ORDER

Before the Court is Plaintiffs' Emergency Motion for Preliminary Injunction (Doc. No.2,

filed May25, 2000). The Defendant, City ofjacksonville ("City") filed a response in opposition on June 7, 2000. See Doc. No.10. On June 8, 2000, the Court heard argument on the Plaintiffs' motion. The matter is now ripe for resolution.

BACKGROUND

The Plaintiffs seek a preliminary injunction requiring the City to issue a festival permit without conditions, or an injunction preventing the City from enforcing Chapter 191 of the Jacksonville Ordinance Code ("Ordinance Code"), which requires any person who conducts a festival on public property to obtain a penflit from the Director of Parks. The Plaintiffs assert that apreliminay injunction is appropriate since Chapter 191 of the Ordinance Code is unconstitutional as a prior restraint on free speech.

The Plaintiffs desire to hold a public rally at Metro park on June 17, 2000. The Plaintiffs assert that there are three purposes for the rally: (1) to generate public support for the efforts of the Plaintiffs to change the laws of Florida arid the United States prohibiting the sale, possession, and use of marijuana; (2) to educate the public concerning the beneficial uses of marijuana; and (3) to raise fluids to support the Plaintiffs' efforts to effect legal changes. The Plaintiffs claim that the proposed activities at the rally will include speeches by several individuals, distribution of literature, and sales of souvenirs, such as books and bumper stickers, to raise money for the Plaintiffs' continued efforts. During the June 8, 2000 hearing, Plaintiffs counsel specifically stated that the primary purpose of the rally was to provide a forum to dispense political speech, and that all other activities were only incidental. Plaintiffs' counsel noted as an example that even the scheduled musical performers' primary purpose was political, since the main purpose of their music was to convey political speech, and the entertainment value of their music WE only incidental.

DISCUSSION

Certtin public flinctions in the City are regulated under Chapter 191 offlie Ordinance Code Chapter 191 defines certain ifinctions as festivals and provides various requirements in order to conduct a festival. Pursuant to Section 191.102 of the Ordinance Code:

· festival means any gathering of persons for the primary purpose of listening to or participating in outdoor musical entertainment offered to the general public or a substantial segment thereof. The term ftstival shall not include a gathering for another primary purpose such as athletic events, religious services, fairs or expositions, even though outdoor musical entertainment may be incidental thereto.

The Plaintiffs have concentrated their efforts both in their legal memorandum and oral &gurnent on attacking the validity of Ordinance Codes § 191.104 and § 191.106. However, the Court fmds the Plaintiffs' argurnents on those sections premature. The Court fmds that it must first be determined whether or not the Plaintiffs' rally even constitutes a festival pursuant to Ordinance Code § 191.102. The Plaintiffs assert in their motion that their rally constitutes a festival, but the Court is unsure if the Plaintiffs understood the definition of festival at the tirne they filed their motion. In fact, during the June 8, 2000 hearing, the Court asked both parties for the definition of festival and neither party could enlighten the Court wiffithe Ordinance Code's definition ofthe term festival, nor with the t~ty'5 interpretation of the term festival.

It should be noted that as of the date of this order, the defmition of festival, Ordinance Code § 191.102, still has not been filed and entered into the record.

This Court has no reservations about striking down legislation that infringes upon an individual's First Amendinent right, see LL Bledsoe V. Citv of Jacksonville Beach 20 F. Supp. 2d 1317 (M.D. Fla. 1998), and in fact, the Court does have concerns regarding Chapter 191 of the Ordinance Code, such as the fact that there is no judicial review, which in turn gives the City a great amount of discretion, or the fact that the Director of Parks shall deny any applicant who has been convicted within the last three preceding years under any law regulating or prohibiting drugs. However, the Court cannot make such determination regarding the constitutionality of Chapter 191

2 If the Court were to determine that the Plaintiffs do not have standing, the Plaintiffs could arguably have standing in that their ifinction may still require a sirnjlar permit as In Ordinance Code § 191.104, under a different provision in the City's Ordinance Code. However, it should be noted that it is not the flinction of this Court to peruse the Ordinance Code to see if any other sections might apply to the Plaintiffs' rally. that responsibility falls upon the panics' attorneys.

Additionally, the Court questionsthe "emergency" nature ofthe Plainliffs' motion. Itis clear from the record that the Plaintiffs could have initiated this suit well before they did, but instead chose to wait until twenty-three (23) days prior to the scheduled event. The tactical decision of initiating suit so close to the event essentially denies the City an opporhunty to conduct any meaningfbi discovery, and under the equitable remedy of a prelirninary injunction, the Court finds that it would be quite inequitable to make a determination at this time when the City has had very linle opportttnity to prepare their case.

Further, the Court is unsure whether the ineparable injury to the Plaintiffs would merit a prellininary injunction at this time. However, the Court finds it unnecessary to make such a determination, but it should be noted that the City stated on the record that the Plaintiffs may use Metro Park without a permit if their event did not have musical entertainment. Thus, the Plaintiffs may still have their rally on June 17, 2000, without their musical entertainment, and still achieve their primary purpose, since as Plaintiffs' counsel asserted, the musical pefformances were only incidental to the purpose of the rally.

Accordingly, it is ORDERED that:

1 * the Plaintiffs' Emergency Motion for Prelirninary Injunction (Doc. No.2) is DENIED; and

2. the parties are hereby directed to stipulate to an expedited discovery and case management schedule within eleven (11) days of this order. If the parties cannot agree on an amenable case management schedule, then each pay may file a recommendation to the Court regarding the scheduling dates, which the Court will take under advisement upon entering a case management and scheduling order.

DONE AND ORDERED at Jacksonville, Florida, is 13th day June, 2000.

Copies to:
Gary S. Edinger, Esq.
Richard L. Wilson, Esq.
Michael B. Wedner, Esq.
Law Clerk