     Case: 11-40412     Document: 00511777059         Page: 1     Date Filed: 03/05/2012




            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 5, 2012

                                       No. 11-40412                        Lyle W. Cayce
                                                                                Clerk

PAUL MAGEE,

                                                  Plaintiff - Appellant
v.

CITY OF SOUTH PADRE ISLAND, A Municipal Corporation,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:09-CV-227


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        Paul Magee (“Magee”) appeals the district court’s denial of his motion for
summary judgment and the grant of Appellee City of South Padre Island’s
(“South Padre”) motion for summary judgment, upholding the constitutionality
of the challenged ordinance. For the following reasons, we AFFIRM.
                                     BACKGROUND
        Appellant Magee owns a small business that organizes entertainment
events, some occurring within South Padre’s city limits. While Magee was on a

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40412   Document: 00511777059      Page: 2   Date Filed: 03/05/2012



                                  No. 11-40412

South Padre public beach with pamphlets for his business in his backpack, code
enforcement officers issued Magee a citation pursuant to a city ordinance
prohibiting distributing commercial materials on South Padre’s public beaches
(the “Beach Ordinance”). Magee allegedly was not actively distributing the
commercial materials on the beach at the time he was cited. Subsequently,
South Padre’s assistant city attorney dismissed the charge against Magee for
insufficient evidence.
      Magee filed the instant lawsuit, alleging free speech, due process, and
equal protection claims regarding the Beach Ordinance. Ultimately, Magee
amended his complaint to remove all claims except the vague-as-written
challenge to the Beach Ordinance. The parties filed cross-motions for summary
judgment on this point.
      Concluding that the Beach Ordinance was not unconstitutionally vague,
the district court denied Magee’s motion for summary judgment and granted
South Padre’s motion, disposing of all issues in the case. Magee v. City of Padre
Island, No. B-09-227 (S.D. Tex. Mar. 10, 2011). The instant timely appeal
followed.
                                 DISCUSSION
      We have appellate jurisdiction under 28 U.S.C. § 1291. We review a grant
of summary judgment de novo. Bolton v. City of Dall., 472 F.3d 261, 263 (5th
Cir. 2006) (citing Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006)). “Summary
judgment is appropriate where the record demonstrates that there is no issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Id. (citing Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001)). The
question presented here is a pure question of law to which de novo review
applies. See Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th
Cir. 2006).



                                        2
   Case: 11-40412       Document: 00511777059          Page: 3     Date Filed: 03/05/2012



                                       No. 11-40412

       As narrowed by the proceedings in the district court, the only remaining
contested legal issue is Magee’s facial challenge to the constitutionality of the
Beach Ordinance.1 Specifically, Magee argues that the Beach Ordinance is
vague as written because: (1) it fails to provide the kind of notice that will enable
ordinary people to understand what conduct it prohibits; and (2) it may
authorize or even encourage arbitrary and discriminatory enforcement because
its fails to provide sufficient guidelines to law enforcement.
       The Beach Ordinance provides:
       All peddlers, vendors, and other commercial activity where people
       are contacted on the public beaches is [sic] hereby prohibited and no
       person may solicit or sell to people located on the public beaches
       within [South Padre]. (Ord. No. 82, 8-6-80)

According to Magee, the Beach Ordinance is vague because of (1) its use of the
term “solicit,” (2) the dissociation of “solicit” from “sell” with the disjunctive “or,”
and (3) the dissociation caused by the placement of “solicit” and “other
commercial activity” in separate independent clauses. Specifically, Magee
contends that the Beach Ordinance’s grammatical structure and use of the term
“solicit,” together, enable the Beach Ordinance to potentially be construed to
prohibit a street vendor from selling his wares, a political organization from
advancing its opinions, or a religious group from proselytizing.2


       1
         Magee states in a few instances in his appellate brief that the Beach Ordinance is also
void for overbreadth. However, Magee did not appeal the dismissal of his First Amendment
overbreadth claim. Furthermore, after filing his motion for summary judgment, he amended
his complaint to expressly remove all federal claims except his challenge to the Beach
Ordinance as facially void for vagueness under the Fifth and Fourteenth Amendments.
Accordingly, to the extent that Magee attempts to resurrect his overbreadth challenge now,
we will not address it. See, e.g., Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 763-64
& n.25 (5th Cir. 2008); Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
       2
        As discussed above, supra n.1, to the extent that Magee now attempts to resurrect a
First Amendment overbreadth claim, we do not consider it. Accordingly, we consider Magee’s
references to a political organization advancing its opinions or a religious group proselytizing

                                               3
   Case: 11-40412       Document: 00511777059          Page: 4     Date Filed: 03/05/2012



                                       No. 11-40412

       While acknowledging that the Beach Ordinance may fail to “reach ideal
levels of clarity,” the district court rejected Magee’s arguments that the Beach
Ordinance was void for vagueness. The district court held that despite its
failings, the Beach Ordinance was clear to both the average citizen as well as to
law enforcement. On appeal, we likewise reject Magee’s arguments and agree
with the district court in holding that the Beach Ordinance as construed is not
unconstitutionally vague.
       “Vagueness doctrine is an outgrowth not of the First Amendment, but of
the Due Process Clause of the Fifth Amendment.” United States v. Williams,
553 U.S. 285, 304 (2008).          “It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Specifically, under the
vagueness doctrine, a penal statute or ordinance fails to comport with due
process unless it “define[s] the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.”3 Kolender v.


only as his attempt to underscore the alleged uncertainty in an ordinary person’s
understanding regarding what conduct is proscribed, not as actual examples of activities that
are potentially proscribed by the Beach Ordinance. To the extent that Magee intended
otherwise, we note that Magee seems to confuse the vagueness and overbreadth doctrines. See
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 n.9 (1982). If
Magee is objecting that an ordinary person cannot determine what the Beach Ordinance
proscribes, then he is complaining of vagueness. Id. On the other hand, if Magee is objecting
that the Beach Ordinance would inhibit First Amendment liberties of third parties not before
the court, he is complaining of overbreadth. Again, Magee’s only claim properly before this
court is his vagueness claim.
       3
          “The degree of vagueness that the Constitution tolerates—as well as the relative
importance of fair notice and fair enforcement—depends in part on the nature of the
enactment.” Hoffman Estates, 455 U.S. at 498. Economic regulation and enactments with
civil rather than criminal penalties are subject to a less strict vagueness test while criminal
laws or those that threaten or inhibit the exercise of constitutionally protected rights are
subject to a more stringent vagueness test. See id. at 498-500. Here, both parties submit that
the Beach Ordinance is penal even though the record suggests it may be more akin to an
enactment with civil rather than criminal penalties. Since the record is unclear as to the exact

                                               4
   Case: 11-40412      Document: 00511777059        Page: 5    Date Filed: 03/05/2012



                                     No. 11-40412

Lawson, 461 U.S. 352, 357 (1983) (citations omitted); see also Williams, 553 U.S.
at 304.
      In addition, “[a] law that does not reach constitutionally protected conduct”
may be successfully challenged “on its face as unduly vague, in violation of due
process,” only if the challenger can demonstrate that “the law is impermissibly
vague in all of its applications.” Hoffman Estates, 455 U.S. at 497. Thus, we
have recognized that “‘[a] facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act would be
valid.’” United States v. Robinson, 367 F.3d 278, 290 (5th Cir. 2004) (quoting
United States v. Salerno, 481 U.S. 739, 745 (1987)); see also Roark & Hardee LP
v. City of Austin, 522 F.3d 533, 548 (5th Cir. 2008) (“At a threshold level,
Plaintiffs confront a heavy burden in advancing a facial constitutional challenge
to an ordinance.” (citations omitted)).
      Furthermore, facial vagueness challenges, in particular, are generally
“disfavored for several reasons,” including but not limited to, the fact that facial
invalidity claims often “rest on speculation.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450 (2008); see also Nat’l Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998) (“Facial invalidation ‘is, manifestly,
strong medicine’ that ‘has been employed by the Court sparingly and only as a
last resort.’” (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973))).
Accordingly, “[i]n determining whether a law is facially invalid, we must be
careful not to go beyond the statute’s facial requirements and speculate about
‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449-50
(citing United States v. Raines, 362 U.S. 17, 22 (1960)). Moreover, “speculation


nature of the Beach Ordinance and neither party has briefed any other relevant standard as
applicable, out of an abundance of caution, we, as did the district court, apply the more
stringent standard for determining if the Beach Ordinance is vague on its face. See id.

                                            5
   Case: 11-40412    Document: 00511777059       Page: 6   Date Filed: 03/05/2012



                                   No. 11-40412

about possible vagueness in hypothetical situations not before the Court will not
support a facial attack on a statute when it is surely valid ‘in the vast majority
of its intended applications.’” Hill v. Colorado, 530 U.S. 703, 733 (2000) (quoting
Raines, 362 U.S. at 23). Indeed, hypothetical situations, speculation, and
theoretical possibilities are “of no due process significance” unless they ripen into
prosecution. Hoffman Estates, 455 U.S. at 503 n.21.
      Here, Magee’s only challenge to the Beach Ordinance is that it is void for
vagueness as written.      He rests this contention primarily on the Beach
Ordinance’s arguably poor use of syntax and semantics. However, perfection in
language is not required. See Grayned, 408 U.S. at 110 (“Condemned to the use
of words, we can never expect mathematical certainty from our language.”);
Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952) (“[F]ew words
possess the precision of mathematical symbols, most statutes must deal with
untold and unforeseen variations in factual situations, and the practical
necessities of discharging the business of government inevitably limit the
specificity with which legislators can spell out prohibitions. Consequently, no
more than a reasonable degree of certainty can be demanded.”). Indeed, even if
the Beach Ordinance is “marked by ‘flexibility and reasonable breadth, rather
than meticulous specificity,’” what matters is that it is clear what the Beach
Ordinance “as a whole prohibits.” Grayned, 408 U.S. at 110 (internal citation
omitted).
      It is clear to us that the Beach Ordinance, even with its use of the term
“solicit,” only regulates commercial activity and its attendant commercial speech.
Specifically, the pertinent section of the Beach Ordinance, Section 13-17, is
entitled “Beaches–Peddlers, commercial activity prohibited thereon,” and the
Beach Ordinance is found in the Code of Ordinances at Chapter 13, which is
entitled “Peddlers, Solicitors, Itinerant Vendors, Displays of Merchandise
Outdoors and on Beach, Special Event Permits.”             Given the context, the

                                         6
   Case: 11-40412   Document: 00511777059     Page: 7   Date Filed: 03/05/2012



                                 No. 11-40412

announced purpose found in its titling, and the language of the Beach Ordinance
itself, it is clear that the Beach Ordinance is designed to prohibit commercial
activities, such as those engaged in by peddlers or vendors targeting beachgoers,
that may disturb the pleasure and enjoyment of the patrons of South Padre’s
public beaches.
      Furthermore, in analyzing a facial vagueness challenge to an ordinance,
“we must consider a municipality’s ‘authoritative constructions of the ordinance,
including its own implementation and interpretation of it.’” Int’l Women’s Day
March Planning Comm. v. City of San Antonio, 619 F.3d 346, 357-58 (5th Cir.
2010) (quoting Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 131
(1992)). Here, Magee argues that the vagueness of the Beach Ordinance enables
law enforcement to cite a person espousing an unpopular political or religious
stance for “soliciting” in violation of the Beach Ordinance. However, that the
Beach Ordinance only applies to commercial activities and that the term “solicit”
in the Beach Ordinance only concerns commercial solicitation are both
uncontroverted. Indeed, South Padre’s uncontroverted summary judgment
evidence demonstrates that the Beach Ordinance: (1) only prohibits commercial
activity on South Padre’s public beaches that targets beach patrons, (2) only
applies within the specific context of keeping the peace and enjoyment of the
beach patrons, and (3) uses the term “solicit” only to refer to “commercial
solicitation.”
      In addition, South Padre has provided uncontroverted summary judgment
evidence in the form of an affidavit from the city official responsible for the
supervision of the code enforcement officers asserting that the code enforcement
officers regularly read the ordinances that they are charged with enforcing.
Furthermore, the affidavit states that the code enforcement officers understand
that the Beach Ordinance only pertains to commercial activity, and that it does



                                       7
   Case: 11-40412   Document: 00511777059      Page: 8   Date Filed: 03/05/2012



                                  No. 11-40412

not apply to non-commercial activity such as the handing out of political or
religious pamphlets.
      While South Padre produced summary judgment evidence to demonstrate
that code enforcement officers are trained to enforce the Beach Ordinance only
against commercial activity and in a manner that will not offend the First
Amendment, Magee offers only speculation that the Beach Ordinance, through
its use of the multi-definitional term “solicit,” “may be applied” to non-
commercial activities. See Boyce Motor Lines, 342 U.S. at 340 (“The requirement
of reasonable certainty does not preclude the use of ordinary terms to express
ideas which find adequate interpretation in common usage and understanding.
. . . The use of common experience as a glossary is necessary to meet the
practical demands of legislation.”); Am. Commc’ns Ass’n v. Douds, 339 U.S. 382,
412 (1950) (“There is little doubt that imagination can conjure up hypothetical
cases in which the meaning of [a term] will be in nice question. The applicable
standard, however, is not one of wholly consistent academic definition of abstract
terms. It is, rather, the practical criterion of fair notice to those to whom the
[ordinance] is directed. The particular context is all important.”). Moreover,
Magee provides no evidence that South Padre has ever enforced, attempted to
enforce, or, indeed, even threatened to enforce the Beach Ordinance against a
political organization advancing its opinions or a religious group proselytizing.
      South Padre’s Beach Ordinance was written specifically for South Padre’s
public beach context, and it clearly regulates only commercial conduct on its
public beaches while “‘delineat[ing] its reach in words of common
understanding.’” Grayned, 408 U.S. at 112 (quotation omitted); cf. CompuCredit
Corp. v. Greenwood, 132 S.Ct. 665, 671 (2012) (asserting that if a provision is
meant to describe the law in a manner that is concise and comprehensible to a
layman, it will be imprecise). Although Magee attempts to suggest that the
Beach Ordinance is so vague that an ordinary person could not understand what

                                        8
   Case: 11-40412   Document: 00511777059     Page: 9   Date Filed: 03/05/2012



                                 No. 11-40412

is proscribed, Magee himself even admitted that having been an events promoter
in South Padre, he unequivocally has known for at least sixteen years what he
could and could not do in South Padre, including being aware that if he passed
out commercial pamphlets on the beach he would be cited under the Beach
Ordinance. Indeed, he even warned his associates against doing the same for
fear of citation.
      Based on the foregoing, we hold that the district court did not err in
concluding that the Beach Ordinance is not impermissibly vague. Taken as a
whole, it gives a person of ordinary intelligence fair notice of the conduct it
proscribes and provides sufficient guidelines to ensure that enforcement does not
hinge on “‘the moment-to-moment judgment of the policeman on his beat.’”
Smith v. Goguen, 415 U.S. 566, 575 (1974) (quotation omitted). Magee presents
only speculative and hypothetical arguments to suggest otherwise, and he fails
to demonstrate that there is a set of circumstances under which the Beach
Ordinance would be invalid. See Wash. State Grange, 552 U.S. at 449-50;
Salerno, 481 U.S. at 745.
      AFFIRMED.




                                       9
