Agenda - Planning Commission - 10/04/2012

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Zoning Bulletin July 25, 2012 I Volume 6 I Issue 14 weddings to interfere unduly with activities of other beachgoers; (2) were nar- rowly tailored to serve that interest in that while there were some limitations, allowance was made for other things such as unamplified musical instruments, loose flowers, chairs for elderly or disabled attendees, a podium, and nonobtrusive hand -carried wedding accessories; (3) were content -neutral in that they made no reference to religion; and (4) left open ample alternate op- portunities for public beach weddings, including county beaches or private property. Also, the court held that the regulations' insurance, and indemnification requirements did not violate the First Amendment as applied because if found such requirements: (1) served a significant governmental interest in compen- sating third parties and DLNR for injury or property damage caused by the permit holder and in protecting DLNR from liability to third parties caused by the permit holder; (2) were not overly broad since they did not require a permittee to hold the state harmless for all consequences of the event, includ- ing those caused by the state's own actions, but only required indemnification for acts or omissions of the permittee; and (3) were content -neutral in that they did not depend on the type of wedding, its religious content, or any content - based discrimination, and the amount of insurance did not vary depending on the type of commercial wedding or the content of what might be said at the wedding. The court, however, held that the discretion that DLNR reserved, under the regulations, was not sufficiently constrained, and thus violated First Amend- ment right to free speech on its face. The court said that "a time, place, and manner regulation [must] contain adequate standards to guide the official's de- cision and render it subject to effective judicial review." The court found that "adequate guiding standards [were] not provided here" given that DLNR could revoke a permit authorizing commercial weddings on Hawai'i public beaches "at any time," "for any reason," and "in the sole and absolute discretion of the Chairperson," and could add to its terms and conditions "as it deem[ed] neces- sary or appropriate." See also: Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006). See also: -Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009), cert. denied, 130 S. Ct. 1569, 176 L. Ed. 2d 110 (2010). Case Note: The Wedding Planners sought to bring both facial and as -applied challenges to DLNR's commercial wedding regulations. The court concluded that they could bring only an as -applied challenge because DLNR 's regulations did not require permits for anything inherently expressive; the regulations did not, on their face, seek to regulate spoken words or patently expressive or communicative conduct. However, the court did allow the Wedding Planners to bring a facial challenge to the portion of the regula- tions that gave DLNR discretion to grant and revoke the permits and amend their terms and conditions. © 2012 Thomson Reuters 5