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Monday, August 7, 2017

Court Upholds Ordinance Restricting Commercial Activity in Neighborhood Park

Recently, a federal appeals court upheld the constitutionality of a municipal ordinance that prohibited commercial activity in a park without a permit against a challenge by a commercial photographer.  Havlak v. Village of Twin Oaks, no. 16-3377 (8th Cir. July 25, 2017).  

The Village Board of Twin Oaks enacted an ordinance to protect a newly dedicated neighborhood park. That ordinance prohibited activities such as obstructing walkways, motorized vehicles, hunting and all commercial activities. After the park was upgraded in 2011, it began to attract significantly more visitors, including commercial photographers who began using the park as a back drop for weddings and other types of photo shoots.  In response to complaints of the increased activity within the park, the Village Board put up signs notifying visitors of the long-established ordinance prohibiting commercial activity within the park.  Subsequently, a commercial photographer filed suit seeking to prevent the enforcement of the ordinance and alleging that the ordinance was a violation of her First Amendment rights.

In response to the lawsuit, the Village Board amended the ordinance to create a permit process for commercial use, which included automatic approval for events with 10 persons or less, lasting less than one hour and with a 48 hour advance notice period.  For larger or longer events, the permit process allowed the Board to consider factors relating to government interests, such as the disruptive impact of the activity, potential damage of the activity and whether the activity will cause congestion in the park.  The permit process also included a $100 fee to pay for police oversight of the activity.  

The appellate court ultimately held that, though the First Amendment applies to municipal ordinances, municipalities still have the authority to “regulate competing uses of a traditional public forum, like a park, by imposing a permit requirement.”  The Court found that the challenged ordinance was content-neutral, narrowly-tailored and met the constitutional standards regarding regulations on time, place and manner.  

The reasoning behind the Court’s decision is largely based on the premise that the ordinance was enacted to serve a significant government interest of maintaining the park and was content neutral since it prohibited all commercial activity, rather that any particular commercial activity or message. The Court found that there were also several other alternatives for the photographer to communicate her message since she hardly used the park before she heard about the Village’s ordinance.  Furthermore, the permit process established did not give “unbridled discretion to the Village to approve or deny permits. Instead, the court found that the ordinance provides “articulated standards” and “objective factors” that the clerk and the Board are to consider when granting permits.” 

Post Authored by Katie O'Grady, Ancel Glink


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