Agenda - Planning Commission - 10/04/2012

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Zoning Bulletin July 25, 2012 I Volume 6 1 Issue 14 The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. NINTH CIRCUIT (HAWAI'I) (06/06/12) This case addressed the issue of whether state agency regulations requiring permits for commercial wed- dings on state beaches and placing specific terms and conditions on such permits violated the First Amendment to the United States Constitution. The Background/Facts: In November 2002, the State of Hawai'i Depart- ment of Land and Natural Resources ("DLNR") began to regulate commercial activities on "unencumbered" public beaches. Unencumbered beaches include those that have not been: "(1) Set aside for any purpose, by statute, executive order, or other means to a governmental agency; or (2) Encumbered by lease, license, permit, easement, or other document issued by [DLNR]." (Haw. Rev. Stat. § 171-1.) Beaches within the jurisdiction of DLNR extend from the water's edge to the hightide line. DLNR regulations require a permit for commercial activities on unencum- bered beaches, including —beginning in August 2008 commercial weddings (i.e., those involving compensation for services or goods rendered). Those obtaining a commercial wedding permit had to comply with "General Terms and Conditions for Commercial Activity" (the "Terms and Conditions"). Among other things, the Terms and Conditions required that an applicant: obtain "comprehensive public liability insurance," naming the State of Hawai'i as an additional insured, of "at least $300,000 per incident and $500,000 aggregate"; and agree to indemnify and hold harmless DLNR for loss or damage arising out of actions by the applicant. The Terms and Condi- tions also, with certain exceptions, prohibited "accessories" (such as arches, alters, tables, tents, signage, posts, and ropes) from being placed on the permit- ted right -of -entry area. Laki Kaahumanu, a Native Hawaiian pastor who performed religious wed- ding ceremonies, and Maui Wedding and Event Professionals Association ("Event Professionals"), an association of individuals and businesses provid- ing commercial services for weddings (collectively, the "Wedding Planners"), challenged DLNR's permit requirements. They filed suit in federal district court, alleging, among other things, that DLNR's commercial wedding permit requirements unduly burdened their right to organize and participate in wed- dings on unencumbered state beaches, in violation of the First Amendment. The Wedding Planners argued that wedding ceremonies constitute "speech" that is protected by the First Amendment. They also argued that DLNR's commercial wedding permit requirements unconstitutionally burdened that speech because the permit requirements "unduly burden[ed] their right to or- ganize and participate in weddings on unencumbered state beaches." Finding there were no material issues of fact in dispute and deciding the matter on the law alone, the district court granted summary judgment to DLNR. The Wedding Planners appealed. DECISION: Judgment of district affirmed in part, reversed in part, and remanded. The United States Court of Appeals, Ninth Circuit, held that the DLNR regulations requiring permits for commercial weddings on unencumbered ©2012 Thomson Reuters 3