, but the City did
not. The court granted both motions and
set April 27 as the date it would hear
the plaintiff's application for a pre-
liminary injunction. The hearing was
continued, and the parties stipulated to
an extension of the temporary restraining
order pending resolution of such appli-
cation.
The City of Clearwater enacted
Ordinance No. 3479-84 as a permanent
ordinance on May 17, 1984. Cn May 21,
Americans United instituted a new action
in the district court seeking injunctive
relief and challenging the constitution-
A 16
Bi
ality of Ordinance No. 3479-84 on the
grounds raised in its’ previous suit.
Simultaneously, Americans United moved
for a temporary restraining order, which
the court granted. On May 24, the Church
of pesentetes also filed a new suit,
seeking the same relief as Americans
United on essentially the same grounds.
At this point, the Church of Scientology
had two identical suits pending, the
newly filed suit and the previous case
whose complaint had been amended.2/ On
May 30, the court set July 13 as the date
for a final hearing on both plaintiffs'
applications for injunctive relief.10/
9/ The two Church of Scientology cases
and the Americans United case challenging
the new ordinance were not consolidated
by the district court. See supra note 3.
10/ The court consolidated plaintiffs'
application for preliminary injunctive
(footnote continued)
A 17
Shortly thereafter, the City moved,
pursuant to Fed. R. Civ. P. 12(b)(6), to
dismiss the plaintiffs’ complaints for
failure to state a claim for relief, and
Americans United moved the courts for
summary judgment. On June 19, the court
issued an order informing the parties
that it would limit the scope of the
final hearing to the question of the
facial constitutionality of the new
ordinance.11/
(footnote continued from previous page)
relief with the trial on the merits
pursuant to Fed. R. Civ. P. 65(a)(2).
See supra note 4.
11/ Because the July 13 hearing was
limited to the facial constitutionality
of the ordinance, the court must not have
intended the hearing to be the sort of
final hearing apparently contemplated by
its May 30 order. See supra note 10.
A 18
The final hearing was held, as
scheduled, on July 13, 1984. When the
hearing began, the court announced that
it would not consider the merits of any
of the pending motions or receive any
evidence. Rather, the court would only
address the facial constitutionality of
the ordinance in the abstract. During
the hearing it became apparent that the
court was concerned with one other issue,
the plaintiffs’ standing to challenge the
ordinance. When the City’s Attorney
stated, in response to the court's
inquiry as to his position, that the City
was not contesting the plaintiffs’
standing at that time, the court
proceeded to the merits of their claims
that the ordinance was unconstitutional
on its face.
A 19
After hearing the argument of
counsel, the court stated that, in its
view, each and every section of the
amended ordinance was facially constitu-
tional, and, on July 23, the court
entered written orders to that ottest in
the two Church of Scientology cases and
the Americans United case. The orders
stated, in addition, that the facial
constitutionality of the ordinance
constituted a controlling question of law
as to which there was substantial ground
for difference of opinion and that an
immediate appeal pursuant to 28 U.S.C.
§ 1292(b) (1982)12/ may materially
12/28 U.S.C. § 1292(b) (1982) provides
that:
When a district judge, in making in a
civil action an order not otherwise
appealable under this section, shall be
of the opinion that such order involves a
(footnote continued)
A 20
advance the ultimate termination of the
litigation. An administrative panel of
this court subsequently granted the
plaintiffs leave to appeal from these
interlocutory orders.13/
(footnote continued from previous page)
controlling question of law as to which
there is substantial ground for
difference of opinion and _ that = an
immediate appeal from the order may
materially advance the ultimate
termination of the litigation, he shall
so state in writing in such order. The
Court of Appeals which would have
jurisdiction of an appeal of such action
may thereupon, in its discretion, permit
an appeal to be taken from such order, if
application is made to it within ten days
after the entry of the order: Provided,
however, that application for an appeal
hereunder shall not stay proceedings in
the district court unless the district
judge or the Court of Appeals or a judge
thereof shall so order.
13/ These appeals are Nos. 84-3574
(Church of Scientology) and 84-3575
(Americans United).
A 21
0
At the July 13 #£4xhearing,' the
district court indicated that, although
the new ordinance was facially valid, it
would enjoin the City from enforcing the
ordinance pending our disposition of any
section 1292(b) appeals that may be
taken. The City objected, contending
that the court's decision upholding the
ordinance rendered an injunction inap-
propriate and that, at the very least,
the City should be able to enforce the
ordinance's less burdensome provisions.
On July 23, the court, after issuing the
orders declaring the ordinance valid,
issued a second set of orders converting
the still extant temporary restraining
orders to preliminary injunctions pro-
hibiting the City from enforcing the
portions of the ordinance that dealt with
a charitable organization's obligation to
register with the City and to maintain
certain records. The court gave no
reasons for this action.
The City did not appeal from this
preliminary injunction. The Church of
Scientology has appealed, however,
contending that the court erred in
declaring the ordinance constitutional
and that it should have enjoined the
enforcement of the ordinance in its
entirety.14/
c.
On July 31, 1984, the Church of
Scientology, in an effort to get the
district court to rule on its claims that
the new ordinance was unconstitutional as
14/ jurisdiction over these appeals (No.
84-3543 and 84-3545) is conferred by 28
U.S.C. § 1292(a)(1) (1982). See supra
note 8.
A 23
applied, moved the district court, in
both of its cases, for a temporary
restraining order prohibiting the City
from enforcing the ordinance and
requested the court to schedule an
evidentiary hearing on its undisposed
application for a preliminary injunction.
A hearing on the motion for a temporary
restraining order was held two days
later. The Church of Scientology and the
City appeared and presented argument. At
the conclusion of the hearing, the court
announced from the bench that it would
deny the motion and would not give the
Church of Scientology a hearing on its
application for a preliminary injunction.
Later in the day, the court issued
written orders denying the plaintiff's
motion for a temporary restraining order
and its application for a preliminary
injunction. The Church of Scientology
appeals from these orders.15/
After the parties’ perfected their
respective appeals, the Church of Scien-
tology moved this court for an injunction
prohibiting the City from enforcing
Ordinance No. 3479-84 pending our dispo-
sition of such appeals. See Fed. R. App.
Pp. &. An administrative panel of this
court granted the motion without opinion.
In deciding the parties’ appeals,
we first dispose of the district court's
orders prohibiting the City from
enforcing the repealed ordinance, No.
3091-83. We vacate those injunctive
orders principally because the
15/ Jurisdiction over these appeals
(Nos. 85-3544 and 84-3546) is conferred
by 28 U.S.C. § 1292(a)(1) (1982). See
supra note 8.
A 25
controversy they adjudicated was, and is,
moot. Second, we dismiss the section
1292(b) appeals from the district court's
determination that the new ordinance, No.
3479-84, is facially constitutional
because leave to prosecute these appeals
was improvidently granted. Third, we
affirm the district court's refusal to
grant the Church of Scientology's
applications for a preliminary injunction
because the Church failed to establish
the criteria necessary for the granting
of preliminary injunctive relief.
II.
A.
The City of Clearwater has appealed
from the district court's order in both
the Americans United and the Church of
Scientology cases declaring repealed
Ordinance No. 3091-83 unconstitutional
and permanently enjoining its enforce-
ment. Because we conclude that the issue
of the ordinance's validity was moot at
the time it was decided, we vacate the
district court's orders enjoining the
ordinance’s enforcement and remand the
two cases with instructions that they be
dismissed without prejudice. 16/
The Constitution limits the exer-
cise of the judicial power to cases and
controversies. U.S. Const. art. III,
§ 2. An action that has become moot or
academic does not present a justiciable
controversy within the case or contro-
versy clause. See Aetna Life Insurance
16/ Because we do not decide these
appeals on the merits, it follows that
our direction to the district court must
be to dismiss the cases without
prejudice.
A 27
a
S. Ct. 461, 463-64 (i937). The case must
consist of a present, live controversy in
order to “avoid advisory opinions. on
abstract propositions of law." Hall v.
Beals, 396 U.S. 45, 48, 90 S. Ct. 200,
201-02 (1969) (per curiam).
In addition to the constitutional
limits on jurisdiction, the Supreme Court
has established a long~standing policy of
refusing to decide constitutional issues
unless strictly necessary. Rescue Army
v. Municipal Court, 331 U.S. 549, 568-72,
67 S.~ Ct. 1409, 1419-21 (1947). at ®
there is one doctrine more deeply rooted
than any other in the process of consti-
tutional adjudication, it is that we
ought not to pass on questions of con-
stitutionality...unless such adjudication
is unavoidable." Spector Motor Service
Vv. McLaughlin, 323 U.S. 101, 105, 65
S. Ct. 152, 154 (1944). This rule is
basic to the federal system and the
judicial function within that structure.
Rescue Army v. Municipal Court, 331 U.S.
at 570-71, 67 S.Ct. at 1420-21.17/
Ordinance No. 3091-83 was no longer in
force when the district court declared it
unconstitutional.18/ "Where by...a
17/ The rule is a corollary of the case
and controversy requirement and works to
achieve the same purpose. Rescue Army v.
Municipal Court, 331 U.S. at 570-71, 67
S. ct. at 1420-21. The line between the
two is often very thin. Id.; see also
13A C. Wright, A. Miller “& E. Cooper,
Federal Practice and Procedure § 3533.1,
at 224-26 (2d ed. 1984).
18/ The Church of Scientology argues in
its brief that Ordinance No. 3479-84
would have expired by its own terms in 90
days if not reenacted and that the old
ordinance would then be revived. Brief
for Appellee at 9-10, 21 on.13. No
citation is given to support this
(footnote continued)
A 29
a
subsequent law, the existing controversy
has come to an end, the case becomes moot
and should be treated accordingly."
United States v. Alaska S.S. Co., 253
U.S. 113, 116, 40 S. Ct. 448, 449
(1920) .19/
(footnote continued from previous page)
assertion, nor did the district court
discuss this issue of state law. We
note, however, that Ordinance No. 3479-84
provided for the repeal of inconsistent
ordinances and made no _ provision for
bringing the prior ordinance back to
life. There is some doubt whether the
City of Clearwater would have the power
under state law or its charter to enact
such a measure.
19/ See Hearn v. Hudson, 549 F. Supp.
949 (W.D. Va. 1982) (repeal of challenged
ordinance rendered moot a prayer for
declaration of unconstitutionality); 6A
J. Moore, J. Lucas & G. Grotheer, Moore's
Federal Practice 4% 57.13, at 57-127 (2d
ed. 1984) ("statute passed during the
course of litigation may make unnecessary
a determination of the former
controversy").
An actual controversy must exist at all
stages of review. Preiser v. Newkirk,
(footnote continued)
A 30
The district court justified its
adjudication of the repealed ordinance on
two grounds. First, the court had to
decide the question; otherwise, the City
could enact laws affecting the plain-
tiffs' constitutional rights and avoid an
adjudication of the validity of those
laws by amending them prior to a
decision. In an appropriate case this
concern might justify reaching a decision
on the validity of an ordinance no longer
(footnote continued from previous page)
422 U.S. 395, 401, 95 S. Ct. 2330, 2334
(1975). It is clear that the controversy
over Ordinance No. 3091-83 retains no
vitality at this stage of review.
Ordinance No. 3479-84 has been
permanently enacted and is the subject of
vigorous litigation between the same
parties. Accordingly, it would now be
appropriate to vacate the judgments below
with directions to dismiss the cases even
if some controversy had existed at the
time of the district court decision. See
United States v. Munsingwear, Inc., 340
TS. 36, 30ST S CeS TOT, 106-07
(1950).
A 31
in force.29/_ However, in this instance
there was no indication that the City was
acting in a manipulative fashion in order
to prevent an adjudication or that any
reasonable likelihood existed that
Ordinance No. 3091-83 would regain
vitality.2)/ The proper course of action
20/ See City of Mesquite v. Aladdin's
Castle, Inc., oS. ’ » Cee
1070 TIS82), where the City of Mesquite
repealed the complained of portion of an
ordinance after a district court declared
it unconstitutional, but the appeal was
not rendered moot because the City had
announced an intention to reenact the
objectionable language if the judgment
were vacated. Id. at 289 6&6 n.1ll, 102
21/ The fact that the ordinance was
repealed and a new one enacted indicates
that the City wished to regulate the
subject matter in question, but believed
there were problems with the original
ordinance. Under these circumstances, it
does not appear that any likelihood
existed of a return to the original
ordinance.
Ample measures exist that would prevent a
(footnote continued)
A 32
would have been to allow the plaintiffs
to amend their complaints and proceed to
litigate the ordinance then in effect.22/
(footnote continued from previous page)
city from using last-minute amendments to
avoid a determination on the constitu-
tionality of its ordinances. For
example, the rule that voluntary cessa-
tion of challenged conduct will not moot
a controversy if there is a reasonable
expectation that the alleged violation
will recur might be applicable. See
County of Los Angeles v. Davis, 440 U.S.
625, SIT 59S. Ct. 1379, 1383 (1979).
Review might also be available under the
"capable of repetition yet evading
review” exception to the mootness
doctrine. This doctrine has two
elements: "(1) the challenged action was
in its duration too short to be fully
litigated prior to its cessation or
expiration, and (2) there was a reason-
able expectation that the same complain-
ing party would be subjected to the same
action again.” Weinstein v. Bradford,
423 U.S. 147, 145, 56 - Ct. 347, 349
(1975) (per curiam). The “capable of
repetition” exception is not applicable
to the present situation because there is
little likelihood that review will be
evaded. The City has enacted Ordinance
No. 3479-84, regulating conduct similar
to that regulated by the former ordi-
nance, and the new ordinance is subject
to review.
A 33
The court's second ground for
deciding the validity of the repealed
ordinance requires no discussion and no
citation of authority. The fact that the
court was laboring under a heavy docket
and desired to bring these cases to a
quick conclusion simply did not, and
could not, justify the resolution of a
constitutional question in the absence of
a live controversy.
22/ There are numerous cases
illustrating the principle that where a
challenged ordinance is amended during
litigation the appropriate course is to
proceed to a consideration of the amended
ordinance. See, @.g., International
Soc'y for Krishna Consciousness v. Cit
of iscsten, 659 F.2d 541, 543 (5th cir.
,
Unit A 1982); Milwaukee Mobilization for
Survival v. Milwaukee County Park Comm'n,
177-F- Supe, T310,1a18 TE be upp. r ~D. Wis. 1979).
A 34
B.
In addition to presenting no live
controversy over Ordinance No. 3091-83,
the record contains no facts to support
the district court's implied finding that
the plaintiffs had standing to challenge
the constitutionality of the ordinance.
A threshold question in every federal
case is whether the plaintiff has made
out a justiciable case or controversy
. within the meaning of article III. See
Warth v. Seldin, 422 U.S. 490, 498, 95
S. Ct. 2197, 2205 (1975). This requires
that the minimum constitutional standing
requirements be demonstrated: actual or
threatened injury, fairly traceable to
the challanged action, and redressable by
a favorable decision. Valley Forge
Christian College v. Americans United for
Separation of Church and State, Inc., 454
U.S. 464, 472, 102 S. Ct. 752, 758
(1982).
The district court received no
evidence, except a brief stipulation
between the Church of Scientology and the
City, prior to entering its injunctive
orders. It merely entertained counsel's
arguments on the legal question of the
ordinance's facial constitutionality.
Contrary to Fed. R. Civ. P. 52(a), the
only facts the-. court recited in its
orders were the enactment of the ordi-
nance and the municipal status of the
city.23/ These facts and those contained
23/ Ped. R. Civ. P. 52(a) requires the
court to "find the facts specially and
state separately its conclusions of law”
in all actions tried without a jury. The
only facts noted in the district court's
memorandum opinion and orders were that
the City, a municipality of the State of
(footnote continued)
A 36
in the stipulation between the Church of
Scientology and the City, as detailed in
Part I.A., supra, did not provide an
adequate basis to justify a finding of
standing. There was no indication that
the Church of Scientology operated in
Clearwater and would be affected or
injured by the ordinance.
It is true that the City informed
the court that, except for the Church of
Scientology's first amendment freedom of
religion claims, it would not challenge
the standing of the Church of Scientology
to bring the action. A plaintiff does
not acquire standing merely because the
(footnote continued from previous page)
Florida, enacted the ordinance in
question, the plaintiffs challenged the
ordinance, the City agreed not to enforce
the ordinance pending the litigation, and
the ordinance was subsequently amended.
These facts had little, if any, bearing
on the plaintiffs’ standing to sue.
A 37
0
defendant raises no objection. Standing
is a matter of the case-or-controversy
requirement of article III, and a
district court is obliged to ensure that
this jurisdictional requirement is
satisfied. Juidice v. Vail, 430 U.S.
327, 331, 91 S. Ct. 1211, 1215 (1977).
In short, the district court was not free
to rely on the City’s concession on
standing. Further, the City's concession
excluded claims based on the freedom of
religion clauses of the first amendment,
which were the heart of the Church of
Scientology's challenge to the ordinance
and provided the basis for the district
court's conclusion that the ordinance was
unconstitutional.
oneal ail
Americans United and the City made
no stipulation. The City did advise the
court that it would not question the
Americans United plaintiffs' standing,
but in the same breath it insisted on
reserving the right to challenge the
standing of any of such plaintiffs to
prosecute any of their claims. This
inconsistent statement, which went
unresolved, accomplished nothing. As to
the plaintiffs in each of the cases
before it, the court was obligated to
determine that they had adequate standing
to present their constitutional
challenges. Bald assertions, or conces-
sions, of counsel could not suffice.
Standing is a mixed question of fact and
law. 24/ To the extent that it is a
24/ =Because standing is jurisdictional,
(footnote continued)
A 39
it
question of fact, the court must find the
facts and recite them in a fashion that
will accommodate appellate review. See
Fed. R. Civ. P. 52(a).
III.
Americans United and the Church of
Scientology were granted leave to appeal,
pursuant to 28 U.S.C. § 1292(b)
(1982),25/ the interlocutory orders of
the district court declaring Ordinance
No. 3479-84 facially constitutional. We
have concluded that their motions for
leave to appeal these interlocutory
(footnote continued from previous page)
a reviewing court must satisfy itself
that the constitutional requirements are
satisfied. Secretary of State v. Joseph
H. Munson, Co., U.S. > see Bs Cte
2839, 5846 n.4 (1984). This is a legal
determination based on the facts
established by the record.
25/ See supra note 12.
A 40
orders were improvidently granted and
vacate the orders allowing the appeals to
proceed.
The district court, at its July 13
hearing on the facial validity of the new
ordinance, expressly declined to consider
Americans United's motion for summary
judgment and the City's motions’ to
dismiss each of the cases for failure to
state a claim. Instead, the court ruled
on the constitutionality of the ordinance
in the abstract without any factual or
evidentiary foundation. We have deter-
mined that the question of the constitu-
tionality of the ordinance is not ripe
for appellate review for several reasons.
There is no evidence in the record
informing us whether the parties had
standing to bring their constitutional
| |
challenges. As stated in Part II.B.,
supra, it is not possible to determine
whether any of the plaintiffs had stand-
ing to challenge the original ordinance.
The problem. became exacerbated when the
plaintiffs attacked the new ordinance.
Two new suits were instituted, and the
Church of Scientology's original
complaint was amended, but no _ factual
findings have been made to support the
new claims. The transcript of the July
13 hearing merely indicates that the City
would not contest the plaintiffs’ stand-
ing at that time. As we have stated,
supra, the court had a constitutional
obligation to ensure that the jurisdic-
tional standing requirements were met.
See Juidice v. Vail, 430 U.S. at 33l, 97
S. Ct. at 1215,.26/
The statute permitting discretion-
ary interlocutory review requires that
the district judge have issued "an order
not otherwise appealable.”" 28 U.S.C.
§ 1292(b) (1982) (emphasis added).27/
26/ We do not intimate any view on
whether the plaintiffs can establish
standing to sue. We merely note that it
is impossible to make the determination
on the basis of the record before us.
27/28 U.S.C. § 1292(b) also requires us
to assess whether "an immediate
appeal...may materially advance the ulti-
mate termination of the litigation." We
have considerable doubt whether an appeal
in this instance satisfies this standard.
The plaintiffs have sought preliminary
injunctive relief alleging that’ the
ordinance is facially unconstitutional
and unconstitutional as applied. They
are entitled to prompt consideration of
their motions for preliminary relief.
The district court has closed these cases
pending the plaintiffs' appeal of its
interlocutory orders, depriving the
(footnote continued)
A 43
Although the district court's decision on
the facial constitutionality of Ordinance
No. 3479-84 was denominated an order, we
conclude that it was not an order within
the meaning of the statute. The ruling
was a mere expression of the district
court's view of the law unassociated with
the disposition of any claim. See
Nickert v. Puget Sound Tug & Barge Co.,
480 F.2d 1039, 1041 (9th Cir. 1973) (per
curiam); Okolinsky Vv. Philadelphia,
Bethlehem & New England Railroad, 282
P.26 70, 71 434 Cites i360). The court
(footnote continued from previous page)
plaintiffs of the opportunity to put
forth evidence and establish their right
to preliminary relief. The “ultimate
termination" of this litigation would
have best been accomplished by proceeding
to a determination of the motions for a
preliminary injunction. Appellate review
of the grant or denial of the injunction
would then have been appropriate. See
supra note 8.
A 44
answered a hypothetical, abstract ques-
tion of law. Its ruling had no concrete
effect.
An appellate ruling on the facial
validity of the new ordinance would be
purely advisory. Aside from the consti-
tutional prohibition against the render-
ing of advisory opinions, it would be
unwise for us to establish part of the
law of the case at this time. Such a
decision could present difficulties for
the district court and the parties beyond
our ability to forsee as the case
proceeds to a determination oon the
merits. See Nickert v. Puget Sound Tug &
Barge Co., 480 F.2d at 1041; Molybdenum
Corp. v. Kasey, 279 F.2d 216, 217 (9th
Cir. 1960) (per curiam). What we have
said deserves special emphasis where a
t
14
constitutional question is at issue. The
deeply rooted doctrine that questions of
constitutionality not be reached unless
strictly necessary, see Rescue Army v.
Municipal Court, 331 U.S. at 568-72, 67
S. Ct. at 1419-21, is particularly
appropriate in this instance where no
evidentiary or factual background is
presented, no claims have been disposed
of, and a purely hypothetical question is
involved.
IV.
The Church of Scientology has
appealed from the orders the district
court entered following its facial
constitutionality ruling which enjoined
the enforcement of portions of Ordinance
No. 3479-84 but declined to enjoin the
ordinance in its entirety. The Church of
A 46
0 BR Odie me we
Scientology has also appealed from the
district court's denial of a preliminary
injunction on its claim that the ordi-
nance was unconstitutional as applied.
We affirm the district court's denial of
the applications for preliminary injunc-
tive relief.
The elements a plaintiff must
satisfy to obtain a preliminary injunc-
tion are firmly established. The plain-
tiff must show that: (1) there is a
substantial likelihood that it will pre-
vail on the merits at trial; (2) it will
suffer irreparable harm if injunctive
relief is not granted; (3) the benefits
of the injunction will outweigh the harm
it will cause the defendant; and (4) the
issuance of the injunction will not harm
public interests. Callaway v. Block, 763
A 47
F.2d 1283, 1287 (llth Cir. 1985). A
district court's order denying a pre-
liminary injunction will not be reversed
absent an abuse of discretion. Id.
The record is devoid of any evi-
dence indicating that this plaintiff
established a right to an injunction,28/
It presented no evidence and established
none of the criteria. The Church of
Scientology would have us hoid that it
was entitled to preliminary injunctive
relief as a matter of law solely on the
basis of its naked allegations.22/ This
of course we cannot do.
28/ No findings of fact or conclusions
of law accompanied the district court's
orders denying preliminary injunctive
relief.
29/ The Church of Scientology has not
complained of the district court's
refusal to schedule a hearing on its
application for a preliminary injunction.
We therefore need not address the issue.
A 48
~~ ee eee
v.
Several consolidated appeals are
presented in this case. Because we have
determined that the controversy over
Ordinance No. 3091-83 was moot when
decided, we order, in Nos. 84-3232 and
84-3236, that the injunctions be VACATED
and the cases dismissed without preju-
dice. We have found that leave to appeal
the interlocutory orders in Nos. 84-3574
and 84-3575 was improvidently granted.
We accordingly VACATE the orders granting
such leave. We AFFIRM the district
court's denial of the Church of Scien-
tolegy's motions for a_ preliminary
injunction in Nos. 84-3543, 84-3544, 84-
3545, and 84-3546.
A 49
APPENDIX B
Opinion and Order of United States
District Court for the Middle District of
Florida on Application for A Preliminary
Injunction Enjoining Enforcement of
Ordinance No. 3091-83
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHURCH OF SCIENTOLOGY FLAG
SERVICE ORG., INC.
Plaintiff(s),
CITY OF CLEARWATER, et. al.,
Defendant(s).
and
AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE, et. al.,
Plaintiff(s),
CASE NO. 84-97-CIV-T-17
vs.
CITY OF — FLORIDA,
et. al.,
Defendant(s). /
MEMORANDUM OPINION AND ORDER
This cause is before the Court on
complaints seeking declaratory and
injunctive relief challenging the
enforcement of Clearwater Ordinance
Number 3091-83 (see Appendix 1), enacted
by the Clearwater City Commission on
October 6, 1983.
The City of Clearwater is a
municipality of the State of Florida.
Ordinance 3091-83 was passed on October
6, 1983, and did not go into force until
January 31, 1984. On January 27, 1984,
the parties entered into a stipulation by
which they agreed the ordinance would not
be enforced during the pendency of the
instant litigation.
One should always be careful when
attempting to summarize an ordinance or
Statute, In brief, the Clearwater
ordinance seeks to regulate the
solicitation practices of charitable
organizations within Clearwater by
requiring a registration statement be
filed with the City Clerk by the
Sse a eee
el My Bake Laced Es eed.
a Sais
wad ‘a pS AS tan 6 vik cee Rats
ae Ta ae (a ‘ 3 A si "
a TCL tah a OR a a ae ae: i eM Pate ls AEP y Behe Be anita PEL be OS Br PREM GME ite tit adil glia cele
———— a a ke
charitable organization seeking to
solicit funds. The ordinance also
requires the charitable organizations
which solicit funds to maintain records
and documents necessary to complete a
registration statement and the City
Attorney is given the authority to
investigate charitable organizations
which solicit funds if complaints are
received from ten or more individuals.
On January 20, 1984, Americans
United for Separation of Church and
State; National Council of the Churches
of Christ in the U.S.A.; The American
Jewish Committee; Suncoast Amer ican
Baptist Church; Joyce Parr, individually
and as Moderator of the Suncoast American
Baptist Church; and James A. Christison,
individually, and as Treasurer of the
Suncoast American Baptist Church, filed a
complaint seeking injuncitive (sic)
relief against the City of Clearwater;
Mayor of the City of Clearwater; City
Manager of the City of Clearwater; City
Clerk of the City of Clearwater; and City
Attorney of the City of Clearwater (case
84-97-CIV-T-17).
On January 23, 1984, the Church of
Scientology Flag Service Organization,
Inc. filed a complaint seeking injunctive
relief against the City of Clearwater;
the City Attorney of the City of
Clearwater; and the City Clerk of the
City of Clearwater (Case 84-96-CIV-Tl7).
For the purpose of reviewing the
facial validity of the city ordinance,
these cases were joined, and on March 9,
1984, the Court heard oral arguments. At
the end of their presentations, the Court
instructed counsel that they were to
nae Nee ae ees
provide any post-hearing memorandum of
law to the Court by March 16, 1984, as
the Court intended to rule on the facial
validity of the ordinance by the end of
March 1984, On March 15, 1984, the
Clearwater City Commission passed _ an
amended ordinance which incorporated some
of the arguments) Plaintiffs‘ counsel
presented to the Court on March 9, 1984,
Despite the fact that the City of
Clearwater has amended their ordinance,
the Court feels that it has jurisdiction
to consider the facial validity of
Ordinance Number 3091-83 as presented in
the complaints and argued by counsel
March 9, 1984. The reason is quite
simple: to decide otherwise would
encourage a municipality to enact laws
which apparently affect the constitu-
tional rights of its citizens and upon
those laws being legally challenged, to
then amend them and effectively prolong
the period of time during which citizens
are unsure of their constitutional
rights.
Another reason the Court feels that
it should rule on this question is
because of the large number of cases
pending, and needing, the Court's time.
This Court must let parties have their
day in court but will not permi: them to
have someone else's day. In short, the
Court does not intend for cases to go on
forever. There reaches a point of
decision in all cases, and for Ordinance
Number 3091-83, that point of decision is
here.
The Court has jurisdiction of this
action pursuant to 28 U.S.C. § 1331 and
Secs Gece oglu
nA Sata FT caw tate og Or & io.
os
§ 1343(a)(3) and the Doctrine of Pendent
Jurisdiction. Venue is proper pursuant
to 28 U.S.C. § 1391(b).
A cursory reading of Ordinance
3091-83 should indicate even to a layman
that the ordinance impacts upon First
Amendment freedoms. We read a great deal
about tne First Amendment and often one
wonders if we fully consider the
simplicity, yet majesty of the phrases
our forefathers put together to establish
the freedoms which make the United States
the most unique country on earth.
The First Amendment of the United
States Constitution states:
Congress shall make no law re-
specting an establishment of
religion, or prohibiting’ the
free exercise thereof; or
abridging the freedom of speech,
or of the press; or the right of
the people peacebly to assemble,
and to petition the government
for a redress of grievances,
There are a few fundamental
principles regarding the establishment
and free exercise of religion clauses of
the First Amendment:
All persons must be free to practice
their faith without governmental intru-
sion or regulation. If government does
seek to regulate, and the regulation im-
pacts on religious practice, the govern-
mental regulation must be in the further-
ance of a compelling state interest and
the government regulation must be the
least restrictive means necessary to
further that compelling state interest.
Sherbert v. Verner, 374 U.S. 398 (1963);
Wisconsin v. Yoder, 406 U.S. 205 (1972).
The government, in pursuing its
legitimate, secular purposes, must avoid
administrative entanglement with reli-
gious institutions. Walz Vv. Tax
Pee APT inthis Sta E i Ses FD A ct ta Sarena aD Patemciintnannt si
— Pari amet tl tts ms upalitia Uh,
eee ee
Commission of the City of New York, 397
U.S. 664 (1970); Lemon _v. Kurtzman, 403
U.S. 602 (1971).
The government must avoid associa-
tions favoring or opposing religion in
general or specific religions in partic-
ular whether such discrimination is
intentional or de facto. Abington School
District v. Schempp, 374 U.S. 203 (1963)
Larson v. Valente, 456 U.S. 228 (1982).
The government may not evaluate the
benefits of religious practice including
the truth or falsity of statements about
the benefits of religious practices under
any circumstances. United States v.
Ballard, 322 U.S. 78 (1944); Founding
Church of Scientology v. United States,
409 F.2d 1146 (D.C. Cir. 1969).
Laws enacted to regulate public
solicitations by religious, political,
and social organizations often impact on
the religious guarantees of the First
Amendment together with the freedom of
speech and association protections in
that amendment. Several principles have
been developed to judge such laws.
Public solicitation is a protected
activity under the First Amendment
because, aS a practical matter, fund
raising is necessary for a church or
association to survive and because it is
an effective method of reaching the
audience or membership to "get the word
out", Cantwell v. Connecticut, 310 U.S.
296 (1940); Fernandes v. Limmer, 663 F.2d
619 (5 Cir. 1981).
There are areas in which the state
may have an_- important interest in
regulating solicitation activities of the
public. The state or municipality has a
legitimate interest in seeking to avoid
disturbances of the peace and insuring
public safety, and therefore, certain
time, place, and method restraints can be
placed on solicitation activities.
Courts have also recognized that a state
or municipality has an interest’ in
prohibiting “fraud” in solicitations. In
this regard, a municipality may
regulate to insure that funds’ raised
actually find their way to the organiza-
tion for which the solicitation was
given. Cantwell v. Connecticut, 310 U.S.
296, 306 (1940).
The regulatory authority (ie.
government) may not attempt to regulate
the content of the representations made
to induce contributions on the basis that
the representations falsely state
spiritual, emotional, or other benefits
which may accrue to the contributor in
this world or the next. United States v.
Ballard, 322 U.S. 78 (1944).
As is the case with most statutes
which impact upon First Amendment
freedoms, any regulation of public
solicitation must be by the least
restrictive means necessary to further
the compelling state interests.
Fernandes v. Limmer, 663 F.2d 619 (5 Cir.
1981). No discretion must be left to the
administrative and enforcement officials
as to the scope or breath [sic] of the
regulation Hynes v. Mayor and Council of
the Borough or Oradell, 425 U.S. 610
(1976); Village of Schaumberg (sic) v.
Citizens for a Better Environment, 444
U.S. 620 (1980).
Regulations concerning solicitations
must be limited to those solicitations of
the public in public places. Interna-
tional Society of Kirshna (sic)
Consciousness of Houston, Inc. v. City of
Houston, Texas, 689 F.2d 541 (5 Cir.
1982). Regulation of solicitations on
the premises of a church or political
association is not necessary because that
activity could not disturb the public;
there is not a danger of misrepresenta-
tion in this solicitations, by the
organization for which contributins were
sought. See City of Houston supra, at
562.
Any regulation of public. solici-
tations must not effect a prior restraint
upon such activities. Prompt and
adequate judicial review procedures
including appeal must be available to
insure that decisions made by adminis-
trators do not effectively forestall
First Amendment activities which should
be allowed, Fernandes v. Limmer, supra
at 628.
The state may not pass laws which
aid one religion or which prefer one
religion over another. This principle of
neutrality among religions requires the
court to examine this ordinance on its
face to determine whether it will have a
discriminatory or unequal effect upon
different religious groups or practices
by exempting some churches or religious
Organizations, and, subjecting others to
regulations or burdens. Epperson v.
Arkansas, 393 U.S. 97 (1968); and Larson
ve Valente, 456 U.S. 228 (1982).
If the Court finds such a result,
i.e., discrimination, the legislation
must be struck down unless the discrimi-
natory features are necessary to further
a compelling state interest and unless
there exists no less restrictive means to
accomplish the state interest without
imposing disparate burdens upon religious
groups Larson v. Valente, supra, at 244-
255.
In Larson the Supreme Court found
that an ordinance which created a
disparate impact upon smaller religious
groups and exempted more _ established
churches, could not be justified by a
compelling interest. The court went on
to find that the ordinance imposed
registration and reporting requirements
on some religious organizations, but not
on others; this non-evenhanded operation
created an indication of official
denominational preference.
Clearwater Ordinance 3091-83 exempts
those churches which limit their
solicitations to those who regularly
attend or participate in religious
services (Section 100.01(5)). Churches
which obtain contributions from members
who participate in church services on a
non-regular or episodic basis, as well as
churches which do not offer, encourage,
or require regular attendance or regular
participation of their members are not
exempt. Thus, a stable church membership
requiring regular attendance need not be
affected by this ordinance; however, a
church whose membership is growing and
a a ae a Se oo
Ue Pp tee x
eee eee ee
actively engaged in proselytizing and
fund raising falls under the regulatory
scheme of this ordinance.
How can a church whose congregation
or group of members is growing, ever, at
any given’ time, indicate to civil
authority the number of “members” it has
in regular attendance or as participants
in the organization?
If a drunk were to stagger into a
church and “be saved" and then indicate
an intention to dedicate his life to its
purposes through regular attendance at
that church, would he be a "member"?
There is absolutely no showing of
any compelling state interest being
furthered by the parameters of the
limited membership exemption of this
ordinance. This ordinance not only
impies a religious preference, its mere
B17
presence could foster a stagnation of
religious’ practice in Clearwater by
impacting on growing congregations and
forestalling larger, more organized
churches from continuing to seek new
members as well.
The Defendant has indicated, during
oral argument, that the Clearwater
ordinance was modeled after a recent
ordinance in the City of Houston and
therefore this ordinance should be upheld
upon the authority of International
Society for Krishna Consciusness' of
Ouston, Inc. v. City of Houston, Texas,
689 Ff.240 541 (5 Cire 19862). The Court
finds there is no safe harbor for
Clearwater in the City of Houston as the
Houston ordinance did not license the
discriminatory power in administrative
officials plus the investigatory and
enforcing powers which the Clearwater
ordinance encompasses, In fact, the
Houston ordinance did not grant the power
to officials charged with enforcing the
solicitation ordinance to conduct
investigations, compel disclosure, and
prosecute | organizations who must
register. The Firth Circuit recognized
and emphasized Houston's amendment of
their ordinance was critical in that
Court's decision upholding the ordinance,
as the amended ordinance’ eliminated
language allowing entureias officials in
Houston to “make such investigation as he
may deem necessary to ascertain the truth
of the facts and information set out" in
the registration statement,
In Clearwater's ordinance, the City
Attorney is granted broad investigatory
powers to investigate violations of the
prohibited acts section of the ordinance
(see Section 100.06, 100.05(a)(b),
100.05(1)(a), 100,05(1)(c), 1090.05(1)(g).
The Clearwater ordinance does precisely
what the Fifth Circuit emphasized the
Houston ordinance did not.
The enforcement provisions of the
ordinance do not contain articulated
standards indicating when the City
Attorney should or will investigate an
Organization against which ten complaints
have been filed. This vagueness in
determining when the City Attorney will
conduct an investigation when ten
complaints have been filed against an
organization creates an opportunity for
arbitrary and subjective enforcement of a
law infringing on constitutional rights
and accordingly, it is unconstitutional.
Grayned v. City of Rockford, 408 U.S. 104
(1972); Baggett v. Bullitt, 377 U.S. 360
(1964); Kolender v. Lawson, _—savU.S. se,
75 L.Ed.2d 903 (1983) (involving a
criminal statute).
At oral argument counsel for
Americans United described the ordinance
as one in which "a shot gun was used to
shoot a mouse”, This Court would not
state that analogy as atest’ for
constitutionality; however, the Court is
compelled, upon review of Clearwater
Ordinance 3091-83 #to declare the
ordinance unconstitutional as it will
impact upon smaller churches with growing
or changing’ congregations, requiring
smaller churches to be subjected to
regulation while exempting more
established congregations, thereby
violating the principle of neutrality
without a compelling state interset.
B 21
Further, the Court finds that the instant
ordinance is quite different than that
addressed by the Fifth Circuit in the
City of Houston.
Accordingly, the Court declares
Clearwater City Ordinance Number 3091-83
unconstitutional and permanently enjoins
its application or enforcement.
Case 84-97 is hereby dismissed and
Case 84-96 is hereby dismissed as to
Counts Two through Twelve of the
complaint; the Clerk is directed to enter
judgments for the respective Plaintiffs
against Defendants. Jurisdiction is
retained for the enforcement of the
executory provisions herein.
DONE AND ORDERED in Chambers, in
Tampa, Florida, this 28th day of March,
1984,
ELIZABETH A. KOVACHEVICH
United States District Judge
Copies furnished to:
All Counsel of Record
APPENDIX C
Order of the United States District Court
For the Middle District of Florida
Temporarily Restraining Enforcement of
Ordinance No. 3479-84
| BEST AVAILABLE COPY
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THE CHURCH OF SCIENTOLOGY
FLAG SERVICE ORG., INC.,
Case No.
Plaintiff 84-96-Civ.T-17
vs.
CITY OF CLEARWATER, THOMAS
BUSTIN, City Attorney of the
City of Clearwater, and
LUCILLE WILLIAMS, City Clerk
of the City of Clearwater,
Defendants J
TEMPORARY RESTRAINING ORDER
This matter coming on to be heard
before the Court on Plaintiff's Motion
for Temporary Restraining Order, and
Memorandum of Law in support of that
Motion, and the Court having duly con-
sidered the same, as well as the allega-
tions of the proposed Supplemental
Complaint, and the Affidavit of Mary
Story, and being otherwise fully advised
in the premises, the Court finds:
1. Plaintiff seeks the entry of a
temporary restraining order, temporarily
enjoining the Defendants, THE CITY OF
CLEARWATER, THOMAS BUSTIN, City Attorney,
and LUCILLE WILLIAMS, City Clerk,
together with their officers, agents,
servants, employees and attorneys, from
enforcing, or attempting to enforce, any
of the provisions of Clearwater Ordinance
No. 3479-84 against the plaintiff, or any
of its officers, employees, or agents, or
from subsequently imposing, or attempting
to impose, any sanctions or punishments
of any kind whatsoever against the Plain-
tiff, or any officers, employees, or
agents of the Plaintiff, for their
failure to comply with any of the pro-
PO A eS
Oe ee eee, Se ee eee
ore:
visions of this Ordinance, pending a
hearing on Plaintiff's Motion for a
Preliminary Injunction.
2. In the event that Defendants are
not temporarily enjoined from enforcing,
or attempting to enforce the provisions
of Ordinance No. 3479-84 against’ the
Plaintiff, the Plaintiff, its officers,
agents, employees, servants and members
will be subject to terms of imprisonment
and fines, and, presumably, will forfeit
their rights to engage in religious fund
raising activities. | In addition, Plain-
tiff, its officers, agents, employees,
servants and members are threatened with
imminent investigation of internal church
matters, with the denial of its rights to
obtain and make contributions, and with
the imminent imposition of serious civil
and criminal penalties unless it refrains
from the dissemination of religious ideas
and from engaging in the practice of
religion.
3. In the event that a temporary
restraining order is issued, neither the
Defendants, nor any other persons or
entities, or the public at large, would
be prejudiced.
4. The facts set forth in the
proposed Supplemental Colptnint demon-
strate that there is no need or necessity
for the posting of security pursuant to
Rule 65(c), P.R. Civ. P.
5. Plaintiff's Motion for Leave to
‘File Supplemental Complaint should be
granted.
Accordingly, and based upon the
foregoing, it is
ORDERED AND ADJUDGED:
ee a ee
er eS
1. Plaintiff's Motion for Leave to
file Supplemental Complaint is hereby
granted.
2. Plaintiff's Motion for Temporary
Restraining Order is hereby granted.
3. The Defendants, as well as their
officers, agents, servants, employees and
attorneys, are hereby restrained and
enjoined fcon enforcing, or attempting to
enforce, any of the prerisions of Clear-
water Ordinance No. 3479-84 against the
Plaintiff, or any of its officers,
employees, agents, nexeante or members,
and from subsequently imposing, or
attempting to impose, any sanctions or
punishment of any kind whatsoever against
the Plaintiff, as well as any of its
officers, employees, agents, servants or
members, for their failure to comply with
any of the provisions of Clearwater
Ordinance No. 3479-84, pending a hearing
on Plaintiff's Motion for a Preliminary
Injunction.
3. (sic) A hearing on Plaintiff's
Motion for Preliminary [Injunction is
hereby scheduled for April 27, 1984 at
3:00 p.m,
DONE and ORDERED in Chambers, Tampa,
Hillsborough County, Florida, this 20th
day of April, 1984,
S
ELIZABETH A. KOVACHEVICH
United States District Judge
Copies furnished to:
Paul B. Johnson, Esq,
Johnson, Paniello & Hayes
John T. Blakely, Esq.
Frank Kowalski, Chief Assistant
City Attorney
APPENDIX D
Oral Opinion of the United States
District Court For the Middle District of
Florida on the Facial Validity of
Ordinance No. 3479-84
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, INC.,
et ale, Case No.
84-719-CIV-T-17
Plaintiffs, [(84-96-CIV-T-17]
vs. Tampa, Florida
July 13, 1984
CITY OF CLEARWATER,
et al.,
Defendants.
EXCERPT OF HEARING ON FACILE (sic)
VALIDITY OF A MUNICIPAL
ORDINANCE BEFORE THE
HONORABLE ELIZABETH A. KOVACHEVICH
TRANSCRIPT ORDERED BY:
JOHN T. BLAKELY, Esquire
APPEARANCES:
FOR THE PLAINTIFFS:
LEE BOOTHBY, Esquire
208 W. Mars
Berrien Springs, Michigan 49103
PRANK M. PALMOUR, P.A.
Post Office Drawer 2398
Winter Park, Florida 32789
Di
ERIC M,. LIEBERMAN, Esquire
KATHERINE STONE, Esquire
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN
30 East 42nd Street
New York, New York 10017
EARL W. TRENT, JR. House Counsel
American Baptist Church in U.S.A.
Valley Forge, Pennsylvania 19481
PAUL B. JOHNSON, Esquire
JOHNSON, PANIELLO & HAYES
Post Office Box 3416
Tampa, Florida 33601
POR THE DEFENDANTS:
JOHN T. BLAKELY, Esquire
ROBERT G. WALKER, JR., Esquire
City Attorneys for the
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33518
D2
ein, Tie Aen rand ee ""
PROCEEDINGS
THE COURT: Good afternoon, ladies
and gentlemen in the courtroom, If you
will, ladies and gentlemen, for purposes
of the record and for the court reporter
after I call this case, to make sure we
are getting the right numbers and also to
identify yourselves and who you represent
for these proceedings.
Originally there were cases that
were filed 84-96 and 84-97, involving
respectively under 84-96, the Church of
Scientology versus Clearwater, et al.
And then under 84-97 it was Americans
United For Separation of Church and
State, et al versus Clearwater, et al,
which was 84-97. The 84-97 case is
closed. The 84-96 is not closed and its
companion case is 84-719, Church of
Scientology versus Clearwater, et al.
D 3
The Americans United For the Separation
of Church and State, et al. versus
Clearwater, et al, is now 84-699,
Would you stand, left to right, as I
look at you, and identify yourselves and
indicate who you represent and tell me
whther or not we called the right
numbers. Left to right -- Mr. Blakely.
MR. BLAKELY: John Blakely. I
represent the City of Clearwater. I
believe the numbers you called. are
correct.
THE COURT: Thank you.
MR. WALKER: Robert Walker. ee
represent the City of Clearwater, too.
MR. BOOTHBY: Lee Boothby. I
represent the Plaintiffs in Case Number
84-699-Civ-T-17, Your Honor.
MR. PALMOUR: Frank Palmour, Your
Honor. I also represent the Plaintiff in
Case 84-699,
MR. LIEBERMAN: Eric Lieberman,
representing the Church of Scientology in
both 84-96 and 84-719, I believe the
case numbers are correct.
MS. STONE: Katherine Stone. I also
represent the Church of Scientology and
84-96 and 84-719.
MR. TRENT: Earl Trent. I represent
the American Baptist Church in the U.S.A.
I believe the case numbers are correct.
THE COURT: All right. Thank you
very much, gentlemen and ladies. The
last time that we came before the Court
for a hearing in this case, this Court
rendered a certain opinion in which the
Court made certain specific findings
declaring the ordinance to be unconsti-
D5
tutional. Those particular matters, I
think, could be concisely stated as the
difficulty with the membership provision
and the discretionary phase of the
ordinance relative to the enforcement by
the City attorney. Since that time an
amended ordinance has been passed and it
is the subject of the litigation before
this Court. Once again, we are con-
fronted with facial validity of this
ordinance.
Are we all in agreement with regard
to that as the purpose of this hearing,
the facial validity of an ordinance? Mr.
Blakely?
Mr. Walker?
MR. BLAKELY: Your Honor, that is my
understanding and because of that I
noticed in the briefs that were filed,
there was frequent reference to affida-
D 6
vits that were filed by Plaintiffs and in
the last reply brief filed by the Ameri-
cans United, there was frequent reference
to a deposition that ware taken of Mr.
Bustin last week. I assume, because we
are only considering the facial validity
of the ordinance, that this Court will
not permit reference to affidavits or
depositions during this proceeding today;
is that correct:
THE COURT: That is correct. For
the purpose of this proceeding today, I
knew there have been Motions for Summary
Judgment and things of that nature that
have been filed, and this Court has
determined to -- consistent with what we
did the last time and consistent with the
representations that I made to counsel to
deal with the facial validity of the
ordinance. And that is what I want to
deal with. If there is anything further
that has to be done after that, then we
will consider that matter. But that is
what I want to address, the _ facial
validity. Now, that is your’ under-
standing? also we do not have a problem,
once again, with standing.
MR. BLAKELY: We are not contesting
standing today.
THE COURT: You are not contesting
standing -- just facial validity. You
agree, Mr. Blakely?
MR. BLAKELY: Yes, Your Honor.
THE COURT: I'm ruling right now.
This court has examined the case as
it commenced this year, examined its
memorandum opinion and order’ entered
— a
herein, and has mentioned to you at the
commencement of our proceedings today,
that the questions with regard to
membership and the discretion of the City
were paramount in our determination of
the unconstitutionality of this Ordi-
nance.
This Court considered severability
and did not believe that it was appropri-
ate at this time.
The Ordinance has been amended and
the Court has to look at it de novo to
make a determination facilely (sic) with
regard to this Ordinance,
This Court wants to reemphasize the
role that any Judicial Officer has
representing the third branch of govern-
ment. We interrupt (sic) the laws that
are made by the legislative bodies,
whether those legislative bodies are
D9
Congressional, whether they are
legislative bodies of a Sovereign State,
or the legislative bodies of Municipal
Ordinances.
The individuals who make the laws
are the elected representatives of the
people, who in making these laws, provide
contemporary expression of the public's
will and the public's policy.
What may have been the _ situation
back in the 1800's and the early 1900's
may not be the circumstances today. And
this Court notes that this case has far
reaching implications and that it may
well find itself before the Supreme Court
of the United States before it is ulti-
mately resolved by the Supreme Judicial
Authority in this country.
D 10
a Sah i ie ls
The cases that occurred in Texas are
of particular note to this Court. The
Ordinance that was passed in Houston was
initially passed back in 1969, It was
tested by the Plaintiff back in 1979, and
there was an expression rendered by the
Fifth Circuit Court of Appeals in 1982.
And the Court's decision responded to an
Ordinance that was passed expressing the
will of the people regarding financial
' disclosure in charitable solicitation
situations.
One year later in the City of
Humble, Texas, in the Case of Poe versus
the City of Humble, Texas, reported at
554 Federal Supplement 233, a member of a
religious society brought action
challenging the constitutionality of a
Religious Solicitation Ordinance and the
Federal Judge in that situation upheld
Dill
the constitutionality of that Ordinance
citing the City of Houston Case. Now, in
1984, we have the City of Clearwater
expressing through it's elected repre-
sentatives the will of the people of the
City of Clearwater. Expressing what they
determine to be their public policy and
the controls that they wish to exhibit
with regard to financial disclosure and
charitable solicitations. This Court is
not confronted with the making of that
law and the why of the making of that
law. What this Court is confronted with
is the Facile (sic) Validity and
constitutionality of that law. It would
appear to this Court, and I specifically
rule -- and Mr. Blakely you can prepare
an order to this effect, because I think
the best interests of everyone are served
by this -- that this Court’ finds
D 12
specifically that each and every section
of the Amended Ordinance 34-79-84 as it
has been amended, 100.01 through 100.13,
I beiieve it is, as amended, is valid --
Facilily (sic) Valid and constitutional.
This Court would note as dictum that
the State Attorney of the State of
Florida pursuant to Florida Constitution
Article 5, Section 17, is authorized by
general law to prosecute violations of
all Municipal Ordinances that may also be
prosecuted by Municipal Prosecuters
(sic). |
The Court was initially concerned
that there could be a year's usurpation
of the authority of the State Attorney by
that enforcement provision in that
Ordinance. The Court has determined that
there is no usurpation of the State
Attorney's authority here. However, I
D 13
note with interest that there may be some
very unique proof problems presented when
the time may arise for prosecution of
this misdemeaner (sic).
This Court would urge an Interlocu-
tory Appeal at this juncture. I think
this ought to be tested. I think it has
far reaching implications to it. And I
think that rather than proceed forward
with any form of Evidentiary Hearing, it
woulc be better for this case to go
immediately to the Eleventh Circuit and
to take it's route from there, if
necessary, to the United States Supreme
Court,
If no Interlocutory Appeal were
taken in this situation, then’ the
enforcement of this Ordinance will become
operational immediately, and whatever
D 14
flows from that, including Evidentiary
Hearings, would have to be set before the
Court, etc.
I'm not so sure that that's a wise
way to proceed, But, Mr. Blakely, you
can prepare a proposed order for this
Court to sign.
Mr. Boothby.
D 15
APPENDIX E
Order of the United States District Court
For the Middle District of Florida on the
Facial Validity of Ordinance No. 3479-84
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHURCH OF SCIENTOLOGY
FLAG SERVICE ORG., INC., Case No.
84-96-CIV-T-17
Plaintiff(s),
vs.
CITY OF CLEARWATER,
et al.,
Defendant(s).
ORDER
In their complaint, inter alia, the
plaintiffs contend that amended ordinance
3479-84, a copy of which is attached,
facially violates the freedom of
religion, freedom of press, freedom of
speech, and freedom of association
guarantees of the First Amendment; the
right of privacy guarantee of the First,
Fourth, Fifth, and Ninth Amendments; and
the equal protection and due process
clauses of the Fourteenth Amendment to
the Constitution of the United States.
To facilitate and accelerate the dispo-
sition of these claims, the Court
requested the parties to submit legal
memoranda solely on the issue of the
constitutionality of the amended ordi-
nance on its face. Having considered the
memoranda, the arguments of the parties,
and International Society for Krishna
Consciousness of Houston, Inc. v. City of
Houston, Texas, 689 F.2d 541 (5th Cir.
1982) and Poe v. City of Humble, Texas,
554 F. Supp. 233 (S.D. Texas 1983), the
Court now rules that each and every
section of amended ordinance 3479-84 is
constitutional on its face.
BE 2
Pursuant to Title 28 U.S.C.
§1292(b), the Court expressly opines that
this order involves a controlling
question of law as to which there is
substantial ground for difference of
opinion and that an immediate appeal from
the order may materially advance the
ultimate termination of this litigation.
Counsel have indicated to the Court their
desire to immediately appeal this Court's
ruling; therefore, the Court orders the
Clerk of the Court to Administratively
Close case numbers 84-96, 84-699, and
84-719 during the pendency of _ said
appeal.
E 3
DONE and ORDERED in Chambers, in.
Tampa, Florida, this 23rd day of July,
1984,
Elizabeth A. Kovachevich
United States District Judge
‘Copies furnished to:
All Counsel of Record
E 4
APPENDIX F
Order of United States District Court For
the Middle District of Florida Partially
Enjoining Ordinance No. 3479-84
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THE CHURCH OF SCIENTOLOGY
FLAG SERVICE ORG., INC.,
Case No.
Plaintiff, 84-96-Civ.T-17
VS.
CITY OF CLEARWATER, THOMAS
BUSTIN, City Attorney of the
City of Clearwater, and
LUCILLE WILLIAMS, City Clerk
of the City of Clearwater,
Defendants. /
ORDER AMENDING PRELIMINARY INJUNCTION
This Court entered a _ temporary
restraining order in this action on April
20, 1984. The temporary restraining
order is hereby converted to a prelimi-
nary injunction; however the preliminary
injunction is Limited in its application
to those provisions of amended ordinance
3479-84 that impose requirements regard-
ing ‘registration and maintenance of
records pertaining to the information in
the registration statements. Specifi-
cally, by the preliminary injunction, the
defendants are hereafter only restrained
and enjoined from enforcing Sections
100.03, 100.04, and subparagraphs (d),
(i) (3) and (k) of Section 100.05 of
amended ordinance 3479-84,
DONE and ORDERED in chambers in
Tampa, Florida, this 23rd day of
July, 1984.
United States District Judge
ELIZABETH A. KOVACHEVICH
United States District Judge
APPENDIX G
Order of United States District Court For
the Middle District of Florida Denying
Application For Preliminary Injunction On
Ground That Ordinance No. 3479-84 Is
Unconstitutional As Applied
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHURCH OF SCIENTOLOGY
FLAG SERVICE ORG., INC.,
Plaintiff(s), Case No,
84-96-CIV-T-17
Vv.
CITY OF CLEARWATER, et al.,
Defendant(s). /
ORDER
The Court hereby makes the following
orders regarding this case:
l. Plaintiff's motion for a
temporary restraining order
is denied, .
2. °- Plaintiff's motion for a
preliminary injunction is
denied.
3. This case will continue to be
administratively closed
pending appellate review.
DONE and ORDERED in Chambers, in
Tampa, Florida, this 2nd day of
August, 1984,
{s/
ELIZABETH A. KOVACHEVI
United States District Judge
G 1
Copies furnished to:
All Counsel of Record
APPENDIX H
Order of the United States Court of
Appeals For the Eleventh Circuit Granting
Leave to Appeal and Staying Enforcement
of Ordinance No. 3479-84 Pending Appeal
FILED AUGUST 17, 1984
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 84-3543, 84-3544,
84-3545, 84-3546,
84-2055 and 84-2056
CHURCH OF SCIENTOLOGY FLAG
SERVICE ORG., INC.,
Plaintiff-Appellant,
Ve
CITY OF CLEARWATER, et al.,
De fendants-Appellees.
Appeal from the United States
District Court
for the Middle District of Florida
( , 1984)
Before: HILL, FAY and HATCHETT,
Circuit Judges
SF FRB CO & te
Appellant's emergency motion for an
injunction pending appeal in the above
numbered cases is GRANTED. Appellees are
hereby enjoined from enforcing Ordinance
No. 3479-84 during the pendency of the
appeal in these cases.
Further, appellant's motion in Nos.
84-2055 and 84-2056 for leave to appeal
from the interlocutory order of the
United States District Court for the
Middle District of Florida signed on July
23, 1984, and filed on July 24, 1984, is
GRANTED. These cases, while not ordered
expedited, shall, when briefing is
completed, be set for oral argument and
heard together with the appeal in case
No. 84-2057.
APPENDIX I
Order of the United States Court of
Appeals For the Eleventh Circuit Denying
Petition for Rehearing and Suggestion of
Rehearing En Banc
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. Bt-35Ts, Bt-354T,
84-3545, 84-3546, 84-3574
CHURCH OF SCIENTOLOGY FLAG SERVICE
ORG., INC.,
Plaintiff-Appellant,
versus
CITY OF CLEARWATER, et al.,
De fendants-Appellees.
Appeals from the United States District
Court for the Middle District of Florida
ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion November 13, 1985),
11 Cir., 198 , F.2d ).
(Filed December 19, 1985)
Before TJOFLAT and, KRAVITCH, Circuit
Judges, and Dumbauld , District Judge.
“5 Hon. Edward Dumbauld, U.S. District
Judge for the Western District of
Pennsylvania, sitting by designation.
ey
ES
|
)
PER CURIAM:
( %* ) The Petition for Rehearing is
DENIED and no member of this panel nor
Judge in regular active service on the
Court having requested that the Court be
polled on rehearing en banc (Rule 35,
Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 26), the Suggestion
for Rehearing En Banc is DENIED.
( ) The Petition for Rehearing is
DENIED and the Court having been polled
at the request of one of the members of
the Court and a majority of the Circuit
Judges who are in regular active service
not having voted in favor of it (Rule 35,
Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 26), the Suggestion
for Rehearing En Banc is also DENIED.
( ) A member of the Court in active
service having requested a poll on the
reconsideration of this cause en banc,
and a majority of the judges in active
service not having voted in favor of it,
rehearing en banc is DENIED.
ENTERED FOR THE COURT:
/s/ Gerald Bard Tjoflat
United States Circuit Judge
I 2
APPENDIX J
Clearwater Ordinance No. 3479-84
ORDINANCE NO. 3479-84
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA, AMENDING SECTION 100.01,
DEFINITIONS, SECTION 100.02, EXEMPTIONS,
SECTION 100.03, REGISTRATION WITH CITY
CLERK, SECTION 100.04, MAINTENANCE OF
RECORDS, SECTION 100.05, PROHIBITED ACTS,
SECTION 100.06, POWER OF THE CITY
ATTORNEY TO INVESTIGATE AND PROSECUTE
PROHIBITED ACTS OF CHARITABLE ORGANIZA-
TIONS, SECTION 100.07, DAMAGE TO INJURED
PERSONS, SECTION 100.08, NOTICE TO THE
PUBLIC ABOUT THE PROVISIONS OF THIS
CHAPTER, OF CHAPTER 100, SOLICITATION OF
FUNDS FOR CHARITABLE PURPOSES, OF TITLE
VIII, PUBLIC HEALTH AND SAFETY, OF THE
CODE OF ORDINANCES, CITY OF CLEARWATER;
TO REVISE AND SHORTEN THE DEFINITION OF
THE TERM “CHARITABLE ORGANIZATION"; TO
REVISE AND EXPAND THE DEFINITION OF THE
TERM “SOLICIT FUNDS” TO INCLUDE A SERIES
OF ITEMS WHEREUPON REPRESENTATION OF THE
PROCEEDS OF THE SALE OF SUCH ITEMS WILL
BE USED FOR THE CHARITABLE PURPOSE; TO
REMOVE THE DEFINITION OF THE TERM
"MEMBER" AND THE DEFINITION OF THE TERM
"NATIONAL ORGANIZATION"; TO REVISE AND
SHORTEN THE DEFINITION OF THE TERM
"PROFESSIONAL SOLICITOR"; TO REVISE EACH
OF THE EXEMPTION CATETORIES [SIC] AND
REMOVE LANGUAGE RELATING TO FUNDS’ IN
EXCESS OF $10,000; TO REMOVE LANGUAGE
RELATING TO THE MAINTENANCE OF RECORDS;
TO REMOVE LANGUAGE RELATING TO THE
ISSUANCE OF AN ANNOUNCEMENT OR
ADVERTISEMENT; TO REQUIRE IN THE
REGISTRATION STATEMENT AN ESTIMATED
PERCENTAGE OF THE TOTAL PROJECTED
Jl
COLLECTIONS WHICH THE COST OF THE SOLI-
CITATION WILL COMPRISE; TO REQUIRE IN THE
REGISTRATION STATEMENT THAT A CHARITABLE
ORGANIZATION WILL MAINTAIN THE RECORDS
AND DOCUMENTS NECESSARY TO FILE THE
REPORTING STATEMENT AND PROVIDE A
DESCRIPTION OF THOSE RECORDS AND DOCU-
MENTS; TO REQUIRE THE FILING OF A
DECLARATORY JUDGMENT ACTION WHERE THE
CITY CLERK HAS DENIED ISSUANCE OF A
CERTIFICATE OF REGISTRATION AND_ THE
CHARITABLE ORGANIZATION DISAGREES WITH
SUCH DECISIONS; TO PERMIT THE CHARITABLE
ORGANIZATION TO SOLICIT FUNDS WITHOUT
COMPLIANCE WITH THE REGISTRATION PROVI-
SION UNLESS AND UNTIL THE CIRCUIT COURT
RULES THAT THE CITY CLERK'S REFUSAL TO
ISSUE THE CERTIFICATE WAS PROPER; TO
EXPAND THE SCOPE RELATING TO THE FILING
BY A CHARITABLE ORGANIZATION OF ANY
SIMILAR REGISTRATION STATEMENT FILED IN
ANY STATE, CITY OR COUNTY TO PERMIT THE
FILING OF THE SAME WITH THE CITY CLERK;
TO REWORD THE REPORTING AND DISCLOSURE
PROVISION TO CLARIFY WHAT MONEY AND
PROPERTY IS TO BE DISCLOSED; TO REQUIRE
THAT CHARITABLE ORGANIZATIONS MAINTAIN
RECORDS OR DOCUMENTS NECESSARY TO FILE
COMPLETE AND TRUTHFUL STATEMENTS REQUIRED
BY SECTOIN 100.03 FOR A PERIOD OF THREE
(3) YEARS FROM THE FILING OF _ EACH
STATEMENT AND TO DISPENSE WITH ALL OTHER
MAINTENANCE FUNCTIONS; TO DELETE THE
POWER OF THE CITY CLERK TO DECLARE A
DEFAULT; TO REWORD AND CLARIFY INDIVIDUAL
SUBPARAGRAPHS OF THE PROHIBITED ACTS AND
TO ADD NEW PROHIBITED ACT RELATING TO THE
WILLFUL FAILURE TO MAINTAIN THE RECORDS
OR DOCUMENTS REQUIRED BY SECTION 100.04;
J2
TO ADD A NEW PROHIBITED ACT RELATING TO
PRIVATE STATEMENTS; TO MAKE THE INVESTI-
GATION TO BE PERFORMED BY THE CITY
ATTORNEY MANDATORY IN CHARACTER; TO GRANT
THE CITY ATTORNEY SUBPOENA POWER WITH
RESPECT TO THE RECORDS OR DOCUMENTS
DESCRIBED IN SECTION 100.04; TO DELETE
THE SUBPARAGRAPH RELATING TO THE CITY
ATTORNEY'S ACCESS TO PUBLIC RECORDS AS
BEING UNNECESSARY IN LIGHT OF CHAPTER
119, FLORIDA STATUTES; TO PERMIT THE CITY
ATTORNEY TO PROSECUTE VIOLATIONS OF THE
PROHIBITED ACTS WHERE PROBABLE CAUSE
EXISTS; TO PERMIT A CHARITABLE ORGANIZA-
TION TO EXCLUDE SOLICITATION INFORMATION
RELATING TO MEMBERS FROM ITS REGISTRATION
STATEMENT WHERE A PRIVATE STATEMENT IS
MAINTAINED; AND TO CHANGE '- INDIVIDUAL
WORDS AND PUNCTUATION FOR SENSE AND
CLARITY; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES IN CONFLICT HEREWITH TO THE
EXTENT OF SUCH CONFLICT; PROVIDING FOR AN
EMERGENCY PURSUANT TO SECTION 166.041,
FLORIDA STATUTES; DECLARING THAT THE CITY
OF CLEARWATER IS EXEMPT FROM PINELLAS
COUNTY ORDINANCE 82-38; DECLARING THAT A
PUBLIC EMERGENCY EXISTS AFFECTING THE
WELFARE OF THE CITIZENS OF THE CITY OF
CLEARWATER; AND PROVIDING FOR THE
EFFECTIVE DATE OF THIS ORDINANCE.
WHEREAS, the City of Clearwater,
Florida, is presently involved in liti-
gation directed toward the validity of
Chapter 100 of the Clearwater Code of
Ordinances; and
WHEREAS, Fifth Circuit Judge Wisdom,
in similar Litigation involving the City
of Houston, Texas, commended the City for
further narrowing its ordinance during
the pendency of that litigation; and
WHEREAS, it would further serve the
purpose for which Chapter 100 was created
to narrow and refine the scope of each
provision and thereby preserve the
integrity of that chapter and the public
purpose it serves; and
WHEREAS, just like the City of
Houston, it is felt that further refining
and narrowing should be accomplished
prior to the conclusion of the litigation
mentioned herein; and
WHEREAS, an emergency exists within
the City of Clearwater in that it is
immediately necessary that the scope and
wording of Chapter 100 of Clearwater Code
of Ordinances be further narrowed and
refined by addressing each and every
narrowing type of question that could be
raised prior to the termination of the
litigation mentioned herein, thereby
preserving and enhancing the public
purpose for the ordinance and the welfare
of the citizens of the City of Clear-
water,
J5
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COMMISSION OF THE CITY OF
CLEARWATER, FLORIDA;
Section 1. That Section 100.01,
Definitions, of Chapter 100, Solicitation
of Funds for Charitable Purposes, of
Title VIII, Public Health and Safety, of
the Code of Ordinances, City of Clear-
water, be and the same is hereby amended
and renumbered or relettered where
necessary to read as follows:
Section 100.01. Definitions.
As used ” this chapter,
(1) The term "charitable organiz-
tion” shall mean an organization or
person which is or holds itself out to be
a benevolent, educational, voluntary
health, philanthropic, humane, religious
or eleemosynary organization that
J6
solicits funds er obtains contributions
seltieited from the publie for charitable
purposes. A brarnehky areay chapter,
office or simiiar affiiiate or any person
sotictiting contributions -within the City
of €iearwater for a charitable orgenisa—
tton that has its -principal -piace of
business outside the City strakk tbe «a
charitabie orgenizeationr for the purposes
of this chapter.
(2) The term “solicit funds” or
"solicitation of funds” shall mean any
reque.* within the City of Clearwater,
for pe donation of money, property, or
anything of value, or the pledge of a
future donation of money, property, or
anything of value; or the selling or
offering for sale of any property, real
or personal, tangible or intangible,
’ BEST AVAILABLE
whether of value or not, including, but
not limited to, goods, books, pamphlets,
tickets, publications or subscriptions to
publications, or brochures, upon the
representation, express or implied, that
‘the proceeds of such sale will be used
for_a charitable purpose as such term is
herein defined. Expressly excluded from
the meaning of "solicit funds” or
. "solicitation of funds" is any offer of
membership in any charitable organiza-
tion, A solicitation of funds’ is
complete when the solicitation is
communicated to any individual then
located within the corporate limits of
the City.
(3) The term “charitable purpose"
Shall mean benevolent, philanthropic,
educational, religious, humane, voluntary
J8
health, or other non-profit objectives,
including the benefit of poor, needy,
sick, refugee or handicapped persons; the
benefit of any church or religious
society, sect, group, or order; the
benefit of any fraternal, social or civil
organization, or the benefit of any
educational institution. The term “char-
itable purpose” shall not be construed to
include the direct benefit of the
individual making the solicitation. The
term “charitable purpose” shall not be
construed to include the benefit of any
political group or political organization
that is subject to financial disclosure
under state or federal law.
(4) The term “individual” shall
mean only a natural person.
J9
(2) The term “solicit funds" or
"solicitation of funds" shall mean any
request, within the City of Clearwater,
for the donation of money, property, or
anything of value, or the pledge of a
future donation of money, property, or
anything of value; or the selling or
| offering for sale of any property, real
or personal, tangible or _ intangible,
whether of value or not, including, but
not limited to, goods, books, pamphlets,
tickets, publications or subscriptions to
publications, or brochures, upon. the
representation, express or implied, that
the proceeds of such sale will be used
for _a charitable purpose as such term is
herein defined. Expressly excluded from
the meaning of "solicit funds" or
"solicitation of funds" is any offer of
J10
membership in any charitable organiza-
tion. A solicitation of funds is
complete when the solicitation is
communicated to any individual then
located within the corporate limits of
the City.
(3) The term “charitable purpose”
shall mean benevolent, philanthropic,
educational, religious, humane, voluntary
health, or other non-profit objectives,
including the benefit of poor, needy,
sick, refugee or handicapped persons; the
benefit of any church or religious
society, sect, group, or order; the
benefit of any fraternal, social or civil
organization, or the benefit of any
educational institution. The term
"charitable purpose” shall not be con-
strued to include the direct benefit of
J1l
the individual making the solicitation.
The term "charitable purpose" shall not
be construed to include the benefit of
any political group or political organi-
zation that is subject to financial
disclosure under state or federal law.
(4) The term “individual” shall
mean only a natural person,
45) fhe term “member” shatt treean
any person treguierly attending er par
tictpating in a charitable orgenizetion.
{65 Tre term -—‘nattonalt orgerize—
tton" means that part of a charitable
erganization -+that coordinates, super
vises, or exercises control over policy,
fund-raising, or expenditives, or acceists
at advises ene -Of more <chapters,
beanehes, areas, cEfEicers, et affitiates
tn the Citys
J12
“BEST AVAIL
(+ 5) The term "professional
solicitor" means amy perseRn who, £Eor -a
financial or other consideration,
seiicits comribit-ions fer, er on behalf
ef> a eharitable orgenization ~whether
sueh solicitation is performed personally
er threugh agents, servants, or -empioyees
specifically empioyed by er fer a chari-
table organization; whe ere engaged -ir
the sockicitation of eontributions ~zmder
the direction of such person -owever, 0
agent, servem-, or empteyee ef a -protes-
sienai solicitor -shealklk be deemed to be -a
prefessional solicitor. A bone fide
Salaried officer er employee of a -chari-
table organization maintaining a -perma-
nent establishment within the -ctate shell
mot be -deemed te bE a -professionel
solicitor. Ho 0 atterney;s stegistered
J13
iAvestment counselor, -GCRA or accountant,
er banker who -advises any person to make
@ eontribution +o 2 eharitable erganiza-
tien shaii be deemed, as a vesuit of such
adviee, to be a -professional setlicitor
any person who is compensated for his or
her or its solicitation of funds’ for
charitable purposes in any manner what-
soever that is based on or related to the
amount of money or property coliected as
a result of his or her or its solicia-
tions of funds,
Section 2, That Section 100.02,
Exemptions, of Chapter 100, Solicitation
of Funds for Charitable Purposes, of
Title VIII, Public Health and Safety, of
the Code of Ordinances, City of Clear-
J14
water, be and the same is hereby amended
and renumbered or relettered where
necessary to read as follows:
Section 100.02. Exemptions.
(1) Notwithstanding the foregoing,
a charitable organization that does not
employ a professional solicitor to
solicit funds shall be exempt from the
provisions of +his chapter of Sections
100.03 and 100.04;(a) if it dees did not
Feeeive eortFeibutierns collect money or
property from more than 20 persons as _ a
resuit of the solicitation of funds
during the preceding twelve (12) months;
er (b) if all of its functions, including
fund raising activities, within the City
of Clearwater, are carried on by persons
who are unpaid for their services; or (c)
if no part of the charitable organiza-
J15
tion's assets or income inures to the
benefit of or is paid to any officer or
member; or if the soltiettatten is in the
form of a donation or cotkection +thret
eceurred within the -membersthip -of +tthe
charttabte organtrzatton; -om (d) if the
charitable organization dees not reise or
receive contribttions from +he public did
not collect money or property as a result
of the solicitation of funds in excess of
$10,000 during its annvat reporting
pertod the preceding (sic) twelve (12)
months. Neverthetess; af the contritbu~
ttons ratsed from the public «are “in
excess of $10,000 for saré¢ -annuai
reperting period, the eharitable organi-
gatien shell, within 30 days after +the
date it shalt have -received +totel
ecntributieons i+ excess cE $10,000,
J16
register subject to the provision of this
chapters Any such exempt charitabie
organization sitatt tose -such exemption
when it emptoys a professional solicitor
Neverthetess; ‘such organtzatton steaii
matntatn such records as -recessery to
prove that the organization quaiifies for
such exemption; |
(2) Every scholarship fund that
solicits and raises funds solely for the
purpose of providing scholarships shall
be exempt from the registration
provisions provided for in this chapter
if all of the fund's functions, including
fund raising activities, are carried on
by persons who are unpaid for their
services and if no part of the organiza-
J17
tion's assets or income inures to the
benefit of, or is paid to, any officer or
member.
3) The issuance of any announce
ment om advertisement tteat sueh solici-
tation as described in subsectiern +2)
above wrtt occur or -whicth announees cr
advertises @n event at which unenrounced
solicitation as descrived in subsection
(2) atove occurs steit be exempt from the
registration provisions of this chapter
(3) If a charitable organization
does not want to disclose publicly the
information required by the statements
described in Section 100.03 regarding the
solicitation of funds from members of the
Charitable organization, it may exclude
this information from the statements
required by Section 100.03 if:
J18
(a) it indicates on the statement
required by Section 100.03 that _informa-
tion about solicitation of funds’ from
members of the charitable organization
has been excluded, and
(b) it prepares a private statement
at least annually that contains all of
the information required by the_ state-
ments described in Section 100.03 for the
solicitation of funds from members of the
charitable organization that is not
reported in the statements required _ by
Section 100.03, which is signed _ under
oath by the individual described in
subparagraph 1(o) of Section 100.03, and
(c) it maintains the records and
documents that are necessary to complete
this private statement for a _period of
three years from the date of each state-
J19
ment, and together with the _ private
statement, makes them reasonably avail-
able for inspection by every member of
the charitable organization,
Section 3. That Section 100.03,
Registration with City Clerk, of Chapter
100, Solicitation of Funds for Charitable
Purposes, of Title VIII, Public Health
and Safety of the Code of Ordinances,
City of Clearwater, be and the same is
hereby ame nded and renumbered or
reletterd where necessary to read as
follows: |
Section 100.03. Registration with
City Clerk
l. All charitable organizations
soliciting funds me destring +o soktiett
famds for a charitable purpose in the
City of Clearwater -strakk -matntatn
records, documents and tnformatton ~and
J 20
shall file a registration statement on
forms provided by the City Clerk on or
before January 3lst of each year. At the
time of filing such registration state-
ment, the charitable organization shali
pay a registration fee of $10.00. The
forms shall contain the following infor-
mation:
(a) The name of the person regis-
tering and desiring to solicit funds for
charitable purposes.
(b) Whether the person registering
is a natural person, partnership, corp-
oration, or association and,
(i) if a natural person, the
business or residence address and tele-
phone number must be given.
J21
(ii) if a partnership, the
names of all partners and the principal
business address and telephone number of
each partner must be given,
(iii) if a corporation, the
person registering must state whether it
is organized under the laws of Florida or
is a foreign corporation, and must show
the mailing address, business location,
telephone number, name of individual in
charge of soliciting funds in Clearwater
of such corporation, and the names of all
officers and directors or trustees of
said corporation, and, if a foreign
corporation, the place of incorporation
and registration date and certificate to
operate in Florida as a foreign corpora-
tion.
J22
(iv) if an association, the
registration statement shall show the
association's principal business address
and telephone number, if any, and shall
show names and principal business or
residence addresses and telephone numbers
of the officers and directors or trustees
of the association. If the association
is part of a multi-state organization or
association, the mailing address _— and
business location of its central office
shall be given, ‘in addition to the
mailing address and business location of
its local office.
(c) A reference to all determina-
tions of tax-exempt status under the
Internal Revenue Code of the United
States and law of any state, and the laws
of any county or municipality.
J 23
(d) A brief description of the
charitable organization registering, the
charitable purpose for which the funds
are to be solicited, and a brief explan-
ation of the intended use of the funds
toward that purpose,
(e) The names, mailing address and
telephone number of all individuals
authorized to disburse the proceeds of
the solicitation.
(f) The names, mailing address and
telephone number of all individuals who
will be in direct charge or control of
the solicitation of funds.
(g) The time period within which
the solicitation of funds is to be made,
giving the date of the beginning of
solicitation and its projected conclu-
sion,
J24
(h) A brief description of the
methods and means by which the solicita-
tion of funds is to be accomplished.
(i) An estimated schedule of
salaries, wages, fees, commissions,
expenses and costs to be expended and
paid in connection with the solicitation
of funds and in connection with their
disbursement, and an estimated percentage
of the total projected collections which
the costs of solicitation will comprise.
(j) The names of any other cities
in Florida in which the person register-
ing has sekicited collected funds for
charitable purposes within the past five
(5) years, but in no the event that the
person registering has solicited
collected funds for charitable purposes
in more than five (5) other cities in
J25
Florida, the person registering may list
the five (5) cities in Florida in which
the most recent sottctttons collections
occurred,
(k) A statement to the effect that
if a Certificate of Registration is
granted, such Certificate will not be
used as or represented to be an endorse-
ment by the City or any of its officers
or employees,
(1) A statement to the effect that
the charitable Organization will maintain
records or documents that are necessary
to file the complete statement required
by subparagraph 8 of this section and a
brief description of those records or
documents,
J26
¢- m) The names of any officer,
director, trustee, partner or any current
agent or employee engaging in solicita-
tion of funds who has been convicted of a
felony or a misdemeanor involving moral
turpitude within the past seven (7)
years, the nature of the offense, the
State in which the conviction occurred,
and the year of such conviction.
tm n) A brief explanation of the
reasons, if the person registering is
unable to provide: any of the foregoing
information, why sucn information is not
available.
Cr 0) The registration statement
must be signed by the applicant, if the
person registering is an individual; if
the person registering is a partnership,
by the partner charged with disbursing
J27
funds solicited; if a person registering
is a corporation or an association, by
its officers charged with disbursing
funds solicited. The individual signing
the registration statement shall sign the
Statement and swear before an officer
authorized to administer oaths that he or
she has carefully read the registration
Statement and that all the information
contained therein is true and correct.
2. After a review of the registra-
tion statement to determine its compli-
ance with this section, and within ten
(10) working days of the receipt of the
registration statement, the City Clerk
shall either issue a Certificate of
Registration, as provided in this
section, or notify the person registering
that the registration statement does not
J28
comply with the requirements of this
section and specifically point out what
information or explanation has not been
furnished that is required before a
Certificate of Registration will be
issued.
3. If for any reason the City Clerk
refuses to issue a Certificate of Regis-
tration to any charitable organization
that has filed a registration statement
and the charitable organization disagrees
with this decision, the City cf Clear-
water shall bear the burden of initia-~
ting, within ten working days of the
denial, a judicial Fevtew proceedings in
a court of competent Jurisdiction +t0
review the Gity Clerks administrative
decision in the form of a declaratory
judgment action pursuant to Chapter 86,
J29
Florida Statutes, to review the City
Clerk's refusal _to grant a registration
certificate. In any such proceeding, the
charitable organization seeking the
Certificate or Registration shall be
considered a party in interest. ----- “arrd-
stellt have the absotute right to receive
a set of aid trevirew papers; to appear by
rts own couursel; and +o submit any and
att decuments and papers tm oppesitioen te
the dentat of a Gertificeate of Registra-
tren; and shatt have the further Fright to
appeat or to jetn Hr any appeai from a
frreat adverse sudgment or -order. The
Crty strrkl bear the -burder of demons-
tratrng tm the admtnrstrattve revtew that
a compettrng and substanttat governmentat
tnterest extsts on the record justifytng
the tteniait of the Certificate of Regts--
J30
tration in the specific instance; Unless
or until the circuit court rules that the
City Clerk has properly refused to issue
a Certificate of Registration, the
charitable organization may solicit funds
without compliance with the registration
provisions of this chapter.
4. In such judicial review pro-
ceedings, a charitable organization may
also raise the question to the court that
furnishing a specific item or items of
information or explanations under this
section chapter constitutes a special or
unique hardship to the charitable organ-
ization, and the court shall have juris-
diction in such review process, upon
concluding that disclosure constitutes a
unique or special hardship, to dispense
J31
with the furnishing of that information
or explanation, so that a Certificate of
Registration can be issued,
5. The City Clerk shall prescribe
the form of the Certificate of Registra-
tion. However, each such Certificate of
Registration shall be printed in black
except that the following’ shall be
printed prominently thereon in red: "The
issuance of this Certificate of Regis-
tration is not an endorsement by the City
of Clearwater or any of its officers or
employees", Nor may the Certificate of
Registration be used by any charitable
organization for promotion purposes.
Each Certificate of Registration shall
bear a registration number that is the
J32
tration in the-specifte instance; Unless
or until the circuit court rules that the
City Clerk has properly refused to issue
a__Certificate of Registration, the
charitable organization may solicit funds
without compliance with the registration
provisions of this chapter.
4. In such judicial review pro-
ceedings, a charitable organization may
also raise the question to the court that
furnishing a specific item or items of
information or explanations under this
section chapter constitutes a special or
unique hardship to the charitable organ-
ization, and the court shall have juris-
diction in such review process, upon
concluding that disclosure constitutes a
unique or special hardship, to dispense
J3%
with the furnishing of that information
or explanation, so that a Certificate of
Registration can be issued.
5. The City Clerk shall prescribe
the form of the Certificate of Registra-
tion. However, each such Certificate of
Registration shall be printed in black
except that the following shall be
printed prominently thereon in red: “The
issuance of this Certificate of Regis-
tration is not an endorsement by the City
of Clearwater or any of its officers or
employees". Nor may the Certificate of
Registration be used by any charitable
organization for promotion purposes.
Each Certificate of Registration shall
bear a registration number that is the
J32
same as the file containing the regis-
tration statement filed by the regis-
trant.
6. Any charitable organization as
defined in Section 100.01(1) that has
filed a registration statement with -the
State of fiorida, Pinellas Gounty, or any
other municipality or eounty icceated -in
Fieorida any state, city or county during
the preceding twelve (12) months
containing substantially the same infor-
mation under oath as requested in this
section and has been issued a registra-
tion certificate, may file a copy of such
registration statement and registration
certificate with the City Clerk and such
charitable organization shall be deemed
to have complied with the requirements of
Section 100.03 relating to the prepara-
J33
tion and filing of a registration state-
ment as long as such prior filing and
registration certificate remains valid.
ur All registration statements
filed with the City Clerk, whether or not
a Certificate of Registration has been
issued, shall be a public record and
shall be available for inspection by
members of the public during regular
business hours and copies may be obtained
at the regular cost.
8. Within 60 days from the expira-
tion of the Certificate of Registration,
the charitable organization shall file
with the City Clerk on forms provided by
that office a statement regarding all
solicitation of funds for the prior year,
which statement shall be sworn by an
appropriate officer of the charitable
J34
organization and which sworn statement
shall show the following: (a) the full
amount of funds -and/or other property
ceceived -from the -public money = § and
property collected as a result of the
solicitation of funds during the previous
yeat annual _ reporting period; (b) a
complete list of any and all expenses
incurred in procuring +the said those
funds. The sa#da@ list shall be broken
down into salaries, wages, fees, commis-
sions, advertising and all other expenses
and costs paid in connection with the
solicitations of those funds; (c) the
bank, if any, where the proceeds of +he
gaid those solicitations of funds were
placed; and (d) actual or _ proposed
utilization in approximate amounts of the
said proceeds.
J35
Section 4. That Section 100.04,
Maintenance of Records, of Chapter 100,
Solicitation of Funds’ for Charitable
Purposes, of Title VIII, Public Health
and Safety, of the Code of Ordinances,
City of Clearwater, be and the same is
hereby amended and renumbered or
relettered where necessary to read as
follows:
Section 100.04. Maintenance of
Records.
l. No eCharitable organizations
shall fait to maintain records or docu-
ments that are necessary to file the
complete and truthful registration
Statements wader this chapter required by
Section 100.03 for a period of three (3)
years from the filing of each statement.
Records and documents im this paragraph
tefer to the information mandated by
J36
Seetien 190,03 and shail be maintained by
the charitable organisation for a period
ef £34 three years -from FegistEatione. A
charttabte organization, upen the request
of the -Gity Attorney ain ecennection with
an tnvestigation into possibile violations
of this chapter, -may net refuse +to
produce trformattion reqtired in +he
registration statement.
Any charitabte orgarizattron that is
exempt from the -provisions ef this
chapter pursuant to Seetion 100.0244-)
shatt not tbe recqtrired te -maintain -any
records or other deeuments relating +o
such exemption fer mere than six +6)
menths fiom -the date that it solicits or
ebtaians contributions solicited from the
publie for charitable purposes.
J37
ae i= the City Clerk determines
that any organization subject to this
ehapter has failed to maintain documents
er records coming information
sufftetent for the prxuspose ef -filting a
registration stetement, he or she shail
rotrfy such ergeanizaton in writing and
spectfy what information it has faiied to
marntatrns tf any such organization faiis
for ttritty (30+ working days after
recetpt of notice to provide sufficient
evidence of the maintenance eof stech
records 3 -and deeuments without iegal
exeuse; the City CGherk shaii deelkare a
defautt; and sueh defauwit shall consti-
tute suffieient grounds for the City
Atterney te seek and obtain Jjrudicial
enforcement of tis ehapterts provisions
tm a court of competent jurisdiction.
J38
Section 5. That Section 100.05,
Prohibited Acts, of Chapter 100, Solici-
tation of Funds for Charitable Purposes,
of Title VIII, Public Heaith and Setety,
of the Code of Ordinances, City of
Clearwater, be and the same is hereby
amended and renumbered or relettered
where necessary to read as follows:
Section 100.05. Prohibited Acts.
No charitable organization subject
to the provisions of this chapter, or no
agent, employee, or officer of any such
organization shall engage in any of the
following prohibited acts:
l. (a) wiiful use of any
solicited funds or soliciting or retain-
ing funds to support or execute any
conduct that is criminal or illegal under
J 39
the laws of the City of Clearwater,
Pinellas County, the State of Florida, or
the United States;
(b) wilful failure to file @&
vegisitation any statement pursuant -to
required by this chapter or knowingly
making false statements or providing
false information with respect to any
information er <bocurments provided under
ttre +tegistretion +teciHtements cf -this
chapter in those statements;
(c) use of any scheme or
artifice to defraud or obtain money or
property by means of any false statements
Or representation;
(d) falsely wilfully con-
cealing the identity of an organization
on whose behalf solicitations are being
made;
J40
ae aE
(e) falsely representing
knowingly misrepresenting that HY
contributions the proceeds of any
solicitation of funds, under current law,
would entitle the donor to a Federal or
State income tax deduction;
(f£) faisely promising any
person that a -contvibit-ion the proceeds
of a solicitation of funds’ will be
refunded upon request, and thereafter
willfully failing within 60 days to make
a refund that has been requested in
writing and within a reasonable period -of
time;
(g) promising any person that
refunds of cortrisutiorns the proceeds of
any solicitation of funds will be made
upon request without providing’ such
person, at the time such representation
is made, with a written statement of the
terms and conditions upon which refunds
are made; provided, however, that any
statement made in good faith at the time
is not prohibited by this section.
(h) soliciting funds at
private residences between 11:00 P.M. and
6:00 A.M.;
(i) solicitation of funds by
any person on behalf of a charitable
organization which has failed to register
obtain a Certificate of Registration
under this chapter and is not exempt
under Section 100.02;
(3) wilful failure to -file
ttre records with the City Clerk under
+his chapter maintain the records or
documents required by Section 100.04.
J 42
(k) if claiming an exemption
under Section 100.02(3), wilful failure
to maintain the records or documents
required to be maintained _ by — said
Section, wilful failure to make _ the
private statement and those _ records or
documents reasonably available for
inspection by every member of the chari-
table organization, or knowingly making
false statements or providing false
information in the private statement or
those records or documents described in
said Section.
2. In addition to any other remedy
provided by law, any person who wilfully
and knowingly commits any of the
prohibited acts under this section shall
be punishable by a fine not to exceed one
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thousand dollars ($1,900.00) or a term of
incarceration not to exceed six (6)
months, or both.
3s This chapter is not intended to
repeal or affect other fraud and consumer
protection laws of the City of Clear-
water, Pinellas County, the State of
Florida, or the United States.
Section 6, That Section 100.06,
Power of the City Attorney to Investigate
and Prosecute Prohibited Acts of Chari-
table Organizations, of Chapter 100,
Solicitation of Funds for Charitable
Purposes, of Title VIII, Public Health
and Safety, of the Code of Ordinances,
City of Clearwater, be and the same is
hereby amended and renumbered or
relettered where necessary to read as
follows:
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{
Section 100.06. Power of the City
Attorney to Investigate and Prosecute
Prohibited Acts of Charitable Organiza-
tions.
i. The City Attorney may shall
investigate the selicitation of -funds by
Charitable organizations alleged viola-
tions of this chapter only after ten
individuals file separate bona fide
complaints in writing, sworn to. or
affirmed, with the City Attorney, setting
forth facts demonstrating that one or
more of the prohibited acts set forth in
Section 100.05 have been engaged in by
the charitable organization and that the
complaining party has been injured by
such act or acts.
2. Porm purpeses of investigating
cempiaints under this section, the City
Atterney shati have the power to apply to
a ©ourt cf competent Hrriediction fer «a
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subpoena or subpeena duces tecum to bring
befere him or ther any person and to
FequtFe as part of sueh subpoena the
preduetion of sreleveant decuments and
records and +o administer oaths and take
depositions of any such persern SO sub-
poenacd. The Gity Atterney shell have
the power to effect service of process of
subpoenas, after approval of such sub-
poerna by a court of competent juris-
dictions The wiifui faitdiwe of @ persen
Without tawfui exeuse +o -obey 4& subpoena
eF subpeena duces tecum shakt constrtute
@ prehktbited act under thrs chapter:
Pris provision does not preempt or
supersede ary other gererai taws con-
cerning a refuseat to obey a i —vatrd
subpoena > The City Attorney, when
conducting an investigation pursuant to
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subparagraph 1 shall have the power to
subpoena any person, require the produc-
tion of the records or documents
described in Section 100.04 and the
private statement and records or docu-
ments described in Section 100.92(3). and
administer oaths.
3. It imvestigating citizen
complaints about a cecharitable- organiza~
tion's solicitation ef funds, the Gity
Attorney shaiti Rave access to the public
records filed by the organization with
the City Clerk
4 3. Phe City Attorney may commence
and metnterr itn a court of competent
jyortrsdicettonm att proper and necessary
acttronms and proceedings- to prosecute any
act prohibited by thrs chapter: If the
investigation conducted under subpara-
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-%—
graph _ 1 demonstrates that probable cause
exists to believe that a violation or
violations under Section 100.05 exist,
then the City Attorney shall institute an
action to prosecute such violation or
violations.
Section 7. That Section 100.07,
Damages to Injured Persons, of Chapter
100, Solicitation of Funds for Charitable
Purposes, of Title VIII, Public Health
and Safety, of the Code of Ordinances,
City of Clearwater, be and the same is
hereby amended and renumbered or
relettered where necessary to read as
follows:
= Section 100.07. Damages to Injured
Persons.
l. Nothing herein contained shall
preclude any person aggrieved by a
prohibited act under Secton 100.05
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performed committed by a charitable
organization from commencing an appro-
priate action or proceeding in -the
Litccnt SCout under the laws of the State
of Florida to recover compensatory
damages.
Section 8. That Section 100.08,
Notice to the Public About the Provisions
of this Chapter, of Chapter 100, Solici-
tation of Funds for Charitable Purposes,
of Title VIII, Public Health and Safety,
of the Code of Ordinances, City of
Clearwater, be and the same is hereby
amended and renumbered or relettered
where necessary to read as follows:
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Section 100.08. Notice to the
Public About the Provisions of this
Chapter. |
The City Attorney shall be empowered
to inform the public about the require-
ments of this chapter as applied to all
charitable organizations soliciting funds
in Clearwater, Florida. The City
Attorney specifically has the authority
to notify the public that the office is
authorized to receive and investigate
complaints relating to the violations of
this chapter. The City Attorney shall
give public notice of all convictions of
charitable organizations violating the
provisions of this chapter and the basis
of these convictions.
Section 9. All ordinances or parts
of ordinances in conflict herewith are
hereby repealed.
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Section 10. Should any part or
provision of this ordinance be declared
by a court of competent jurisdiction to
be invalid, the same shall not effect the
validity of the ordinance as a whole, or
any part thereof, other than the part
declared to be invalid.
Section ll. This ordinance is
adopted as an emergency ordinance,
pursuant to Section 166.041(3)(b),
Florida Statutes, and the Clearwater City
Charter.
Section 12. The City of Clearwater
hereby exempts itself from the provisions
of Pinellas County Ordinance No. 82-38,
and such ordinance shall not apply within
the corporate limits of the City of
Clearwater, Florida.
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Section 13. It is hereby found,
determined and declared that this
ordinance is necessary and urgently
needed for the preservation of the
welfare of the citizens and inhabitants
of the City of Clearwater, Florida, in
that passage of this ordinance is needed
to further narrow and refine the provi-
sions of Chapter 100 of the Clearwater
Code of Ordinances, which chapter is
presently the subject of pending lLitiga-
tion and should therefore be addressed
prior to the termination of such
proceedings before the trial court,
thereby preserving the existing public
and compelling interest which calls for
the creation of the chapter, and by
reason of such fact, an emergency is
hereby declared; and this ordinance shall
J52
be in full force and effect immediately
upon its passage. This ordinance shall
automatically expire ninety (90) days
from the date of its passage unless the
ordinance is submitted during such time
for consideration aS a non-emergency
ordinance.
Section 14. Notice of the proposed
enactment of this ordinance has been
properly advertised in a newspaper of
general circulation in accordance with
Section 166.041, Florida Statutes.
PASSED ON FIRST FIRST
READING May 3, 1984
PASSED ON SECOND AND
FINAL READING AND ADOPTED
May 17, 1984
/s/ Kathleen F. Kelly
Mayor-Commissioner
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Attest:
/s/ Lucille Williams
City Clerk
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.