I. Background
Demonstrations, marches, parades, processions, and rallies are regularly conducted on the City’s streets, sidewalks, parks, and other public property each year. Although such activities involve free speech rights, the City has the ability to impose content neutral time, place, and manner regulations to promote substantial government interests including the following:
• Protecting the safety, comfort, and convenience of persons using streets, sidewalks, parks, and other public property;
• Regulating competing uses of public fora;
• Maintaining public property in an attractive and intact condition;
• Preventing unreasonable interferences with residential properties and lawful businesses; and,
• Defraying the cost of certain departmental services provided for the activities.
In mid-2014, the City Council held a study session on potential regulations for public assemblies. No consensus was reached at that time.
The City Council revisited the issue of public assembly regulations last year in response to an October 2017 incident which resulted in the interference with the normal movement of traffic in Downtown Brea. On December 5, 2017 at a regularly scheduled meeting the City Council introduced Ordinance No. 1201 for first reading by title only and waived further reading. The City Council received no comments on, or objections to, the ordinance before or during that meeting.
The City Council’s December 19, 2017 agenda included an item to consider the second reading and adoption of Ordinance No. 1201. However, shortly before that meeting the City Council received correspondence objecting to portions of the ordinance, including a December 18, 2017 letter from Peter Eliasberg of the ACLU of Southern California. Thus, at that meeting, the City Council tabled the ordinance to give staff additional time to evaluate the objections. During the public comment period at that meeting, after the item had been tabled, numerous speakers commented on the ordinance and most of the speakers objected to particular provisions or to the idea of enacting any public assembly regulations.
The City Attorney has now met with Mr. Eliasberg to discuss the ACLU’s concerns regarding Ordinance No. 1201. Mayor Parker, Council Member Hupp and the City Attorney have also met with several community leaders and with representatives of several citizen action groups that expressed concerns regarding the ordinance. Although confident about the enforceability of the original version, in an effort to alleviate the majority of concerns that have been raised, the City Attorney has prepared the attached new version of Ordinance No. 1201 for the City Council’s consideration.
The City Council’s February 6, 2018 agenda included an item to consider the first reading and adoption of Ordinance No. 1201. The item was continued because a Council Member was unable to attend and given the importance of the matter, the Mayor believed that it is essential to have the full City Council hear the public comments, review the revise Ordinance and deliberate.
II. Ordinance Changes
The attached Ordinance Redline shows the differences between the original version (contained in the City Council’s December 19, 2017 agenda packet) and the new version of Ordinance No. 1201. There are ten key differences and they are described below
A. Higher Participant Threshold for Assembly Permit Requirement for Public Assemblies in Downtown Brea
The ordinance defines the term “public assembly” as a demonstration, march, parade, or rally that assembles or travels in unison on a street, sidewalk, park, public right-of-way or other public property owned or controlled by the City and that meets one of certain criteria. In the original version of the ordinance, the criteria were as follows: (i) the event does not comply with applicable traffic laws, regulations, and controls; (ii) the event takes place on public property in Downtown Brea and involves 30 or more participants; or (iii) the event takes place on public property outside of Downtown Brea and involves 75 or more participants.
The new version of the ordinance loosens the criteria by setting a 75-participant threshold for all areas, including Downtown Brea. Thus, under the new version of the ordinance, a citizen action group can conduct a non-spontaneous public assembly in Downtown Brea with as many as 74 participants and no assembly permit would have to be obtained if the event complies with applicable traffic laws, regulations, and controls
B. Permit Exemption for Spontaneous Assemblies at Offices of Elected Public Officials
The ordinance allows spontaneous public assemblies to be conducted without an assembly permit in response to news or affairs coming into public knowledge less than three days prior to the event. In the original version of the ordinance, this permit exemption would apply only if the spontaneous public assembly was conducted at the City Hall plaza. The new version of the ordinance expands the scope of this permit exemption so that it also applies if a spontaneous public assembly is conducted at the office of an elected public official. Thus, under the new version of the ordinance, regardless of the number of participants, a citizen action group can conduct a spontaneous public assembly at any elected representative’s office in Brea without obtaining an assembly permit. An example of a spontaneous public assembly would be the public protests within hours of the President's January 27, 2017 Executive Order temporarily banning refugees and immigrants entry into the United States from certain foreign countries.
C. Authorization To File Single Permit Application for Multiple Public Assemblies in a Six-Month Period
The ordinance requires that an assembly permit application be filed with the City Manager not less than three days prior to the date of the proposed assembly. The new version of the ordinance authorizes an applicant to file a single application for multiple public assemblies that the applicant intends to conduct in the next six months. Thus, the new version of the ordinance minimizes the burden on a citizen action group that intends to conduct a series of public assemblies over the course of a six-month period.
The City will establish an on-line permit application template to facilitate the ease of applying for a permit.
D. Elimination of Permit Application Fee Reference
The original version of the ordinance would have required assembly permit applicants to pay an application fee in an amount set by City Council resolution unless an indigency waiver was obtained. The City Council opposed establishing an application fee and no resolution was ever drafted. The new version of the ordinance provides that no application fee is required. Because of this change, references to an indigency waiver also have been removed from the ordinance.
E. Clarification of Departmental Service Charge Definition
The ordinance requires permittees to reimburse the City for certain departmental service charges if they are incurred in connection with the permittee’s public assembly. A permittee is not required to pay for the cost of law enforcement personnel to protect the permittee’s public assembly and its attendees from hostile members of the public or counter-demonstrators. A permittee also does not have to pay for the cost of general law enforcement in the vicinity of the event. These limitations were included in the original version of the ordinance and they have not been changed.
The new version of the ordinance clarifies the definition of the term “departmental service charge” in two ways. The term still covers actual fire safety costs and traffic control costs incurred by the City in connection with a public assembly for which an assembly permit has been issued. The first clarification is that traffic control costs are limited to barricades and personnel other than sworn law enforcement officers. The other clarification is that the definition includes portable restroom facility costs. Thus, the new version ordinance more clearly states the narrow scope of the departmental service charge reimbursement requirement.
F. Departmental Service Charge Estimate
The new version of the ordinance requires that, concurrently with an assembly permit approval, the City Manager shall provide the permittee with a written estimate of any departmental service charges that the City will incur in connection with the permittee’s public assembly. Additionally, upon request, the City Manager shall reasonably assist a permittee to design the public assembly in a manner that minimizes departmental services charges. Thus, the new version of the ordinance ensures that a citizen action group has advance knowledge of any anticipated departmental service charges, as well as an opportunity to work with staff to reduce such charges before they are incurred.
G. No Permit Denial Due to Unpaid Departmental Service Charge Debt
The ordinance requires ministerial issuance of an assembly permit, within three days of the application filing, unless one or more of the specified denial findings is made. The original version of the ordinance would have required denial of an assembly permit if the applicant, or the organization on whose behalf a public assembly was proposed to be conducted, had an unpaid departmental service charge debt to the City for a prior public assembly.
The new version of the ordinance does not allow permit denial due to an unpaid departmental service charge debt. In the event of an unpaid departmental service charge, the City still may file a civil action for cost recovery. It is anticipated that in most situations any such civil action would be in small claims court.
H. Reduction of Prohibited Items List
The ordinance makes it unlawful to carry or possess certain items while present at a public assembly. The prohibited item list in the original version of the ordinance included signs, posters, plaques and notices not constructed solely of a cloth, paper, or cardboard material less than one-quarter inch in thickness. The new version of the ordinance reduces the prohibited item list by eliminating this category.
I. Elimination of 250’ Audibility Restriction for Sound Amplification Devices
The ordinance restricts the manner in which sound amplification devices are used at a public assembly. The original version of the ordinance prohibited using a sound amplification device that is audible at a distance of 250’ feet from the point from which the broadcast emanates. The new version of the ordinance eliminates the 250’ audibility restriction.
J. Elimination of Indemnification Agreement Requirement
The original version of the ordinance would have required a permittee to execute an indemnification agreement protecting the City against damages related to the permittee’s public assembly and arising out of the acts or omissions of the permittee or the permittee’s officers, employees, or agents. The original version of the ordinance expressly stated that a permittee would not be responsible for losses to the City arising from audience reaction to the permittee’s public assembly or for activities at the permittee’s public assembly that were outside of the permittee’s control.
The new version of the ordinance eliminates the indemnification agreement requirement. In the event someone causes loss for the City during a public assembly, such as by damaging City property, the City still may file a civil action for cost recovery.
III. Comparison with Other Jurisdictions
Numerous cities in California have enacted public assembly regulations. The table below provides a comparison between the public assembly regulations contained in Ordinance No. 1201 and the public assembly regulations adopted by nine other cities in Orange County. It is important to emphasize that this is a “high level” comparison and many of the other cities’ public assembly regulations have nuances and exceptions that are not detailed in this table.
| |
Permit Requirement |
Participant Threshold |
Permit Fee |
Service Charge |
Insurance Requirement |
Indemnity Requirement |
| |
|
|
|
|
|
|
| Ord. # 1201 |
Yes |
75 |
No |
Yes |
No |
No |
| |
|
|
|
|
|
|
| Aliso Viejo |
Yes |
250 |
Yes |
Yes |
Yes |
Yes |
| Anaheim |
Yes |
20 |
Yes |
Yes |
No |
Yes |
| Irvine |
Yes |
* |
Yes |
Yes |
No |
Yes |
| Laguna Hills |
Yes |
50 |
Yes |
Yes |
Yes |
Yes |
| Lake Forest |
Yes |
30 |
Yes |
Yes |
Yes |
Yes |
| Placentia |
Yes |
2 |
No |
No |
No |
No |
| San Juan Capistrano |
Yes |
2 |
No |
Yes |
No |
No |
| Santa Ana |
Yes |
* |
No |
Yes |
No |
Yes |
| Stanton |
Yes |
* |
No |
Yes |
No |
Yes |
*Permit requirement applies regardless of number of participants.
IV. Ordinance Highlights
In summary, the revised version of Ordinance No. 1201 seeks to achieve the City Council’s goal of adopting public assembly regulations that promote the City’s substantial governmental interests without impairing the free speech rights of citizen action groups. The following are the key provisions of the ordinance:
• A ministerial permit requirement for public assemblies that do not comply with traffic laws or that involve 75 or more participants (with an exception for spontaneous public assemblies, regardless of the number of participants, at the City Hall plaza or at an office of an elected official).
• Partial cost recovery (limited to fire safety, traffic control, and portable restroom facility costs).
• Limitations on carried items.
• Limitations on conduct.
• Limitations on sound amplification devices. |