December 2010 - Parks & Recreation - 37

By James C. kozlowski, J.d., Ph.d.

LAW ReVIeW

free speech t-shirt sales
at Park District Zoo
N THE CASE OF HIGHER TASTE V. CITY OF TACOMA, (Western District of Washington

123Rf / vECtoRstoCk

6/4/2010), a nonprofit religious corporation challenged the constitutionality of a
park district resolution (Resolution 40-05) which provided, in pertinent part,
that " no person shall sell or offer for sale any goods, wares, merchandise within the entranceway, pathway or the parking
area adjacent thereto " to the Point Defiance Zoo and
Aquarium ( " Zoo " ). The Zoo is operated by defendant
Metropolitan Park District of Tacoma ( " Metro " ), an independent government agency division of the defendant
City of Tacoma.
Plaintiff Higher Taste described its " specific purpose is to propagate, through the dissemination of
educational literature and other expressive items,
such as message-bearing T-shirts, the principles
of non-violence, animal protection, vegetarianism,
and spiritual ecology (as set forth in the Vedic literatures of ancient India) to interested members of
the public. "
In and around the Zoo, Higher Taste's activities
included the display of message-bearing T-shirts
offered in exchange for a donation or sale. Around
1993, Higher Taste began to engage in such activities
" on the walkways leading to and in front of the Zoo. "
In 1995, Higher Taste alleged Metro " instituted a
permit system that sought to impose a 'vendor fee'
of $10 per day, or 10 percent of Higher Taste's daily gross, whichever is greater. " In addition, Higher
Taste stated that the Park District had also " sought
to limit Higher Taste's permit periods to five day intervals. " Although Higher Taste formally protested
these measures, they were never enforced. In 2005,
Metro adopted the resolution at issue here, i.e., Metropolitan Park District of Tacoma Resolution 40-05.
Higher Taste claimed this resolution " affected its
First Amendment right to speech. "
Higher Taste further claimed that Metro had
urged the City to adopt a similar measure with the
" same restriction. " Accordingly, in 2007, the City
passed Tacoma, Washington, Municipal Code §
8.27.090 which provided: " No person, except duly
authorized concessionaires, and those having a
specific permit, shall sell or offer for sale in any park

any goods, refreshments,
photographs, or other articles. " The constitutional challenge brought by
Higher Taste, however, was limited to Metro's Resolution 40-05
and the City's ordinance, § 8.27.090,
was not included
the litigation.
A f ter Metro
adopted the challenged resolution, Higher Taste
contended that it was " prohibited from selling its message-bearing T-shirts on the walkways
leading to and in front of the Zoo, or distributing
their T-shirts in exchange for a voluntary donation. "
At that time, however, " an alternative location was
provided on level B of the parking lot, which is well
over 100 yards from the walkways leading to and
in front of the Zoo. " Higher Taste alleged further
that it was informed by Metro in June 2010 that it
" could no longer sell or receive donations for their
T-shirts on level B. "
In its complaint, Higher Taste alleged that the
resolution was an unconstitutional restriction of
its First Amendment free speech rights. Accordingly, Higher Taste fi led a motion in federal district court seeking a preliminary injunction against
Metro to prevent its enforcement of the challenged
resolution.

www.NRPA .ORG

DECEMBER 2010

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