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Provisional Adoption of Ordinance No_1798 Generall_6
Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Debbie Arkell, Director of Public Services Greg Sullivan, City Attorney REVIEWED BY: Chuck Winn, Assistant City Manager Chris Kukulski, City Manager SUBJECT: Ordinance No. 1798, General Revisions to Chapter 12.32 of the Bozeman Municipal Code, Parades and Public Assemblies, Providing for Revisions to the Regulations and Approval of Parades and Public Assemblies. MEETING DATE: January 24, 2011 AGENDA ITEM TYPE: Action RECOMMENDATION: Provisionally adopt Ordinance No. 1798 amending Chapter 12.32 of the Bozeman Municipal Code, Parades and Public Assemblies. SAMPLE MOTION: I hereby move to provisionally adopt Ordinance 1798 generally revising Chapter 12.32 of the Bozeman Municipal Code. BACKGROUND: The ordinance to initially add chapter 12.32 governing the regulation and review of parades and public assembly permits to the Bozeman Municipal Code was finally adopted on March 2, 1998. At that time, and until approximately mid-2003, the Montana Department of Transportation allowed the city to close a portion of Main Street for up to four public events per year. Those events were Christmas Stroll, Sweet Pea Parade, Bozeman High School Homecoming Parade and MSU Homecoming Parade. After that time, the local MDT representatives left it up to the city how many times we would allow the street to be closed. In the past few years, a greater number and larger variety of events have requested street closure and public assembly permits for Main Street as well as other streets throughout the city. In calendar year 2010, Main Street, or portions thereof, was closed 28 times. To ensure a more complete review of applications, an update of the chapter is needed. Administrative-type sections are proposed to be added or amended including: Purpose and Intent; Scope; Authority; Established Parade Routes; Nondiscrimination; Enforcement; Requirements for Liability Insurance, Judicial Review; and Violations, Penalties, etc. Minor housekeeping changes are also included. The current provisions of chapter 12.32 and the majority of the modifications proposed in the attached ordinance are modeled after the International Municipal Lawyer’s Association’s model “Parade and Public Assembly Ordinance.” 221 SUMMARY OF MAJOR CHANGES: · 12.32.030 Definitions, pages 3 and 4: Added definition for: · “Certified traffic control person”. For several years we have required “certified flaggers” be used in situations where a street is not closed but runners, marchers, cyclists want to have the right-of-way at intersections. This provides a definition. · “Public facility”. Includes public buildings other than park or recreational buildings, which are defined in chapter 12.26. The other ordinance you are currently reviewing controls permitting at those facilities. · “Recognized Annual Community Event” is proposed to be defined as Music on Main, Christmas Stroll, Bite of Bozeman, Sweat Pea parade, Bozeman High School Homecoming parade, and MSU Homecoming parade. No other events will fall within that category unless added by the Commission. · 12.32.050 Exemptions, page 5. The reserved use of parks and other recreational buildings and facilities are excepted from this chapter. An amendment to chapter 12.26, Park Regulations, will add the review of parks and recreational facilities in that chapter. · 12.32.060 Parades and Public Assemblies Open to Public/Private For-Profit Activities, pages 5 and 6. Stipulates that: · Parades and public assemblies must be free and open to the general public and access to sidewalks, businesses and residences must be maintained, unless specifically requested and approved; · Sets standards for events that advertise or propose products or services if the event is for-profit. Similar standards are to be included in the proposed amendments to Chapter 12.26. · 12.32.070 Requirements for Liability Insurance, Bonding or Other Security, page 6. · Requires all permitted events to provide liability insurance with minimum coverage as set by administrative order of the city manager. The limits minimum limit will be that of the city’s liability limits as set by state law. Rather than include the specific dollar amount we propose the city manager maintain flexibility in fixing the amounts of insurance required. Currently, we only require insurance for “big” events – Music on Main, Sweet Pea, Hoops Festival, etc. The requirement for liability insurance could be based on the amount of risk the city wants to accept for each event; as such, the city manager may waive this requirement. · Allows city manager to determine if a cleanup deposit is needed. We have been charging a clean-up deposit for some events as a condition of approval; this lets applicants know a clean-up deposit may be required. The amount of a deposit will be set by the city manager in the approval of an application. · 12.32.080 Application, pages 6, 7 and 8. · Requires applications to be submitted 15 working days prior to the event (previously 10 days). The city manager can waive this time frame. · Requires applications that request the closure of Main Street or portions of streets within the core of the B-3 district, with the exception of “Recognized Annual Community Events” to be submitted at least 30 days prior to the event in order to provide time for a public hearing. The city manager can waive this time frame (and the need for a hearing. 222 · Deletes the specific information required on the application form which allows staff to modify the form as needed without amending the ordinance. · Specifically states if an application is denied, the city assumes no liability for expenses incurred by the applicant. · 12.32.090 Downtown Street Closure Approval, page 8. · Applications for Recognized Annual Community Events will be reviewed by the city manager. · Other applications that request the closure of any portion of Main Street or any portion of streets within the core of the B-3 zoning district will be reviewed by the City Commission. The city manager can waive this requirement at his/her discretion. · 12.32.100 Traffic Control Plan, pages 8 and 9. · Requires applications for a street closure to include a Traffic Control Plan that complies with the Manual of Uniform Traffic Control Devices (MUTCD). Local engineers and traffic control companies are familiar with the MUTCD. · Requires individuals who will be stopping traffic to be certified traffic control persons. We have been requiring this for several years as a condition of approval. This requirement can be waived by the city manager at his/her discretion if it is determined the closure can safely be done by the organizer using approved barricades/signage or if it will be done by the city Streets Division, with or without a fee for the service. · At the discretion of the city manager, barricades and signs may be obtained from the city Streets Division upon a deposit established by the city manager. If city signs are not available, applicant must obtain them from a private sign company. This places the organization and implementation of an event on the organizer and not city staff. · 12.32.130 Police Protection; Public Services and Other Expenses, pages 10 and 11. Previously, only the extent that additional police protection was needed was considered. This amendment adds the consideration of the impact of an event on other public services, and allows expenses to be reimbursed for both additional police and other public services. · 12.32.140 Public Hearing, page 11. Adds a provision that the city manager can determine that a public hearing on the application is needed in order to determine the nature of public concerns with the proposed event. · 12.32.160 Action on Application, pages 13 and 14. Adds a timeframe for the review of and decision on applications. · 12.32.190 Notice of Decision on Application, page 15. Previously, the ordinance only required notification to the applicant if an application was denied. This provides for notification of all action on the application at least 48 hours prior to an event. · 12.32.200 Appeal Procedure, pages 15 and 16. · Expands the appeal process to any aggrieved person, rather than just the applicant. · Set a timeframe for appeal. · Establishes that the appeal hearing is limited to the grounds stated in the appeal, who may speak at the appeal hearing, including public comment, and indicates the city clerk will notify the appellant in writing of the Commission’s decision. 223 · 12.32.250 Revocation of Permit, page 19. In addition to the city manager, this amendment gives authority to the chief of police and fire chief to revoke or suspend a permit. ALTERNATIVES: As suggested by the City Commission. FISCAL EFFECTS: Staff labor and equipment use costs are tracked for each closure using City Works software. Labor costs are the actual regular and overtime labor and benefits paid to the employees who work the event. Equipment costs only track the vehicle used, and are calculated using current FEMA reimbursement rates. The cost of signs and barricades is not included. These labor and equipment costs are the same costs we use to document and track all daily work in the Streets Division. Per the attached summary of costs for the 28 permitted Main Street closures in 2010, $15,256.14 for labor and $5,760 for equipment, for a total of $21,016.14 was documented. Most of the events required overtime and/or holiday pay. The current application fee for a permit that closes a street is $100, and for recurring events, like Music on Main, the total fee is $100, not $100 per event. Thus, $2,800 in revenue was received for these 28 events. Of the $21,016.14 total, a little more than half - $11,352.55 - is associated with the 13 “Recognized Annual Community Events” held in 2010 (8 Music on Main; Bite of Bozeman; Sweet Pea Parade and Run; Bozeman High Homecoming Parade, MSU Homecoming Parade, Christmas Stroll), for which $600 in permit fees were received. If Section 12.32.100 is amended as proposed, applicants could be required to provide their own equipment and certified labor to close the street. It is the director of public service’s intent that city staff will continue to close the street for the recognized annual community events at no additional charge, unless the Commission directs staff to propose a change to the see schedule resolution. UNRESOLVED ISSUES: Does the Commission want staff to propose an amended fee schedule resolution that reflects the actual cost of street closures? The staff will need to bring a resolution before the commission establishing deposit amounts. Attachments: · Ordinance 1798 · IMLA Model Parade and Public Assembly Ordinance Report compiled on: January 20, 2010 224 Ordinance 1798 Page 1 of 22 ORDINANCE NO. 1798 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY GENERARLLY REVISING CHAPTER 12.32 RELATED TO PUBLIC ASSEMBLY AND PARADE PERMITTING AND ADDING PROVISIONS REQUIRING INSURANCE AND ENFORCEMENT AND PENALTIES FOR VIOLATIONS. WHEREAS, on March 2, 1998, Ordinance No. 1458 was finally adopted to establish a permit system for parades and public assemblies and the public conduct during parades and public assemblies; and WHEREAS, the City Commission recognizes and supports the public’s right of assembly and free speech and to utilize designated public facilities for such purpose; and WHEREAS, the City has an important and compelling governmental interest in protecting property, public safety, health, and welfare, and controlling the use of streets and other public facilities and venues; and WHEREAS, it is the intent of the City Commission to provide for and protect the health, safety and welfare of the citizens of Bozeman, promote residential harmony and ensure the well- being of participants, spectators and passersby of parades and public assemblies held on public lands; and WHEREAS, it is the intent of the City Commission to accommodate public rights of speech and assembly consistent with that governmental interest by establishing procedures, terms, and conditions for use of public areas and facilities for such purposes. 225 Ordinance 1798 Page 2 of 22 NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman Montana: Section 1 That the table of contents for chapter 12.32 of the Bozeman Municipal Code shall be amended to read as follows: “Chapter 12.32 PARADES AND PUBLIC ASSEMBLIES Sections: 12.32.010 Definitions Purpose and Intent 12.32.020 Permit Required Scope; Authority 12.32.030 Exceptions Definitions 12.32.040 Application Administration; Permit Required 12.32.050 Fees Exceptions 12.32.060 Police Protection Parade and Public Assembly Open to Public/Private For- Profit Activities 12.32.070 Established Parade Route Requirements for Liability Insurance, Bonding or Other Security 12.32.080 Standards for Issuance Application 12.32.090 Nondiscrimination Downtown Street Closure Approval 12.32.100 Notice of Denial of Application Traffic Control Plan 12.32.110 Alternative Permit Established Parade Route 12.32.120 Appeal Procedure Fees 12.32.130 Notice to City and Other Officials Police Protection; Public Services and Other Expenses 12.32.140 Contents of Permit Public Hearing 12.32.150 Duties of Permittee Standards of Issuance of Permit 12.32.160 Prohibitions Action on Application 12.32.170 Public Conduct During Parades or Public Assemblies Alternative Permit 12.32.180 Revocation of Permit Nondiscrimination 12.32.190 Penalties Notice of Decision on Application 12.32.200 Appeal Procedure 12.32.210 Notice to City and Other Officials 12.32.220 Duties of Permittee 12.32.230 Prohibitions 12.32.240 Public Conduct During Parades or Public Assemblies 12.32.250 Revocation of Permit 12.32.260 Enforcement 12.32.270 Judicial Review 12.32.280 Violations, Penalties” 226 Ordinance 1798 Page 3 of 22 Section 2 That a new section 12.32.010 shall be added to the Bozeman Municipal Code to read as follows: “12.32.010 Purpose and Intent The City recognizes and supports the public’s right of assembly and free speech and to utilize designated public facilities for such purposes. At the same time, the City has an important and compelling governmental interest in protecting property, public safety, health, and welfare, and controlling the use of streets and other public facilities and venues. This chapter seeks to accommodate public rights of speech and assembly consistent with that governmental interest by establishing procedures, terms, and conditions for use of public areas and facilities for such purposes. A second purpose of this chapter is to facilitate and manage the manner in which public facilities that are not otherwise required for governmental operations may be made available for use on a temporary basis for non-governmental operations.” Section 3 That a new section 12.32.020 shall be added to the Bozeman Municipal Code to read as follows: “12.32.020 Scope; Authority This chapter applies to all public parades and assemblies that may be expected to affect the public, the property or services of the city, or otherwise require an expenditure of time and expense or create the potential for liability or public disturbance or other substantial concern. This chapter also applies to requests for the use of public facilities for purposes other than governmental operations except as provided in chapter 12.26.” Section 4 That 12.32.030 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.010 030 Definitions As used in this chapter: A. “Certified traffic control person” means a person who has completed a course or program of training for regulating the flow of traffic upon a street, which has been approved by the chief of police, the Montana Department of Transportation, or the city streets superintendent. B. “Parade” means any march, demonstration, procession, or motorcade consisting of persons, animals, bicycles, runners/joggers/walkers or vehicles or a combination thereof upon the streets, parks, or other public grounds within the city with an intent of attracting public attention that interferes with or has a tendency to interfere with affects or may reasonably be expected to affect the normal flow or regulation of traffic upon the streets, parks, or other public grounds. 227 Ordinance 1798 Page 4 of 22 C. “Parade or public assembly pPermit” means a permit as required by this chapter. permission for assembly, parade, or use of public facilities issued pursuant to this chapter. D. “Public assembly” means any meeting, march, demonstration, picked line, rally, or gathering of more than twenty-five (25) persons for a common purpose as a result of prior planning that interferes with or has a tendency to interfere with affects or may reasonably be expected to affect the normal flow or regulation of pedestrian or vehicular traffic upon the streets or other public facility, or occupies any public area in a place open to the general public, other than a park or recreational building or facility, as defined in chapter 12.26. E. “Public facility” means a building, structure, place or other location or area which a person may seek to utilize for purposes other than the normal and usual governmental operations of the city, but excludes a public park and recreational facilities, as the public assembly and use of all parks and recreational facilities are regulated under chapter 12.26. F. “Recognized annual community event” means events which have an established historical or cultural significance to the community at large and include only the following events to be held on Main Street: Music on Main; Christmas Stroll; Bite of Bozeman; Sweet Pea Parade; Bozeman High School Homecoming Parade; and the Montana State University Homecoming Parade. G. “Sidewalk” is means any area or way set aside or open to the general public for purposes of pedestrian traffic, whether or not it is paved. H. “Street” is means any place or way set aside or open to the general public for purposes of vehicular traffic, including any berm or shoulder parkway, right-of-way, or median strip thereof. (Ord. 1458 § 1 (part), 1998)” Section 5 That 12.32.040 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.020 040 Administration; Permit Required A. This chapter shall be administered by the city manager or his/her designee. B. Except as provided in this chapter, Nno person shall engage in or conduct any parade or public assembly or use any public facility for purposes other than governmental operations unless a person has a current and valid permit therefore issued in accordance with this chapter. permit is issued by the City manager. (Ord. 1458 § 1 (part), 1998) Section 6 That 12.32.050 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.030 050 Exceptions This chapter shall not apply to the following: 228 Ordinance 1798 Page 5 of 22 A. Funeral processions.; B. Students going to and from school classes or participating in educational activities, provided that such conduct is under the immediate direction and supervision of the proper school authorities.; C. A governmental agency acting within the scope of its function. ; or D. Spontaneous events resulting in a public assembly occasioned by news or affairs coming into public knowledge within three days of such public assembly, provided that the organizer thereof gives written notice to the City at least twenty- four hours prior to such public assembly or other such notice as may be reasonable under the circumstances. (Ord. 1458 § 1 (part), 1998) E. The reserved use of parks or other recreational buildings and facilities. Parks and recreational buildings and facilities are regulated under chapter 12.26. Exceptions and waivers from requirements for payment of fees and expenses, proof of insurance, or other security may be approved solely in accordance with applicable sections of this chapter.” Section 7 That a new section 12.32.060 shall be added to the Bozeman Municipal Code to read as follows: “12.32.060 Parades and Public Assemblies Open to Public/Private For-Profit Activities A. Public assembly and parade events must be free and open to the general public. An organizer, permittee, or participant in an event authorized under this chapter shall not restrict the general public from access to sidewalks, businesses and residences. B. Parades or public assembly permits that seek to utilize public facilities where the primary purpose of the event is to advertise or promote any products, goods, services or an event that is primarily for private profit-making purposes may be approved only if: 1. The public facility requested is not otherwise required for use for public purposes. 2. All costs to the city, direct and indirect, are reimbursed in full by the sponsor of the event. 3. The application satisfies all requirements of this chapter. C. The only signs permissible on city property during a parade or public assembly conducted primarily for private for-profit purposes are signs which identify organizations or sponsors furnishing or sponsoring exhibits or structures used in a parade or assembly. D.. Participant fees may be charged, if so noted on the application, and approved by the city manager.” 229 Ordinance 1798 Page 6 of 22 Section 8 That a new section 12.32.070 shall be added to the Bozeman Municipal Code to read as follows: “12.32.070 Requirements for Liability Insurance, Bonding or Other Security A. To avoid interference with protected rights of speech and assembly, any requirement imposed for surety for performance (including but not limited to insurance, bonding, or monetary deposits) shall be based upon needs directly associated with the event and not on the basis of possible disruption of the event by protestors or other persons who might be opposed to the speech or assembly. Such restriction, however, shall not apply where the city manager determines that the event is being scheduled so as to unduly and unnecessarily create a potential for counter-protest or disruption or interference with public health, safety, welfare, or order. B. For events for which a permit is required under this chapter, the city manager shall require a valid certificate of liability insurance with limits and requirements established by Administrative Order naming the city and the Montana Department of Transportation (if event is held on Main Street or another identified State Route) as additional insured on a primary non-contributory basis be submitted with the application or a minimum of one week prior to the event. If the certificate is not submitted, the event cannot be held. The city manager may establish standards for acceptable Certificates of Insurance. The city manager may waive this requirement upon request by the applicant. Section 9 That 12.32.080 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.040 .080 Application A. A person seeking a parade or public assembly permit shall file an application with the city manager on forms provided by the city, and the application shall be signed by the applicant. B. For single, nonrecurring parades or public assemblies, an application for a permit shall be filed with the city manager at least ten fifteen (15) working days and not more than one hundred eighty days (180) before the parade or public assembly is proposed to commence. Per 12.32.090, with the exception of recognized annual community events, applications for a permit which includes the closure of any portion of Main Street or any portion of the streets within the core of the B-3 zoning district as defined by 18.18.010.C shall be filed with the city manager at least thirty (30) days prior to the event. The city manager may waive the minimum ten-day filing period and accept an application filed within a shorter period if, after due consideration of the date, time, place, and nature of the parade or public assembly, the anticipated number of participants, and the city services required in connection with the event, the city manager determines that the waiver will not present a hazard to public safety, or if the time frame would substantially burden protected rights, including speech and assembly, as to matters of public 230 Ordinance 1798 Page 7 of 22 concern and the expedited review process would allow reasonable review to address substantial matters of public safety, welfare, and convenience. C. For parades or public assemblies held on a regular or recurring basis at the same location, an application for a permit covering all such parades or assemblies during that calendar year may receive approval of all recurring events within that calendar year on one application. These applications shall be filed with the city manager at least sixty (60) days and not more than one hundred eighty (180) days before the date and time at which the first such parade or public assembly is proposed to commence. The city manager may waive the minimum sixty (60) day period after due consideration of the factors specified in subsection B of this section. D. The application for a parade or public assembly permit shall set forth the following information: be made on a form provided by the city and shall include all information deemed relevant to the requested event. 1. The name, address, and telephone number of the person seeking to conduct such parade or public assembly; 2. The names, addresses, and telephone numbers of the headquarters of the organization for which the parade or public assembly is to be conducted, if any, and the authorized and responsible heads of the organization; 3. The requested date of the parade or public assembly; 4. The route to be traveled from the established parade route listed in Section 12.32.070 or any proposed alternate route or deviation from the established parade routes, to include: The location of the assembly area, the location of the disbanding area, and route to be traveled, if not the defined route. 5. The approximate number of persons who and animals and vehicles which will constitute such parade or public assembly and the type of animals and description of the vehicles; 6. The hours when such parade or public assembly will start and terminate; 7. A statement as to whether the parade or public assembly will occupy all or only a portion of the width of the streets proposed to be traversed; 8. The time at which units of the parade or public assembly will begin to assemble at any such area; 9. The intervals of space to be maintained between units of such parade or public assembly; 10. If the parade or public assembly is designed to be held by, or on behalf of, any person other than the applicant, the applicant for such permit shall file a letter from that person with the City manager authorizing the applicant to apply for the permit on his behalf; 11. The type of public assembly, including a description of activities planned during the event; 12. A description of any recording equipment, sound amplification equipment, banners, signs, or other attention-getting devices to be used in connection with the parade or public assembly; 231 Ordinance 1798 Page 8 of 22 13. The approximate number of participants (spectators are by definition not participants); 14. The approximate number of spectators; 15. A designation of any public facilities or equipment to be utilized; and 16. Any additional information that the City manager finds reasonably necessary to a fair determination as to whether a permit should issue. (Ord. 1458 § 1 (part), 1998) E. If an application for a permit is denied, the city assumes no liability for expenses incurred by the applicant.” Section 10 That a new section 12.32.090 shall be added to the Bozeman Municipal Code to read as follows: “12.32.090 Downtown Street Closure Approval A. Applications for recognized annual community events, as defined in this chapter, shall be reviewed by the city manager. B. Applications for other events that request the closure of any portion of Main Street or any portion of the streets within the core of the B-3 zoning district as defined by 18.18.010.C shall be reviewed by the commission. This requirement may be waived by the city manager at his/her discretion.” Section 11 That a new section 12.32.100 shall be added to the Bozeman Municipal Code to read as follows: 12.32.100 Traffic Control Plan A. Applications for parades, public assemblies, block parties, fun runs and similar events that include a street(s) closure must include a complete traffic control plan that complies with the Manual on Uniform Traffic Control Devices. Permittees of events requiring a traffic control plan must ensure requirements of the traffic control and barricade plan are met. Automobiles, trucks or other large, heavy objects are not acceptable barricades. Barricades in place at night must have lights. This plan shall include a map or sketch of the route, identify individuals who will be present at intersections, including their affiliation and proof of traffic control certification, if applicable, types personal safety equipment, and types of barricades. If a street is not closed, but traffic will be stopped for participants to cross, certified traffic control persons must be used. B. The requirement in subsection A may be waived by the city manager at his/her discretion if it is determined that the closure can safely be done by the organizer using approved barricades/signage. At the discretion of the city manager, barricades and signage may be obtained from the city Streets Division only upon submittal of a 232 Ordinance 1798 Page 9 of 22 deposit in an amount to be established by the city manager. The applicant shall pay for any signage and barricades that are damaged or not returned to the city Streets Division. If signage and barricades are not available from the city Streets Division, the permittee must obtain them from a private sign company. C. The requirement in subsection A may be waived by the city manager at his/her discretion if it is determined the closure will be done by the city Streets Division, with or without a fee for the service. Section 12 That 12.32.110 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.070 12.32.110 Established Parade Route Unless authorized by the city manager, all parades shall follow the following established Downtown parade route: A. Sweet Pea and Montana State University Parades Only: 1. Staging Area. Staging area shall be conducted on West Main Street between Eighth Avenue and Eleventh Avenue 2. Route of Travel. Route of travel shall commence from the staging area and travel east on Main Street to Rouse Avenue 3. Disband Area. Disbanding shall be conducted on East Main Street between Rouse Avenue and Wallace Avenue B. All other parades: 1. Staging Area. Staging shall be conducted on East Main Street between Rouse and Wallace Avenues. 2. Route of Travel. Route of travel shall commence from the staging area and travel west on Main Street to 11th Eleventh Avenue. 3. Disband area. Disbanding shall be conducted on West Main Street between 11th Eleventh Avenue and 15th Fifteenth Avenue.” Section 13 That 12.32.120 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.050 120 Fees A. A non-refundable fee shall be paid to the city at the time of application to cover administrative costs of processing the permits. shall be paid to the City by the applicant when the application is filed. The All fees under this chapter shall be set by 233 Ordinance 1798 Page 10 of 22 resolution of the City Commission. If the city manager requires a deposit for the rental of any park the city manager shall establish standards for return and forfeit.” B. If the application is for the use of any city property or if any city services shall be required for the parade or public assembly, the applicant shall pay, prior to the issuance of a permit, the charges for those services in accordance with a schedule of service costs approved by the City commission by resolution. (Ord. 1458 § 1 (part), 1998)” Section 14 That 12.32.130 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.060 130 Police Protection; Public Services and Other Expenses A. Police Protection. 1. If possible, without disruption of ordinary police services or compromise of public safety and welfare, regularly scheduled on-duty police personnel shall cover the event. 2. The city manager, with advice from the Department of Public Safety- Police, chief of police, shall determine whether and to what extent additional police protection is reasonably necessary for the parade or public assembly for traffic control and public safety and welfare, including public convenience. The city manager shall base this a decision regarding required police protection on relevant criteria including, but not limited to, the size, location, duration, time, and date of the event, the expected sale or service of alcoholic beverages, the number of streets and intersections blocked, and the need to detour of preempt citizen travel and use of the streets and sidewalks. 3. The speech content of the event shall not be a factor in determining the amount of police protection necessary, except when the applicant’s speech is determined to have reasonable potential to cause, or will have the result of causing, public alarm, disruption, falsehood, or which will constitute any form of expression that is not protected under the laws or constitution of Montana or the United States. 4. If possible, without disruption of ordinary police services or compromise of public safety, regularly scheduled on-duty personnel will police the event. If additional police protection for the public assembly is deemed necessary by the city manager, he the city manager shall so inform the applicant for the permit. The applicant then shall have the duty to secure the police protection deemed necessary by the city manager at the sole expense of the applicant. 5. B. Persons engaging in parades or public assemblies conducted for the sole purpose of public issue speech protected under the First Amendment are not required to pay for any police protection or public services or other 234 Ordinance 1798 Page 11 of 22 expenses provided by the city. (Ord. 1640 § 9, 2005; Ord. 1537 § 25, 2001; Ord. 1458 § 1 (part, 1998) B. Public Services. The city manager shall determine if the applicant shall be required to pay for or provide additional public services-related actions such as lighting, refuse receptacles and pick-up, traffic control signs, devices or personnel. C. Other Expenses. In circumstances where the event itself may be expected to cause the city to incur additional, extraordinary expenses, the city manager shall identify such expenses and the basis for determining them to be extraordinary. Such expenses may be imposed upon the applicant as a condition of approval of the permit.” Section 15 That a new section 12.32.140 shall be added to the Bozeman Municipal Code to read as follows: “12.32.140 Public Hearing A. At any time during consideration of an application, the city manager may determine it is necessary to conduct a public hearing on the application to determine the nature of public concerns with the proposed event and whether such concerns should require denial of the application or imposition of conditions. The public hearing shall be limited to concerns that are unrelated to content of speech or purposes of the assembly or event except to the extent that concerns address matters such as those specified as appropriate for consideration in this chapter. B. A public hearing, if held, shall be scheduled to allow action on the application within the time frames established under this chapter. If a hearing cannot be scheduled within the timeframes established by this chapter, the city manager may suspend such timeframes only for the time necessary to allow for scheduling, noticing, and conducting of a public hearing. The city manager shall provide notice of the hearing to the applicant and the public by normal posting/publication requirements and such additional notice to potentially affected persons as is reasonably determined to be appropriate.” Section 16 That 12.32.150 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.080150 Standards of Issuance Each application shall be reviewed on a case by case basis. This chapter seeks to impose reasonable time, place and manner controls in an appropriate and limited manner upon events and facility uses for which permits are required. This chapter shall be administered in a manner that seeks to allow for expression, assembly, and the exercise of religious rights in accordance with applicable constitutional and statutory limits and controls. 235 Ordinance 1798 Page 12 of 22 A. The city manager shall issue a permit, subject to any conditions he deems deemed necessary and reasonable, as provided for herein when, from consideration of the application and for such other information as may otherwise be obtained, he the city manager finds that: 1. The application is complete and sets forth accurately and in sufficient detail the information required for consideration. 2. The conduct of the parade or public assembly will not unduly inconvenience either the public in using public areas normally open for general public use or the city in the conduct of governmental operations; 3. 1. The conduct of the parade or public assembly will not substantially interrupt the safe and orderly movement of other pedestrian or vehicular traffic contiguous to its route or location; 4. The possibility of the event causing any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety of reasonable persons of ordinary sensitivity, as further discussed in chapter 8.30. 5. 2. The conduct of the parade or public assembly will not require the diversion of so great a number of city police officers to properly police the line of movement and the areas contiguous thereto as to prevent normal police protection of the city; 6. 3. The concentration of persons, animals, and vehicles at public assembly points of the parade or public assembly will not unduly interfere with proper fire and police protection of , or ambulance service to, areas contiguous to such public assembly areas; 7. 4. The conduct of the parade or public assembly is not reasonably likely to cause injury to persons or property; 8. 5. The parade or public assembly is scheduled to move from its point of origin to its point of termination expeditiously and without unreasonable delays en route; 9. 6. Adequate sanitation and other required health facilities are or will be made available in or adjacent to any public assembly areas; 10. 7. There are sufficient parking places near the site of the parade or public assembly to accommodate the number of vehicles reasonably expected; 11. 8. The applicant has secured the police protection, or otherwise arranged for event security if any, required pursuant to under Section12.32.060 130; 12. The applicant has paid or provided for payment of any expenses or costs as may be required under the provisions of this chapter. 13. 9. Such parade or public assembly is not for the primary purpose of advertising any product, goods, or event that is primarily for private profit, and the parade or public assembly itself is not primarily for profit. The prohibition against advertising any product, goods or event shall not apply to the signs identifying organizations or sponsors furnishing or sponsoring exhibits or structures used in the parade; 236 Ordinance 1798 Page 13 of 22 14. 10. No parade or public assembly permit application for the same time and general location is already granted or has been received and will be granted; 15. 11. A parade or public assembly permit application for the same time but for a different location is already granted or has been received and will be granted, and the police resources or other public services required for that prior parade or public assembly are so great that in combination with the subsequent proposed application, the resulting deployment of police or other public services would have an immediate and adverse effect upon the welfare and safety of persons and property; and 12.No event is scheduled elsewhere in the city where the police resources required for that event are so great that the deployment of police services for the proposed parade or public assembly would have an immediate and adverse effect upon the welfare and safety of persons and property 16. The conduct of a past parade or public assembly for the same purpose or by the same organizer/organization. B. An event may be limited as to the number of participants in the interest of safety, health, public order, and adequacy of facilities and security by order of the city manager, chief of police or fire chief. BC.No permit shall be granted that allows for the erection or placement of any structure, whether permanent or temporary, on a city street, sidewalk, or right-of-way unless advance approval for the erection or placement of the structure is obtained from the city manager. (Ord. 1458 § 1 (part), 1998)” Section 17 That a new section 12.32.160 shall be added to the Bozeman Municipal Code to read as follows: “12.32.160 Action on Application A. Within five (5) working days upon receiving an application, the city manager shall determine if the application is complete or if any additional preliminary information is required. An incomplete or insufficient application suspends the review times provided in this section until the information requested is provided to the city. If additional information is required, the city manager shall so inform the applicant, and the applicant shall provide such required information prior to further consideration of the application. The requirement to supplement the application at this stage does not prevent the city from requiring additional information during its review and action on the application. B. After accepting an application as complete, the city manager shall forward it for review and recommendation to the chief of police, streets superintendent, any other municipal employee, official, or board deemed appropriate. The application shall also be referred to the Montana Department of Transportation and the Gallatin County road superintendent if the event could affect the state or county 237 Ordinance 1798 Page 14 of 22 transportation system. Applications for events in the downtown area shall also be forwarded to the Downtown Bozeman Association. Such review and recommendation shall occur within five (5) business days unless that period is extended by the city manager. C. After receiving comments and recommendations from the reviewing agencies and after considering such other information as deemed appropriate, the city manager may require the applicant to submit additional information or respond to the reviews and recommendations or impose such conditions as are appropriate under the circumstances. D. If the city manager determines an event has the potential of adversely affecting the public or a substantial number of persons, the city manager may determine that a public hearing is required, in which case 12.32.140 shall apply. In such a case, the timelines for review as established in this section shall be suspended until completion of the public hearing. E. Upon completion of the foregoing, the city manager shall act on the application. The city manager may approve, amend, approve with conditions or deny the application. For any action other than approval as submitted, the City manager shall include a brief summary of the reasons for the decision. G. Unless otherwise provided in this chapter or agreed to by the applicant, the city manager shall act on an application within fifteen (15) working days after determining that the application is complete.” Section 18 That 12.32.170 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.110 170 Alternative Permit A. The city manager, in denying an application for a parade or public assembly permit, may authorize the conduct of the parade or public assembly at a date, time, location, or route different from that named by the applicant. An applicant desiring to accept an alternate permit shall, within five (5) days after notice of the action of the city manager, file a written notice of acceptance with the city manager. B. An alternate parade or public assembly permit shall conform to the requirements of, and shall have the affect of, a parade or public assembly permit issued under this chapter. (Ord. 1458§ 1 (part), 1998)” 238 Ordinance 1798 Page 15 of 22 Section 19 That 12.32.180 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.090 180 Nondiscrimination A. The city manager shall uniformly consider each application upon its merits and shall not discriminate in granting or denying permits under this chapter based upon political, religious, ethnic, race, disability, sexual orientation or gender related grounds or other criteria that would constitute a violation of state or federal law. (Ord. 1458 § 1 (part), 1998) B. To achieve the purposes of this chapter without undue interference with protected rights of speech and assembly, decisions to issue, deny, or conditionally approve permits shall not be based on the content of a message associated with the event absent a compelling governmental interest. Notwithstanding that general standard, protections otherwise applicable to speech and assembly are limited and may not extend to speech or assembly that is intended to or has the result of causing public alarm, disruption, falsehood, or other form of expression that is not protected under the laws or constitution of Montana or the United States.” Section 20 That 12.32.190 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.100 190 Notice of Denial Decision on Application The city manager shall act promptly upon a timely filed application for a parade or public assembly permit but in no event shall grant or deny a permit less than forty-eight (48) hours prior to the event. If the city manager disapproves, approves with conditions, or otherwise modifies the application, he the city manager shall notify the applicant of the decision either by personal delivery or regular or electronic mail certified mail at least forty-eight (48) hours prior to the event of his action and state the reasons for such action denial. (Ord. 1458 § 1 (pm), 1998)” Section 21 That 12.32.200 of the Bozeman Municipal Code shall be amended to read as follows: 12.32.120 200 Appeal Procedure A. Except for decisions by the commission under 12.32.090, Any an applicant or any other person who is directly affected by a decision of the city manager shall have the right to appeal the denial city manager’s decision of a parade or public assembly permit to the city commission. Prior to filing of an appeal with the commission, the appellant shall, within five (5) business days of the city manager’s decision, request the city manager reconsider the decision. The city manager shall have five (5) days to issue a decision on the request to reconsider. The denied applicant shall make the appeal within five days after receipt of the denial by filing a written notice with the 239 Ordinance 1798 Page 16 of 22 city manager and a copy of the notice with the clerk of the Commission. The city commission shall consider the appeal at the next regularly scheduled meeting following the notice of appeal, provided that the receipt of the notice is received prior to the deadline for submission of new agenda items. B. Appeal of Final Action. The applicant or any person directly affected by final administrative action on an application may, only after complying with 12.32.200, file a written appeal with the commission through the city clerk with a copy to the city manager not later than five (5) days after the final action. The appeal shall state with specificity the grounds for the appeal. 1. The commission shall hear the appeal at the next regularly scheduled meeting following the accepted notice of appeal, provided that the receipt of the notice is received prior to the deadline for submission of new agenda items. a. The appeal hearing shall be limited to the grounds stated in the appeal unless the commission for good cause determines to hear other issues or concerns. b. The appellant, applicant (if not the appellant), the city manager and other persons directly affected may speak or submit evidence at the hearing. Public comment will be accepted. c. The commission shall make a determination on the appeal at the meeting, unless the applicant agrees to a continuance. The city clerk shall issue the commission’s decision in writing to the applicant either by personal delivery, or regular or electronic mail. B. In the event that the city commission rejects or denies an applicant’s appeal, the applicant may file an immediate request for review with a court of competent jurisdiction, but in no event may the request for review be filed later than thirty (30) days after the commission’s rejection. (Ord. 1458 § 1 (part), 1998)” Section 22 That 12.32.210 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.130 210 Notice to City and Other Officials Immediately upon the issuance of a parade or public assembly permit, the city manager shall send a copy thereof to the following: A. The mayor; B. The city attorney; C. The fire chief Director of Fire Operations; D. The director of public services Street Superintendant; E. The chief of police Director of Patrol; 240 Ordinance 1798 Page 17 of 22 F. Any other entity determined by the city manager to be affected by the permit. Montana Department of Transportation, if the permit is issued for a federal or state owned highway. (Ord. 1537 § 26, 2001; Ord. 1458 § 1 (part), 1998)” Section 23 That 12.32.140 of the Bozeman Municipal Code shall be deleted in its entirety: 12.32.140 Contents of Permit Each parade or public assembly permit shall state the following information: A. Name, address, and telephone number of parade or public assembly chairperson or person leading such activity; B. Starting and approximate ending time; C. Minimum speed of parade units; D. Maximum speed of parade units; E. Maximum interval of space to be maintained between parade units; F. The portions of the streets that may be occupied by the parade or public assembly; G. The maximum length of the parade in miles or fractions thereof; and H. Such other information as the City manager shall find necessary to the enforcement of this chapter. (Ord. 1458 § 1 (part), 1998) Section 24 That 12.32.220 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.150 220 Duties of Permittee A. A permittee hereunder shall comply with all requirements of this chapter, permit directions and conditions and with all applicable laws and ordinances in effect at the time of the event. B. The parade or public assembly chairman or other person heading such activity shall carry the parade or public assembly permit upon his person during the conduct of the parade or public assembly. C. The permittee or parade or public assembly chairperson or other person heading such activity shall notify all parade or public assembly participants of the conditions of this chapter. (Ord. 1458 § 1 (part), 1998)” 241 Ordinance 1798 Page 18 of 22 Section 24 That 12.32.230 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.160 230 Prohibitions In addition to any other prohibitions set forth in this chapter, Tthe following prohibitions shall apply to all permits for parades and public assemblies: A. It is unlawful for any person to stage, present, or conduct any parade or public assembly without first having obtained a permit as herein provided.; B. It is unlawful for any person to participate in a parade or public assembly for which a permit is required if the person knows a permit has not been granted.; C. It is unlawful for any person in charge of, or responsible for the conduct of, a duly licensed parade or public assembly to knowingly fail to comply with any condition of the permit.; D. It is unlawful for any person to engage in any parade or public assembly activity that would constitute a substantial hazard to the public safety or that would materially interfere with or endanger the public peace or rights of residents to the quiet and peaceful enjoyment of their property.; E. It is unlawful for any person to carry any sign, poster, plaque, or notice, unless such sign, poster, plaque, or notice is constructed or made of a cloth, paper, or cardboard material.; F. It is unlawful for any person participating in a parade or public assembly to utilize sound amplification equipment at decibel levels that exceed those limits imposed by the Bozeman Municipal Code this code.; G. It is unlawful for any person to ride, drive, or cause to be ridden or driven any animal or any animal-drawn vehicle upon any public street, unless specifically authorized by the permit.; H. It is unlawful for any person in a parade or public assembly to deviate from the established parade route or the approved parade route, whichever is applicable.; and I. No parade participant shall throw, cast, or drop candy, trinkets, or any other articles. A violation of this provision shall result in a one-hundred-dollar ($100.00) fine for each occurrence. This provision does not prohibit a parade participant from handing candy or other articles directly to the spectators provided the participant is walking;. (Ord. 1458 § 1 (part), 1998) and 242 Ordinance 1798 Page 19 of 22 J. It is unlawful for any person to engage in public drinking, public display, or exhibition of open alcoholic beverages (open container) during parades and public assemblies unless an open container waiver has been granted under chapter 9.70. Section 25 That 12.32.240 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.170 240 Public Conduct During Parades or Public Assemblies A. No person shall unreasonably hamper, obstruct or impede, or interfere with any parade or public assembly or with any person, vehicle, or animal participating or used in a parade or public assembly. B. No driver of a vehicle shall drive between the vehicles or persons comprising a parade or public assembly when such vehicles or persons are in motion and are conspicuously designated as a parade or public assembly. C. No person shall advance toward or go between the vehicles comprising a parade or public assembly when such vehicles are in motion and are conspicuously designated as a parade or public assembly. D. The city manager shall have the authority, when reasonably necessary, to prohibit or restrict the parking of vehicles along a street constituting a part of the route of a parade or public assembly. The city manager shall require the applicant to post signs to that effect, and it shall be unlawful for any person to park or leave unattended any vehicle in violation thereof. No person shall be liable for parking on a street unposted in violation of this chapter. (Ord. 1458 § 1 (part), 1998) Section 26 That 12.32.250 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.180 250 Revocation of Permit The city manager, the chief of police, and the fire chief shall each have the independent authority to revoke or suspend a parade or public assembly permit instantly: A. Upon a violation of the conditions imposed in the permit; B. Upon violation of standards for issuance as set forth in this chapter; or C. When a public emergency arises where the police municipal resources required for that emergency are so great that deployment of police municipal personnel, equipment or services for the parade or public assembly would have an immediate 243 Ordinance 1798 Page 20 of 22 and adverse effect upon the welfare and safety of persons or property. (Ord. 1458 § 1 (part), 1998). Such revocation shall take effect immediately, and the city manager, chief of police or fire chief shall promptly notify the permittee of revocation. After revocation, the permittee may not conduct the event, or if the event has commenced, shall immediately cause the event to be terminated in a safe, proper manner. Section 27 That a new section 12.32.260 shall be added to the Bozeman Municipal Code to read as follows: “12.32.260 Enforcement This chapter may be enforced by the city manager, the fire chief, or the police chief. In addition this chapter may be enforced by injunction, restraining order, declaratory relief, or such other order as may be imposed by a court with appropriate jurisdiction.” Section 28 That a new section 12.32.270 shall be added to the Bozeman Municipal Code to read as follows: “12.32.270 Judicial Review In the event the commission rejects or denies an appeal, an aggrieved person may file a request for review with a court of competent jurisdiction, but in no event may the request for review be filed later than thirty (30) days after the commission’s decision.” Section 29 That 12.32.280 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.190 280 Violations, Penalties Any person violating the provisions of any section of this chapter or any provision or requirement of a permit issued hereunder shall be guilty of a misdemeanor municipal infraction in accordance with chapter 1.24 and shall be, upon conviction, be punished by a fined not to exceed more than five hundred dollars ($500.00). or by imprisonment for a term not to exceed six (6) months or by both such fine and imprisonment. (Ord. 1458 § 1 (part), 1998) Nothing herein shall be deemed to prevent the city from pursuing an action in law or equity to recover unreimbursed costs associated with a permit or unpermitted event.” 244 Ordinance 1798 Page 21 of 22 Section 30 Codification Instruction The provisions of Sections 1 through 29 shall be codified as appropriate in chapter 12.32 of the Bozeman Municipal Code. Section 31 Repealer All provisions of the ordinances of the city of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the city of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 32 Savings Provision This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. Section 33 Severability If any part of this ordinance is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this ordinance is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid application. Section 34 Effective Date This ordinance shall be in full force and effect thirty (30) days after final adoption. 245 Ordinance 1798 Page 22 of 22 PROVISIONALLY PASSED by the City Commission of the city of Bozeman, Montana on first reading at a regular session thereof held on the 24th day of January 2011. ____________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ____ day of February 2011. The effective date of this ordinance is the ____ day of March 2011. __________________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM __________________________________________ GREG SULLIVAN City Attorney 246 IMLA Model Ordinance Service 1 Copyright © 2009 by International Municipal Lawyers Association (IMLA) CHAPTER 13 (MORALS, PUBLIC PEACE & CONDUCT) / ARTICLE 13-6: PARADE AND PUBLIC ASSEMBLY ORDINANCE ARTICLE 13-6: PARADE AND PUBLIC ASSEMBLY This Model was drafted by Dan Crean. Dan Crean has practiced municipal law in New Hampshire for more than thirty years. Dan also teaches Land Use and Environmental Law at Franklin Pierce Law Center, in Concord, N.H. He has chaired and is currently vice-chair of the N.H. Bar Association’s Municipal and Governmental Law Section, and founded the New Hampshire Municipal Lawyers Association which he now serves as Executive Director/General Counsel. He is IMLA’s N.H. State Chair and vice-chair of its Personnel Section. Dan has authored articles for Awareness in Action: The Journal of New Hampshire Public Risk Management, Municipal Lawyer and the New Hampshire Bar Journal and is a veteran CLE panelist. His governmental service has included terms on two Planning Boards, a Board of Selectmen, a Regional Planning Commission and the State Board of Manufactured Housing, along with sundry other committees. He graduated from Yale University and the University of Wisconsin Law School. General Notes and Comments: This sample ordinance, released in June 2009, replaces IMLA’s Model Parades and Public Assemblies Ordinances originally published in Installment 4 (and amended in Installment 7 and 11) of IMLA’s Model Ordinance Service. This sample encompasses a broader range of subjects than the model it replaces. Rather than limit its scope to parades and public assemblies, it seeks also to address use of public facilities with particular regard to First Amendment Speech and Assembly concerns. The ordinance contains a subdivision setting forth the general framework within which the municipality addresses these topics. Additional subdivisions address issues specific to parades and assemblies and use of facilities. The term “Article” is used in this sample, as it is drafted to be part of a municipal code of ordinances. That term should be changed, as appropriate, to chapter, ordinance, or other proper descriptive term. Sources for guidance in drafting this model ordinance include Validity, construction, and application of state or local enactments regulating parades, 80 A.L.R.5th 255. The primary legal focus of the sample ordinance is interplay with First Amendment speech and assembly concerns, with a section that also addresses religious issues. Equal protection issues and compliance with state enabling or limiting legislation are matters that also must be considered. The model also does not seek to address concerns such as individual “performance” in public spaces or commercial sales activities such as those involved in the recent case of an artist seeking to display and sell his work in a public park, Travis v. Park City Mun. Corp., No. 08-4115 (10th Cir. May 13, 2009). TABLE OF CONTENTS Subdivision 1: General Provisions 13-601 Purpose & Intent 13-602 Scope; Authority 13-603 Definitions 13-604 Administration; Permit Required 13-605 General Exceptions 13-606 General Standards and Procedures 247 IMLA Model Ordinance Service 2 Copyright © 2009 by International Municipal Lawyers Association (IMLA) 13-607 Standard Application Process 13-608 Expedited or Extended Application Review 13-609 Fees 13-610 Police Protection; Public Works and Other Expenses 13-611 Public Hearing 13-612 Standards for Action on Applications 13-613 Non-Discrimination 13-614 Recurring Events; Continuing Permits 13-615 Administrative Action on Application 13-616 Notice of Action on Application 13-617 Interim and Final Appeals 13-618 Duties of Permittees 13-619 General Prohibitions Subdivision 2: Parades and Public Assemblies 13-620 Applicability 13-621 Application Time Frames 13-622 Parade or Assembly Permit Applications 13-623 Permit Applications; Additional Considerations 13-624 Contents of Permit 13-625 Notice of Approved Permit 13-626 Commercial Parades or Assemblies 13-627 Specific Prohibitions 13-628 Public Conduct During Parades or Public Assemblies 13-629 (Reserved) Subdivision 3: Use of Public Facilities for Non-Public Events 13-630 Application 13-631 Rental Fees 13-632 Religious Uses 13-633 – 13-639 (Reserved) Subdivision 4: Miscellaneous 13-640 Participation in Events; Restrictions 13-641 Security for Performance 13-642 Cost Recovery 13-643 Revocation or Suspension of Permit 13-644 Enforcement 13-645 Violations, Penalties 13-646 Judicial Review 13-647 Severability 248 IMLA Model Ordinance Service 3 Copyright © 2009 by International Municipal Lawyers Association (IMLA) Subdivision 1: General Provisions. SECTION 13-601 Purpose and Intent. [Municipality] recognizes and supports the public’s right of assembly and free speech and to utilize designated public facilities for such purposes. At the same time, [Municipality] has an important and compelling governmental interest in protecting property, public safety, health, and welfare, and controlling use of streets and other public facilities and venues. This Article seeks to accommodate public rights of speech and assembly consistent with that governmental interest by establishing procedures, terms, and conditions for use of public areas and facilities for such purposes. A second purpose of this ordinance is to facilitate and manage the manner in which public facilities that are not otherwise required for governmental operations may be made available for use on a temporary basis for non-governmental operations. SECTION 13-602 Scope; Authority. This Article applies to all public parades and assemblies that may be expected to affect the public, the property or services of the [Municipality], or otherwise require an expenditure of time and expense or create the potential for liability or public disturbance or other substantial concern. This Article also applies to requests for use of public facilities for purposes other than governmental operations. This Article is adopted in accordance with the authority vested in the [Municipality] by [cite enabling authority]. [Commentary: This ordinance does not specifically regulate events held on private property. Such gatherings may be regulated as land use activities or under general police powers subject to considerations regarding limitations on expressive conduct. In addition, events held on private property may have protections from regulation when a private actor is exercising controls that may constitute exercises of governmental authority, e.g., control of sidewalks or common areas. See, e.g., United Church of Christ v. Gateway Economic Development Corp., 383 F.3d 449 (6th Cir. 2004).] SECTION 13-603 Definitions. In this Article, words have their normal meanings, except as defined elsewhere in this code or in this Article, as follows: (a) “Administrator” means the (person/title) designated by SECTION 13-604 to administer this Article. (b) “[Municipality]” means the city/town/village of __________. (c) “Parade” means any march, demonstration, procession or motorcade consisting of persons, animals, or vehicles, or a combination thereof, upon the streets, parks or other public grounds within the [Municipality] with an intent of attracting public attention that affects or may reasonably be expected to affect the normal flow or regulation of vehicular or pedestrian traffic upon the streets, parks or other public grounds.[Commentary: See 80 A.L.R.5th 255 (II)(A)(7c) for cases discussing definition of parade.] 249 IMLA Model Ordinance Service 4 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (d) “Permit” means permission for assembly, parade, or use of public facilities issued pursuant to this Article. (e) “Person” means any person, firm, partnership, association, corporation, company or organization of any kind. [Commentary: If not defined in general definitions in the municipal code] (f) “Police Chief” means the Chief of Police of the [Municipality] or the Chief’s designee. (g) “Public assembly” means any meeting, demonstration, picket line, rally or gathering of __ or more persons for a common purpose as a result of prior planning that affects or may reasonably be expected to affect the normal flow or regulation of vehicular or pedestrian traffic upon the streets, parks or other public grounds, or occupies any public facility or public area in a place open to the general public. [Commentary: The numerical requirement of this section must be reasonable and not impose undue burden or prior restraint on persons seeking to assemble. See, 80 A.L.R.5th 255 for comments and cases on defining assemblies subject to permit requirements.] (h) “Public facility” means a building, structure, park, place, or other location or area which a person may seek to utilize for purposes other than the normal and usual governmental operations of the [Municipality]. (i) “Sidewalk” means any area or way set aside or open to the general public for purposes of pedestrian traffic, whether paved or not. [Commentary: Or refer to statutory or other definition of sidewalk.] (j) “Street” means any place or way set aside or open to the general public for purposes of vehicular traffic, including any berm or shoulder, parkway, right-of-way, or median strip thereof. [Commentary: May alternatively refer to statutory or code definition of street.] SECTION 13-604 Administration; Permit Required. (a) Administration. This Article shall be administered by [insert name of designated official] or that person’s designee. [If the Administrator is not the Police Chief, provisions should be made to make this section consistent with the authority of the Police Chief stated elsewhere in the Article.] The Administrator may delegate functions related to facility use requests or parade/public assembly requests to other persons but shall retain authority under the interim appeal process established by section 13-617. (b) Permit Requirement. Except as provided in this Article, no person may engage in or conduct any parade or public assembly or use any public facility for purposes other than governmental operations of the [Municipality] unless that person has a current and valid permit therefor issued in accordance with this Article. [Commentary: The United States Supreme Court found a violation of First Amendment freedoms by a Birmingham, Alabama, ordinance which made it an offense to participate in a parade without first having obtained a permit, and which authorized administrators to refuse a permit if required to by the public welfare, peace, safety, health, decency, good order, morals, or convenience. The Court reasoned that the ordinance subjected the exercise of First Amendment freedoms to a prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority, Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147 (1969).] 250 IMLA Model Ordinance Service 5 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (c) Use of Certain Public Property Not Permitted. Permits under this Article may be issued for public assembly, parades, or use solely of the following designated facilities: (Here list those areas where such activities can be permitted – or list areas where activities are not permitted. A permissible alternative may allow administrator to create and periodically update a list of public forums, designated or limited public forums, and non-public forums.) [Commentary: Determination not to allow leaflet distribution on a port authority pier upheld where the area did not constitute a public forum, New England Regional Council Of Carpenters v. Massachusetts Port Authority, et al., 95 F. Supp.2d 1215 (MA. 2000). Ordinances limiting streets or areas in which parades or assemblies may occur have met with varied fates depending on defensible basis for restriction, vagueness, overbreadth, and adequacy of other means of expression.] SECTION 13-605 General Exceptions. (a) Permit Exceptions. Permits and prior approvals under this Article are not required for: (1) Funeral processions; (2) Students going to and from school classes or participating in educational activities, provided that such conduct is under the immediate direction and supervision of the proper school authorities; (3) A governmental agency acting within the scope of its functions; or (4) Spontaneous events involving a parade or public assembly occasioned by news or affairs coming into public knowledge within ___ days prior to such public assembly, provided that: (i) The event occurs on private property or a public area in a manner that does not unduly disrupt or inconvenience the public in the use of such area; (ii) The organizer or sponsor thereof provides written notice to the Administrator and Police Chief at least 24 hours prior to the start of the parade or public assembly, or such other prior notice as may be reasonable under the circumstances. [Commentary: The prior notice requirement for a “spontaneous event” (par. (4)) must allow a reasonable opportunity for unplanned reaction to public events. Exceptions and exemptions should be carefully reviewed with an eye toward vagueness concerns, overly broad administrative discretion, and justification of requiring permits in non- exempt circumstances, Knowles v. City of Waco, Tex., 462 F.3d 430 (5th Cir. 2006). Exemptions may call into consideration equal protection concerns, particularly where natural or legitimate reasons for such discrimination are not stated or readily evident, Commonwealth v. Mervis, 55 Pa. Super. 178, 1913 WL 4874 (1913).] (b) Fee, Expense, or Other Exceptions. Permits shall be required for all other parades or public assemblies or for events seeking to use public facilities. Exceptions and waivers from requirements for payment of fees and expenses, proof of insurance, bonding, or other security may be approved solely in accordance with those sections of this Article applicable to such activities or events. 251 IMLA Model Ordinance Service 6 Copyright © 2009 by International Municipal Lawyers Association (IMLA) [Commentary: Fees (if established in the ordinance - or in accordance with standards in the ordinance - and not varied according to content of expression) may be upheld provided that they relate to costs directly associated with the event. Under general principles for fees, revenues should not exceed costs incurred by regulatory authority and should not be used as revenue-raising devices. Prior insurance and bonding requirements are permitted, but are subject to careful review and may be invalidated if both the authority to impose and the manner of determining amounts are not clearly set forth in the ordinance. E.g., The Nationalist Movement v. City of York, 238 F. Supp.2d 837 (M.D. Penn., 2006).] SECTION 13-606 General Standards and Procedures. (a) Decision-Making Unrelated to Content of Expression. To achieve the purposes of this Article without undue interference with protected rights of speech and assembly, decisions to issue, deny, or conditionally approve permits shall not be based on the content of a message associated with the event absent a compelling governmental interest. Notwithstanding that general standard, protections otherwise applicable to speech and assembly are limited and may not extend to speech or assembly that is intended to or has the result of causing public alarm, disruption, falsehood, or other form of expression that is not protected under the laws or constitution of [this state] or the United States. [Commentary: If public safety is clearly at issue, some degree of control over the manner in which counter-demonstration may occur is permissible even though nature of protests or demonstrations may be source of potential public safety concern. Outright prohibition may be problematic. See, e.g., Grider, et al. v. Abramason, City of Louisville, et als., 180 F.3d 739 (6th Cir. 1999).] (b) Time, Place and Manner Controls. This Article seeks to impose reasonable time, place and manner controls in an appropriate and limited manner upon events and facility uses for which permits are required. This Article shall be administered in a manner that seeks to allow for expression, assembly, and the exercise of religious rights in accordance with applicable constitutional and statutory limits and controls. [Commentary: While the First Amendment narrowly confines governmental authority to regulate protected activity, a permit requirement for a group’s use of a park area on its face did not violate First Amendment where (1) terms and conditions were imposed for environmental preservation purposes; (2) application had to be made 72 hours in advance; (3) group was required to produce individual representative to sign authorization and assume responsibility despite claim that group was egalitarian and had no representatives. Concern was expressed over preservation requirements that were vague and allowed park officer allegedly latitude in interpretation, but were still upheld. See, U. S. v. Masel, 13 F. Supp.2d 1064 (W.D. Wis. 1999).] (c) Internal Appeal Step. At any point in the permit application and approval process, an applicant who feels aggrieved or substantially and adversely affected by compliance with the Article or permit process may request review through an intermediate appeal procedure under section 13-617. 252 IMLA Model Ordinance Service 7 Copyright © 2009 by International Municipal Lawyers Association (IMLA) [Commentary: The purpose of such intermediate appeals is to avoid prior restraint and judicial proceedings that may be avoided by an effective internal appeal mechanism.] (d) General Application Time Frame. Except for permits involving streets, facilities, or venues, or types of events identified for either expedited processing or requiring longer-term processing as identified in sections 13-608 or elsewhere in this Article, applications for permits shall be filed not less than __ days, nor more than __ days, before the event for which the permit is sought. [Commentary: Extended prior application periods (generally any period longer than 30 days prior to an event) are discouraged. The period established under this section must consider the ability of the municipality to accommodate events. Vague provisions for extending time requirements should be avoided. See, for example, People v. Namer, 11 Misc. 3d 409, 812 N.Y.S.2d 824 (City Crim. Ct. 2006) holding that New York City's parade permit ordinance was constitutional, as an application for permit could be filed as little as 36 hours before special event and, when exigent circumstances existed, application could be filed less than 36 hours before event. Note that the ordinance provided specific examples of type of events requiring permit and did not contain ambiguous terminology which could be applicable to small, innocuous groups.] (e) Requirements for Insurance, Bonding or Other Security. To avoid interference with protected rights of speech and assembly, any requirement imposed for surety for performance (including but not limited to insurance, bonding, or monetary deposits) shall be based upon needs directly associated with the event and not on the basis of possible disruption of the event by protestors or other persons who might be opposed to the speech or assembly. Such restriction, however, shall not apply where the Administrator determines that the event is being scheduled so as to unduly and unnecessarily create a potential for counter-protest or disruption or interference with public health, safety, welfare, or order. SECTION 13-607 Standard Application Process. (a) The process set forth in this section includes the standard procedure and requirements that apply to all applications for permits under this Article. Additional requirements and exceptions or waivers for specific types of permits are set forth in subdivisions 2 and 3 of this Article. (b) The Administrator shall create and provide application forms for each type of permit required by this Article. The information required by the application shall be the minimum information that is required of any applicant. The application form shall include information designed to allow the [Municipality] to act on the application in an informed manner to determine if the application meets the requirements of this Article, including potential adverse effects as stated herein, and to allow the [Municipality] to determine what requirements, if any, should be imposed as a condition of issuance of the permit. The Administrator may amend any application form in whole or in part on such notice as is deemed appropriate under the circumstances, provided that an amendment shall not apply to an application made prior to the Administrator’s formal notice of any proposed amendment to the application form. 253 IMLA Model Ordinance Service 8 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (c) Without limiting the authority of the Administrator to require reasonable additional information in connection with any specific application, such forms shall require the applicant to identify: (1) The name, address, and telephone number of the person or the agent or representative of an organization or entity seeking to obtain the permit. (2) The names, addresses and telephone numbers of the headquarters or business location of the organization seeking the permit or organizing or sponsoring the event or activity, if any, and the authorized and responsible heads of the organization. (3) If the application is filed by any person other than an individual applying on the individual’s own behalf, the application shall include written authorization from that other person or from a responsible, legally authorized representative of an organizational applicant authorizing the applicant to apply for the permit on its behalf. (4) The requested date, time, and location for the event or activity. (i) The location shall include a description of the location of the main activity, if any, and the route to be traveled, including the starting point and the termination point, if any. (ii) The location description also shall identify the extent of the public and private areas that will be involved in the activity or event. (iii) The time shall include the time during which the event or activity will be conducted and the time(s) during which preparation, set-up, assembly, clean-up or other actions may occur. (5) The approximate number of persons who are anticipated to attend or participate in the activity or event, including a separate list of the number of any anticipated spectators, protestors, or counter-demonstrators, as appropriate. (6) A statement as to whether the parade or public assembly will occupy all or only a portion of the width of the streets proposed to be traversed. (7) A description of the activity or event, including a description of specific activities planned during the event. (8) A description of any recording equipment, sound amplification equipment, banners, signs, or other attention-getting signs or devices to be used in connection with the event. (9) A description of any additional public facilities or equipment to be utilized in connection with the event. [Commentary: While municipalities are not free to ask for information unrelated to appropriate factors such as public safety, it may make reasonable inquiry into purpose of assembly and speech and manner “in consonance with peace and good order,” where such request is not intended to interfere with expression, and where the purpose of the parade might have a bearing on the precautions that should be taken by police authorities to protect those engaged in the parade and the general public, City of Darlington v. Stanley, 239 S.C. 139, 122 S.E.2d 207 (1961). However, inquiry into the purposes of the assembly cannot be used to reject permit for protected protest (e.g., voting rights), Hughley v. City of Opelika, Ala., 251 F. Supp. 566 (M.D. Ala. 1965) nor for suppression of generally lawful activity, In re Frazee, 63 Mich. 396, 30 N.W. 72 (1886). Information as to the anticipated number of participants and routes to be used are clearly within the scope of permitted inquiries, Robinson v. Coopwood, 292 F. 254 IMLA Model Ordinance Service 9 Copyright © 2009 by International Municipal Lawyers Association (IMLA) Supp. 926 (N.D. Miss. 1968), judgment aff'd without opinion, 415 F.2d 1377 (5th Cir. 1969).] (d) Any person seeking a permit shall file a completed application with the Administrator within the time frame required by this Article or as stated on the application form, whichever time provides greater opportunity for review of the application by the [Municipality]. The application shall be signed by the applicant or the applicant’s duly authorized representative or agent under oath or affirmation. [Commentary: Time frames should be as short as reasonably possible based on such factors as the need to plan and prepare for the event and the proximity in time of other happenings that may relate to the event being proposed (e.g., a vote by a city council on a controversial matter). Though this might smack of content-related controls, municipal ability to anticipate and plan for actions associated with an event are reasonable aspects of governmental control.] SECTION 13-608 Expedited or Extended Application Review. (a) Upon request of an applicant, the Administrator may agree to an expedited application review when the applicant demonstrates that compliance with the standard review process (1) is not required due to size, location, duration or other appropriate factors indicating that public safety, welfare, and convenience would not be affected by expedited review or (2) would substantially burden protected rights, including speech and assembly, as to matters of public concern and the expedited review process would allow reasonable review to address substantial matters of public safety, welfare, and convenience. (b) Upon determining that the size, location, duration, or other appropriate factors that affect public safety, welfare, and convenience, require more intensive review of an application, the Administrator, after notice to the applicant, may extend the standard review period by a time not to exceed __ hours. SECTION 13-609 Fees (a) A non-refundable application processing fee of [$_____] to cover administrative costs of processing the permit application shall be paid to the [Municipality] by the applicant when the application is filed. (b) If the Administrator determines that the application requires special review to address potential adverse effects, the Administrator may require the applicant to pay for such reviews and may require the applicant to provide a deposit to cover such costs. (c) The [Municipality] may require the applicant to pay rental fees, service charges, or costs incurred by the [Municipality] in accordance with this Article. [Commentary: Fees do not necessarily render an ordinance invalid. Of course, they should relate to actual expenses incurred, including administrative costs, and may not constitute sources of general revenue. Additional fees for such items as amplified sound may be acceptable if they, for example, are related to costs of electricity associated with that action, Stokes v. City of Madison, 930 F.2d 1163 (7th Cir. 1991).] 255 IMLA Model Ordinance Service 10 Copyright © 2009 by International Municipal Lawyers Association (IMLA) SECTION 13-610 Police Protection; Public Works and Other Expenses. (a) Police Protection. (1) If possible, without disruption of ordinary police services or compromise of public safety and welfare, regularly scheduled on-duty police personnel shall cover the event. The Administrator shall seek review of any application which might require additional police personnel by the Police Chief. (2) When reviewing an application, the Police Chief shall determine whether and to what extent additional police protection is reasonably necessary for the event for traffic control and public safety and welfare, including public convenience. The Police Chief shall base this decision on relevant criteria including, but not limited to, the size, location, duration, time and date of the event; the expected sale or serving of alcoholic beverages; the number of streets and intersections blocked; and the need to detour or preempt public travel and use of streets and sidewalks. (3) The speech content of the event shall not be a factor in determining the amount of police protection necessary, except when the applicant’s speech is determined to have reasonable potential to cause, or will have the result of causing, public alarm, disruption, falsehood, or which will constitute any form of expression that is not protected under the laws or constitution of [this state] or the United States. (4) If additional police protection for the event is deemed necessary by the Police Chief, he shall so inform the Administrator and applicant. The applicant shall be responsible for securing the police protection deemed necessary by the Police Chief. The applicant shall bear such proportion of the expense thereof as is determined by the Administrator based upon [here list factors to be considered with regard to cost allocation]. The Chief may, but is not required to, approve use of private security details in lieu of any or all special detail municipal police services that might otherwise be required under this section. [Commentary: Denial of permit or imposition of responsibility for costs must be used cautiously and with due restraint to avoid prior restraint, Beckerman v. City of Tupelo, Miss., 664 F.2d 502 (5th Cir. 1981). First Circuit and District Courts in that circuit have found requirements for prior consultation with police chief to be invalid, at least where timeliness of event was a concern and negotiating with the chief would have chilling effect on free speech, Sullivan v. City of Augusta, 406 F. Supp.2d 92 (D. Me. 2005). Absence of standards to guide imposition of costs or requirements for police protection invalidated requirement to do so, Toga Soc., Inc. v. Lee, 323 F. Supp.2d 779 (E.D. La. 2004). Requirements to cover costs can be used, but both the ordinance and the administrative action determining and imposing costs must demonstrate a reasonable need or expectation associated with the costs and must be related to covering costs, not raising money, Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14 Cal. App. 4th 312, 17 Cal. Rptr. 2d 861 (2d Dist. 1993). ] (b) Public Works. In the same manner, the [Municipality] shall determine if the applicant shall be required to pay for or provide additional public works-related actions such as lighting, refuse receptacles and pick-up, sanitary facilities, traffic control signs, devices, or personnel. (c) Other Expenses. In circumstances where the event itself may be expected to cause the [Municipality] to incur additional, extraordinary expenses, the Administrator 256 IMLA Model Ordinance Service 11 Copyright © 2009 by International Municipal Lawyers Association (IMLA) shall identify such expenses and the basis for determining them to be extraordinary. Such expenses may be imposed upon the applicant as a condition of approval of the permit. (d) Expense Exception. An applicant for an event conducted for the sole purpose of public issue speech protected under the First Amendment or the [State] Constitution as determined by the Administrator shall not be required to pay for police protection or public works or other expenses for actions provided by the [Municipality]. However, the applicant shall obtain a permit as required by this Article. [Commentary: Faculty Ad Hoc October 15th Viet Nam Moratorium Committee v. Borough of Glassboro, 111 N.J. Super. 258, 268 A.2d 75 (Ch. Div. 1970) held that a provision of a borough ordinance providing that one of the criteria to be observed in deciding whether a permit should issue for a parade was whether the conduct of the parade was reasonably likely to cause injury to persons or property, to provoke disorderly conduct, or to create a disturbance invalid. The constitutional right of free speech and assembly cannot be abridged simply because others might take offense at what is being said or advocated and create a disturbance.] SECTION 13-611 Public Hearing. (a) At any time during consideration of an application, the Administrator may determine it is necessary to conduct a public hearing on the application to determine the nature of public concerns with the proposed event and whether such concerns should require denial of the application or imposition of conditions. The public hearing shall be limited to concerns that are unrelated to content of speech or purposes of the assembly or event except to the extent that concerns address matters such as those specified as appropriate for consideration in this Article, including section 13-606. (b) A public hearing, if held, shall be scheduled to allow action on the application within the time frames established under this Article. The Administrator shall provide notice of the hearing to the applicant and the public by (insert normal posting/publication requirements) and such additional notice to potentially affected persons as is reasonably determined to be appropriate. [Commentary: Though this model ordinance includes this section on public hearings, requirements for hearings are suspect on at least two grounds: delay in processing and allowing consideration of wide-ranging, undefined criteria often related to the content of expressive speech. The language in this section seeks to avoid concerns associated with content-based restriction and allows a hearing to be scheduled only if the application can be handled within the required time frame for action.] Section 13-611 Standards for Action on Applications. In addition to standards applicable to particular events or activities under other provisions of this Article, a permit shall be issued when, from a consideration of the application and from such other information as may otherwise be obtained, the Administrator finds that: (a) The application is complete and sets forth accurately and in sufficient detail the information required for consideration. 257 IMLA Model Ordinance Service 12 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (b) Conduct of the event will not unduly inconvenience either the public in using public areas normally open for general public use or the [Municipality] in the conduct of governmental operations. (c) Adequate sanitation and other required health facilities are or will be made available in or adjacent to the area in which the event will be held. (d) There are sufficient parking places near the site of the event to accommodate the number of vehicles reasonably expected. (e) The applicant has secured police protection or otherwise arranged for event security, if any, required under Section 13-610. (f) The applicant has paid or provided for payment of any expenses or costs as may be required under Section 13-610 or other provisions of this Article. (g) No event is scheduled elsewhere in the [Municipality] where municipal resources (including but not limited to law enforcement, fire, or public works personnel) required for the events are so great that their deployment would have an immediate and adverse effect upon the welfare and safety of persons and property. (h) No permit may be issued that allows for the erection or placement of any structure, whether permanent or temporary, on a municipal street, sidewalk, or right-of- way unless advance approval for the erection or placement of the structure is obtained from the [City Council or other appropriate board or agency]. [Commentary: Carrying signs or other means of communication is protected expressive conduct, and regulatory action to prohibit or limit such actions should be reviewed prior to prohibition or limitation. A section of a Houston parade ordinance requiring that every applicant agree to modify a proposed parade route if officials determined that time, route, or size of proposed parade would substantially disrupt use of any street that was ordinarily subject to significant traffic congestion did not provide unbridled discretion to roam at will and determine with no guidance whether parade route should be changed, and thus did not constitute an impermissible prior restraint, Service Employees Intern. Union v. City of Houston, 542 F. Supp.2d 617 (S.D. Tex. 2008). Municipal parade ordinances authorizing the chief of police to deny a parade permit if the chief found that the parade would probably cause injury to persons or property, "provoke disorderly conduct," or create a disturbance was unconstitutional as being a prior restraint on First Amendment freedoms, Beckerman v. City of Tupelo, Miss., 664 F.2d 502 (5th Cir. 1981).] SECTION 13-613 Non-Discrimination. The Administrator shall uniformly consider each application upon its merits and shall not discriminate in granting or denying permits under this Article based upon political, religious, ethnic, race, disability, sexual orientation or gender-related grounds or other criteria that would constitute a violation of state or federal law. SECTION 13-614 Recurring Events; Continuing Permits. Regularly held and scheduled events that would otherwise require issuance of a permit under this Article may receive longer-term approvals, not to exceed [one year or some other term] in duration, that will constitute permit approval under this Article. Such longer-term approvals may be issued if the Administrator finds that: 258 IMLA Model Ordinance Service 13 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (a) The location for the events is in a place that has been approved for such purpose by site plan review (or its equivalent) by the planning board or otherwise is approved as an appropriate location for the events by the [code administrator]; (b) The Police Chief, Fire Chief, Public Works Director each have reviewed the location and schedule for the proposed events and have notified the Administrator that they have no objection to the conduct of the events according to the schedule proposed. SECTION 13-615 Administrative Action on Application. (a) Upon receiving an application, the Administrator shall determine within __ days/hours [a reasonable time frame as noted above] if the application is complete or if any additional preliminary information is required and shall so inform the applicant. The applicant shall provide such required information prior to further consideration of the application. The requirement to supplement the application at this stage does not prevent the [Municipality] from requiring additional information during its review and action upon the application. (b) After accepting an application, the Administrator shall forward it for review and recommendation to the Police Chief and to any other municipal employee, official, or board deemed appropriate. Such review and recommendation shall occur within [__] days unless that period is extended by the Administrator. (c) The Administrator also may refer the application for review by other governmental entities (e.g., county, regional, or state authorities) as deemed appropriate. (d) After receiving comments and recommendations from such reviews and after considering such other information as deemed appropriate, the Administrator may require the applicant to submit additional information or respond to the reviews and recommendations or impose such conditions as are appropriate under the circumstances. (e) If the Administrator determines that an event has the potential of adversely affecting the public or a substantial number of persons, the Administrator may determine that a public hearing is required, in which case Section 13-610 shall apply. (f) Upon completion of the foregoing, the Administrator shall act on the application. The Administrator may approve, amend, approve with conditions, or deny the application. For any action other than approval as submitted, the Administrator shall include a brief summary of the reasons for the decision. (g) Unless otherwise provided in this Article or agreed to by the applicant, the Administrator shall act on an application within [__] days after determining that the application is complete in accordance with paragraph (a) of this section. If a completed application has been submitted in a timely manner, the Administrator shall act upon the application and provide notice to the applicant in accordance with Section 13-614 not later than [_] days prior to the event. (h) The administrator may authorize the conduct of the event at a date, time, location, or route different from that proposed by the applicant. An applicant desiring to accept such an alternate permit shall so notify the Administrator in writing not less than [_] days after notice of the Administrator’s action. An alternate permit shall conform to the requirements of, and shall have the effect of, a permit issued under this Article. 259 IMLA Model Ordinance Service 14 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (i) A person aggrieved and directly affected by a decision of the Administrator under this section may file an interim or final administrative appeal pursuant to Section 13-617. [Commentary: Though an ordinance must require action within established and reasonable time frames, a sliding scale for action could be implemented whereby the date of notification depended on how far in advance the permit was requested. Permits granted far in advance could be conditional until a month before the event so that new circumstances could be taken into account, as long as final action was taken far enough in advance that the applicant could seek judicial review. MacDonald v. Safir, 26 F. Supp.2d 664, (S.D.N.Y. 1998).] SECTION 13-616 Notice of Action on Application. The Administrator shall act upon a timely filed application for permit in accordance with Section 13-614. The Administrator shall notify the applicant of action on the application either by personal delivery or certified mail at least [__] hours prior to the event. If the application is denied, approved with conditions, or otherwise modified, the notice shall include a statement of the reason(s) for such action. SECTION 13-617 Interim and Final Appeals. An applicant or other person who is directly affected by a decision of the Administrator under this Article may file an appeal of the decision as provided in this section. (a) Interim Appeal. Prior to a final decision by the Administrator, an applicant who claims that delay, imposition of conditions, or other action by the [Municipality] violates any applicable law, or unreasonably and improperly interferes with constitutionally protected rights, may file an interim appeal as follows: (1) The applicant shall notify the Administrator in writing of the claim specifying in detail the basis for the claim. The Administrator shall review the notice and determine if administrative action will adequately resolve the problem. (2) If the applicant is not satisfied by such administrative action, the applicant may file a written appeal within 48 hours to the [Licensing Board, City Council, or other administrative review board], with a copy to the municipal Clerk specifying the grounds for the appeal. The [appeal board] shall review the appeal to determine if it will hear the matter or if it determines that grounds for appeal are not properly set forth. (3) If the [appeal board] determines that the appeal will not be heard, it shall notify the applicant within 24 hours of such decision. If the appeal proceeds, the [appeal board] shall schedule a hearing on the matter within __ days with such notice to the applicant and public as is deemed appropriate under the circumstances. At the hearing, the [appeal board] shall hear the applicant, Administrator, and such other persons as may be allowed to speak. Within 48 hours after the hearing, the [appeal board] shall issue its decision in writing and shall so notify the applicant. (b) Appeal of Final Action. The applicant or any person directly affected by final administrative action on an application may file a written appeal with the [appeal board], with a copy to the municipal Clerk not later than __ days after the final action. The appeal shall state with specificity the grounds for the appeal. The [appeal board] 260 IMLA Model Ordinance Service 15 Copyright © 2009 by International Municipal Lawyers Association (IMLA) may deny an appeal without hearing if it determines on the face of the appeal that it has no merit and shall so notify the appellant and other directly affected parties within 48 hours after such determination. If the appeal proceeds, the [appellate board] shall schedule a hearing within 5 days. The appeal hearing shall be limited to the grounds stated in the appeal unless the [appeal board] for good cause determines to hear other issues or concerns. The appellant, applicant (if not the appellant), the Administrator and other persons directly affected may speak or submit evidence at the hearing. The [appeal board] may determine who is permitted to participate in the hearing. The [appeal board] shall issue its decision on the appeal, stating the reasons for its decision, within 5 days after the hearing. SECTION 13-618 Duties of Permittees. (a) A permittee shall comply with all requirements of this Article, all permit terms and conditions, and all applicable laws and ordinances in effect at the time of the event. (b) The individual identified in the application as the agent or representative of the applicant/permittee, or some other person designated in the permit, shall have the permit in his or her possession at all times during the event for which the permit is issued. SECTION 13-619 General Prohibitions. It shall be a violation of this Article for any person: (a) To stage, present, or conduct any event for which a permit is required by this Article without first having obtained a permit. (b) To participate in an event which that person knows is required to have a permit under this Article when that permit has not been issued. (c) When the person is the agent or representative of a permittee, to knowingly fail to comply with any term of condition of the permit; Subdivision 2: Parades and Public Assemblies. SECTION 13-620 Applicability. This subdivision applies to parades and public assemblies. SECTION 13-621 Application Time Frames. (a) Unless otherwise allowed by the Administrator, an application for a parade or assembly permit shall be made within the following time periods: (1) [Here list time frame for major streets/public areas and major events.] (2) [Here list time frame for minor streets/public areas and minor events.] [Commentary: A major concern is the length of time required to review and process applications. Courts and the circuits vary markedly as to an acceptable length of time. Some have held that 30 days or more can be valid, while others hold that 30 days is too restrictive, e.g., Sullivan v. City of Augusta, 511 F.3d 16 (1st Cir. 2007). It is essential to note precedent within a municipality’s circuit. Even then, ordinances should set 261 IMLA Model Ordinance Service 16 Copyright © 2009 by International Municipal Lawyers Association (IMLA) application time frames premised upon the factors and complexity of review required and should include some means of obtaining expedited review as suggested in the next paragraph. See, generally, 80 A.L.R.5th 255.] (b) Whenever an applicant believes that the time normally required for action on a permit under paragraph (a) will interfere with protected rights of speech or assembly or would render ineffective the purpose for which the event is proposed, the applicant shall include in the application a written request for expedited review, including a description of the basis therefor. The Administrator shall promptly review such request and, unless it is determined that cause for expedited review is not stated, shall grant expedited review within such time as may be reasonably required to meet the purposes of this Article. If the Administrator determines that expedited review is not appropriate, a written decision shall be issued stating the reasons for that decision. A denial of expedited review may be reviewed using the expedited appeal process under section 13-616. SECTION 13-622 Parade or Assembly Permit Applications. In addition to the information and materials contained in a general permit application under this Article, unless waived by the Administrator, an application for a parade or public assembly permit shall include the following: (a) The name, address and telephone number of the person or organization seeking to conduct such parade or public assembly. (b) The names, addresses and telephone numbers of the headquarters of the organization for which the parade or public assembly is to be conducted, if any, and the authorized and responsible heads of the organization. (c) The route to be traveled, including the starting point and the termination point. (d) The approximate number of persons who, and animals and vehicles which, will constitute such parade or public assembly, and the type of animals and description of the vehicles. (e) The hours when such parade or public assembly will start and terminate. (f) A statement as to whether the parade or public assembly will occupy all or only a portion of the width of the streets proposed to be traversed. (g) The location by street of any assembly areas for such parade or public assembly and a description of facilities to be used for parking of participants’ vehicles. (h) The time at which units of the parade or public assembly will begin to assemble at any such area. (i) The intervals of space to be maintained between units of such parade or public assembly. (j) If the parade or public assembly is designed to be held by, or on behalf of, any person other than the applicant, the applicant shall file a letter from that person with the Administrator authorizing the applicant to apply for the permit on his or its behalf and authorizing the [Municipality] to conduct a background check. (k) The type of public assembly, including a description of activities planned during the event. (l) A description of any recording equipment, sound amplification equipment, banners, signs, or other attention-getting devices to be used in connection with the parade or public assembly. 262 IMLA Model Ordinance Service 17 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (m) The approximate number of participants (spectators are not deemed to be participants). (n) The approximate number of spectators expected. (o) A description of any public facilities or equipment to be utilized. (p) A description of sanitary and waste disposal facilities to be provided, if any. (q) A description of any vending, food service, or other similar activities to be provided or allowed during or in association with the parade or public assembly. (r) Such other information as the Administrator finds reasonably necessary or appropriate to make a determination as to whether a permit should issue. SECTION 13-623 Permit Applications; Additional Considerations (a) In determining whether to approve an application for a permit for a parade or assembly, the Administrator shall provide notice prior to action to the following: (1) The Police and Fire Chiefs and the Public Works Director; and (2) The manager or responsible head of each public transportation utility, the regular routes of whose vehicles will be affected by the route of the proposed parade or public assembly. (b) In determining whether to approve or deny an application for a permit for a parade or public assembly, the Administrator shall consider the following additional factors: (1) The potential for the parade or public assembly to substantially interrupt the safe and orderly movement of other pedestrian or vehicular traffic contiguous to its route or location. (2) The potential for the parade or public assembly to require the diversion of so great a number of municipal police officers to properly police the event as to prevent normal police protection of the [Municipality]. [Commentary: See, e.g., Hurwitz v. Boyle, 117 N.J. Super. 196, 284 A.2d 190 (App. Div. 1971).] (3) The potential for concentration of persons, animals, and vehicles at public assembly points of the parade or public assembly to unduly interfere with proper fire and police protection of, or ambulance service to, areas contiguous to public assembly areas. (4) The potential for the conduct of the parade or public assembly to cause injury to persons or property. (5) Comments submitted by the officials and individuals listed in paragraph (a). (c) Applications or permits for parades, public assemblies, or other events for reasonably contemporaneous times and proximate locations which might unduly inconvenience the public in the use of public facilities, or unreasonably strain public facilities or services, or otherwise have an immediate and adverse effect upon the welfare and safety of persons and property. SECTION 13-624 Contents of Permit. (a) Each parade or public assembly permit shall state the following information: (1) Starting and approximate ending time; 263 IMLA Model Ordinance Service 18 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (2) Minimum speed of parade units; (3) Maximum speed of parade units; (4) Maximum interval of space to be maintained between parade units; (5) The portions of the streets that may be occupied by the parade or public assembly; (6) The maximum length of the parade in miles or fractions thereof. (b) A permit also shall contain such other information as the Administrator deems appropriate for the purposes of this Article, including any conditions or limitations upon exercise of the permit. [Commentary: Police chief designating route of parade or assembly may be permissible as part of action on a permit application as a reasonable time, place, and manner restriction, District of Columbia v. Edgcomb, 305 A.2d 506 (D.C. 1973). Route designations and time frames within which assembly may occur can be upheld when based on demonstrable need to address public safety and convenience premised upon use of streets and other areas and not on message or identity of event participants.] SECTION 13-625 Notice of Approved Permit. (a) Upon the issuance of a parade or public assembly permit, the Administrator shall promptly send a copy of the permit to the Police and Fire Chiefs; the Mayor [or Municipal Manager]; the Municipal Attorney; the Director of the Department of Public Works; and the manager or responsible head of each public transportation utility, the regular routes of whose vehicles will be affected by the route of the proposed parade or public assembly. (b) A copy of any permit issued under this Article shall be deemed a public record and shall be available for public inspection. SECTION 13-626 Commercial Parades or Assemblies. (a) Parades or public assembly permits that seek to utilize public facilities where the primary purpose of the event is to advertise or promote any products, goods or event that is primarily for private profit-making purposes may be approved only if: (1) The public facility is not otherwise required for use for public purposes. (2) All costs to the [Municipality], direct and indirect, are reimbursed in full by the sponsor of the event. (3) The application satisfies all other provisions of this Article. (b) The limitation on advertising and promotion of commercial products, goods or event shall not apply to signs identifying organizations or sponsors furnishing or sponsoring exhibits or structures used in a parade or assembly conducted primarily by a not-for-profit organization or for a related purpose. (c) The limitation set forth in this section is not intended to prevent assemblies or parades conducted for private, profit purposes that are conducted on private property in full accord with local land use and other ordinances and which incidentally may utilize public streets, sidewalks, or other places. However, a permit must be obtained under this Article for such incidental uses. 264 IMLA Model Ordinance Service 19 Copyright © 2009 by International Municipal Lawyers Association (IMLA) SECTION 13-627 Specific Prohibitions. In addition to any other prohibitions set forth in this Article, the following prohibitions apply to permits for parades and public assemblies. No person may: (a) Engage in any parade or public assembly activity that would constitute a substantial hazard to the public safety or that would materially interfere with or endanger the public peace or rights of residents to the quiet and peaceful enjoyment of their property. (b) Carry or possess any length of metal, lumber, wood, or similar material for purposes of displaying a sign, poster, plaque or notice, unless such object is one-fourth inch (1/4") or less in thickness and two inches (2") or less in width, or if not generally rectangular in shape, such object shall not exceed three-fourths inch (3/4") in its thickest dimension. [Note: See comment at end of this section.] (c) Carry any sign, poster, plaque, or notice, whether or not mounted on a length of material as specified in paragraph (b), unless such sign, poster, plaque, or notice is constructed or made of cloth, paper, or cardboard material. [Note: See comment at end of this section.] (d) Utilize sound amplification equipment at decibel levels that exceed those limits imposed by municipal Ordinance __________ [ordinance that specifies permissible decibel levels for sound equipment used in public places] or that otherwise causes substantial interference with public health and welfare so as to cause a public nuisance. (e) Ride, drive, or cause to be ridden or driven any animal or any animal-drawn vehicle upon any public street, unless specifically authorized by the permit. [Commentary: Restrictions on signs or other means of expression, if used, must be limited and have a solid basis in protecting public safety. For example, a prohibition against using a large inflated rat balloon as violating prohibition against structures in a street (constituting a traditional public forum) voided in Tucker v. City of Fairfield, Ohio, 398 F.3d 457(6th Cir. 2005). Restrictions against carrying dangerous items during parade have been upheld, though vague and uncertain listings raise problems. These problems may be avoided by careful listing of items that are prohibited, as in United Food & Commercial Workers Union Local 442 v. City of Valdosta, 861 F. Supp. 1570 (M.D. Ga. 1994) where court held that city code provisions prohibiting possession "of any object or instrumentality with an apparent potential to cause physical injury to persons or damages to property" by persons engaged in public assembly, or procession did not violate the First Amendment. The court noted that the sections at issue set forth specific examples of prohibited objects, including "walking or hiking sticks, canes, clubs, knives, firearms, brass knuckles, slingshots, (and) zip guns."] SECTION 13-628 Public Conduct During Parades or Public Assemblies. (a) No person may unreasonably hamper, obstruct or impede, or interfere with any parade or public assembly or with any person, vehicle or animal participating or used in a parade or public assembly. (b) No driver of a vehicle shall drive between the vehicles or persons comprising a parade or public assembly when such vehicles or persons are in motion and are conspicuously designated as a parade or public assembly. 265 IMLA Model Ordinance Service 20 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (c) The Police Chief [or other appropriate board or official], when reasonably necessary, may prohibit or restrict the parking of vehicles along a street constituting a part of the route of a parade or public assembly. The Police Chief [or other board or official] shall post signs to that effect. Any person who parks or leaves a vehicle unattended in violation of such requirement in a posted area shall be guilty of a violation [or other offense] in accordance with municipal parking ordinances. [Commentary: Local governments may wish to exercise caution regarding attempts to regulate expressive conduct during parades or other public events. Courts, however, have upheld municipal enforcement of dress code standards established by private sponsors of permitted events. See, e.g., Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950 (9th Cir. 2008). So long as government is not seeking to control conduct with which it may disagree, requirements to agree to abide by general conduct ordinances are valid, American Civil Liberties U. of So. Cal. v. Board of Education, 59 Cal. 2d 203, 28 Cal. Rptr. 700, 379 P.2d 4 (1963).] SECTION 13-629 [RESERVED] Subdivision 3: Use of Public Facilities for Non-Public Events. [Commentary: The primary focus of this sample ordinance and the annotations relates to limits established under First Amendment protections for rights of speech and assembly. Consideration also must be given to both prongs of First Amendment freedom of religion jurisprudence (establishment and free exercise). See, e.g., Child Evangelism Fellowship of South Carolina, v. Anderson School District 5, 425 F. Supp.2d 574 (Dist. S.C. 2006). Traditional forum analysis must be consideration as well, Moore v. City of Van, Texas, et als., 116 F. Supp.2d 897 (E.D. Texas 2003). The traditional “Lemon test,” derived from Lemon v. Kurtzman, 403 U.S. 602 (1971), though questioned in some corners, is used for establishment analysis, while Cornelius v. NAACP Legal Defense and Ed. Fund, 473 U.S. 788 (1985) established a three-prong test for analyzing governmental restrictions on expressive activity. The first prong requires a determination of whether the speech in question is protected by the First Amendment. The second prong requires an identification of the nature of the forum for the speech. The third requires an assessment of whether the government's exclusion of the speech from the particular forum is justified. The leading case on governmental permission to use facilities in light of First Amendment rights is generally acknowledged to be Good News Club v. Milford Central School, 533 U.S. 98 (2001), in which a Christian children’s club sued a public school, alleging that the school’s refusal to allow it to use school facilities violated free speech rights under the First Amendment. The United States Supreme Court held that the government violates the First Amendment when it excludes “speech discussing otherwise permissible subjects” because of the viewpoint of the speaker. The school’s exclusion of the club from meeting after hours at school based on its religious nature was unconstitutional viewpoint discrimination.] SECTION 13-630 Applicability. This subdivision applies to events that seek to utilize municipal public facilities for events to which the general public is not invited or expected to attend. 266 IMLA Model Ordinance Service 21 Copyright © 2009 by International Municipal Lawyers Association (IMLA) (a) A person or organization may apply for a permit to use municipal facilities for purposes other than a parade or public assembly, including, but not limited to: (1) Social events such as parties, celebrations, weddings, and reunions. (2) Educational, civic, and cultural events. (3) Non-partisan political events. (4) Religious purposes. (b) An application for such an event shall conform to all other requirements for permits under this Article and also shall contain the following information: (1) Purpose of the event. (2) Nature of the use to be made of the facility. (3) Food and beverages to be served at or in connection with the event. (4) Whether the event is open to the public, invited guests, or others, including a description of any individuals or organizations to whom entry to the event may be denied. (5) Whether an admission fee or other charge will be imposed. (c) The Administrator shall utilize the general standards under this Article to determine if a permit for such use shall be granted and also shall consider the following factors: (1) Such use shall not be inconsistent with the general public standards extant in the [Municipality]. (2) The possibility of damage to or destruction of municipal property. (3) Existing use regulations for the facility which would be inconsistent with the proposed event. (4) The likelihood that granting permission for the use would reflect adversely on the [Municipality]. [Commentary: As stated in the note to section 13.604 (c), it may be advisable to designate facilities that may or may not be utilized for private purposes under this subdivision, or to allow administrator to designate forums for this purpose. For a case holding a library to be a forum available for lecture on creationism, see Pfeifer, v. City of West Allis, 71 F. Supp.2d 334 (E.D. Wis. , 2000). In determining whether to allow use of a school for a demonstration, “in the best interest” standard was impermissibly vague and constituted prior restraint, Local Organizing Committee, Denver Chapter, Million Man March, A Non-Profit Corporation, et als. v. Cook and the Board of Education of the Denver Public Schools, 907 F. Supp. 707 (Dist. Co. 1996). With regard to use of public facilities for religious purposes, primary consideration should be given to establishment clause and to possibly discriminatory action in violation of free exercise clause as suggested in Section 13-632.] SECTION 13-631 Rental Fees. In addition to the application fees and other charges that may be imposed for a permit under this Article, the applicant for a permit under this subdivision shall pay rental fees for the facility as hereinafter set forth. (a) Rental fees shall be payable according to the following schedule: [Here, insert table showing rental fees for listed facilities] (b) Rental fees may be decreased or waived if the Administrator determines that the event will be conducted in a manner that serves the public interest or where 267 IMLA Model Ordinance Service 22 Copyright © 2009 by International Municipal Lawyers Association (IMLA) imposition of the fee would pose a substantial burden on the exercise of First Amendment rights of speech or assembly. [Commentary: As noted, standards such as “public interest” may be too vague for First Amendment scrutiny. A fee required for a permit to use public land and facilities, which was fixed at $50 for city residents and $100 for non-residents, did not violate First Amendment since fees were fixed based upon the facility reserved and the number of people attending, not based upon the purpose of the event or content of the message. City officials had no discretion with regard to the permit fee, and city was required to waive the permit fee upon objective evidence of an inability to pay. Nationalist Movement v. City of York, 425 F. Supp.2d 574 (M.D. Pa. 2006).] SECTION 13-632 Religious Uses. Permits for use of public facilities for religious purposes may be issued but the Administrator shall act on permit applications so that: (a) There is no appearance of support for or establishment of a sectarian religious purpose. (b) Selection of applicants is not based on discrimination based on religious belief. (c) Individuals and organizations are given reasonable opportunities to use public facilities. This requirement shall not be deemed to prohibit the rental of public facilities for extended periods for the conduct of regular religious services. (d) Any religious images, decorations, or other publicity or display are temporary and used solely during periods of rental and are removed during other periods. (e) The Administrator may require users to post notices to the effect that the allowed use is not deemed an endorsement of the user or the user’s beliefs by the [Municipality]. SECTIONS 13-633 – 339 [RESERVED] Subdivision 4. Miscellaneous Provisions. SECTION 13-640 Participation in Events; Restrictions. (a) Participation. An event for which a permit is issued to a private entity that is not part of the local government of [Municipality] or an event that is not sponsored directly or indirectly by the [Municipality] shall not be deemed state or governmental action. Accordingly, the [Municipality] shall not compel or otherwise direct the inclusion or exclusion in the event of any group or class of individuals. (b) Restriction on Participation. An event subject to this Article may be limited as to the number of participants in the interest of safety, health, public order, and adequacy of facilities and security. If the number of participants is so limited, the permit shall specify an objective manner in which participants are selected and shall provide an expedited manner of appealing any exclusion in accordance with section 13-617. The number of participants also may be restricted by order of the Administrator or Police 268 IMLA Model Ordinance Service 23 Copyright © 2009 by International Municipal Lawyers Association (IMLA) Chief or Fire Chief, even if not limited in the permit, based on considerations of public health, safety, and welfare. [Commentary: For case upholding right of parade sponsors to limit participants so long as government is not involved in prohibited discrimination, see Hurley v. Irish- American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).] SECTION 13-641 Security for Performance. A permit issued under this Article may be conditioned upon the permittee providing surety for performance of obligations under this Article or associated with specific terms or conditions of the permit. The Administrator shall determine the amount of the surety after review and consultation with appropriate municipal employees and officials. The surety shall be intended to secure payment of any costs that might be incurred by the [Municipality] that should be the responsibility of the permittee. The need to use security for performance shall be stated by the Administrator in the permit. Any applicant may provide evidence of inability to obtain surety which, if shown, shall be cause for the Administrator to waive such requirements in the interest of permitting protected speech or assembly to proceed. [Commentary: See comments in annotations above as to financial surety interference with First Amendment rights of expression. In addition, the practical inability of the applicant to obtain insurance or security may invalidate these requirements as in Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), where a village ordinance concerning public demonstrations and assemblies required a permittee for a parade or public assembly of more than 50 persons to obtain $350,000 insurance coverage. As applied to parade applicants, Nazi party adherents, who proved in the lower court that they could not obtain the requisite insurance, the requirement interfered with protected rights. In light of expert testimony that the insurance would typically not be available to the most controversial groups, which the village presumably would have the strongest interest in being insured, the court stated that it did not need to determine that no insurance requirement could be imposed in any circumstances; it dealt solely with the level of insurance required.] SECTION 13-642 Cost Recovery. If a permittee fails to pay costs or take actions required under this Article, the [Municipality], after requesting the permittee for payment, may draw upon any security provided under section 13-641 or may seek to recover such costs from the permittee or other responsible person by appropriate legal action. If the [Municipality] prevails in any such action for recovery, it shall be entitled to reimbursement of any costs incurred in seeking such recovery, including court costs and attorneys’ fees. Cost recovery from permittees and participants shall be focused upon the conduct of the permittees and authorized participants and not on conduct of observers or others over whom permittee cannot reasonably be expected to exercise control. 269 IMLA Model Ordinance Service 24 Copyright © 2009 by International Municipal Lawyers Association (IMLA) SECTION 13-643 Revocation or Suspension of Permits. (a) The Administrator may suspend or revoke any permit issued under this Article upon finding any violation of this Article, the terms or conditions imposed in the permit, or for any other action deemed detrimental to public health and safety. Such revocation shall take effect immediately, and the Administrator shall promptly notify the permittee of revocation. After revocation, the permittee may not conduct the event, or if the event has commenced, shall immediately cause the event to be terminated in a safe, proper manner. (b) If a public emergency arises where municipal resources required for the emergency are so great that deployment of municipal personnel, equipment or services for a parade or public assembly would have an immediate, adverse effect upon welfare and safety of persons or property, the Administrator may suspend or revoke the permit and the permittee shall comply with such directives as the Administrator may impose. [Commentary: Cases do uphold the right of revocation, but grounds for such actions should be clearly stated and limited and a minimum of due process should accompany such authority, City of Oakwood v. Gummer, 38 Ohio St. 2d 164, 67 Ohio Op. 2d 179, 311 N.E.2d 517 (1974).] SECTION 13-644 Enforcement. This Article may be enforced by injunction, restraining order, declaratory relief or such other order as may be imposed by a court with appropriate jurisdiction. SECTION 13-645 Violations, Penalties. Any person who violates this Article or the terms or conditions of any permit issued under this Article shall be [insert appropriate reference to criminal code or penalty, if authorized.] SECTION 13-646 Judicial Review. Any person aggrieved by a decision under this Article may appeal from that decision to a court with appropriate jurisdiction in accordance with applicable statutes or court rules. Any person who is granted standing to file internal appeals pursuant to section 13-617 shall first exhaust such administrative remedies prior to seeking judicial relief. SECTION 13-647 Severability. [Note: Not required if code contains general severability provisions.] If any provision of this Article is for any reason held invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Article. [Commentary: Severability provisions, either in code generally or in this ordinance specifically, are essential protections for local governments and can be upheld. See, e.g., The Nationalist Movement, v. City of York, supra, note at Section 13-605.] 270