Loading...
HomeMy WebLinkAboutFinal Adoption of Ordinance No. 1798, General Revisions to Ch. 12.32, Parades and Public Assemblies.pdf1 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Debbie Arkell, Director of Public Services Greg Sullivan, City Attorney SUBJECT: Final Adoption of 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: April 25, 2011 AGENDA ITEM TYPE: Action RECOMMENDATION: Finally adopt Ordinance No. 1798 as provided by staff thus amending Chapter 12.32 of the Bozeman Municipal Code, Parades and Public Assemblies. SAMPLE MOTION: I hereby move to finally adopt Ordinance 1798 as amended by the Commission at provisional adoption and also to include the amendments suggested by staff generally revising Chapter 12.32 of the Bozeman Municipal Code. BACKGROUND: The Commission previously considered this ordinance on two separate occasions: on January 31, 2011 and again on March 7, 2011. For background related to the ordinance we provide as an attachment the staff report from the 3/7/11 hearing on provisional adoption. At the 3/7/11 meeting the Commission provisionally adopted this ordinance upon the following motions: Main Motion: It was moved by Cr. Taylor, seconded by Cr. Andrus to provisionally adopt Ordinance No. 1798 generally revising Chapter 12.32 of the Bozeman Municipal Code. The motion passed 4-0. It was clarified that the Ordinance amended this evening is the version that has been included in the packet materials for this meeting that included all of the changes from the January 31st meeting. The Commission generally agreed to add the “Spring Bobcat Festival” as a recognized community event. · Amendment: It was moved by Cr. Taylor, seconded by Cr. Andrus that the City Manager be responsible for reviewing applications instead of the City Commission and that the Commission would only hear appeals. The motion passed 4-0. · Amendment: It was moved by Cr. Taylor, seconded by Cr. Andrus to amend the Ordinance No. 1798, adding an additional standard of issuance which there would be a demonstrable nexus between the purpose of the gathering and the use of Main Street. This is for applications that seek to close Main Street. The motion passed 4-0. 144 2 · Amendment: It was moved by Cr. Mehl, seconded by Cr. Taylor to amend 12.32.070 Sub- Section E & F to clarify as the City Attorney explained. o Section E. the last sentence shall state:….the permit holder or participants in or attendees to the parade or public assembly. o Section F. The city manager may grant exceptions a waiver to the requirements of this section for city sponsored events or for other events taking into account the general public health, safety and welfare associated with the request for exception, as well as the liability risk associated with the parade and or public assembly when the city manager determines…… The motion passed 4-0. · Amendment: It was moved by Cr. Mehl, seconded by Cr. Taylor to change definition of Public Assembly to mean any meeting, march, demonstration, picked line, rally, or gathering of seventy five (75) or more persons rather than the 25 persons. The motion passed 3-1 with Mayor Krauss opposed. · Amendment: It was moved by Cr. Taylor, seconded by Cr. Andrus to amend section I (12.32.230) to read as follows: “No parade participant shall throw, cast, or drop candy, trinkets, or any other articles from a moving vehicle. This provision does not prohibit a parade participant from handing providing candy or other articles directly to the spectators provided the participant is walking.” The motion passed 3-1 with Cr. Mehl opposed. Subsequent Motion: It was moved by Cr. Mehl, seconded by Cr. Taylor to direct that a fee resolution come back to the Commission that we continue to bill as we do and increase from $100 to $250 per road closure application per incident. The motion passed 3-1 with Mayor Krauss opposed. Subsequent Motion: It was moved by Cr. Taylor, seconded by Cr. Andrus to direct staff to come back to the Commission for their consideration at that time with a schedule of costs and fees based upon actual costs to the City of whatever events are permitted for consideration at that time. The motion tied 2-2 with Cr. Mehl and Mayor Krauss opposed. Cr. Becker voted against the motion on 3/21/11 the result being the motion failed. The version of the ordinance provided as an attachment to this staff memorandum reflects the motions as made above. You will see all the changes made due to these motions reflected in the attached ordinance in yellow highlights. In addition to the amendments made by the Commission during provisional adoption, we propose several additional amendments. These proposed amendments are reflected in red highlights in the attached draft. Below we provide a brief description and rationale for the additional changes. None of the changes are of such a nature as to require an additional hearing unless the Commission so chooses. · 12.32.030.G (definition of “recognized annual community event”): As the Commission required the City Manager to review all applications there is no longer any code provision which depends upon this definition. See deletion to Section 10 of the ordinance at pg. 10 of the ordinance. As such, we recommend deleting the definition of recognized community event (i.e. “The List”) from the ordinance and instead include a clear statement in the recitals that reflects the Commission’s intent regarding these listed 145 3 events. See the addition to the Recitals (pg. 1-2) and the deletion of the definition in Section 4 of the Ordinance at pg. 5. · 12.32.040.B (Administration/Permit Required): We suggest adding a phrase to clarify that anytime a public right-of-way will be used a permit is required. Thus, even if an event does not involve 75 or more people the event will be required to obtain a permit if the event seeks to use a public right-of-way (i.e. a street closure). It is clear the intent of this section was to require a permit for use of a public right-of-way as a public right-of- way is clearly a city “facility;” however, we feel the addition of the phrasing makes the requirement clearer. See Ordinance pg. 5. · 12.32.080.B (Application): The provision shown within the red highlight was included in previous drafts because we provided a specific timeline for the application submittal of recognized annual community events. Because the Commission decided to have the City Manager be the permit authority for all events the provision highlighted in red is no longer necessary. All events will be subject to the same timeline for submittal and review. See Ordinance at pg. 8. · 12.32.080.C (Application): The Commission discussion included statements related to ensuring a recurring event could apply for a permit for all scheduled dates under one application but would need to pay a separate street closure fee for each occurrence. The language in this section reflects that discussion. The fee scheduled to be heard subsequent to your decision on final read of this ordinance also reflects this standard. See Ordinance at pg. 9. · Section 11 of the Ordinance (new section Traffic Control Plan/City Equipment): We added the word “manager” after “city” to reflect the person with the authority to determine if the city streets division will close the streets. See Ordinance at pg. 11. · 12.32.150.A.21 (Standards of Issuance): The Commission upon a vote of 4-0 amended the main motion to include a standard of issuance that required an applicant requesting to close Main Street to demonstrate a nexus between the event and the need for the use of Main Street (see above under the Commission’s first amendment to its main motion). The yellow highlighted provision in this section reflects the Commission amendment. However, we recommend deleting the Commission adopted phrase “purpose of” and adding the phrase “as opposed to use of another location.” As to the deletion of the phrase “purpose of” we consider the current phrasing to constitute a risk this particular provision could be considered a content-based statement and difficult for the Commission to meet the standard of “compelling governmental interest” and “least restrictive means.” As for the addition of the phrasing related to another location, courts generally approve of a city’s authority (both facially and as applied) to require an event to be held at a different location. See Ordinance at pg. 16. · 12.32.200 (Appeal Procedure): We suggest deleting the opening phrase because the City Manager will now review all permits. See Ordinance at pg. 18. Should the Commission finally adopt Ordinance 1798 it will become effective 30 days after adoption. Any application in review at the time the ordinance becomes effective will be required to comply with any applicable new standard. 146 4 We will provide a clean copy of the Ordinance (without the highlighted sections but showing all applicable changes) to the Clerk for the Mayor’s signature. ALTERNATIVES: As suggested by the City Commission. FISCAL EFFECTS: Resolution No. 4341will be presented to the Commission after consideration of the final adoption on this ordinance. The new fees will help offset street closure costs associated with parades and public assemblies. UNRESOLVED ISSUES: None identified. Attachments: Ordinance No. 1798 Final Adoption (showing Commission changes and staff suggested changes). Staff Memorandum from March 7, 2011 action item on provisional adoption. Report compiled on: April 14, 2011. 147 Ordinance 1798 – Final Adoption Page 1 of 25 ORDINANCE NO. 1798 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY GENERALLY REVISING CHAPTER 12.32 RELATED TO PUBLIC ASSEMBLY AND PARADE PERMITTING AND ADDING PROVISIONS REQUIRING INSURANCE AND INDEMNIFICATION 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 Commission that certain events, because of thier significant historical or cultural contribution to the welfare of the citizens of Bozeman be given 148 Ordinance 1798 – Final Adoption Page 2 of 25 recognition as annual community events and as such receive the full participation and support of the city of Bozeman and the residents of Bozeman and which events include: Music on Main; Christmas Stroll; Bite of Bozeman; Sweet Pea Parade; Bozeman High School Homecoming Parade; the Montana State University Homecoming Parade; the American Legion Memorial Day Parade; the Semi- Annual Montana State University Pep Rallies and the spring Bobcat Festival; the Downtown Business Partnership Sponsored Cruisin’ on Main Car Show; and other City sponsored events as determined by the city commission; 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. 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 Insurance, Indemnification, 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/City Equipment 12.32.110 Alternative Permit Temporary Closures for Residential Block Parties 149 Ordinance 1798 – Final Adoption Page 3 of 25 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” Section 2 That a new section shall be added to the Bozeman Municipal Code to read as follows: “ 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 shall be added to the Bozeman Municipal Code to read as follows: “ 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.” 150 Ordinance 1798 – Final Adoption Page 4 of 25 Section 4 That current section12.32.010 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.010 030 Definitions As used in this chapter: A. “Aggrieved Person” means a person who can demonstrate a specific, personal and legal interest in the final decision of an application for a permit issued under this chapter, as distinguished from a general interest such as is the concern of all members of the community, and which interest would be specifically and personally prejudiced by the decision or benefited by its reversal. B. “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. C. “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 facilities 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 groundsfacilities. D. “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. E. “Public assembly” means any meeting, march, demonstration, picked line, rally, or gathering of more than twenty-five (25)seventy five (75) or more 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. F. “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. 151 Ordinance 1798 – Final Adoption Page 5 of 25 G. “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; the Montana State University Homecoming Parade; the American Legion Memorial Day Parade; the Semi-Annual Montana State University Pep Rallies and the spring Bobcat Festival; the Downtown Business Partnership Sponsored Cruisin’ on Main Car Show; and City sponsored events as determined by the city commission. H.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. I.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 current section 12.32.020 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, including public rights-of-way, 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 current section 12.32.030 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: 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.; 152 Ordinance 1798 – Final Adoption Page 6 of 25 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 shall be added to the Bozeman Municipal Code to read as follows: “ 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.” Section 8 That section 12.32.070 of the Bozeman Municipal Code shall be amended to read as follows: 153 Ordinance 1798 – Final Adoption Page 7 of 25 “12.32.070 Established Parade Route Downtown parade route: A. Staging Area. Staging area shall be conducted on East Main Street between Rouse and Wallace. B. Route of Travel. Route of travel shall commence from the staging area and travel West on Main Street to 11th Avenue. C. Disband Area. Disbanding shall be conducted on West Main Street between 11th Avenue and 15th Avenue. “12.32.070 Requirements for Insurance, Indemnification, 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, indemnification, 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. A permittee under this chapter shall obtain commercial general liability insurance covering the permittee and/or the permittee’s organization for all activities related to the parade and/or public assembly, including but not limited to setup, the public assembly or parade itself, and all cleanup and takedown activities. The insurance policy shall contain no exceptions or exclusions for activities conducted under or related to the permitted activities. The permittee shall name the city, its officers, and employees as additional insureds on a primary non-contributory basis. The additional insured coverage shall be in a form acceptable to the city. To the extent reasonably possible, such additional insured coverage shall be in the minimum amounts of $750,000 per claimant and $1,500,000 per occurrence. C. The insurance requirements of this section are in addition to and separate from any other obligations contained in this section or chapter or in a permit issued under this chapter. D. Any liability insurance requirements for residential block parties shall be governed by section 12.32.110, pertaining to residential block parties. E. Applicants for a permit under this chapter shall agree in writing to defend, hold the city and its employees and officials harmless and indemnify the city, its employees and officials, for any and all claims, lawsuits or liability including attorneys' fees and costs allegedly arising out of loss, damage or injury to person or person's property 154 Ordinance 1798 – Final Adoption Page 8 of 25 occurring during the course of, in preparation of, or in any way pertaining to the parade or public assembly which are caused by the conduct of employees or agents of the permit holder or participants in or attendees to the parade or public assembly. F. The city manager may grant exceptions a waiver to the requirements of this section for city sponsored events or when the city manager determines the parade or public assembly does not present a substantial or significant public liability or property damage exposure for the city, its officers, agents and employees.for other events taking into account the general public health, safety and welfare associated with the request for exception, as well as the liability risk associated with the parade and/or public assembly. The city manager shall consider the applicant’s proven financial inability to obtain the required coverage. When the city manager considers requests for exceptionswaivers, the city manager shall base the decision on the factual circumstances presented by the applicant and decide the specific request on its merits. Section 9 That current section 12.32.040 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. 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 and pursuant to 12.32.090 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 required time frame 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. 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 155 Ordinance 1798 – Final Adoption Page 9 of 25 year on one application but a separate application fee for each occurrence must be paid. 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; 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 156 Ordinance 1798 – Final Adoption Page 10 of 25 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 shall be added to the Bozeman Municipal Code to read as follows: “ Downtown Street Closure Approval A. Applications for recognized annual community events 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.” Section 11 That a new section shall be added to the Bozeman Municipal Code to read as follows: “ Traffic Control Plan/City Equipment A. Applications for parades, public assemblies, residential block parties, fun runs and other similar events that include a street(s) closure must provide 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 of 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 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 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 157 Ordinance 1798 – Final Adoption Page 11 of 25 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 if it is determined the closure(s) will be done by the city streets division, with or without a fee for the service. Section 12 That a new section shall be added to the Bozeman Municipal Code to read as follows: “ Temporary Closures for Residential Block Parties. Residential block parties may be permitted by the city manager pursuant to the criteria in section 12.32.150 at residential locations not involving closure of any arterial or collector streets and only during the hours between 8:00 a.m. and 9:00 p.m. subject to the following conditions: A. The applicant shall contact in writing all abutting or adjacent property owners and residents (if a property is not owner-occupied) within the area to be closed as well as the property owners on the corner lots immediately across the intersection on the opposite side of the street closure. The applicant shall provide written documentation to the city manager at the time of application indicating each of the above described property owner/residents consent to or oppose the application. B. The applicant must have an approved traffic control plan in accordance with section 12.32.100 and shall be solely physically and financially responsible for obtaining, placing and removing any required barricades or traffic control devices. C. The applicant to the extent reasonably possible shall provide liability insurance protecting themselves as well as naming the city, its officers and employees, as an additional insureds. D. The applicant and participants shall comply with any conditions imposed on the permit. E. Applicants for a permit under this chapter shall agree in writing to defend, hold the city and its employees and officials harmless and indemnify the city pursuant to section 12.32.070.E. Section 13 That current section 12.32.050 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.050 120 Fees/Cost Recovery 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 158 Ordinance 1798 – Final Adoption Page 12 of 25 applicant when the application is filed. The All fees under this chapter shall be set by resolution of the City commission. If the city manager requires a deposit for the parade or public assembly 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 costs for those services in accordance with a schedule of service costs approved by the City commission by resolution, or assessed by the city manager as authorized under this chapter. (Ord. 1458 § 1 (part), 1998) C. If a permittee fails to pay costs or take actions required under this chapter, the city, after requesting the permittee for payment, may draw upon any deposit provided under 12.32.120.A or may seek to recover such costs from the permittee or other responsible person by appropriate legal action. If the City 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 other over whom permittee cannot reasonably be expected to exercise control. Section 14 That current section 12.32.060 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 police 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 159 Ordinance 1798 – Final Adoption Page 13 of 25 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. (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. D. 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 expenses provided by the city. Section 15 That section 12.32.140 of the Bozeman Municipal Code shall be amended to read as follows: “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) “12.32.140 Public Hearing 160 Ordinance 1798 – Final Adoption Page 14 of 25 A. At any time during consideration of an application, the city manager may determine it is necessary to conduct a public hearing to the extent possible 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 current section 12.32.080 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. 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 in the vicinity of 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, pursuant to chapter 8.30. 161 Ordinance 1798 – Final Adoption Page 15 of 25 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. Except as the city manager may determine pursuant to section 12.32.060, 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; 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 was acceptable. 17. The event has no significant financial impact on city resources for events scheduled on holidays and weekends. 162 Ordinance 1798 – Final Adoption Page 16 of 25 18. The number of hours a street(s) is requested to be closed will not significantly affect vehicular and pedestrian access to commercial and residential properties. 19. A new event that requests the closure of a collector and/or arterial street(s) would benefit more than just a limited number of individuals. 20. A street closure is necessary for the safety of the event participants, rather than just for the convenience of the event. 20.21. For events which seek the closure of any portion of Main Street the applicant must demonstrate a nexus between the purpose of the event and the need for use of Main Street as opposed to use of another location. 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 shall be added to the Bozeman Municipal Code to read as follows: “ 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 division, 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 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. 163 Ordinance 1798 – Final Adoption Page 17 of 25 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 current section 12.32.110 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)” Section 19 That current section 12.32.090 of the Bozeman Municipal Code shall be amended to read as follows: “12.32.090 180 Nondiscrimination 164 Ordinance 1798 – Final Adoption Page 18 of 25 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 current section 12.32.100 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 current section 12.32.120 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.B, An aggrieved person 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 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 165 Ordinance 1798 – Final Adoption Page 19 of 25 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. An aggrieved person may, only after complying with 12.32.200.A, 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 City Manager’s decision on the request for reconsideration. 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 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 days after the commission’s rejection. (Ord. 1458 § 1 (part), 1998)” Section 22 That current section 12.32.130 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; and 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)” 166 Ordinance 1798 – Final Adoption Page 20 of 25 Section 23 That current section 12.32.150 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)” Section 24 That current section 12.32.160 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 for which a permit is required 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.; 167 Ordinance 1798 – Final Adoption Page 21 of 25 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 approved parade route, whichever is applicable.; and I. No parade participant shall throw, cast, or drop candy, trinkets, or any other articles from a moving vehicle. 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 providing candy or other articles directly to the spectators provided the participant is walking.. (Ord. 1458 § 1 (part), 1998) 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 pursuant to chapter 9.70. Section 25 That current section 12.32.170 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. 168 Ordinance 1798 – Final Adoption Page 22 of 25 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 may require the applicant to post signs to that effect, and if so 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 that was not posted in accordance with this section. unposted in violation of this chapter. (Ord. 1458 § 1 (part), 1998) Section 26 That current section 12.32.180 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 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 shall be added to the Bozeman Municipal Code to read as follows: “ 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.” 169 Ordinance 1798 – Final Adoption Page 23 of 25 Section 28 That a new section shall be added to the Bozeman Municipal Code to read as follows: “ Judicial Review After complying with the requirements of section 12.32.120, an aggrieved person may file a request for judicial review of a decision by the city commission made pursuant to this chapter section 12.32.200 or section12.32.090.B. The request for review shall be filed no later than thirty (30) days after the commission’s action. Section 29 That current section 12.32.190 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.” Section 30 Codification Instruction The provisions of this ordinance shall be codified as indicated herein and all new sections shall be codified as follows: Section 1 at 12.32.010; Section 2 at 12.32.020; Section 7 at 12.32.060; Section 10 at 12.32.090; Section 11 at 12.32.100; Section 12 at 12.32.110; Section 17 at 12.32.160; Section 27 at 12.32.260; and Section 28 at 12.32.270. 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. 170 Ordinance 1798 – Final Adoption Page 24 of 25 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. PROVISIONALLY PASSED by the City Commission of the city of Bozeman, Montana on first reading at a regular session thereof held on the 7th day of March 2011. ____________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk 171 Ordinance 1798 – Final Adoption Page 25 of 25 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 25th day of April, 2011. The effective date of this ordinance is the 25th day of May, 2011. __________________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM __________________________________________ GREG SULLIVAN City Attorney 172 1 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 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: March 7, 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. The Commission previously considered this Ordinance on January 31, 2011. Motions were passed to: 1) amend 12.32.030.F, definition of “Recognized Annual Community Event” to include the American Legion Memorial Day Parade, Downtown Bozeman Partnership’s Cruisin’ on Main Car Show, semi-annual MSU pep rallies, and City of Bozeman sponsored events; and 2) delete Section 12 of the Ordinance, 12.32.110 Established Parade Routes. In addition, several changes were discussed at the January 31, 2011 meeting, and a motion to provisionally adopt the Ordinance was continued for three weeks to give staff time to investigate the issues raised. Staff set the review day for March 7 to ensure the Ordinance was considered at a meeting when all Commissioners were scheduled to be present. A majority of the following information was contained in the January 31 commission memo. Because the information is still relevant, it has been retained in this memo. New information is shown in bold lettering. Included in the packet are two revisions of the Ordinance. One is a “clean” Ordinance that shows deletions from current Chapter 12.32 in strike-out and additions in underline. In an effort to provide the information in a manner that distinguishes changes from the January 31 edition, we provide a second version of the ordinance that shows all new material, whether deleted or added, in yellow highlight. An explanation of the changes is also provided in the margin. 173 2 Staff attempted to make changes that were supported by a majority of the Commission. Changes that were discussed but were not clearly supported by a majority of the Commission are discussed in the Alternatives section of this memorandum. 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 were added or amended including: Purpose and Intent; Scope; Authority; Established Parade Routes; Nondiscrimination; Enforcement; Judicial Review; and Violations, Penalties, etc. Minor housekeeping changes are also included. As approved by the commission on January 31, the established parade route section was deleted. 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”. SUMMARY OF MAJOR CHANGES: · Section 4, 12.32.030 Definitions, pages 3-5: Added definitions for: · “Aggrieved Person” to refine who can appeal. This definition is identical to the definition of “aggrieved person” in the Uniform Development Ordinance (UDO), and is similar to the definition of aggrieved person found in the Montana Subdivision and Platting Act. It is important to note that although this definition purports to limit those who can quality to bring an appeal of a decision, in practice this provision should be construed in favor of a person seeking to challenge a decision related to the exercise of a first amendment right. · “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 the definition. · “Public facility”. Includes public buildings other than park or recreational buildings, which are defined in Chapter 12.26. An ordinance to amend Chapter 12.26 was provisionally adopted on January 31, with the second reading scheduled to coincide with the second reading of the subject ordinance. · “Recognized Annual Community Event” defined as Music on Main, Christmas Stroll, Bite of Bozeman, Sweat Pea parade, Bozeman High School Homecoming parade, MSU Homecoming parade, the American Legion Memorial Day Parade; the Semi-Annual Montana State University Pep Rallies; the spring Bobcat Festival; Downtown Business Partnership Sponsored Cruisin’ on Main Car Show; and city sponsored events as determined by the city commission.” The 174 3 last four events were added from the January 31 motion. Staff specifically included the “spring Bobcat Festival”, and as noted in Unresolved Issues, staff is asking commission to clarify whether this event is to be included here. We also suggest the Commission add the phrase “as determined by the commission” after “city sponsored events.” No other events will fall within that category unless added by the commission. · Section 6, 12.32.050 Exceptions, 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, provisionally adopted on January 31, will add the review of parks and recreational facilities in that chapter. · Section 7, 12.32.060 Parades and Public Assemblies Open to Public/Private For-Profit Activities, page 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. · Section 8, 12.32.070 Requirements for Liability Insurance, Indemnification, Bonding or Other Security, pages 6-7. · Paragraph A of this section is the same as the January edition, with the inclusion of the term “indemnification”. Paragraph B has been re-written and requires all permitted events to provide commercial general liability insurance in the minimum amounts of $750,000 per claimant and $1,500,000 per occurrence. · Paragraphs C through F are also new. Paragraph E requires applicants to defend, hold the city and its employees and officials harmless and indemnify the city, its employees and officials, for claims, lawsuits and liability. · Currently, we only require insurance for “big” events – Music on Main, Sweet Pea, Hoops Festival. The requirement for liability insurance could be based on the amount of risk the city wants to accept for each event; as such, Paragraph F provides the city manager may waive this requirement. · Requiring insurance and indemnification/hold harmless is a risk management issue and while we strongly urge the commission to consider including these requirements, the decision whether to do so is a policy decision. · Language regarding clean up deposit has been moved to Section 13. · Section 9, 2.32.080 Application, pages 8-9 · 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.) · Deletes the specific information required on the application form which allows staff to modify the form as needed without amending the ordinance. 175 4 · Specifically states if an application is denied, the city assumes no liability for expenses incurred by the applicant. · Section 10, 12.32.090 Downtown Street Closure Approval, pages 9-10. · 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. · Section 11, 12.32.100 Traffic Control Plan, page 10. · 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. · Section 12, 12.32.110 Temporary Closures for Residential Block Parties, pages 10- 11 · New section providing for residential block parties in residential locations not involving closure of an arterial or collector street, and only during hours between 8 am and 9 pm. · Reviewed under the standards of 12.32.150. · Requires applicant to provide written documentation from abutting and adjacent property owners within area to be closed indicating consent or opposition to the application. · Requires indemnification and liability insurance “to the extent reasonably possible.” · Section 13, 12.32.120, Fees/Cost Recovery, pages 11-12 · Adds a provision that the city manager may require a deposit, and the actions taken if costs are not paid. · Section 14, 12.32.130 Police Protection; Public Services and Other Expenses, pages 12- 13. · 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. 176 5 · New Paragraph D stipulates that events 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 expenses provided by the city. · Section 15, 12.32.140 Public Hearing, page 13. 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. · Section 16, 12.32.150 Standards of Issuance, pages 14-15 · Standards 16 through 20 (page 15) were added by staff in response to January 31 discussion. · Section 17, Action on Application, pages 16. Adds a timeframe for the review of and decision on applications. · Section 20, 12.32.190 Notice of Decision on Application, pages 17-18. 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. · Section 21, 12.32.200 Appeal Procedure, pages 18-19. · Expands the appeal process to an aggrieved person, as defined in 12.32.030.A rather than just the applicant. · Sets 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. · Section 23, 12.32.230 Prohibitions, page 20. 12.32.230.I was revised to remove “A violation of this provision shall result in a $100 fine for each occurrence.” 12.32.280 (Section 19, page 22) sets penalties for violations of this chapter, and the violations should be consistent. · Section 26, 12.32.250 Revocation of Permit, pages 21-22 In addition to the city manager, this amendment gives authority to the chief of police and fire chief to revoke or suspend a permit. · Section 28, Judicial Review, page 22. Previously proposed language replaced to clarify that after the requirements of 12.32.200 are complied with, a request for judicial review of a decision by the city commission may be made, but must be filed within 30 days after the commission’s action. · Section 29, 12.32.280, Violations, Penalties, page 22. This is not a new section but was not called out in the previous memo. The revisions to this section remove violations from a criminal to a civil matter. ALTERNATIVES: As suggested by the City Commission. 177 6 FISCAL EFFECTS: Public Services 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. At the request of Commissioner Andrus, the number of public works staff hours has been added to the attached summary. 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 was received. If Section 12.32.100, Traffic Control Plan/City Equipment, (page 10) 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 fee schedule resolution. UNRESOLVED ISSUES: 1. 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. If so, we suggest this accompany the final reading of this ordinance, if adopted. 2. Is it acceptable to include “the spring Bobcat Festival” as a “recognized annual community event” and city sponsored events “as determined by the city commission”? (Section 4, 12.32.030.G, page 4) 3. The commission engaged in some discussion during the previous meeting regarding alternative approaches to regulating permits for Main Street. One of the items discussed was whether the city should restrict or limit the number of times Main Street can be closed for public assemblies/parades. If this is the direction taken, what is the appropriate number of times Main Street can be closed? The commission could, for example, consider capping the number of events using Main Street to those events previously given a permit prior to the effective date of this ordinance. City Attorney Sullivan will be prepared to discuss the legalities of this approach during your meeting. 4. Should all applications for closure of Main Street (or others) be reviewed only by the city manager, with the commission only hearing appeals? If so, Downtown Street Closure Approval section can be deleted (Section 10, page 9) 5. Are the additional proposed standards of issuance appropriate; should others be added? (Section 16, 12.32.150, page 15) Attachments: Ordinance No. 1798 (clean copy) Ordinance No. 1798 (showing markups) Public Services Department labor and equipment costs for 2010 Report compiled on: February 25, 2011 178