In this Column . . .

Who Are the Lawyers on Sawyer?
(contact information and email links)

And. . .Did You Know
- About the American Rule on Attorneys Fees?
- About the Unconstitutional and Unnecessary Proposed Special Events Permit for the City of Oshkosh?
- How Mediation and Arbitration Help and Hurt the Legal Process
- About Easements?

-$8,000 First Time Homebuyer's Tax Credit
-What To Do First When A Loved One Dies
-Home Improvement Laws

FYI - We will post relevant comments & corrections after reviewing them. Just click on the comment link.

Who Are the Lawyers on Sawyer?

Kindt Phillips Friedman & Fremgen, SC
141 N. Sawyer St.
Oshkosh, Wisconsin 54902


Email a Lawyer on Sawyer

Chris Kindt
Andy Phillips
Ken Friedman

Thursday, September 17, 2009

Did You Know: About the Proposed Unconstitutional and Unnecessary Special Event Permit in Oshkosh?

Do you remember the Beatles song Taxman? There is a verse: “If you try to sit, sit I’ll tax your seat. . If you take a walk, I'll tax your feet” The City Council is considering requiring a permit for almost every gathering involving two or more people on public or private land. Most people who hear about it think the ordinance is nothing more than a tax increase. But, it is more. There is a recent Wisconsin Supreme Court Case which makes it all but certain the proposed ordinance is unconstitutional.

I have broken this letter in to two pieces. Part 1 of the article explains the ordinance and suggests a more sensible alternative. Part II examines the ordinance in light of Sauk County v. Gumz, 1008 WI 87.

Part I: What is Proposed and a Sensible Alternative.

On September 9, 2009, the Oshkosh City Council reviewed a proposed ordinance to require permits for any temporary gathering of two or more people on public or private property that

(a) offers food, drink or merchandise; or

(b) includes amplified sound or excessive noise; or

(c) uses temporary structures (e.g, tents); or

(d) any part of which happens between 11 PM and 8 AM; or

(e) makes exclusive use of any property owned, leased, or controlled by city; or

(f) requires any city services required because of the event itself; or

(g) requires closing of a public street, alley or right of way; or

(h) includes more than 250 people on private property.

The ordinance require event planners to pay a non refundable fee of $50 to $200 to consider an application that must be submitted at least 45 days before the event. Special events which are held without permits or exceed the limits of their permit are subject to fines of $500 to $1000 a day. Otherwise, the city manager or his designee has the exclusive authority to decide if your gathering of two or more people is a special march or public assembly event requiring a permit.

There are some exemptions. No permits are required for events that are on property specifically designed or suited for the event, with an appropriate certificate of occupancy, sanitary services, street access and controls. However this exemption is lost if the event results in more use of public facilities and services than are used on a normal non-event day.

Funeral processions are exempt. So are events sponsored solely by the City of Oshkosh. Family gatherings and picnics organized by businesses or charitable organizations are exempted if they include none of the listed factors (presumably food and drink are permitted, but use of stereo equipment, home theatre and roadside parking will require a permit).

There is a five day notice requirement for public assemblies and marches. Public assemblies are organized gatherings on public property for the purpose exercising constitutional rights where it reasonably expected attendees may violate traffic regulations or other public use rules. Marches are moving gatherings for the purpose of exercising constitutional rights where the police are required to close rights of way or direct traffic. Assemblies and Marches that do not meet these criteria are special events.

According to the draft, special events include: walking, running or jogging events, sports events or competitions, cultural events such as art fair or antique show, films, concerts, theater, religious services, classes, meetings, and parties as well as other gatherings meeting criteria (a) to (h).

The City Council should not approve the ordinance in its present form. First, it is unconstitutional. It imposes prior restraint on individuals freedoms of speech, association, assembly and religion which are not necessary for an significant government interest. Second, it is neither practical or reasonable to license the small and medium sized events hosted by individuals, families, neighborhoods, churches, businesses and civic organizations. These are the customary and normal daily events in the life of any small city. These events require no extraordinary resources and should not be subject to approval by government.

For fun, retake the Quiz. Pretend you are the City Manager and classify the events listed below. Are they special events, public assemblies, marches, one the exceptions or exemptions or none of the above

Marriage proposal while playing “your song” after a candlelight dinner for two in the gazebo in Menominee Park

Neighborhood graduation party on an empty lot.

After school tag football game in Red Arrow Park

Art Walk

Antique car show at Ardy & Eds Drive-in, feature private tents and both patrons and cars overflowing into the cul de sac.

Neighborhood Rummage Sale

Teens skateboarding near their homes

Parents picking up 75 children who got back late from a school ski trip.

Traffic Jam

Overflow audience at School Board Meeting

the Zombies (youth) gathering nightly in Opera House Square.

Sail boat race

Church picnic in the Church parking lot.

300 people attending a graveside funeral service for a beloved teacher

Your daughters 8th birthday party with a sleep over.

I live near Emmeline Cook elementary school, so I know that kids' football, baseball and soccer games generate plenty of loud noise. Are they special events? Ask the Oshkosh City Manager.

Here is a better idea. The proposed ordinance requires a permit for temporary gatherings of more than 250 people on private property. Revise the proposal to require a $50 permit fee for special events and marches and public assemblies that (1) involve more than 250 people, (2) are scheduled in advance and (3) are not held at permanently established places of assembly sufficient space (say 30 square feet per person) or seating capacity.

Part II, for curious readers:

Why the Proposed Ordinance is Unconstitutional.

A recent Wisconsin Supreme Court decision, Sauk County v. Gumz, 2003 WI 87 (click here to read) explains why the proposed ordinance is unconstitutional. The court reviewed Sauk County's special event ordinance requiring sponsors of any event involving more than 1,000 people to submit applications, along with non-refundable fees of up to $500, at least 60 days before the event. The County had 45 days to review applications. There was a ban on advertising, promotion and ticket sales until a permit was issued.

The Supreme Court found each of these provisions unconstitutional. Bans on promotion violate the first amendment rights to freedom of speech. Government regulations affecting constitutional rights must be “narrowly tailored” to preserve significant public interests. Application deadlines can be no longer than reasonably necessary. Federal courts upheld a Chicago's 30 day application deadline fo r events with more than 50 people because thousands of applications are filed every year. The court found Sauk County could not justify a 60 day deadline. Nominal fees which do not exceed the actual cost of processing the permit are allowed. The Wisconsin Supreme Court established a bright line rule that fees must be $100 or less and held daily fees unconstitutional because a multi-day event does not require a different standard of review. Finally, the court found the 45 day review period excessive. However, after the 45 day review period was removed, there was no limit to the amount of time the County could take to review an application. Since that, too, is unconstitutional, the court found Sauk County's special event ordinance had to be struck in its entirety.

The same reasoning would find the Oshkosh ordinance unconstitutional. It has fees greater than $100. It has higher fees if a liquour license is required, but not if other permits or inspections are needed. Oshkosh is not Chicago, application periods of 30 days or more are excessive. The proposed ban on advertising is unconstitutional. There is no limit on the time for approval in the Oshkosh ordinance. The city manager must give the council a recommendation “as quickly as possible,” but the permit cannot be issued before all other city permits, licenses and approvals are in place. Without a time limit, the entire ordinance is unconstitutional.

The US and Wisconsin Supreme Courts have decided cities must provide an ample opportunity for spontaneous assemblies responding to recent events. Sauk County's code does not require permits for assemblies at permanently established places of assembly. The proposed ordinance prohibits spontaneous gatherings altogether by requiring organizers to file an application and pay a fee five days in advance for a permit to gather or walk in protest or support of government action.

Extra protections are required when cities go beyond regulation the time, place and manner of the use of property. There must be immediate judicial review paid for by the city to determine if a permit can be denied or limited. The proposed ordinance goes beyond time, place and manner restrictions. It has different rules for different folks. Funeral processions and any event whose only sponsor is the City are exempt. So are some family gatherings and picnics or similar events sponsored by charities or businesses. The ordinance does make an immediate appeal to the courts possible and it does require the City to pay for appeal. The ordinance does not specify any appeal process for special events. For public assemblies and marches whose sole purpose is the exercise of constitutional rights, denials by the police chief can be appealed to the city manager and then to city council and then to the courts.

Final words.

The proposed special event ordinance is unconstitutional and unnecessary. Under the proposed ordinance, two people can constitute a public assembly, a march or a special event. You will need a special events permit if you want to surprise your sweetheart with a candelight dinner in the Gazebo in Menominee Park and the propose marriage while 'your song' is playing on speakers connected to your IPOD. If the proposed ordinance had already passed this summer, you would need a public assembly permit if half a dozen people stood in Opera House Square stopping people and cars to see if anyone would sign a petition in favor of having the City renovate the Grand Opera House. A march permit may be required if there is a reasonable expectation you and your friends will jaywalk on your way to City Hall to apply for the public assembly permit for Opera House square or that you will loiter in parking lot to discuss city politics on your way.

If the City Council wishes to regulate large private events, revise the proposal to require a $50 permit fee for special events and marches and public assemblies that (1) involve more than 250 people, (2) are scheduled in advance and (3) are not held at permanently established places of assembly with seating capacity (or if outside, sufficient space for the event). The review should take no longer than the week or two required for a liquor license. So the application deadline should be no more than two or three weeks before the event.

For more information or advise please call Ken Friedman at 920-231-1500

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