City revising policy regarding special events

The city of Whitefish is working to ensure that those wanting to exercise their First Amendment right to freedom of expression aren’t hampered by its special event permit regulations.

City Attorney Angela Jacobs has spent the last several months drafting an ordinance that creates regulations for such permits regarding uses of city property that she says follows the law based largely on decisions from the United States Court of Appeals for the Ninth Circuit. The court considers any permitting process on events as potentially restricting free speech and freedom of expression, she noted.

“I went back through the ordinance and redrafted the whole thing,” she said. “There’s been significant changes from the Ninth Circuit about what kind of restrictions you can put on free speech. I have redrafted the ordinance for what I think the court has upheld.”

City Council reviewed the draft ordinance at a June 5 work session, but will still have to vote on the final ordinance before it goes into effect.

Another piece of the draft ordinance includes an addition that would allow the city to charge organizers for the cost of services associated with the event — traffic control, closure of streets, and the city cost to provide materials, supplies or support personnel for the event.

An application in January for a neo-Nazi march through town prompted the revision of the city’s special event permit regulations. The Daily Stormer, a white supremacist website, had been planning to hold a march through downtown on Martin Luther King Jr. Day, but later announced it had canceled its plans after the city sent a letter to the website saying the application for a special event permit was incomplete.

The website said it would reschedule the march to February, but that never materialized.

Under current regulations, the city can deny for non-payment of the event fee, which is currently $125 for large events, or for not providing proof of insurance for an event. Jacobs said that could be considered prohibiting “expressive activity” which is protected by the U.S. and Montana constitutions.

The new ordinance allows the city manager to waive the permit fees and insurance requirement for “solely expressive activity” and says that an application for such an event only need to be submitted to the city three days before the proposed event.

At the time, the city denied the Daily Stormer application for the march saying it could not be approved because it was incomplete. Former City Manager Chuck Stearns in a letter to the website said it would have to make up the difference of an incomplete application fee, but the city would wave its requirement under city regulations that organizers provide a certificate of insurance for the event.

“Insurance protects the city and that’s good,” Jacobs said. “But it does prohibit expressive activity if someone can’t afford it or it’s impossible to insure the event. I’m sure some events out there can’t be insured — like an armed march.”

Cities, under state law, for public safety purposes can prevent and suppress the carrying of concealed or unconcealed weapons to public assembly, publicly owned buildings, parks under its jurisdiction or schools. So while a march in the city could take place, those marching would have to do it without weapons, the city has said.

Under current city regulations, the city manager has the sole discretion to approve special event permits. It also allows the city manager to decline or refer an application to the City Council for consideration if the city manager determines “that an application is significant to the public, or might create unnecessary disruption, congestion, controversy or crowding.”

“One of the problems with the [current] ordinance is it didn’t set any standards for how the city manager could deny the permit,” Jacobs said.

However, the new ordinance creates guidelines under which the city manager has to follow in order to deny a permit. Those includes failing to provide a plan for the event and obtaining necessary business licenses, if the applicant has made false statements, the applicant has damaged city property and not paid for such damage, or failed to meet conditions required for a previous permit.

In deciding whether to approve the permit, the ordinance says, no consideration will be given to “the message of the event or activity, the content of speech, the identity or associational relationships of the application, or to any assumptions or predictions as to the amount of hostility which may be aroused in the public by the content of speech or message conveyed by the event.”

Though events of expression can’t be prohibited, the ordinance does allow for the city manager to place guidelines on the event. For example, if an applicant wanted to hold an event in Depot Park, the city could tell organizers it must take place in Memorial Park instead.

“It is permissible to put some limitations on them,” Jacobs said. “There is very few instances where you can deny [an expressive event] because you can put conditions on it.”

The new ordinance would set guidelines for when a permit is required similar to the current regulations — when the event impedes the use of a public street, sidewalk or public way or doesn’t comply with normal traffic regulation, when an event involving more than 75 people is held on city property or if an event in a city park requires approval from the city Parks and Recreation department if it involves alcoholic beverages, alterations to the park or vending.

The city currently collects about $3,000 annually for event permit fees, and parks and facility rental fees of about $12,000.

A park event application and fee is required for those events that involve a city park.

Also as part of the proposed changes, the city would require, in addition to the event permit fee, that the applicant pays the cost of city services such as traffic control or for the closure of streets. The city can not charge for services that include the cost of public safety personnel necessary for an event involving solely expressive activity.

“You can charge a fee based on how big the event is,” Jacobs said. “Many cities are requiring the applicant to pay for costs. You can’t charge for police protection because that would make it cost prohibitive to groups who want to meet for expressive activity.”

Police Chief Dial said 10 to 15 percent of his budget, or up to $8,000, goes toward overtime pay for officers for special events.

“It’s not a huge amount, but with a budget as tight as mine it affects everything,” he said. “We have something going on constantly that are above and beyond our normal.”

Councilor Katie Williams pointed out that events benefit the city.

“The events incubate business at times when otherwise it would be slow,” she said.

Councilor Andy Feury said the city charging events afterward to recover its cost is tricky.

“How do we do it without being viewed as arbitrary?” he said. “That could invite trouble.”

Council directed city staff to create a “menu” of city services that could be included with new regulations and outline in advance what an event would be charged for those services. Staff will also return with an updated ordinance for Council to vote on.