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Home My WebLink About2018-08-28; City Council; ; Report on Special Events Ordinance as Applied to DemonstrationsPermitting Process A person requesting a special event permit must file an application with the Parks & Recreation Department at least 90 days prior to the proposed date for the event. The Parks & Recreation Director may waive the 90-day notice requirement for events limited in scope that can be adequately reviewed in the time provided. CMC § 8.17.060(B). The application is required to include information such as the name and contact information of the event organizer, an acknowledgment of financial responsibility for any city fees or costs that may be imposed for the event, a description of the event including the proposed date and time and any fees that will be charged for participants, proof of insurance, and a site plan that covers any temporary structures, tents, portable restrooms, and access points for disabled persons and emergency vehicles, among other things. CMC § 8.17.060((). The Parks & Recreation Department has one full-time employee that processes special event permits and issues over 50 permits per year. Large demonstrations are subject to the special events permit requirement. A "demonstration" is defined as: any formation, procession, or assemblage of 50 or more persons which, for the purposes of expressive activity, is: 1. To assemble or travel in unison on any street in a manner that does not comply with normal traffic regulations or controls; or 2. To gather at a public park or other public area. CMC § 8.17.020. "Expressive activity" is defined to include "conduct, the sole or principal object of which is the means of opinion, views, or ideas and for which no fee or donation is charged or required as a condition of participation in or attendance at such activity. It includes public oratory and distribution of literature." CMC § 8.17.020. Exception for "Spontaneous Demonstrations" An exception to the permit requirement is available for a qualifying "spontaneous demonstration" of 50 or less people. CMC § 8.17.040(B). A "spontaneous demonstration" is defined as "an event occasioned by news or affairs coming into public knowledge less than 48 hours prior to sucb event." CMC § 8.17.020. Instead of obtaining a special event permit, the organizer of a qualifying spontaneous demonstration is required to provide notice,to the po.lice chief at least 36 hours before the event. CMC §§ 8.17.040(B); 8.17.060(B). For spontaneous demonstrations of more than 50 people, a full application is not required, but the organizer is required to submit the name and contact information for the organizer, proof of insurance, a traffic control plan, and indicate any sound amplification equipment that will be used. CMC § 8.17.060(D). Case Law Demonstrations held on city streets, sidewalks, parks and other public areas invoke participants' First Amendment rights to free speech. A permitting ordinance must provide an avenue for expression concerning fast-breaking events. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1047 (9th Cir. 2006). Courts generally have upheld permit requirements that balance a city's substantial interest in managing competing uses of public spaces and assuring the safety and convenience of public August 28, 2018 Item #9 Page 2 of 25 areas while protecting the right to exercise free speech. These permit requirements must be narrowly tailored, content-neutral time, place and manner regulations that do not place an undue burden on the ability to exercise free speech. For example: • Santa Monica Food Not Bombs, 450 F.3d 1022 (upholding Santa Monica's permit requirement for 150 or more people assembling or marching on a public street or highway and exempting "spontaneous events" occasioned by news or affairs coming into public knowledge less than 48 hours before the event and held on the city hall lawn); • Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009} (upholding Long Beach's permit requirement for 75 or more people using a public open space but finding some of the permit requirements unconstitutional because they gave the city manager unfettered discretion to deny permission to hold spontaneous events). In accordance with this case law, the city's Special Events Ordinance provides for a permit exemption for qualifying "spontaneous demonstrations" of 50 people or less. Comparison to Other Cities Staff have researched other cities' special event permit requirements as applied to demonstrations, and have found that Carlsbad's approach is moderate, with some cities being more restrictive and some more permissive. A comparison of the city's current Special Events Ordinance requirements as applied to demonstrations with permit requirements of other cities is provided in the table below. I Max Time Max Between News Permit Exemption for Number of Event and City Demonstrations? Participants Demonstration Cities With Spontaneous Demonstration Exemptions Carlsbad "Spontaneous demonstrations" not so 48 hours CMC § 8.17.040 using vehicles, animals, fireworks, pyrotechnics, or equipment (other than sound equipment}, so long as no fee is charged and 36 hours' notice is given, do not need a permit. Escondido "Spontaneous events" conducted on No limit 48 hours EMC§ 16-202 paved pedestrian area adjacent to city hall do not need a permit. Santa Monica "Spontaneous events" conducted on No limit 48 hours SMMC § 4.68.040 city hall lawn do not need a permit. Cities With Broader Exemptions for Demonstrations Aliso Viejo Any event involving expressive No limit No limit for AVMC Ch. 11.05 activity where participants comply expressive with applicable traffic regulations activity where does not need a permit. Other ' pa rtici pants . August 28, 2018 Item #9 Page 3 of 25 Max Time Max Between News Permit Exemption for Number of Event and City Demonstrations? Participants Demonstration "spontaneous special events" are comply with required to provide 48 hours' notice applicable and provide a streamlined permit traffic application. regulations. 30 days for other "spontaneous special events." Sacramento Where no amplified sound is used No limit 60 days SMC § 12.48.040 and applicant certifies that permit requirements would deprive applicant of opportunity for assembly in response to recent event, no permit is required. San Diego For demonstrations not using No limit No limit SDMC § 22.4005 vehicles, animals, fireworks, pyrotechnics, or equipment (other than sound equipment} so long as no fee is charged and 36 hours' notice given, no permit is required. Cities With No Exemption for Demonstrations* Encinitas No. n/a n/a EMC Ch. 6.11 Irvine No, but waiver of permit fees and n/a n/a IMC§ 2-10-818 deposits available "if necessary to avoid violation of a person's free speech rights." Oceanside No. n/a n/a OMC Ch. 30A Vista No, any "street event" that may n/a n/a VMC Ch. 12.12 interfere with the normal flow of vehicular or pedestrian traffic requires a permit. * In general, cities that do not have an exemption for spontaneous demonstrations have a relatively short time period for issuing special event permits .. Cities With Streamlined Permit for Demonstrations Los Angeles Specific permit required for n/a n/a LAMC § 103.111 demonstrations that do not comply with traffic regulations. August 28, 2018 Item #9 Page 4 of 25 Max Time Max Between News Permit Exemption for Number of Event and City Demonstrations? Participants Demonstration San Marcos Specific permit required for any n/a n/a SMMC § 12.28.010 "parade, procession or rally." Ventura Specific permit requirement for n/a n/a VMC § Ch. 18.250 "free speech events." Policy Considerations Overall, the city's current ordinance is consistent with First Amendment case law and in line with what other cities require. In addition to the option of maintaining the current exemption for spontaneous demonstrations, several other options are presented for consideration. These options are presented for discussion only and are not intended to limit City Council's discretion to provide policy direction to staff: (1} Maintain the current special events permit exemption for a "spontaneous demonstration" that applies for up to 50 participants and where the event is "occasioned by news or affairs coming into public knowledge less than 48 hours prior to such event"; (2} Broaden the permit exemption for a "spontaneous demonstration" by increasing the number of participants eligible for the exemption or removing the number altogether; {3} Broaden the permit exemption for demonstrations by increasing the time frame in which the relevant "news or affairs coming into public knowledge" may have occurred; or (4} Create a more streamlined permit process with a notice period of less than 90 days specifically for demonstrations. Depending upon City Council direction, staff will analyze one or more of these options to ensure the city's substantial interest in managing competing uses of public spaces and assuring the safety and convenience of public areas is adequately preserved while maintaining consistency with First Amendment requirements. Fiscal Analysis Receiving this report causes no fiscal impact. Any fiscal impact from amendments that may be directed by City Council would be analyzed in the staff report introducing those amendments. Next Steps If directed by City Council, staff will draft revisions to the Special Events Ordinance as applied to demonstrations and return to a future City Council meeting to introduce amendments to the Special Events Ordinance. Environmental Evaluation (CEQA) Pursuant to Public Resources Code section 21065, receiving this report and providing staff direction is not a "project" within the meaning of CEQA in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and therefore, does not require environmental review. August 28, 2018 Item #9 Page 5 of 25 Public Notification This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to scheduled meeting date. Exhibits 1. Carlsbad Municipal Code Chapter 8.17 2. Letter from David Loy, ACLU Legal Director, to City Attorney (Aug. 1, 2018) August 28, 2018 Item #9 Page 6 of 25 Carlsbad M1..mkipcil Code Up Previous Next Main Co!lapss Search Print No Frames Title 8 PUBLIC PEACE, MORALS AND SAFETY Chapter 8.17 SPECIAL EVENTS 8.17.010 Purpose and intent. The city council recognizes that special events enhance the city's lifestyle and provide benefits to area residents, 'visitors, and businesses through the creation of unique venues for expression, recreation, and entertainment that are not normally provided as a part of governmental services. However, the city council also recognizes that special events, if unregulated, can have an adverse effect on the public health, safety and welfare due to noise, traffic, safety, and health hazard impacts. The purpose and intent of this chapter is to set forth reasonable regulations by establishing a process for permitting special events within the city, to protect the rights and interest granted to special event permit holders, to ensure the health and safety of patrons of special events, to prohibit illegal activity from occurring within special event venues, and to minimize any adverse effects from special events while ensuring the orderly and efficient use of public property and city services. It is further intended to create a mechanism for cost recovery for special events without having an adverse effect on those special events that contribute to the community. It is also the intent of the council to protect the rights of citizens to engage in protected free speech expression activities and yet allow for the least restrictive and reasonable, time, place and manner regulation of those activities within the overall context of rationally regulating special events that have an impact upon public facilities and services. (Ord. NS-811 § 2, 2006) 8.17.020 Definitions . • -· • • • ·« • -• ·~·-•• Except where the context otherwise requires, for the purposes of this chapter, the following definitions apply: "Affected parties" means businesses and residents located within 300 feet of the area around the special event that are likely to experience impact from the special event. "City manager" means the city manager or authorized designee. "Demonstration" means any formation, procession or assembly of 50 or more persons which, for the purposes of expressive activity, is: 1. To assemble or travel in unison on any street in a manner that does not comply with normal traffic regulations or controls; or 2. To gather at a public park or other public area. "Event" includes special event or a demonstration. "Event promoter" means any person who conducts, manages, promotes, organizes, aids or solicits attendance at a special event. "Expressive activity" includes conduct, the sole or principal object of which is the means of opinion, views, or ideas and for which no fee or donation is charged or required as a condition of participation in or attendance at such activity. It includes public oratory and distribution of literature. "Major event" means a special event that requires a traffic control plan for three or more intersections of any street or requires a traffic control plan for a secondary arterial, major arterial or a prime arterial. "Minor event" means a special event that does not require a traffic control plan or that requires a traffic control plan for two or fewer intersections and does not involve a secondary arterial, major arterial or a prime arterial. "Parks and recreation director" means the director of parks and recreation or authorized designee. "Permittee" means a person to whom a special events permit has been issued. "Person" means any person, firm, partnership, association, corporation, company or organization of any kind. "Police chief' means the chief of police or authorized designee. "Private property permit" means a minor event administrative permit issued by the community and economic development director for a function held entirely on private property that does not require a use of public property in August 28, 2018 Item #9 Page 7 of 25 Exhibit 1 a manner which impacts or restricts the public's normal or typical use of such property or does not comply with the normal or usual traffic regulations or controls or that require the provision of extraordinary city services and are therefore not governed by this chapter. "Sidewalk" means any area or way set aside or open to the general public for purposes of pedestrian travel, whether or not it is paved. "Sound-amplifying system" means any system, apparatus, equipment, device, instrument or machine designed for or intended to be used for the purpose of amplifying the sound or increasing the volume of human voice, musical tone, vibration or sound wave. "Special event" means: 1. Any organized formation, parade, procession or assembly consisting of 50 or more persons, and which may include animals, vehicles or any combination thereof, which is to assemble or travel in unison on any street which does not comply with normal or usual traffic regulations or controls; or 2. Any commercial or noncommercial organized assemblage of 50 or more persons at any public beach, public park, public water ways, street, or sidewalk which is to gather for a common purpose under the direction and control of a person; or 3. Any other organized activity conducted by a person for a common or collective use, purpose or benefit which involves the use of, or has an impact on, other public property or facilities and the provision of city public safety services in response thereto; 4. Examples of special events include concerts, parades, circuses, fairs, festivals, block parties, community events, fireworks, mass participation sports (such as marathons and running events, bicycle races or tours, tournaments), or spectator sports (such as football, baseball and basketball games, golf tournaments, surfing contests or other water competitions). "Special event permit" means a permit as required by this chapter. "Spontaneous demonstration" is an event occasioned by news or affairs coming into public knowledge less than 48 hours prior to such event. "Street" means any place or way set aside or open to the general public for purposes of vehicular traffic, including but not limited to any berm or shoulder, parkway, public parking lot, right-of-way, alley or median. (Ord. CS-101 § 1, 2010; Ord. NS-811 § 2, 2006) 8.17.030 Perrt1it required. No person shall engage in or conduct any special event unless a special event permit is issued by the city manager or authorized designee. (Ord. CS-101 § 3, 2010; Ord. NS-811 § 2, 2006) 8.17.040 Exceptions to !:.pecial event per1t1itr,equirement. A special event permit is not required for any of the following: A. Any organized activity within the scope of a conditional use permit, other land use approval or a private property permit given or required for that use; or B. Spontaneous demonstration, consisting of 50 or less persons, that do not involve the use of vehicles, animals, fireworks, pyrotechnics or equipment (other than sound equipment), provided that: 1. No fee or donation is charged or required as a condition of participation in or attendance at such demonstration; and 2. The chief of police is notified at least 36 hours in advance of the commencement of the demonstration; or C. Lawful picketing; or D. Funeral processions by a licensed mortuary; or E. Activities conducted by a government agency acting within the scope of its authority. (Ord. NS-811 § 2, 2006) August 28, 2018 Item #9 Page 8 of 25 8.17.050 Special events committee. A. \ The special events committee shall be comprised of the assistant city manager, community and economic development director, transportation director, fire chief, police chief, housing and neighborhood services director, parks and recreation director and risk manager or their designated representatives. The parks and recreation director will chair the committee. B. The special events committee is charged with reviewing and providing recommendations to the city manager regarding the approval or modification of an application for a special event permit based upon the information required in the application with regard to considerations of public safety, traffic flow and control, the disruption to residences and businesses; availability ofresources of city personnel and equipment to adequately ensure the public health, safety and welfare. C. The special events committee shall not recommend for approval a new event for the date, time or location of a previously established reoccurring event unless the applicant of the previously established reoccurring event notifies the city of their intent to not hold the event or no application has been received by the city at the minimum application filing date. (Ord. CS-164 §§ 5, 12, 14, 2011; Ord. CS-101 § 5, 2010; Ord. NS-811 § 2, 2006) 8.17.060 Application. A. A person requesting a special event permit shall file an application, certified by affidavit on forms provided by the parks and recreation department. The parks and recreation director will forward the application to the special events committee for review and recommendation to the city manager. B. The application shall be filed at least 90 days and not more than two years before the special event is proposed to commence except for spontaneous demonstration held to react to current events, which shall provide a minimum of 36 hours' notice. The minimum 90-day notice requirement may be waived by the parks and recreation director upon written finding that the limited scope of the event, both in size and magnitude, allows it to be adequately reviewed in the time provided. C. The application for a special event permit shall set forth all of the following information, if applicable: 1. The name, address, e-mail address and telephone number of the applicant and event organizer and its officers; 2. The names, addresses and telephone numbers of the headquarters of any organization for which the special event is to be conducted, and proof of the authorized representatives of the organization; 3. An acknowledgment of financial responsibility for any city fees or costs that may be imposed for the special event by the applicant and any person authorizing the applicant to apply for the permit on its behalf; 4. A description of the nature or purpose of the special event, including a description of activities planned during the special event; 5. A statement of fees to be charged participants in the special event; 6. Identification of the Carlsbad location where special event sales will be reported to the franchise tax board, a City of Carlsbad business license or a copy of a document showing proof the applicant is a tax-exempt non-profit organization; 7. Proof of insurance required by this chapter; 8. The date(s), time(s), and location(s) where the special event is to be conducted, including assembly and disbanding; 9. A site plan including but not limited to: a. Portable structures, b. Prefabricated structures, C. Site-built structures, d. Staging, e. Reviewing stand(s), f. Elevated platforms, August 28, 2018 Item #9 Page 9 of 25 g. Temporary pedestrian bridges, h. Tents or canopies, 1. On-site grading, J. Portable restrooms, k. All on-site signs and banners that have a face area larger than 16 square feet and/or stand more than four feet above the ground, 1. Any travel routes, m. Assembly or production areas, n. Electrical sources and connections, o. Fuel storage, p. Cooking and open fires, q. Water supply, r. Run-off containment features, s. Waste recycling containers, t. Accessible parking, u. Access points and routes for disabled persons, v. Access points for emergency fire and ambulance equipment, w. Emergency medical services area(s), x. Any vehicles located in an enclosed area, y. Pyrotechnics, z. Inflatable(s), aa. Animals and animal rides, bb. Carnival rides, cc. Location to accommodate individuals desiring to express opinions not consistent with the purpose or intent of the event, and dd. Other similar information that will describe the components of the event; 10. The location and description of all off-site signs, banners or attention getting devices; 11. A detailed traffic control plan (TCP) for a major event and parking management plan, consistent with standards set forth in the National Manual on Uniform Traffic Control Devices or the California Supplement to the National Manual on Uniform Traffic Control Devices for all streets, sidewalks and parking lots which the special event will impact by restricting the public's normal, typical or customary use thereof; 12. The approximate number of participants, spectators, animals and vehicles; 13. The number of persons proposed or required to monitor or facilitate the special event and to provide spectator or participant control and direction for events using city streets, sidewalks, or facilities; 14. Provisions for first aid and emergency medical services; 15. The number, type and location of sanitation facilities; 16. Provisions for recycling per f..1:1.~F~--~~.S.9.1:1.r.~.~-S. .. G.9.4.~. Sections 42648 through 42648.7; 17. Pollution prevention in compliance with city's municipal National Pollutant Discharge Elimination System permit, city ordinances and the city "Jurisdictional Urban Runoff Management Plan (JURMP)"; 18. A description of any recording equipment, sound amplification equipment, or other attention-getting devices to be used in connection with the special event. D. Applications for special event permits for spontaneous demonstration held to react to current events shall provide the information in subsections (C)(l), (C)(7), (C)(l 1) and (C)(18) of this section only. August 28, 2018 Item #9 Page 10 of 25 E. Applicants for a repeated event held on private property (such as fireworks) may file one annual special event application identifying the event dates for one calendar year. (Ord. CS-101 § 6, 2010; Ord. NS-811 § 2, 2006) 8.17.070 Fees. A. Major Event Fee. A nonrefundable fee, as set forth in the schedule of service costs approved by city council resolution, reasonably calculated to reimburse the city for its reasonable and necessary costs in receiving, processing and reviewing applications for permits to hold a major event, must be paid to the City of Carlsbad when an application is filed. B. Minor Event Fee. A nonrefundable fee, as set forth in the schedule of service costs approved by city council resolution, reasonably calculated to reimburse the city for its reasonable and necessary costs in receiving, processing and reviewing applications for permits to hold a minor event, must be paid to the City of Carlsbad when an application is filed. C. If the application includes the use of any city facility and/or property, or if any city services are required for the special event, the applicant must agree to pay for the services in accordance with a schedule of service costs approved by city council resolution. D. Third Patty Fee. If the permittee provides for or allows third party vendors to participate in the special event, the permittee shall pay an additional nonrefundable fee, as set forth in the schedule of service costs approved by city council resolution, reasonably calculated to reimburse the city for its actual and necessary costs in receiving, processing and reviewing the application that includes third party vendors. The amount of the additional fee shall be established by resolution of the city council and shall be based on whether the application is for a major or minor event. (Ord. CS-101 § 7, 2010; Ord. NS-811 § 2, 2006) 8.17.080 Police protection and other emergency services. A. The police chief will determine whether and to what extent additional police protection, civilian traffic control personnel, private security and volunteer staff are reasonably necessary to ensure traffic control and public safety for the special event. The police chief will base this decision on the size, location, duration, time and date of the special event, the expected sale or service of alcoholic beverages, the number of streets and intersections blocked off from use by the public, and the need to detour or preempt pedestrian and vehicular travel from the use of public streets and sidewalks. The police chief shall provide, if police protection and/or other emergency and safety services or equipment is deemed necessary for the special event, an estimate of the cost of extraordinary city services and equipment required in writing. The applicant will be billed for services after the event. B. When the police chief is determining the size of the event and the security needed to protect participants and spectators, the estimate, based upon reasonably known information, of participants shall be determinative. The numbers of persons attending in response to an event, to heckle, protest or oppose the sponsor's viewpoint shall not be considered in the cost of providing police protection. (Ord. NS-811 § 2, 2006) 8.17.090 Relec3se and in~em~ification require1_11ent. Permittee agrees to waive and release the City of Carlsbad and its officers, agents, employees and volunteers from and against any and all claims, costs, liabilities, expenses or judgments including attorney's fees and court costs arising out of the activities of this special event or any illness or injury resulting therefrom, and hereby agree to indemnify and hold harmless the City of Carlsbad from and against any and all such claims, whether caused by negligence or otherwise, except for illness and injury resulting directly from gross negligence or willful misconduct on the part of the city or its employees. (Ord. CS-101 § 9, 2010; Ord. NS-811 § 2, 2006) 8.17.100 Insurance requirements. Whenever a special event, including but not limited to exhibits, fairs, athletic events, trade shows, concerts, or conventions, requires a permit under the provisions of this code, the sponsor, promoter or person conducting the special event shall provide evidence of commercial general liability insurance in a form acceptable to the risk manager (and August 28, 2018 Item #9 Page 11 of 25 additional coverage(s) as appropriate for the activities of the event), naming the City of Carlsbad as an additional insured, and with a coverage amount to be determined by the risk manager according to the size and risk factors of the event. When determining the size of the event and the risk to participants and spectators, the estimate of participants shall be determinative. The person conducting the special event shall not be required to insure any risk arising from persons attending in response to an event, to heckle or oppose the sponsor's viewpoint. The insurance company or companies shall meet the requirements established by city council resolution for all insurance required by the city. The insurance policy required by this section shall not be cancelled, limited or not renewed without 30 days' prior written notice has been given to the city. (Ord. NS-811 § 2, 2006) 8.17.110 Signs~ A. The permittee shall post street closure notification signs at locations approved by the city manager which include the name of the event, date, time and location of the closure and which: 1. Shall not exceed 16 square feet in sign area with a minimum letter size of four inches; 2. Shall be posted on any street on which more than two intersections will be closed, and any secondary arterial, major arterial, or prime arterial that will be closed as a result of the special event; 3. Shall be posted a maximum of 15 days and a minimum of 10 days prior to the scheduled closure; and 4. Shall be removed within two days following the conclusion of the event. B. The permittee may post a maximum of eight signs that promote the event at locations approved by the city manager. Event promotion signs shall meet the following conditions: 1. The event promotion sign( s) shall not exceed 16 square feet in sign area; 2. Shall not be posted more than 16 days prior to the event; and 3. Shall be removed immediately but in no event more than two days following the event. C. The permittee shall post traffic control and/or directional signs the day or days of the special event as required by the permit. Traffic control and/or directional signs shall meet the following conditions: 1. The location of all traffic control and/or directional signs shall require approval of the city manager; and 2. Traffic control and/or directional signs shall not be posted more than four hours prior to the start of the special event and shall be removed not more than four hours after the conclusion of the special event. Any sign( s) left out after four hours may be removed by city staff and disposed of without compensation to event organizer. D. The permittee for a special event permit may post signs and banners during the special event at the special event venue. 1. All venue sign(s) with more than 16 square feet of sign area or signs that are more than four feet above ground level shall be identified on the site plan. 2. Each venue signs and/or banners shall be less than 50 square feet of sign area. E. Signs stating "no parking/tow away" shall be posted 72 hours in advance of the event start time. (Ord. CS-101 § 11, 2010; Ord. NS-811 § 2, 2006) 8.17.120 Notification. A. The applicant for: 1. A first time major event; 2. A major event that has not been held for more than two years; 3. A first time event at a city facility that is not authorized by facility use permit; or 4. An event at a city facility that is not authorized by facility use permit and that has not been held for more than two years; shall sponsor a meeting for all affected parties. This meeting must be held not more than 180 days prior or less than 80 days prior to the special event date. Affected parties must be notified by the applicant via the United States Postal Service or by direct distribution to all affected parties of the meeting a minimum of August 28, 2018 Item #9 Page 12 of 25 10 days prior to the meeting. The purpose of this meeting will be to allow the special event sponsor to identify and address concerns of affected parties regarding the time, place and manner in which the special event is to be held. Concerns regarding the message or viewpoint of the event sponsor shall not be considered. The parks and recreation director may waive the minimum 80-day time limit for the affected party meeting with a written finding of good cause if, after due consideration, the parks and recreation director determines that because of the limited scope and complexity of the event when considering the application criteria, there will be adequate time for review by and input of concerned affected parties. B. The applicant for a major special event permit that is not subject to the notification described in subsection A shall notify all affected parties of the event not more 40 days nor less than 30 days prior to the special event date via the United States Postal Service or by direct distribution to all affected parties. The notification shall contain information concerning the event and information on how to contact the applicant and the special events committee before and after the event. C. All applicants for a special event permit shall notify via the United States Postal Service or by direct distribution to all affected parties of the event not more than 15 days prior or less than 10 days prior to the special event date with information concerning the event and information on how to contact the applicant and the special events committee before and after the event. (Ord. CS -101 § 12, 201 O; Ord. NS-811 § 2, 2006) 8.17.130 Reasons for denial of a special event permit. A. The city manager may only deny a special event permit to an applicant when any of the following applies: 1. The application for the permit (including any attachments) is not fully completed and executed. 2. The application for the permit contains a material falsehood or misrepresentation. 3. The applicant has failed to conduct a previously authorized event in accordance with law or the terms of a permit, or both. 4. The use or activity would conflict with previously planned programs organized and conducted by the city and previously scheduled for the same place and time. 5. A fully executed prior application for the same time and place has been received and a permit has been or is likely to be granted authorizing uses or activities which do not reasonably permit multiple occupancy of the particular site or part thereof. 6. The applicant has not complied or cannot comply with applicable federal, state or local laws, regulations, ordinances or city council policy. 7. The applicant has not tendered the required application, indemnification agreement and endorsement( s ), insurance certificate, or security deposit for police and emergency services and equipment within the times prescribed. 8. The applicant has not provided for the services of a required number of police officers, fire and/or paramedic personnel, private security, civilian traffic controllers or event volunteers/staff to ensure the safety of the event. 9. The applicant has not provided adequate sanitation and other required health facilities on or adjacent to any public assembly area. 10. The applicant has not provided sufficient off-site parking or shuttle service, or both, required to minimize any adverse impacts on public parking and traffic circulation in the vicinity of the special event. 11. The applicant has not obtained the approval of any other public agency within whose jurisdiction the special event or portion thereof will occur. 12. The use or activity would present an unreasonable danger to the health or.safety of the applicant, other users of the site, or the public. 13. The special event will require the exclusive use of beach or park areas during any period in a manner which will have adverse impact on the reasonable use or access to those areas by the general public. 14. The special event will create the imminent possibility of violent disorderly conduct likely to endanger public health, safety and welfare or to result in property damage. August 28, 2018 Item #9 Page 13 of 25 B. The dates and time roads will be closed; C. The set-up or staging time; D. The time clean-up or dismantling will be completed; E. The location of the special event venue, including set-up or staging area, if any, and clean-up or dismantling area, if any; F. The specific route of the special event; G. The number of persons, and type and number of animals and vehicles, the number of bands, other musical elements and equipment capable of producing sound, if any, and noise limitations thereon; H. The location of reviewing or audience stands; I. A copy of the traffic control plan (TCP) and/or parking management plan including the number and location of traffic controllers, monitors, other personnel and equipment and barricades to be furnished by the special event permittee; J. Conditions or restrictions on the use of alcoholic beverages and authorization for the conditions of the exclusive control or regulation of vendors and related sales activity by the permittee during the special event; K. Provisions for any required emergency medical services; L. The applicant's recycling plan; M. The applicant's plan to control water run-off and other contaminates that may enter the city storm drain system; N. Provisions for cleaning-up and restoration of the area or route of the event both during and upon completion of the event; 0 . The requirement for the on-site presence of the special event organizer or a designated representative for event coordination and management purposes who shall carry the special event permit upon his or her person during the special event. (Ord. CS-101 § 19, 2010; Ord. NS-811 § 2, 2006) 8.17.200 Violations. A. Violations of the terms and conditions of any of the following prohibitions in this chapter will constitute a misdemeanor punishable by a fine ofup to $1,000.00, or by imprisonment in the county jail for a term not exceeding six months, or by both: 1. To stage, present, or conduct any special event without first having obtained a permit under this chapter; 2. To hamper, obstruct, impede, or interfere with any special event or with any person, vehicle or animal participating or used in the special event; 3. To carry any sign, poster, plaque, or notice, whether or not mounted on a length of material, unless such sign, poster, plaque, or notice is constructed or made of a cloth, paper, or cardboard material; 4. For any person participating in any special event to 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 and one- fourth inch or less in thickness and two inches or less in width, or if not generally rectangular in shape, such object may not exceed three-fourths inch in its thickest dimension. B. Violations of the terms and conditions of any of the following prohibitions in this chapter will constitute an infraction and shall be punished as provided for in Chapter _LOS of this code: 1. To participate in a special event for which the person knows a permit has not been granted; 2. To knowingly fail to comply with any condition of the permit; 3. For a participant in or spectator at a special event to knowingly violate any conditions or prohibitions contained in the special events permit; 4. For any driver of a vehicle to drive between the vehicles or persons comprising a special event when the vehicles or persons are in motion and are conspicuously designated as a special event; 5. The police chief may prohibit or restrict the parking of vehicles along a street constituting a part of a special event if the police chief posts or cause to be posted signs to that effect. It is unlawful for any person to August 28, 2018 Item #9 Page 15 of 25 park or leave unattended any vehicle in violation of the posted signs. C. The police chief may, when reasonably necessary, waive parking regulations along a street constituting a part of a special event. (Ord. NS-811 § 2, 2006) 8.17.210 Revocation of permit. The police chief may revoke a special event permit without prior notice upon violation of the permit or when a public emergency arises where the police resources required for that emergency are so great that deployment of police services for the special event would have an immediate and adverse effect upon the health, safety and welfare of persons or property. Written notice of the revocation setting forth the reasons therefor, shall be hand delivered or mailed to the applicant at the address provided on the application. (Ord. NS-811 § 2, 2006) 8.17,2-20 Severability. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held invalid or unconstitutional by the decision of any court of competent jurisdiction, the decision will not affect the validity of the remaining portions of this chapter. The city council declares that it would have passed the ordinance codified in this chapter and each section, subsection, sentence, clause or phrase contained in it irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases are declared invalid or unconstitutional. (Ord. NS-811 § 2, 2006) View the mobile version. August 28, 2018 Item #9 Page 16 of 25 Policy Carlsbad Police Department 345 Carlsbad PD Policy Manual Unmanned Aerial System (UAS ) Operations 345.1 PURPOSE AND SCOPE The purpose of this policy is to establish guidelines for the use of an unmanned aerial system (UAS) and for the storage, retrieval and dissemination of images and data captured by the UAS. 345.2 DEFINITION Definitions related to this policy include: Unmanned Aerial System (UAS) -An unmanned aircraft of any type that is capable of sustaining directed flight, whether preprogrammed or remotely controlled (commonly referred to as an unmanned aerial vehicle (UAV)), and all of the supporting or attached systems designed for gathering information through imaging, recording or any other means. 345.3 POLICY Unmanned aerial systems may be utilized to enhance the department's mission of protecting lives and property when other means and resources are not available or are less effective. Any use of a UAS will be in strict accordance with constitutional and privacy rights and Federal Aviation Administration (FM) regulations. 345.4 PRIVACY The use of the UAS potentially involves privacy considerations. Absent a warrant or exigent circumstances, operators and observers shall adhere to FM altitude regulations and shall not intentionally record or transmit images of any location where a person would have a reasonable expectation of privacy (e.g., residence, yard, enclosure). Operators and observers shall take reasonable precautions to avoid inadvertently recording or transmitting images of areas where there is a reasonable expectation of privacy. Reasonable precautions can include, for example, deactivating or turning imaging devices away from such areas or persons during UAS operations. 345.5 PROGRAM COORDINATOR The Chief of Police will appoint a program coordinator who will be responsible for the management of the UAS program. The program coordinator will ensure that policies and procedures conform to current laws, regulations and best practices and will have the following additional responsibilities: (a) Verifying all FM requirements are met. (b) Ensuring that all authorized operators and required observers have completed all required FM and department-approved training in the operation, applicable laws, policies, and procedures regarding use of the UAS . .. (c) Developing uniform protocol for submission and evaluation of requests to deploy a UAS, including urgent requests made during ongoing or emerging incidents. Copyright Lexipol, LLC 2018/07/05, All Rights Reserved. Published with permission by Carlsbad Police Department Unmanned Aerial System (UAS ) Operations - 226 -Carlsbad Police Department Carlsbad PD Policy Manual Unmanned Aerial System (UAS) Operations 6. Disaster management 7. Crowd control 8. Explosive ordinance disposal/bomb threats 9. CRBNE incidents (chemical, biological, radiological, nuclear, and explosive) 10. Crime scene 11. Supporting criminal investigations 12. VIP security support 13. Perimeter searches and security 14. Enhanced situational awareness 15. UAS demonstrations 345. 7 PROHIBITED USE The UAS video surveillance equipment shall not be used: (a) To conduct random surveillance c;lCtivities. (b) To target a person based solely on individual characteristics, such as, but not limited to race, ethnicity, national origin, religion, disability, gender or sexual orientation. Copyright Laxipol, LLC 2018/07/05, All Rights Reserved. Published with permission by Carlsbad Police Department Unmanned Aerial System (UAS ) Operations - 228 Carlsbad Police Department Policy Manual Special Order 2018-07 effective 6 18 . Pursuant ¥atbad Police Department Policy 204, this Special Order becomes Updated Policy 345 UNMANNED AERIAL SYSTEM (UAS) OPERATIONS 345.8 MEDIA STORAGE . All media will be stored in a secure area with access restricted to authorized persons. Recordings not otherwise needed for official reasons shall be retained for a period of not less than one year and thereafter should be erased with the written consent of the City Attorney. Any recordings needed as evidence in a criminal or civil proceeding shall be copied to a suitable medium and booked into evidence in accordance with current evidence procedures (Government Code § 34090.6). 345.9 REVIEW OR RELEASE OF VIDEO IMAGES The review or the release of video images shall be done only with the authorization of the Chief of Police or his/her designee and only with a properly completed written request. Video images needed for a criminal investigation or other official reason shall be collected and booked in accordance with current departmental evidence procedures, 345.9.1 PUBLIC OR OTHER AGENCY REQUEST Requests for recorded video images from other government agencies or by the· ·submission of a court order or subpoena shall be promptly submitted to the Communications Supervisor, who will promptly researc.n the request and submit the results of such search through the Chief of Police to the City Attorney's office for further handling. Every reasonable effort should be made to preserve the data requested until the request has been fully processed by the City Attorney's office. Video images captured by UAS cameras that are requested by the public or media will be made available only to the extent required by law. Except as required by a valid court order or other lawful process, video images requested under the Public Records Act will generally not be disclosed to the public when such video images are evidence in an ongoing criminal investigation in which a disposition has not been reached. ~~- Neil Gallucci, Chief of Police ~ Date Page1 of 1 Celia A. Brewer, Esq. August 1, 2018 Page 2 of9 To comply with the First Amendment, a permit requirement "(1) must not delegate overly broad discretion to a government official; (2) must not be based on the content of the message; (3) must be narrowly tailored to serve a significant governmental interest; and (4) must leave open ample alternatives for communication." Santa Monica Food Not Bombs v. Ciry ef Santa Monica, 450 F.3d 1022, 1037 (9th Cir. 2006). "The failure to satisfy any single prong of this test invalidates the requirement." Grossman v. Ciry if Portland, 33 F.3d 1200, 1205 (9th Cir. 1994). Several provisions of the ordinance present significant problems under this test. 1. Necessity of permit With respect to expressive activity on streets or sidewalks, a city may not require a permit unless an event "realistically present[s] serz"ous traffic, safety, and competing use concerns, significantly beyond those presented on a daily basis by ordinary use of the streets or sidewalks." Santa Monica .Food Not Bombs, 450 F.3d at 1039 (emphasis in original). The "significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sid~walks." Id. (citing cases). "In public open spaces, unlike on streets and sidewalks, permit requirements serve not to promote traffic flow but only to regulate competing uses and provide notice to the municipality of the need for additional public safety and other services. Only for quite large groups are these interests implicated, so imposing permitting requirements is permissible only as to those groups." Id. at 1042. As a result, it is unconstitutional to require a permit for individuals or small groups to assemble and speak in a park. Berger v. Ciry of Seattle, 569 F.3d 1029, 1039 (9th Cir. 2009); Grossman, 33 F.3d at 1206. Under the ordinance, a "special event" generally requires a permit. Carlsbad Municipal Code (CMC) § 8.17.030. "Special event" means: 1. Any organized formation, parade, procession or assembly consisting of 50 or more persons, and which may include animals, vehicles or any combination thereof, which is to assemble or travel in unison on any street which does not comply with normal or usual traffic regulations or controls; or 2. Any commercial or noncommercial organized assemblage of 50 or more persons at any public beach, public park, public water ways, street, or sidewalk which is to gather for a common purpose under the direction and control of a person; or 3. Any other organized activity conducted by a person for a common or collective use, purpose or benefit which involves the use of, or has an impact on, other public property or facilities and the provision of city public safety services in response thereto. ' CMC § 8.17.020. August 28, 2018 Item #9 Page 18 of 25 Celia A. Brewer, Esq. August 1, 2018 Page 3 of 9 Standing alone, the first definition Wrely complies with the First Amendment because it is limited to an event that "does not comply with normal or usual traffic regulations or controls." Id.; see Santa Monica Food Not Bombs, 450 F.3d at 1041 (permit requirement for events that do "not comply with the normal or usual traffic regulations or controls" is "narrowly tailored, as its application is limited only to events that actual/y implicate the governmental interest in enforcement of established traffic regulations") (emphasis in original). However, the second and third defmitions violate the First Amendment. The second definition is likely unconstitutional because the threshold number of participants is too low. The Ninth Circuit held that "a group of seventy-five people using a public open space" was ''large enough to warrant an advance notice and permitting requirement," though the court found it a "close question." Long Beach Area Peace Network v. Ciry oJLong Beach, 574 F.3d 1011, 1034 (9th Cir. 2009). "Advance notice and permitting requirements applicable to smaller groups would likely be unconstitutional, unless such uses implicated other significant governmental interests, or where the public space in question was so small that even a relatively small number of people could pose a problem of regulating competing uses." Id. Under the Long Beach decision, a permit trigger of 50 participants that applies across the board to all public spaces is unconstitutional. While it might be valid in limited circumstances, a question on which the city would bear the burden of proof, Ber;ger, 569 F.3d at 1035, it is not valid with respect to all public spaces of any size. With respect to streets or sidewalks, it improperly covers expressive activities that comply with traffic controls and "do not significantly interfere with the public's use of streets, sidewalks, and park paths."1 Santa Monica Food Not Bombs, 450 F.3d at 1039. The third defmition is likely unconstitutional because it applies to speech by any group of any size. Any demonstration or protest might be one that "involves the use of, or has an impact on, other public property or facilities and the provision of city public safety services in response thereto." CMC § 8.1 7 .020. Without amendment or clarification, such a 1 In discussing permit requirements for "events involving SO or more persons," the Ninth Circuit did not address or uphold the constitutionality of a SO-participant trigger. Grossman, 33 F.3d at 1207 n.13. Instead, the court found Portland's ordinance unconstitutional because it required a permit for a protest as small as "six to eight people." Id. at 1202. The court noted a SO-participant trigger in other cities was "more narrowly tailored" than Portland's ordinance but "express[ed] no view as to the constitutional validity of any other city's ordinance." Id. at 1207 n.13. Likewise, in discussing a permit requirement for any "event involving-more than fifty individuals," the Supreme Court did not hold the requirement was narrowly tailored or left open ample alternatives. Thomas v. Chirago Park Dist., 534 U.S. 316, 318 (2002). The issue in Thomas was whether the government "must initiate litigation every time it denies a permit and [whether] the ordinance must specify a deadline for judicial review of a challenge to a permit denial," and the Court held such procedures were unnecessary "because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum." Id. at 322. The Court also held the ordinance "contain[ed] adequate standards to guide the official's decision and render it subject to effective judicial review." Id. at 323. The Court did not decide whether the "ordinance fails to satisfy other requirements of our time, place, and manner jurisprudence, under which the permit scheme must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication." Id. at 323 n.3 (citations and quotation marks omitted). August 28, 2018 Item #9 Page 19 of 25 Celia A. Brewer, Esq. August 1, 2018 Page4of9 requirement violates the First Amendment because it applies regardless of the size of the event or its impact on traffic flow or public use. See Santa Monica r<ood Not Bombs, 450 F.3d at 1039-40 (citing cases). In addition, by exempting "U]awful picketing," "[fjuneral processions," and "[a]ctivities conducted by a government agency," the permit requirement undermines its own justification. CMC § 8.17.040. Because picketing, funeral processions, and governmental activities can present similar impacts as other forms of speech, the exemption for such events "raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." Brown v. Entm't Merchants Ass'n, 564 U.S. 786, 802 (2011 ). Apart from "the risks of viewpoint and content discrimination," exemptions "from an otherwise legitimate regulation of a medium of speech ... diminish the credibility of the government's rationale for restricting speech." Ciry of Ladue v. Gilleo, 512 U.S. 43, 52 (1994). Accordingly, the exemptions undermine the validity of the permit requirement.2 Knowles v. Ci!) of Waco, 462 F.3d 430, 436-37 (5th Cir. 2006) (where ordinance exempted funeral processions and governmental activities, court held "it is the exceptions that condemn this ordinance," because if "the City is so willing to disregard the traffic problems" caused by exempt activities, court "could not accept the contention that traffic control is a substantial interest" justifying ordinance). Finally, the exemption for funeral processions is "content based on its face" because it "depend[s] entirely on the communicative content" of the procession. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). A procession commemorating an individual's death is exempt, but a procession expressing a different message is not. This content-based exemption "is subject to strict scrutiny regardless of the government's benign motive, content-neutral. justification, or lack of animus toward the ideas contained in the regulated speech." Id. at 2228 (citation and quotation marks omitted). It is difficult to see how the exemption for funeral processions is "narrowly tailored to serve compelling state interests" as required for a content-based regulation. Id. at 2226. Certainly, it is proper to accommodate funeral processions, but it is no less proper to accommodate other forms of expression. If funeral processions do not present sufficient impact to require a permit regardless of their size, duration, or nature, then neither should other similar processions. 2. 90-day advance notice requirement The ordinance requires permit applications to be filed 90 days in advance. CMC § 8.17.060(B). To the extent a permit may be validly required, the 90-day requirement is unconstitutional with respect to expressive activity. Santa Monica Food Not Bombs, 450 F.3d at 1044 (citing cases that invalidated advance notice requirements of 5, 20, 30, and 45 days). 2 One court noted, "A funeral procession is not a parade because it does not require the closing off of streets, but requires only that the cars involved will be allowed to continue through red lights in order to keep the procession together. This procession does not interfere with the flow of traffic in the same way that a parade does, which requires the closing off of entire streets." Stonewall U11io11 v. City of Columbus, 931 F.2d 1130, 1138 (6th Cir. 1991). However, Carlsbad's definition of a special event does not require street closure. But for the exemption, a funeral procession of "50 or more persons" would qualify as a "special event" because it "does not comply with normal or usual traffic regulations or controls." CMC § 8.17 .020. August 28, 2018 Item #9 Page 20 of 25 Celia A. Brewer, Esq. August 1, 2018 Page 5 of9 Any claims about the City's limited resources do not justify an unconstitutional advance notice requirement. Sullivan v. Gry of Augusta, 511 F.3d 16, 38-39 (1st Cir. 2007) (rejecting city's argument that limited staffing justified 30-day requirement, because "First Amendment rights have countervailing strength" that "require the City in time sensitive situations to accommodate proposed parades and marches much more quickly than within thirty days"). The outer limit for advance notice of expressive activity appears to be three days. Santa Monica Food Not Bombs, 450 F.3d at 1044. Perhaps the City can requite greater notice for certain events not involving expressive activity, as properly defined. See Long Beach Area Peace Netivork, 574 F.3d at 1026-27. But the 90-day requirement violates the First Amendment as to expressive activity. 3. Spontaneous events Even when advance notice is otherwise appropriate, the ordinance must contain an exemption for spontaneous demonstrations in response to breaking news. "Spontaneous expression ... is often the most effective kind of expression." Grossman, 33 F.3d at 1206. To "comport with the First Amendment, a permitting ordinance must provide some alternative for expression concerning fast-breaking ev~nts." Santa Monica, 450 F.3d at 1047; see aLro Long Beach Area Peace Network, 574 F.3d at 1036-38; Rosen, 641 F.2d at 1247-50. The ordinance contains an exemption for "[s]pontaneous demonstration[s]," CMC § 8.17 .040(B) but as written, it is likely unconstitutional. First, it only applies to demonstrations of "SO or less persons."3 Id. Second, it requires notice to the chief of police "at least 36 hours in advance of the commencement of the demonstration" regardless of the demonstration's location or impact on public use or services. Id. These conditions are likely unconstitutional because they are not narrowly tailored to the city's substantial interests and make it effectively impossible to hold a meaningful spontaneous demonstration in any public space, given the City's expansive definition of "special event." As the Ninth Circuit held in striking down a 24-hour notice requirement: We conclude that the regulation of "spontaneous" events under the Ordinance is not narrowly tailored to regulate only events in which there is a substantial governmental interest in requiring such advance notice. The regulation requires twenty-four-hour advance notice irrespective of whether there is any possibility that the event will interfere with traffic flow. Further, the regulation fails to provide ample alternative means of communication for people wishing to participate in spontaneous expressive events. 3 Elsewhere, the ordinance defines "demonstration" as "any formation, procession or assembly of 50 or more persons ... for the purposes of expressive activity." CMC § 8.17 .020. By definition, a group of less than 50 persons is arguably not a "demonstration" under the ordinance. For convenience, I will assume that the term "demonstration" in§ 8.17.040(B) carries its ordinary dictionary definition rather that the specialized definition in § 8.17 .020. However, the contradiction makes the ordinance potentially vulnerable to a vagueness challenge. August 28, 2018 Item #9 Page 21 of 25 Celia A. Brewer, Esq. August 1, 2018 Page 6 of9 Long Beach Area Peace Network, 574 F.3d at 1038. The same is true here. Carlsbad's ordinance improperly requires advance notice regardless of whether a spontaneous event will interfere with traffic and fails to provide meaningful alternatives for spontaneous expression in any public space. Cf Santa Monica Food Not Bombs, 450 F.3d at 1048-49 (upholding two-day notice requirement because it exempted spontaneous demonstrations by large groups on City Hall lawn or in sidewalk marches). 4. Fees and costs In For!)lth County, the Supreme Court strnck down an ordinance designed to recoup "the cost of necessary and reasonable protection of persons participating in or observing" parades and rallies, which was adjusted "to meet the expense incident to the administration of the Ordinance and to the maintenance of public order." 505 U.S. at 126-27. As the Court explained, government may not "recoup costs that are related to listeners' reaction to the speech," because speech "cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." Id at 134-35, 135 n.12. If a city cannot deny a permit because of potential heckling, it "cannot in lieu of denying the permit charge the applicant for the expense to the city of reining in the hecklers." Church of the American Knights v. City of Gary, 334 F.3d 676, 680-81 (7th Cir. 2003). The ordinance here allows the City to charge for "police protection" or "private security" to ensure "public safety" and "protect participants and spectators" at any "special event." CMC § 8.17 .080. By itself, that language would be unconstitutional under For!)lth County, because it does not exclude fees for protection based on reactions to speech. The ordinance attempts to address this problem by providing, "The numbers of persons attending in response to an event, to heckle, protest or oppose the sponsor's viewpoint shall not be considered in the cost of providing police protection." CMC § 8.17.080(B). However, that language does not cure the problem. Although the ordinance rules out consideration of the "numbers of persons attending in response to an event," it does not rule out fees based on any risk of reaction to speech. For example, the ordinance does not prohibit fees for protection against violence by a single opponent. Regardless of the number of opponents, "[i]n order to assess accurately the cost of security for parade participants, the administrator must necessarily examine the content of the message that is conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content." For!)lth County, 505 U.S. at 134 (citation and quotation marks omitted). It is difficult to see how general fees for "public safety," as opposed to specific fees for "traffic control," are not based on the content of speech. See Sullivan, 511 F.3d at 35-36 (upholding fees where "[p]olice are given no discretionary authority to estimate and charge costs other than the costs of traffic control and clean-up" and "the 'cost of police protection for public safety,' the item the Supreme Court found to be improperly included in the For!)lth County ordinance, is expressly excluded by the parade ordinance from the costs passed on to permit applicants"); Santa Monica Food Not Bombs, 450 F.3d at 1049 (regulation "provides August 28, 2018 Item #9 Page 22 of 25 Celia A. Brewer, Esq. August 1, 2018 Page 7 of9 content-neutral standards for post-event fee assessment" because it specifies "permittee shall not be required to provide for or pay for the cost of public safety personnel who are present to protect event attendees from hostile members of the public or counter-demonstrators or for general law enforcement in the vicinity of the event"). In addition, the ordinance improperly allows the city to impose fees for policing the conduct of individuals beyond the control of the event organizer, even if they are supporters or bystanders rather than opponents. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982) ("Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims."); Long Beach Area Peace Network, 574 F.3d at 1040 (noting "liability for costs arising out of protected expressive activity is limited by the amount of control the speaker exerts over the actors and the message of the speech"); United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir. 1999) (permit could not be conditioned on organizer's "promise that no trespassing would occur," because "[o]rganizers of protests ordinarily cannot warrant in good faith that all the participants in a demonstration will comply with the law. Demonstrations are often robust. No one can guarantee how demonstrators will behave throughout the course of the entire protest."). If a fee is improper, it remains unconstitutional regardless of its magnitude.4 For.ryth Counry, 505 U.S. at 136 ("Neither the $1,000 cap on the fee charged, nor even some lower nominal cap, could save the ordinance because in this context, the level of the fee is irrelevant. A tax based on the content of speech does not become more constitutional because it is a small tax."). Even if fees are otherwise constitutional, the ordinance contains no provision to waive them and improperly conditions the right to protest on ability to pay. NAACP, Western Region, 7 43 F.2d at 1355 (noting "public fora cannot be put off limits to first • amendment activity solely to spare public expense"). Under the expansive definition of "special event," a permit is required and fees can be charged for virtually any demonstration, protest, march, or rally on any public property. There is no meaningful alternative for holding a demonstration or march if an organizer cannot pay the fees, and "failure to satisfy the fee prerequisite preclude(s] the prospective participants' involvement in the constitutionally protected activity." Stonewall Union v. Ciry of Co/umbtts, 931 F.2d 1130, 1137 (6th Cir. 1991). The ordinance therefore violates the First Amendment because it provides no meaningful alternative to hold a demonstration or march without a fee. zMatter Utah v. N.Jord, 774 F.3d 1258, 1264-65 (10th Cir. 2014) (constitutionality of fees depends on presence of "ample alternative forums for speech," which existed where "the parade participants were 4 With respect to the June 30 demonstration, it is difficult to understand how the City found that based on a "projection of 474 participants at a public park next to the beach on the weekend before the July 4th holiday, the costs of additional police officers alone may be in excess of $15,000." By contrast, in Long Beach, for a march and rally estimated to attract 2000-3000 people, the "total estimated charges were $7,041." Long Beach Area Peace Network, 574 F.3d at 1017. August 28, 2018 Item #9 Page 23 of 25 Celia A. Brewer, Esq. August 1, 2018 Page 8 of9 not completely foreclosed from engaging in their protected activity: they were able to march along State Street's sidewalks" without charge); Stonewall Union, 931 F.2d at 1137 (upholding fees for permit processing and traffic control because "an alternative forum is available-the Columbus sidewalks which parallel the streets are free for purposes of conducting a parade and the parks are available without cost for related speech activities"). 5. Indemnification and insurance The Ninth Circuit struck down an indemnification provision that required organizers to hold a city harmless for "any liability caused by the conduct of the event," because such language impermissibly encompassed "liability caused by the acts or omissions of any person or entity involved in the event, including acts and omissions not only of the permittees but also of the City and third parties." Long Beach Area Peace Network, 574 F.3d at 1039. Under the Long Beach decision, the ordinance here improperly requires organizers of expressive activity "to waive and release the City of Carlsbad and its officers, agents, employees and volunteers from and against any and all claims, costs, liabilities, expenses or judgments including attorney's fees and court costs arising out of the activities of this special event or any illness or injury resulting therefrom, and hereby agree to indemnify and hold harmless the City of Carlsbad from and against any and all such claims, whether caused by negligence or otherwise, except for illness and injury resulting directly from gross negligence or willful misconduct on the part of the city or its employees." CMC § 8.17 .090. This language violates the First Amendment in at least three ways. First, because it contains "no exclusion for losses to the City occasioned by the reaction to the permittees' expressive activity," it "allow[s] the City impermissibly to shift some of the costs related to listeners' reactions to speech from the City to the permittees." Long Beach Area Peace Network, 574 F.3d at 1040. Second, it requires the permittee to indemnify the City for its own conduct, and "permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech." Id. Although organizers need not indemnify the City against its own "gross negligence or willful misconduct," they must still indemnify for all other conduct, including simple negligence and unintentional conduct. · Third, it "requires permittees to assume legal and financial responsibility" for actions "that are outside the control of the permittee." Id. The First Amendment prohibits the City from requiring permittees "to compensate third parties for harm caused by hecklers, counter-protesters, or other persons not part of permittees' organization." Id. at 1041. Apart from indemnification, the ordinance requires insurance coverage in an amount "determined by the risk manager according to the size and risk factors of the event. When determining the size of the event and the risk to participants and spectators, the estimate of participants shall be determinative. The person conducting the special event shall not be August 28, 2018 Item #9 Page 24 of 25 Celia A. Brewer, Esq. August 1, 2018 Page 9 of 9 required to insure any risk arising from persons attending in response to an event, to heckle or oppose the sponsor's viewpoint." CMC § 8.17.100. Although it is appropriate to exclude "risk arising from persons attending in response to an event, to heckle or oppose," the insurance requirement improperly allows coverage based on the conduct of other third parties beyond the organizer's control such as bystanders or supporters. The "insurance requirement is not narrowly tailored because it requires permittees to purchase insurance against risks for which the permittee could not be held liable," and the City "cannot use its insurance requirement to indirectly impose costs on organizations that it could not impose on them directly." zMatter Utah, 774 F.3d at 1270. Finally, "sovereign immunity and traditional agency and tort principles make it difficult to imagine how [the City] could be liable to third parties" as the result of a demonstration or march, calling into question whether the indemnification and insurance requirements are narrowly tailored to the City's interests. Id. at 1271. I am open to discussing the City's potential exposure as the result of expressive activity, but it is not clear the scope of any such exposure justifies indemnification or insurance as the price of exercising First Amendment rights. Conclusion Please let me know if you have any questions. I am glad to talk any time. I can be reached on my direct line at 619.398.4496 or by email at davidloy@aclusandiego.org. I look forward to discussing these issues in the hope that the problems can be cured and litigation avoided. I am also glad to provide sample ordinances if that would be helpful. For example, the City of Vancouver, Washington has adopted an ordinance that largely limits the definition of "special event" to assemblies or activities "the principal purpose of which is not expressive activity" and otherwise exempts "[e]xpressive activities" from any permit requirement while providing for a cooperative process between City officials and organizers of expressive activity. Vancouver Municipal Code§§ 5.17.030, 5.17.060(C)(4), 5.17.070. Sincerely, ~ny Legal Director August 28, 2018 Item #9 Page 25 of 25 Chris Hazeltine, Parks & Recreation Director Heather Stroud, Deputy City Attorney Aug. 28, 2018 Report on Special Events Ordinance As Applied to Demonstrations Special Event Permit Requirement •Organized events on public property of 50 or more –Includes concerts, parades, street fairs, sporting events, demonstrations •Purpose: ensure special events do not place undue burden on city resources and protect public health and safety Permit Application Process •Submitted 90 days in advance –May be waived by P&R Director •Includes event organizer, financial responsibility, proof of insurance, site plan (temporary structures, tents, portable restrooms, site access), traffic control plan Permit for Demonstrations •Permit required for assembly of 50 or more persons for the purpose of expressive activity: −To assemble or travel together in a manner that doesn’t comply with traffic regulations or controls −To gather at a public park or other public area Application for Demonstrations •Streamlined application process −Contact info of organizer −Proof of insurance −Traffic control/parking plan −Sound amplification equipment •Waiver of 90-day period likely No Permit Required •On sidewalk where traffic regulations followed (no size limit) •Spontaneous demonstrations −Up to 50 people −Reaction to current events happening within 48 hours −No fee charged, vehicles, animals or fireworks Comparison with Other Cities In comparison of 12 other cities, we found: •Two cities with spontaneous demonstration exemptions •Three cities with broader exemptions •Four cities with no exemptions •Three cities with streamlined demonstration permit process First Amendment Requirements •Permit and notice requirements allowed •1st Amendment requires: −No overly broad discretion −Content-neutral −Narrowly tailored / substantial gov’t interest −Ample alternatives for communication Substantial Gov’t Interests •Regulating competing uses of public areas •Maintaining parks in attractive condition •Regulating streets to protect pubic safety •Collecting fees to defray expense of policing events Narrowly Tailored •Close fit between requirements and interests •Doesn’t restrict substantially more speech than necessary •City not required to select least restrictive alternative Ample Alternatives •Speaker must be able to reach intended audience •Alternative locations must be adequate •Opportunity for spontaneous political speech •Cost and convenience of alternatives Response to ACLU 1.Necessity of permit 2.90-day advance notice 3.Spontaneous events 4.Fees and costs 5.Indemnification and insurance Options for Discussion 1.Maintain current exemption for spontaneous demonstrations 2.Increase number of participants eligible for permit exemption 3.Increase time frame in which relevant “news or affairs” may have occurred 4.Create more streamlined permit process for demonstrations