WILLIAM B. SHUBB, United States District Judge.
On cross motions for summary judgment in this case, the court is called upon to determine the constitutionality of the City of Citrus Heights' unique noise ordinance, which requires a Conditional Use Permit for outdoor amplified music between the hours of 10:00 p.m. and 8:00 a.m. Because the court concludes that the ordinance is unconstitutionally vague, overbroad, and violative of equal protection, plaintiffs' motion is granted and defendants' is denied.
I. Factual and Procedural Background
Plaintiffs Sam and Cindy McCray are residents of the City of Citrus Heights, California (the "City"). They own a bar located within the City named "Sam Cin's 7440 Club" (the "7440 Club"). On Friday and Saturday nights, the 7440 Club features music, live and recorded, on its outside patio until midnight. Plaintiffs also have outdoor speakers near their backyard swimming pool at their residence.
The City was incorporated on January 1, 1997. Thereafter, the City adopted sections 251-23(D)(8) and (10) to the Zoning Code, setting forth Conditional Use Permit ("CUP") requirements for "dancing in a bar or restaurant" and "live or amplified music." On July 27, 1999, plaintiffs filed suit against the City, challenging sections 251-23(D)(8) and (10) on First Amendment grounds. On September 13, 1999, the City Council adopted Urgency Ordinance No. 99-16 (the "ordinance"), which repealed the challenged sections of the Zoning Code. The parties stipulated to dismiss plaintiffs' suit on November 22, 1999.
In addition to repealing sections 251-23(D)(8) and (10), the ordinance added a new CUP requirement to the City's Zoning Code. Specifically, the ordinance requires a CUP "in any zone set forth in the City's Zoning Code for any use involving amplified music at an outdoor location between the hours of 10:00 p.m. and 8:00 a.m." (Urgency Ordinance No. 99-16 § 315-112).
The stated purpose of the ordinance is "to regulate late-night outdoor amplified music in order to protect and promote the health, safety, morals, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the adverse effects of loud noise at times when such noise is especially likely to cause disturbance." (Urgency Ordinance No. 99-16 § 1(1)). The ordinance further states that its purpose is "to establish reasonable and uniform regulations to enable prudent and reasonable limitations on outdoor noise during times when such noise is most likely to cause disturbance, annoyance, sleep interference, and deleterious health effects associated with sleep disruption." (Urgency Ordinance No. 99-16 § 315-110).
"Any notice, request, or order by any City official that any particular use is subject to and/or out of compliance with [the ordinance] shall be made in writing." (Urgency Ordinance No. 99-16 § 315-113). Once such notice has been received, the party has ten days to file an application for a CUP or to file a notice of appeal with the Secretary of the Planning Commission. (Urgency Ordinance No. 99-16 § 315-114). Enforcement of the CUP requirement is "automatically stayed during the 10-day period following written notice of the applicability of and/or noncompliance" with the ordinance. (Urgency Ordinance No. 99-16 § 315-114).
Once a party applies for a CUP or files notice of appeal, an automatic stay of enforcement commences with respect to the particular use at issue. (Urgency Ordinance No. 99-16 § 315-115). The stay of enforcement continues in effect until:
(a) the application for a conditional use permit is denied or approved, more than ten days have elapsed since that denial or approval, and no administrative appeal to the Planning Commission has been commenced . . . challenging that denial or approval; or
(b) an administrative appeal to the Planning Commission is commenced . . ., the Planning Commission acts within 60 days of the first hearing on the matter . . ., more than ten days elapses following the Planning Commission's action, and no administrative appeal to the City Council of the Planning Commission's action is commenced . . .; or
(c) an administrative appeal is to be heard by the City Council, either in the first instance or upon appeal from or automatic referral from the Planning Commission, the City Council takes final action on the appeal, the time period specified in Government Code section 65009 and section 115-39 of the City's Zoning Code elapses, and within that period, no person brings a court action or proceeding to attack, review, set aside, void, or annul the decision, proceeding, act or determination by the City Council, or to determine the reasonableness, legality, or validity of any condition attached to the conditional use permit; or
(d) a person brings a court action or proceeding to attack, review, set aside, void, or annul the decision, proceeding, act or determination by the City Council, or to determine the reasonableness, legality, or validity of any condition attached to the conditional use permit, and a judicial officer issues a decision on the merits of the action. A judicial decision on the merits of the action includes a decision regarding any substantive or procedural matters, including but not limited to affirmative defenses, that resolves the claims of the petitioner or plaintiff. A judicial officer's decision is on the merits even though there may have been no application of rehearing or appellate procedures to that decision. A stay issued pursuant to Code of Civil Procedure section 1094.5, subdivision (g), is not a judicial decision on the merits within the meaning of the Article.
(Urgency Ordinance No. 99-16 § 315-115).
When applying for a CUP, a party "shall describe the proposed use solely in terms of time of the performance, location of the performance, and outdoor noise levels to be associated with the performance." (Urgency Ordinance No. 99-16 § 315-117). When deciding whether to grant a CUP application,
the planning commission or city council shall find and record in writing that the establishment, maintenance or operation of the use, building, or structure applied for will not under the circumstances of the particular case be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City.
(City of Citrus Heights Zoning Code ch. 10, art. 3 § 110-30). However, there shall be no inquiry into "the proposed content, style, or type of music that will be performed under the permit." (Urgency Ordinance No. 99-16 § 315-118). If the applicant or any other person voluntarily discloses information regarding content, style, or type of music that will be performed under the permit, this information may not be considered when determining whether to grant a CUP. (Urgency Ordinance No. 99-16 § 315-118).
A $4,263.00 application fee is required for a CUP. The fee requirement is not contained in the ordinance. On January 1, 1997, the City incorporated and adopted all Sacramento County zoning ordinances that had previously been applicable to the territory comprising the City. (Ruggiero Decl. ¶ 4). Among the Sacramento County ordinances initially adopted by the City and still in force are the provisions setting the fees for reviewing conditional use permit applications. (Ruggiero Decl. ¶ 7). The City is currently conducting its first comprehensive cost allocation analysis to determine whether the application fee represents costs incurred by the City in processing CUP applications. (Ruggiero Decl. ¶ 10).
Plaintiffs have not applied for a CUP under the provisions of the ordinance. The City has never served written notice on plaintiffs to the effect that the 7440 Club or their residence is not in compliance with the ordinance. In fact, the City has never either enforced the ordinance or issued a CUP pursuant to the ordinance.
On October 7, 1999, plaintiffs filed this action for a declaratory judgment that the ordinance is unconstitutional under 42 U.S.C. § 1983. On December 29, 1999, plaintiffs filed an application for a temporary restraining order and a motion for preliminary injunction. The court denied plaintiffs' request for a temporary restraining order. Plaintiffs later withdrew their motion for preliminary injunction. Both parties now move for summary judgment.
The parties have stipulated that no discovery is necessary and that this summary judgment motion can be resolved as a matter of law. (Defs.' Response to Pls.' SUF ¶ 8).
II. Summary Judgment
The court grants summary judgment to a moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party adverse to a motion for summary judgment may not simply deny generally the pleadings of the movant; the adverse party must designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Simply put, "a summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The non-moving party must show more than a mere "metaphysical doubt" as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
Plaintiffs proceed pursuant to 28 U.S.C. § 1983. See 28 U.S.C. § 1983. Under section 1983, plaintiffs must establish that (1) the conduct complained of was committed under color of state law and (2) the conduct deprived plaintiffs of a constitutional right. See Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The City concedes that the conduct alleged by plaintiffs, if true, was committed under color of state law. (Defs.' Opp'n at 19:8-10). Thus, the only issue to be considered by the court is whether the CUP requirement deprives plaintiffs of a constitutional right.
A. Standing
"In order to bring an action in federal court, a plaintiff must have suffered `an injury in fact; that is . . . some threatened or actual injury resulting from the putatively illegal action. . . .'" 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1111 (9th Cir. 1999) (quoting Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392 (1988)). "Abstract injury is not enough" to meet this requirement. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). "The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical." Id. at 101-02 (internal quotations omitted).
It is well settled that traditional principles of standing are relaxed in the context of a pre-enforcement challenge to an ordinance on First Amendment grounds, where a violation of the ordinance results in criminal penalties. See New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13-15 (1st Cir. 1996); see also Virginia v. American Booksellers Assoc., Inc., 484 U.S. 383, 392 (1988) (the standing requirement of threatened or actual injury is met where "the law is aimed directly at plaintiffs, [and they] will have to take significant and costly compliance measures or risk criminal prosecution."). In such an instance, plaintiffs are deemed to be injured by the fact that they might be chilled from exercising their right to free expression or forego expression in order to avoid enforcement consequences. See New Hampshire Right to Life Political Action Comm., 99 F.3d at 13; Virginia, 484 U.S. at 643 (noting that a harm can be realized without enforcement when the danger of an ordinance is self-censorship).
So it is here. The ordinance requires a CUP for "any use involving amplified music at an outdoor location between the hours of 10:00 p.m. and 8:00 a.m." Plaintiffs play music outdoors at the 7440 Club on Friday and Saturday nights until midnight. Plaintiffs' conduct is encompassed by the ordinance, requiring them to apply for a CUP. If they do not apply, they are in violation of the plain language of the ordinance. A violation of the ordinance results in criminal penalties. Thus, plaintiffs are faced with the decision of having to go through the burdensome and expensive procedure of applying for a CUP (and, thus, complying with an ordinance they allege is unconstitutional) or risking criminal penalties. Such a choice presents the danger of self-censorship and is sufficient harm to meet Article III's standing requirements. Accordingly, plaintiffs have standing to challenge the ordinance even though they have neither applied for a CUP nor received written notice from the City that they are out of compliance with the ordinance.
Under California Government Code section 36900:
(a) Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. Such a violation may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.
(b) Every violation determined to be an infraction is punishable by (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year.
Cal. Gov't Code § 36900.
The City argues that the ordinance is not enforced until the City gives written notice of noncompliance and, thus, plaintiffs do not need a CUP until they receive such notice. However, the City's interpretation is not consistent with the plain language of the ordinance, which broadly states that a CUP is required for any use involving outdoor, amplified music during the proscribed times. The Ordinance does not state that a CUP is only required pursuant to written notice from the City.
Even if the ordinance were only enforced pursuant to written notification from the City, it is likely that the City will send written notification to plaintiffs. In its opposition, the City states:
Since the Urgency Ordinance was adopted, plaintiffs have frequently and regularly disturbed the peace and tranquility of Citrus Heights during the late-night hours. It is undisputed that [plaintiffs] regularly amplify outdoor music past the hour of 10:00 p.m. at the Club. In the relatively short time between September 1999 and now, well over twenty citizens of the City have officially expressed their displeasure about the late-night loud music at the Club to City officials, either via citizen complaint to law enforcement or by petition to the City Council. Where the complaints about late-night music provided reasonable cause, the Citrus Heights Police Department dispatched law enforcement officers to advise the Club to turn the volume down.
(Defs.' Opp'n at 5:16-6:2). Thus, it appears that plaintiffs' use of amplified music has "cause[d] disturbance, annoyance," and possibly "sleep interference," and thus that plaintiffs suffer a real threat of enforcement. See, e.g., Stern v. United States Dist. Ct. for Dist. of Mass., ___ F.3d ___ (1st Cir. 2000) ("In a pre-enforcement challenge to a law carrying significant penalties, standing exists when the plaintiff has manifested an intention to engage in conduct arguably proscribed by the statute, and there exists a `credible threat' of enforcement.").
B. Music is Constitutionally Protected
The ordinance targets amplified music. Music is entitled to protection under the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment."); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567 (9th Cir. 1984) ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee.") (internal quotations omitted).
Even though plaintiffs are not themselves performing the music, but are playing pre-recorded music, they are nonetheless engaging in constitutionally-protected speech. For example, in Cinevision, the Ninth Circuit considered an argument that a concert promoter's rights were not protected because the promoter was not expressing its views, but merely seeking to make a profit. See id. The court rejected this argument, holding that "under the first amendment, there clearly are rights to promote protected expression for profit — including musical expression." Id. at 568. Similarly, plaintiffs are engaging in constitutionally-protected speech by playing pre-recorded music at the 7440 Club.
C. Vagueness
The vagueness doctrine incorporates notions of fair notice or warning by "requir[ing] legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement." Smith v. Goguen, 415 U.S. 566, 572-573 (1974). "A statute will be struck down on void for vagueness grounds if `it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes.'" United States v. Frega, 179 F.3d 793, 803 (9th Cir. 1998) (quoting Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984)). An ordinance is vague if persons "of common intelligence must necessarily guess at its meaning." Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (internal quotations omitted).
The ordinance's use of the term "amplified" would not put persons of common intelligence on notice of whether the ordinance applies to them. According to the City, amplified music is not simply music that is channeled through an amplifier or otherwise electronically amplified. The City argues that "[a]mplified music is that which is enlarged." (Trans. of May 8, 2000 oral argument ("Trans.") at 24:15-16). However, the ordinance does not indicate how large or great an increase in amplitude is required before the ordinance is applicable. If someone is playing a radio outdoors at a low volume, but then increases the volume slightly, defining "amplified" as "that which is enlarged" sheds no light on whether such an increase would constitute "amplified" music under the City's use of that term.
At oral argument, the City attempted to clarify the meaning of "amplified" by arguing that amplified music is "[s]omething that would be enlarged to the extent that it would cause the annoyance that the purpose of the ordinance says." (Trans. at 24:22-24). However, defining "amplified" music in terms of whether it is annoying lends no further assistance in differentiating amplified music from non-amplified music. Music that annoys one person may not annoy another person. Moreover, the ordinance does not specify whose standards one is to use to determine whether music is loud enough to be annoying; i.e., should an individual rely on his own sensibilities, those of his neighbor, a Planning Commissioner, or a police officer (to name just a few possibilities) when determining whether his "use involving amplified music" requires a CUP?
Counsel presumably refers to section 315-110 of the ordinance, which states that the purpose of the ordinance is "to establish reasonable and uniform regulations to enable prudent and reasonable limitations on outdoor noise during times when such noise is most likely to cause disturbance, annoyance, sleep interference, and deleterious health effects associated with sleep disruption." (Ordinance No. 99-16 at § 315-110).
This case is similar to Coates v. City of Cincinnati, 402 U.S. 611 (1971), in which the Supreme Court considered whether an ordinance making it a criminal offense for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by. . . ." was unconstitutionally vague. See id. at 611-612. The Court found that the word "annoy" was vague:
Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, "men of common intelligence must necessarily guess at its meaning."
Id. at 614.
In sum, the ordinance is unconstitutionally vague because its use of the term "amplified" provides no objective standard for differentiating between music for which a CUP is required from that for which a CUP is not required.
D. Overbreadth
The term "overbreadth" is used to "describe the doctrine that allows a litigant whose own conduct is unprotected to assert the rights of third parties to challenge a statute, even though `as applied' to him the statute would be constitutional." Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 967 n. 13 (1984). "`Overbreadth' has also been used to describe a challenge to a statute that in all its applications directly restricts protected First Amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest." Id. Plaintiffs appear to bring both types of overbreadth challenges here.
The latter form of overbreadth is sometimes referred to as a "facial" challenge. However, "[w]hether a challenge [is] called `overbreadth' or simply a `facial' challenge, the point is that there is no reason to limit challenges to case-by-case "as applied" challenges when the statute on its face and therefore in all its applications falls short of constitutional demands." Id.
The ordinance directly regulates any use involving amplified music at an outdoor location between 10:00 p.m. and 8:00 a.m. by requiring that a CUP be obtained in order to engage in such a use. Thus, the ordinance on its face directly regulates protected speech. Accordingly, it must be narrowly tailored to serve a compelling governmental interest.
The goal of regulating music that is likely to cause annoyance or sleep disturbance is a compelling governmental interest. See Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989) ("[I]t can no longer be doubted that government `ha[s] a substantial interest in protecting its citizens from unwelcome noise.'" (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806 (1984))); see also City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 50 (1986) ("A city's `interest in attempting to preserve the quality of urban life is one that must be accorded high respect.'" (quoting Young v. American Mini Theaters, Inc., 427 U.S. 50, 71 (1976))).
However, the ordinance is not narrowly tailored to serve the City's goal of placing limitations on music that is annoying and likely to cause sleep disruption. Under the plain language of the ordinance, a CUP is required for any use involving outdoor amplified music during the proscribed times. Unlike more typical noise ordinances, this one contains no reasonable, objective standards, such as decibel levels, under which loud, annoying music is targeted to the exclusion of music that is not loud or annoying.
A noise ordinance considered in Dupres v. City of Newport, 978 F. Supp. 429 (D.R.I. 1997), was found unconstitutional on similar grounds. There, the ordinance proscribed the following discrete categories of noise: (1) any sound which exceeds the dBA level for such sound set out in the noise abatement chapter; (2) any unreasonably loud, disturbing, or unnecessary noise; (3) any noise of such character, intensity, or duration as to be detrimental to the life, health, or welfare of any individual; and (4) any noise which either steadily or intermittently annoys, disturbs, injures, or endangers the comfort, repose, peace, or safety of any individual. The court held that the ordinance was overbroad with respect to the second, third, and fourth categories because they "invite law enforcement and others to make a determination as to whether the ordinance has been violated on purely subjective . . . criteria." Id. at 435. However, the first category, under which noise was proscribed on the basis of its decibel levels, was not overbroad. See id.
The City argues that the ordinance will only be enforced if it is sufficiently annoying and, thus, the ordinance is narrowly tailored to apply only to those situations that serve the City's goals. However, as noted above, the ordinance is not limited to situations in which the City sends written enforcement that the ordinance applies to a particular use; rather, the ordinance broadly requires that a CUP be obtained in order to engage in any use involving outdoor amplified music during the proscribed times. Thus, the ordinance is not limited to the situation in which a given use is annoying enough to cause someone to complain to the City.
Specifically, counsel stated at oral argument: "[T]he enforcement of the ordinance will never come to pass unless it annoys somebody off the property. The property owner wouldn't enforce it against himself." (Trans. at 25:22-25).
In addition, even under the City's interpretation of the ordinance, whether it would be enforced in any particular case would depend upon subjective criteria. For example, there is nothing to prevent the ordinance from applying to the neighborhood feud where one neighbor complains about another neighbor playing his radio too loud, but in fact the neighbor is not playing his radio at a level that a reasonable person would think is loud (or even necessarily that the complaining neighbor thinks is too loud). In such a situation, there is nothing to prevent execution of the ordinance's procedures. Indeed, the City admitted that in such a situation, "the ordinance clearly spells out what procedures must be taken. Notification must be given in writing to the alleged offender, and that . . . triggers all the procedures." (Trans. at 26:17-20).
In sum, the ordinance is overbroad because it is not narrowly tailored to serve the City's goals.
E. Equal Protection
"The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination. . . ." Village of Willowbrook v. Olech, 120 S.Ct. 1073 (2000) (internal quotations omitted). Accordingly, when a state governmental entity intentionally treats similarly situated persons differently, such conduct can rise to the level of an equal protection violation. See id. at 1075; see also e.g., Estate of Macias v. Ihde, 2000 WL 991870 at *9 (9th Cir.) (arbitrary discrimination in the administration of police services can lead to an equal protection violation).
"Whether analyzed under the First Amendment or under the Equal Protection Clause of the Fourteenth Amendment, discriminatory burdens on First Amendment rights have typically been subjected to strict scrutiny." Harwin v. Goleta Water Dist., 953 F.2d 488, 491 n. 6 (9th Cir. 1991). "[D]iscrimination in the First Amendment context is permissible only when the government can show that the discrimination is itself necessary to serve a substantial government interest." Id. at 490. "`[T]he crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.'" Id. (quoting Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). The ordinance burdens the First Amendment rights of persons wanting to play music at an outdoor location during the proscribed time. However, the ordinance does not burden the First Amendment rights of persons wishing to engage in other types of protected speech at an outdoor location during the proscribed times. Thus, on its face, the ordinance discriminates among speakers and types of speech.
The stated purpose of the ordinance is to place "reasonable limitations on outdoor noise during times when such noise is most likely to cause disturbance, annoyance, sleep interference, and deleterious health effects associated with sleep disruption." However, the City has not shown that the distinction drawn between music and other forms of protected speech serves to prevent disturbance, annoyance, and sleep interference. While music may cause sleep interference, other forms of protected speech such as political and ideological speech, programs broadcast by radio and television, and live entertainment such as comedy or dramatic works, could also cause sleep disruption if played or performed outside.
"Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee." Schad v. Mount Ephraim, 452 U.S. 61, 65 (1981).
Thus, for example, someone could play Rush Limbaugh on her radio outside during the proscribed times, but her neighbor, desiring to play a live musical broadcast, would need a CUP in order to do so. The ordinance places the burden of achieving its stated goals solely on those wishing to play music. Requiring such persons to shoulder the burden violates the Equal Protection Clause.
Harwin v. Goleta Water District, 953 F.2d 488 (9th Cir. 1991), is instructive. There, the Ninth Circuit held invalid on equal protection grounds an ordinance that disqualified a board member of the Goleta Water District from considering a water service application if she had received a $250 campaign contribution from the applicant, but not if she had received a $250 campaign contribution from an opponent of the application. The court found that the ordinance burdened only applicants' First Amendment rights to freedom of political association; opponents' First Amendment rights were not burdened. The Water District argued that the contribution limitation was aimed at curbing corruption and the appearance of corruption. However, the Water District failed to "show that the distinction drawn by its ordinance between applicants and opponents of water service applications serves to prevent corruption and the appearance of corruption." Id. at 490. Hence, the ordinance violated the Equal Protection clause. Similarly, here, the City has not justified treating music differently from other forms of protected speech that could occur outside during the proscribed times and that could be annoying and sleep disruptive.
The City argues that in enacting the ordinance "[the City] didn't want to abate noises that either it doesn't have a problem with now or that are already covered under other ordinances." (Trans. at 26:6-8). However, the City has presented no evidence suggesting that it has unique problems with music causing sleep disturbance to the exclusion of other forms of protected speech during 10:00 p.m. and 8:00 a.m or that other types of noise are covered under other ordinances. It was represented to the court at oral argument that "[t]his kind of ordinance doesn't exist anywhere on the planet other than in Citrus Heights." (Trans. at 10:18-19). The City has not shown that it faces such unique problems that it needs to place discriminatory burdens on people who play music to the exclusion of other forms of speech.
F. Severability
"Whether partial invalidation is appropriate depends on the intent of the [C]ity in passing the ordinance, and whether the balance of the ordinance can function independently." Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 821 (9th Cir. 1995) (internal quotations omitted). "The standard for determining the severability of an unconstitutional provision is well established: Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (internal quotations omitted).
The ordinance contains a severability clause, which allows the court to remove the unconstitutional provision of the ordinance while leaving the remaining portions of the ordinance in effect. Section 6 of the ordinance provides:
If any section, subsection, subdivision, sentence, clause, or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section irrespective of the fact that any one (1) or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.
(Ordinance No. 99-16 § 6). The ordinance is divided into several sections, and only section 5 concerns a CUP requirement for outdoor amplified music, which, as discussed above, is unconstitutionally vague, overbroad, and violates the Equal Protection Clause. Section 5 amends the Citrus Heights Zoning Code to add Article 11, which pertains to late night outdoor amplified music. The remaining sections can function independently of section 5. For example, section 2 rescinds provisions of the Citrus Heights Zoning Code pertaining to CUP requirements for "dancing in a bar or restaurant" and "live or amplified music."
However, the other provisions within section 5 cannot function independently if the provision requiring a CUP "in any zone set forth in the City's Zoning Code for any use involving amplified music at an outdoor location between the hours of 10:00 p.m. and 8:00 a.m." is severed. The remainder of section 5 addresses the purpose of the CUP requirement for late night outdoor amplified music as well as procedures for obtaining a CUP. Without the core provision requiring a CUP for late night outdoor amplified music, the remaining provisions have no purpose. Thus, all of section 5 must be severed and not merely the provision requiring a CUP.
III. Conclusion
For the reasons set forth above, plaintiffs' motion for summary judgment is granted on the grounds that the ordinance is vague, overbroad, and violates the Equal Protection Clause. "A successful challenge to the facial constitutionality of a law invalidates the law itself." 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1111 (9th Cir. 1999) (internal quotations omitted).
Section 5 of Ordinance No. 99-16 is declared unenforceable. Based upon the express language of the severability clause, all of the remaining sections of the ordinance shall remain valid and in effect.
Because the court finds the ordinance to be constitutionally infirm on the above grounds, the court does not consider plaintiffs' other arguments; i.e., that the ordinance constitutes a prior restraint and the application fee for a CUP for late night outdoor amplified music is unconstitutionally excessive.
IT IS SO ORDERED.