June 2019 - Parks & Recreation - 39

In concluding that the city manager's action was a proprietary decision, the federal magistrate rejected the FGS characterization of the
City's 2019 lease agreement policy as effectively a legislated " new
rule " within the City's law-making authority. Further, the federal
magistrate found this proprietary
decision by the city manager not
to renew the City's agreement with
FGS was " consistent with the fact
that other types of shows have been
denied licenses at the WMA based
on inappropriate subject matter (as
authorized by the WMA's Policies
and Procedures), as well as by the
fact that gun shows are permitted
elsewhere in the City. "
In the opinion of the court,
" treating this decision as a rule
of regulation " would be inappropriate and effectively " render the
City powerless to use its property
for other purposes, such as the proposed uses as a soccer and lacrosse
stadium or a concert venue. " As
a result, the court found the First
Amendment would not mandate
an injunction requiring the renewal
of the City's agreement with FGS
for gun shows in 2019 and reserved
dates in the future.

Non-Public Forum
As noted by the court: " When the
government acts in its position as
a proprietor to manage its internal
operations, as opposed to using its
power as a regulator or lawmaker,
those governmental actions are
subject to a lower level " of First
Amendment judicial scrutiny; i.e.,
a showing of reasonableness will
suffice as opposed to proof of a
compelling state interest.
In this instance, the federal magistrate found the WMA was not a

public forum because " access to
the venue is not open to all who
apply for a lease. " On the contrary,
the magistrate found " the City has
in the past found such activities
as an adult toy show and a topless circus to be unsuitable to the
WMA. " Having found the WMA
was a non-public forum, the question before the court was, therefore,
whether the city manager's decision not to renew the FGS lease for
2019 was " reasonable. "
The city manager had cited the
following " long-held view " as the
primary reason for his decision:
[G]un shows, which are held
during the daytime and on weekends, are not the type of family-friendly activity appropriate for
an auditorium located in a public
park with play areas for children.
Moreover, he noted a perceived
" shift in gun shows' emphasis after 2012 from recreational gun use
to self-defense, as well as the increasing prominence of militarized
weapons at the shows. " Further, the
city manager had been receiving
" complaints from parents about gun
shows in Holiday Park, especially
after the recent mass shootings in
nearby Parkland, Florida, and at the
Fort Lauderdale airport. "
The federal magistrate agreed
with FGS that the city manager's
determination that " gun shows are
not 'family friendly' is a subjective
one. " Nevertheless, the federal
magistrate found that " common
sense clearly supports the concept
that activities in public parks which
include play areas for children
should be suitable for all ages. " In
the past, the court further noted the
City had refused to lease the WMA
for " activities deemed to be inappropriate for the venue. "

The federal magistrate found FGS
had " failed to show a substantial
likelihood of success on the
merits of its First Amendment
claim. "
Accordingly, the federal magistrate found that the city manager was
" entitled to consider the emotional
impact of the recent mass shootings
on the parents and children in this
community when deciding, at least
for 2019, that a gun show was not an
appropriate activity to be held at the
WMA within Holiday Park. "

Conclusion
The federal magistrate concluded
that (1) the City's decision not to
renew the Plaintiff 's lease agreement for 2019 was made in its proprietary, rather than its law-making
capacity, (2) the restriction of the
Plaintiff 's commercial speech was
in a non-public forum and (3) the
decision to exclude the Plaintiff 's
gun show was reasonable.
Based on these conclusions, the
federal magistrate found FGS had
" failed to show a substantial likelihood of success on the merits of its
First Amendment claim. " The federal magistrate, therefore, denied
the FGS request for a preliminary
injunction. FGS could then appeal
this determination by the federal
magistrate judge and seek a preliminary injunction based on a full
review of the pretrial record by a
federal district court judge.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.edu). Webpage with
link to law review articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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