September 2013 - Parks & Recreation - 32

L AW R E V I E W

Section 12.72.090 does not prevent Plaintiffs from conducting their
expressive activities 24 hours a day
on adjoining sidewalks or in other
public spaces if they so choose. It
just prevents them from doing so by
remaining in City parks after the
hours established by the ordinance if
they do not have a permit to do so.
It is therefore not over-broad. Neither
is it under-inclusive. The fact that
§12.72.090 applies to parks and not

they have been deterred from, and
must refrain from, engaging in their
expressive activities. " In particular,
Occupy Sacramento contended that
" a continuous presence in the park "
needed to be maintained " for the purposes of solidarity, to reach the maximum number of passers-by, as well as
to communicate with people around
the nation and around the world. "
The federal district court disagreed.
According to the court, Occupy Sac-

" A licensing statute placing unbridled discretion
in the hands of a government official or agency
constitutes a prior restraint and may result in
censorship. "
to sidewalks or other public places
does not lead inevitably to the conclusion that the hours restrictions are
intended to stifle free expression in
City parks, as Plaintiffs imply.
As a result, the federal district court
concluded that §12.72.090 is both
narrowly tailored and that it serves a
substantial government interest.
Specifically, the City has a substantial interest in ensuring and protecting
the: (1) ability of the general public to
enjoy the park facilities, (2) viability
and maintenance of those facilities,
(3) public's health, safety and welfare, and (4) City's parks and public
property from overuse and unsanitary
conditions. A regulation that prohibits the public's use of the parks for five
to six hours a day - in the middle of
the night - serves these interests.
Alternatives for Expression?
Occupy Sacramento had also contended that " by closing the park to the
public for five to six hours every night,

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Parks & Recreation

ramento was " not prevented from
maintaining a continuous presence
in the area, or from continuing their
communications around the clock. "
On the contrary, the court noted that
" §12.72.090 just prohibits them from
remaining in City parks after the
hours established by the ordinance if
they do not have a permit to do so " :
For 18 to 19 hours a day, Plaintiffs
may engage in their activities in the
park. After park hours, for five or six
hours a night, Plaintiffs may continue
their expressive activities on the streets
and sidewalks or other public fora.
Unbridled Discretion?
As described by the federal district
court, Occupy Sacramento had further alleged that " §12.72.090 gives the
Parks Director 'unbridled discretion'
to permit the after-hours use of the
Park and contains 'no standards' governing the Park Director's discretion " :
Plaintiffs contend that the Parks
Director " may sponsor or cosponsor

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after-hours park activities, without
restriction, and persons attending
such activities are exempt from the
park closure rules. " In addition,
with the concurrence of the Chief
of Police, the Parks Director may
extend park hours when he determines " 'that such extension of hours
is with sound use of park resources,
will enhance recreational activities in
the city and will not be detrimental
to the public safety or welfare.' "
As noted by the federal district court,
" [w]here the licensing official enjoys
unduly broad discretion in determining whether to grant or deny a permit,
there is a risk that he will favor or disfavor speech based on its content " :
The underlying concern is that in
the area of free expression a licensing
statute placing unbridled discretion
in the hands of a government official
or agency constitutes a prior restraint
and may result in censorship. Therefore, a facial challenge lies whenever
a licensing law gives a government
official or agency substantial power
to discriminate based on the content
or viewpoint of speech by suppressing
disfavored speech or disliked speakers.
Accordingly, as cited by the federal district court, a reasonable
time, place and manner regulation
must contain " adequate standards
to guide the official's decision and
render it subject to effective judicial
review. " On the other hand, " where
the official's discretion is limited
and is guided by narrowly drawn,
reasonable and definite standards, "
the court found a governmental regulatory scheme " may be upheld. "
In this particular instance, the court
found " the Park Director's discretionary authority to grant or deny
permits to use City parks is expressly limited by §12.72.180 which also
provides for an appeal process, " as
September 2013 - Parks & Recreation

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