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HomeMy WebLinkAboutAgenda - 10-09-2007-6aORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 9, 2007 Action Agenda Item No. ~( - q SUBJECT: Fee Waiver Request for Tent Revival Event at Fairview Park DEPARTMENT: Manager's Office PUBLIC HEARING: (Y/N) No Recreation and Parks ATTACHMENT(S): INFORMATION CONTACT: Laura Blackmon, 245-2300 10/4/07 Letter from County Attorney's Office Lori Taft, 245-2660 PURPOSE: To provide the Board with the opportunity to consider the request for park use fee waiver by Reverend Luther Brooks and the St. James Baptist Church. BACKGROUND: In October of 2006, Reverend Luther Brooks held an Outreach Ministry Tent Revival at Fairview Park. The event was held over asix-day period and average attendance was estimated at 250 people per day. Games, food, clothing, food bank, outreach through block captains in the community, and other activity were all provided to the public free of charge. A 40 x 60 tent was erected for the entire period. The Town of Hillsborough Police provided "close patrol" throughout the period of the event. Reverend Brooks worked with the Recreation and Parks Department, the Town and others to insure all regulations were followed and all required paperwork was in place. In June of 2007, the Board adopted, as part of the budget ordinance, new park facility use fees including a $250 per day fee for general park use. This is the daily fee applicable for this event. Reverend Brooks has requested through the Recreation and Parks Director and the County Manager that this fee be waived. He believes that the fee ($1,500) would have a severe impact on his budget for the event, which is approximately $4,500. He characterizes his event as one which "gives to the community". This issue was first discussed at the September 19, 2007 Board meeting during which the Board requested the County Attorney's Office to advise the Board on the legal implications of waiving the fee for this event. Attached is the response from the County Attorney's Office which indicates that the BOCC is not legally permitted to grant a fee waiver to Reverend Brooks because the County does not currently have a fee waiver policy in place. If the Board decides it would like to delete or adjust the fee that was set as part of the adoption of the County's budget ordinance, staff will need to develop and the Board will need to consider a budget amendment to the budget ordinance. FINANCIAL IMPACT: If the Board were to waive the fee for this event, potential revenue of approximately $1,500 would likely be lost. RECOMMENDATION(S): The Manager recommends that the Board keep the $250 per day fee in place. TAW ~FETCFS HARGRAVE &. PEEK GLEDHILL ~ULE1vIAN sAMUELE.coLEMAN , , A PROFESSIONAL CORPORATION GEOFFREY E. GLEDHILL DOUGLASNARGRAVE 129 E. TRYON BEREFT LE[GH ANN PEEK P. O. DRAWER 1529 HIIISBOROUGH, NORTH CAROLWA 27279 $RIAN M. FERRELL 419.732.2196 FAX 919.732.7997 www.cghpdaw.com October 4, 2007 Orange County Board of Commissioners Mr. Moses Carey, 7r. Chair Ms. Valerie P. Foushee Ms. Alice M. Gordon Mr. Barry Jacobs Mr. Mike Nelson Post Office Bax 8181 Hillsborough, North Carolina 27278 Re: Fee Waiver Request for Tent Revival Event at Fairview Park Dear Board Members: This letter addresses the question of whether or not the Orange County Board of Commissioners (the "Board"} may legally waive the current park facility use fee at the request of Reverend Luther Brooks for an Outreach Ministry Tent Revival at Fairview Park. For the reasons that follow, the Board does not have the legal authority to waive the park facility use fee for this event. For same time now, the United States Supreme Court has recognized "religious worship and discussion.. , [as] forms of speech and association protected by the First Amendment [of the United States Constitution]."i The government, nevertheless, ..."has power to preserve the property under its control for the use to which it is lawfully dedicated."2 The United States Supreme Court has adopted a forum balancing analysis'to determine "when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." 3 For purposes of free speech and expression, government property is divided into four categories: [traditional] public fora, designated public fora, limited I Willman v. Vincent, 454 U.S. 253, 269 (1981); Good News Club v. Milford Cen. Sch., 553 U.S. 98 (2001). 2 Cornlius v NAACP 1_.egal De£. & Educ. Fund, 473 U.S. 788, 800 (1985). 3 United States v Koltinda 497 U.S. 720, 726 (1990). Orange County Board of Cornrnissioners Page 2 October 4, 2007 public foxa and nonpublic fora. Public streets and parks are traditional public fora.4 They have been "by long tradition...devoted to assembly and debate."$ The ability of the government to limit speech and expression in a traditional public forum is shaaply circumscribed. Content based regulation is justified only when "necessary to serve a compelling State interest and [when] it is narrowly drawn to achieve that end."6 Content- neutral restrictions that regulate time, place and manner of speech are permissible so long as they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."' Among content-neutral xestrictions reviewed by the courts are those related to fees. The United States Court of Appeals for the Fourth Circuit$ recently addressed a case on similar facts to those presented by the request of Reverend Brooks. In Child Evangelism Fellowship of South Carolina v. Anderson School District Five,9 the Court of Appeals ruled that if a governmental body opens its facilities for public use and attempts to recoup the costs for this service, then it must adopt a neutral system for assessing or waiving such charges, not one based on the good faith of government officials. In Child Evan elf ism, plaintiff, a religious organization, sued the defendant Anderson South Carolina School District ("Anderson") for violating the First Amendment and challenged policies under which Child Evangelism. Fellowship was denied a fee waiver for religious club meetings that it sought to bald in the school district's facilities. Anderson had a policy in place that allowed school officials to "waive fees for use of its facilities "as determined to be in the district's best interest,' among other grounds:'~° Anderson had waived usage fees in the past for the Boy Scouts and Crirl Scouts, the Brownies, YMCA, the Anderson County Democratic and Republican parties. ~ 1 Anderson had received payments for use of its facilities from the Anderson County Disabilities and Special Needs Parent Club, a Kiwanis Club, the Miss Anderson USA Pageant, and a number of churches.12 Child Evangelism Fellowship requested a fee waiver under Anderson's facility use policy. Anderson denied the waiver "citing `the extent and frequency of your planned use of our facilities."'13 The Fourth Circuit Court of a Discussion of the government's power to regulate speech and, as it relates to a fee waiver request, the power to waive fees for the use of a limited public forum or a nonpublic forum is not part of the analysis in this letter because the County's Efland Cheeks Community Park is, notwithstanding the requirement that an application be made for group use and a fee paid for graup use, a traditional public forum. s Perry Educ. Assn v. Perry Local Educators' Assn, 460 U.S. 37, 45 (1983). ~ Id. 460 U.S. at 45. Id. e The Fourth Circuik Court of Appeals is the Federal appellate court for each Federal District Court of North Carolina, and its decisions constitute binding precedent for Federal District Courts in North Carolina. 9 470 F.3d 1062,1074 (2006). 10 Id. at 1064. r r Id. at 1065. '2 Id. at 1065. 13 Id. at 1065. 5 Orange County Board of Commissioners Page 3 (7ctober 4, 2007 Appeals held that, "[s]ince `without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker' the absence of constraining standards in the text of [the] Policy and in administrators' practice renders [the] Policy incompatible with the First Amendment."14 Child Evangelism is similar to the situation at hand in that a religious organization has requested that the County waive a facility use fee so that the organization can hold a five day long religious revival on County park property. Unlike in Child Evangelism, the County's "Facilities Use, Reservation, And Rental Policy" does not contain any provisions for the waiver of usage fees. Due to the fact that the County does not currently have a fee waiver policy in place, the Board's decision to waive or not to waive the fee on behalf of Reverend Brooks would be purely discretionary. This level of discretion exceeds that of the Anderson school officials under its Policy that was explicitly prohibited by the Court in Child Evangelism. Therefore, under Child Evan elg ism, the County is not legally permitted to grant a fee waiver to Reverend Brooks. It maybe possible to develop a constitutionally permissible fee waiver policy that provides sufficient and adequate criteria to prevent viewpoint discrimination. However, to do so will be tricky. Our reading of the decision of the Fourth Circuit Court of Appeals in Child Evangelism and the decision of the Ninth Circuit Court of Appeals in Faith Center Church v. Glovers is that each of these two courts may very well have reached the opposite conclusion were the cases before them reversed. However, Orange County is controlled by Fourth Circuit Court of Appeals decisions. The Fourth Circuit Court of Appeals in Child Evan elg_ ism cited several recent United States Supreme Court decisions that reiterate the proposition which is founded on the free speech analysis in previous paragraphs of this letter that, "[g]overnment need .not fear an Establishment Clause violation when it allows religious groups to speak under the same reasonable, viewpaint- neutral terms as other private'parties._."16 The Child Evangelism Court went on to state that, "[t]he decisions also indicate that communities of faith may not be arbitrarily excluded from the protections of the Free Speech Clause . .."17 While it may be constitutionally permissible to prohibit religious services from being held in certain limited and nonpublic fora,j8 Supreme Court cases make it clear that it is not permissible to prohibit discussion of issues from a religious perspective when the same issues are w Id. at 1072. is Faith Center Church v. Glover, 462 F.3d 1194, {9'~ Cir. 2406} (cert. de~aied Faith Ctr. Church Evan elistic Ministries v. Glover, 2007 U.S. LEXIS 9252 (U.S. Oct. 1, 2007). ~~ Id. at 1068. ~~ Id. at lOb8. ~s Id. (D Orange County Board of Commissioners Page 4 October 4, 2007 permitted to be discussed from nonreligious perspectives.r9 These principles would need to be incorporated into any waiver policy should one be developed. We can provide copies of the Child Evangelism Fellowshiu and the Faith Center Church decisions for your information at your request. Best Regards, COLEMAN, GLEDHILL, HARGRA cc: Laura Blackman PEEK, P.C. 19 There are those that disagree with this free speech/i=ee expression approach to the use of government property for religious services. In a concurring opinion in Faith Center Church v. Glover, the concurring judge had this to say about analyzing that case under the free speech clause of the First Amendment rather than the Establishment and Free Exeroise Clauses: This should be a simple case [that] asks whether the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship. The purported inability of the [United States Supreme] Court to adhere to the distinction embodied in the First Amendmen# leads it to conclude that the issues tendered by cases, such as the one at bar, implicate viewpoint discrimination under the free speech provisions of the First Amendment. They simply do not. As the First Amendment notes, religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech. Id. 462 F.3d at 1215.