The following is email correspondence between Larry Modell for Friends of Lafferty Park and Sonoma County officials regarding the county's special event permit requirements for our "Walk to the Park" events. "PRMD" stands for the county's Permit and Resources Management Department. The correspondence is presented below in chronological order. Purely administrative trivia has been omitted and designated with a "[snip]". From: Larry Modell Dear Mr. Cossey: This is to let you know I will be faxing an application form for a county special event permit to the number on your business card, (707) 565-3313, by 10:30 this morning. This will meet the 30-day filing requirement for our event on Sunday, February 24, 2002. I have a few questions about the $155/day fee. [snip] Finally, as we are also applying for a Petaluma city special event permit, I have noticed that Petaluma's municipal code governing special event permits (chapter 13.32), which similar to the county's code in many ways, contains special considerations to protect First Amendment rights for events where the primary purpose is protected political expression. One such special consideration is the waiver of fees and insurance requirements. The primary purpose of our event is to draw attention to the fact that Lafferty Park is not yet open after being called for in city and county plans for 40 years, and to urge the county Board of Supervisors to take specific steps to facilitate the opening of that park. We will carry signs expressing these messages. The group organizing this outing, Friends of Lafferty Park, is a cash-strapped nonprofit for which the $155 fee is a serious obstacle. Please consider this a formal request for a waiver of all county fee and insurance requirements for our event. Even though the county code (Section 15-24 through 15-34) is silent on the question of First Amendment rights and addresses only recreational events, we would hate to think the county is erecting fee barriers in the way of citizens' groups who wish to peacefully assemble to express their political views. We don't want this request to slow down our permit application, however. So as noted above, please let me know how and where to send the check. Later, if the county agrees with our request for a fee waiver on First Amendment grounds, we will be pleased to be sent a refund or the uncashed check. Sincerely,
From: Larry Modell Dear Mr. Cossey: As you suggested, I have contacted our Second District Supervisor, Mike Kerns, to request a waiver of fees and insurance requirements for our 2/24 event on First Amendment grounds. It would be useful to know about any precedents for this event and this request. Can you please tell me how many requests for event permits the county has received and approved in recent years for events where the primary purpose is First Amendment expression (political marches, demonstrations, and the like)? For how many of those events has the county required or, conversely, waived, fee and insurance requirements? Thank you,
From: John Cossey, Sonoma County PRMD There has not been any permits even applied for much less had insurance or fees waved for any political parade, march, demonstration etc. I thought that we might have one when a group was going to picket the entrance to the Bohemian Club during their annual retreat but the cost and insurance stopped them. From: Larry Modell Thank you. Can you tell me how far back in time your assessment goes? Also, are you aware of any such First Amendment events during that same period that have taken place without permits? Thanks again, Larry Modell From: John Cossey, Sonoma County PRMD I have been doing these permits for approximately 30 years. During that time I can't recall any permits issued that you would be in your interest. The only type of demonstration that I know of is the one during the Bohemian Grove imcampment. From: Larry Modell Dear Mike (and Tricia): I understand there wasn't time to agendize my request for a fee and insurance waiver in advance of our February 24, 2002 "Walk to the Park" Lafferty event. At this point, I would like to formally request a waiver of the special event fee and insurance requirements for our subsequent event, to be held on March 24, 2002. I am mailing the application form for that March event to "John Cossey" of PRMD today. The March event will follow essentially the same format as the February 24 and January 13 events. As before, we will make sure the relevant police agencies are aware of our plans. I also request that the county retroactively waive the $155 fee we already paid for the 2/24 event. I believe PRMD is still holding our check uncashed in case the county decides to do so. (Obviously, the additional amount we have already paid to our insurance company cannot be recovered.) I expect this request will come before the Board of Supervisors at your next meeting on February 26. Please let me know if that is the case, so we can bring people up to support our request. As noted in my earlier message on this subject, we don't wish this request to be seen as any sort of special favor, but rather as a commitment by Sonoma County to the "right of the people peaceably to assemble and to petition the Government for a redress of grievances," in the words of the First Amendment, without fee barriers that would put free expression beyond the reach of many local advocacy groups. Personally, I would like to see Sonoma County amend its Special Event ordinance to take the First Amendment freedoms into consideration, as, for example, the comparable Petaluma code does. (For ease of comparison, we have both ordinances on our website: the county's at www.laffertyranch.org/history/specevt.htm and Petaluma's at www.laffertyranch.org/history/petevtor.htm ) But I leave it to you to decide whether or when to take this more comprehensive approach. I'll look forward to hearing from you about the 2/26 agenda. Regards,
From: Larry Modell
Dear Mr. Cossey: It seems to me that your conditional approval of our Special Permit application for our march/walk this Sunday, February 24, came too late. As you know, I first heard of the conditions, and received them via fax, last Friday afternoon, February 15. According to my reading of County Code, Article VI, our application can be considered approved as submitted (without conditions) as of February 8, 2002, ten working days after I faxed the application to you on January 25: I refer to Section, 15-26: "The director may issue a written permit for an applicant to hold a special event. Once the application has been filed, the permit will be either approved, conditionally approved or denied within ten (10) working days. A permit which is not acted upon within ten (10) working days shall be considered approved." When we spoke on Friday, you said you were counting days from January 30, when you received the check for our application fee. OK, so counting ten working days from there, I get Wednesday, February 13 as the end of the ten day period. So, according to the code, as of end of day Wednesday, February 13, our application shall be considered approved as submitted (that is, no conditions apply). That is still two days before I heard from you, for the first time, about conditions. Incidentally, your conditions 2-4 strike me as good common sense and road safety guidelines, which we would be pleased to abide by in any case. Your first condition, however, seems designed to make it impossible for local grassroots advocacy groups like ours to express their 1st Amendment freedoms by imposing a crushing financial burden on our right to assemble and petition for redress of grievances. It reads: "1. THE APPLICANT SHALL SECURE THE SERVICES OF THE C.H.P. FOR ADVANCE AND REAR SECURITY OF THE WALKERS." I just spoke with Lt. Dan Moore of the C.H.P., who confirmed that the C.H.P. expects to be reimbursed for the cost of this service, either by our group or the county. The cost would be roughly $400. Please confirm that our permit is approved as submitted, without conditions. Thank you, Larry Modell From: Larry Modell Dear Mr. Cossey: Please confirm by email a statement you made in one of our earlier telephone conversations, that Sonoma County never has required (at least in the past 30 years), and you believe never would require, a permit for an event involving 50 or fewer people. Thank you,
From: John Cossey, Sonoma County PRMD Dear Mr. Modell First of all the ten days did end on Thursday Feb. 14 because the 12th is a legal holliday for the county (Lincoln's birthday). If you recall I talked to you late Thursday telling you the conditions and that I would fax them to you as soon as I could and mail the rest. You called me on Friday looking for the conditions and I told you I was still working on them and that you would get them soon. When I finished the permit on Friday, I faxed the conditions to you and mailed the complete permit along with additional applications that you asked for. As far as I'm concerned the permit with attached conditions still stands. From: Larry Modell Dear Mr. Cossey: I'll agree that the 12th was a county holiday and therefore should not be counted. But my notes and recollections indicate I had no word from you about conditional approval, or any other outcome of our permit application, until Friday morning, February 15th, the eleventh day. I will now initiate the appeal process outlined in Section 15-34 on two separate grounds -- (1) that your department did not follow the required procedure as specified in Article VI and outlined herein; and (2) on 1st Amendment grounds, that the county's excessive fee requirements are a serious impediment to constitutionally protected rights of peaceable assembly and political expression. Sincerely,
{See FLP's formal letter to the Board of Supervisors appealing the 2/24 event permit conditions.} From: Larry Modell
Dear Mr. Cossey: I have not had a response from you on the question appended below. Please respond as soon as convenient. We need to have a clear picture of what our options are, and not be at the mercy of arbitrary redefinitions of code and policy on the part of the county. I hope you understand. On a separate but related issue, I have been speaking with Lt. Dan Moore of the C.H.P. Lt. Moore stated clearly that the only way to satisfy your condition #1, "The applicant shall secure the services of the C.H.P. for advance and rear security of the walkers" from the C.H.P.'s perspective is for our organization, Friends of Lafferty Park, to enter into a "Reimbursable Services Contract" with the C.H.P., which will require an advance payment of several hundred dollars. Of course we are appealing this condition on both procedural and 1st Amendment grounds, as you know from separate correspondence. But since the appeal will not be heard until after our event on Sunday February 24, we will have to proceed with the Reimbursable Services Contract with the C.H.P., including the advance payment, which we will seek to have the county repay as part of our appeal. Please confirm in writing that this scenario conforms with your expectations when you attached condition #1 to our permit. In other words, the county's expectation is that FLP will have to pay an additional fee of several hundred dollars in order for our event to proceed. (For the record, by the way, FLP does not agree that the police services you mandated in condition #1 are necessary for the safety of event participants or anyone else. We are taking great efforts, with multiple safety monitors and support vehicles of our own, to ensure road safety.) Sincerely,
{Appended email of February 20, 2002, 6:49 AM, with subject "Permit threshold," shown above.} From: Larry Modell Dear Chairman and Clerk of the Board of Supervisors: I see the agenda for February 26 includes the following item: "BOARD OF
SUPERVISORS This does not fully address our request, which is that ALL fees, both direct and indirect, including recovery of the cost of police services, as well as insurance requirements, be waived for our March 24 event. These fees and insurance costs could totalling nearly $900 dollars for our similar event this Sunday, February 24, (My latest information is that we might not be billed for the police services for 2/24, but that has not yet been confirmed.) Also, I would like it clearly understood, and ideally reflected in the agenda, that we are requesting this waiver on First Amendment grounds. The primary purpose of our event is to express our dissatisfaction with county actions and policies related to Lafferty Park. The fee and insurance requirements attached to the county's permit process are so severely burdensome to our group, and presumably to other local, volunteer advocacy groups, that they amount to a suppression of "the right of the people peaceably to assemble and to petition the Government for a redress of grievances," in the language of the 1st Amendment. Also, please note that my previous correspondence dated February 20, 2002, appealing the conditions on our permit for our February 24 event, is a separate item and will presumably result in a separate agenda item at the Feb. 26 Board of Supervisors meeting. I look forward to seeing that item agendized as well. Sincerely,
From: John Cossey, Sonoma County PRMD Dear Mr. Modell The County will not delete the first condition of the special event permit. Whether or not the CHP charges for this service or not is up to them. It is the County's position that the CHP is needed for the safety of the event. If something happens and they are not there you may be held personally liable. The permit will be issued with the stipulation that the insurance required will be in our position ten days before the event or the permit will be canceled. You will receive the permit by mail the first of next week. From: Larry Modell Dear Ms. Arnold: As the attached emails show, I have repeated asked John Cossey a straightforward question about PRMD/county policy and repeatedly failed to get an answer. Can you help me? The question: "Will Sonoma County, under any circumstances, require a permit for an event such as ours (peaceful group march and/or demonstration alongside county roads) if 50 or fewer people are involved?" Mr. Cossey has answered that question "no" in phone conversations, but I need to see it in writing, so that we have some protection against an arbitrary declaration of illegal assembly. Thank you,
From: John Cossey, Sonoma County PRMD Dear Mr. Modell I can't address the issue of 50 or less participants that may or may not constitutes a Special Event. Our County Counsel is looking into the ordinance which not only deals in numbers but also public safety. We should have an answer soon. I would also like to emphasize that permit applications need to be applied and paid for prior to thirty days of the event. I know that you are aware of this but I just wanted you to realize that we are very busy and I wouldn't want a permit to be denied because of this issue. From: John Cossey, Sonoma County PRMD Tina Wallis is our County Councel who is looking into the issue of requireing a Special Events permit for groups of less than fifty participants. You can contact her at (707) 656-2421 From: Larry Modell Dear Mr. Cossey: This email is to document and expand upon the points I made in a phone message to you this afternoon. First, I called Tina Wallis in the County Counsel's office, as you suggested, to ask if they can rule on whether the county would ever require a permit for an event involving 50 or fewer people. She said she doesn't know when they will rule on that, and that in any case the decision will be privileged attorney-client information between her office and PRMD. PRMD will have the responsibility of communicating any clarification or change in policy to the public, including to Friends of Lafferty Park. Until then, I will proceed based on the information you have given me in phone conversations, that PRMD has never required, and does not require, permits for events involving 50 or fewer people. If this policy changes, I would appreciate at least 30 days notice. Obviously, what I would like to avoid is for the county to declare a event of ours, which we have every reason to believe does not require a permit, to be an illegal assembly due to an arbitrary, unannounced, or sudden change in county policy. Second, since the Board of Supervisors turned down our request to waive fees and insurance requirements for our March 24 walk/demonstration, and the financial burden on our organization is considerable, we have decided to change the format of that event such that it can proceed without a county permit. That is, we will keep the number of marchers to 50 or fewer. To that end, we would like to withdraw our permit application for March 24 and request a refund of the $155 application fee -- OR, if it is all the same to you, it would be easier for us to have you simply change the event date on the application we have already submitted to Sunday, April 21. This will be the date of our next outing, where we are planning to have larger numbers of people, and we will pursue the county permit route. Please let me know whether changing the event date on our permit application from 3/24 to 4/21 is feasible, or, barring that, whether you can refund our application fee for our withdrawn 3/24 permit application. Sincerely,
cc: Mike Kerns, Chairman of the Sonoma
County Board of Supervisors From: John Cossey, Sonoma County PRMD The last insurance coverage that you supplied me prior to the March 8th fax was coverage supplied by the Sonoma County Trails Council. P.R.M.D. was listed as the certificate holder. Also supplied to me was our policy endorsement filled out and signed by Dan McKay the insurance agent. I need the same thing supplied for the April permit. Larry, you seem to hang on to the #50 like a pet dog. The ordinance says quote Sec.15-24 Special event is an organized processiion or assemblage of people on a county highway which would significantly impact vehicular traffic or create a safety problem. Sec. 15-25 only says that fifty of more will require a permit. It doesn't say that under fifty will not require a permit eventhough this assemblage of people constitutes a safety problem. It will be up to the C.H.P. weather or not this event will go on. From: Larry Modell Dear Mr. Cossey: I now understand what is required in terms of insurance documentation, and thank you. I will provide it for our April 21 event no later than Friday, March 22. Regarding the matter of 50 participants, I only cite that figure because that is the number mentioned in the county code -- any event involving more than 50 people requires a permit. I agree that the code is somewhat ambiguous as to whether a permit might be required when 50 or fewer people are involved. That is precisely the ambiguity I am asking the county to resolve -- so far, without success. A group of law-abiding citizens walking alongside a county road has a right to know, in advance, whether their walk can be declared an illegal assembly, making them subject to dispersal or arrest. I should think the law enforcement agencies would also appreciate knowing in advance what laws they are expected to enforce. This principle holds whether the walk is purely recreational, or a protest march with First Amendment ramifications, as ours is. Once again, I will rephrase my question to Sonoma County: given that is it legal for pedestrians to walk along Sonoma Mountain Road and the other county roads in question, what set of circumstances (other than having more than 50 people) could require a group of people, who are obeying all pedestrian laws, to have a permit to walk along those roads? It strikes me as silly leave it up to the CHP to decide, on the day of a walk, whether a county permit should have been applied for 30 days earlier. If that happens on March 24, we are likely to find ourselves in a rather absurd street theater where we will try to guess, by trail and error, how many people can walk legally. Because, as we have discussed, no one denies that one person can walk those roads legally, any time of the day or night. If one is legal, how about two? Five? Ten? Twenty? Thirty? Forty? Fifty? We (FLP) are prepared to play this childish game if we have to, and will be sure to capture it all on videotape. But I would imagine the CHP would prefer not be made to look ridiculous, nor to possibly entangle itself in the county's Constitutional squabble, just because the county refused to clearly enunciate its permit policies, which would have allowed everyone to stay within the law. Once again, we will take the absence of a clear response from you to mean there are no circumstances that would require a county event permit for an otherwise legal and orderly event, other than the involvement of more than 50 people. Sincerely,
cc: Mike Kerns, Chairman of the Sonoma
County Board of Supervisors From: Larry Modell Dear Sonoma County Supervisors: As you will recall, I appeared before you on February 26 to request a waiver of county event permit fees and insurance requirements for our "Walk to the Park" marches to the Lafferty Park gate in February and March. At that meeting you decided to waive our February application fee, which we appreciate, but you did not see fit to waive any fees or insurance requirements for our March 24 walk/demonstration. Due in part to your decision, we decided to withdraw our March 24 permit application (or, technically, to redate it for our planned April 21 event) and sought to plan a smaller-scale March event below the threshold at which the county would require a permit. As we discussed on February 26, that threshold seems to be fifty participants. That is, the county special event code (Sec. 15-24 through 15-34) seems to say that a march like ours, where no streets are blocked and participants obey all pedestrian laws, would require a permit only if more than 50 people participate. However, PRMD has suggested there might be circumstances where an event with less than fifty people might require a permit. I have devoted considerable effort over the past three weeks trying to get PRMD and the County Counsel's office to eliminate that ambiguity by stating precisely what set of circumstances would cause a permit to be required for an otherwise legal event (other than involving more than 50 people). A record of that email conversation, which reads like something out of Kafka, can be found at http://www.laffertyranch.org/history/prmdcorr.htm In short, County Counsel's office tells me they haven't yet made a ruling, and they don't know when they will, but when they do, they won't tell me what they decided! -- that will be privileged information between their office and PRMD. PRMD, for its part, tells me they cannot or will not define, in advance, all the circumstances that make a permit required (despite the fact that they require permits to be applied for 30 days in advance!). PRMD says it is up to law enforcement agencies (CHP in our case) to decide, on the day of the event, whether the event can continue without a permit, or whether a permit should have been applied for 30 days earlier, in which case the event constitutes an illegal assembly. This stance by the county, it seems to me, would be like refusing to tell homeowners in advance whether a permit is required to build, say, a deck. Only after you build your deck, PRMD would say, an inspector will rule on whether a permit was required, and if so, he may require you to dismantle the deck, and he may choose to fine you or arrest you, for good measure. Well, actually, I take it back -- the preceding analogy is imperfect because deck building is not singled out for specific protection in the Bill of Rights, whereas peaceful political demonstration is. As I wrote in recent correspondence to PRMD:
I concluded that note to PRMD by stating, "We will take the absence of a clear response from you to mean there are no circumstances that would require a county event permit for an otherwise legal and orderly event, other than the involvement of more than 50 people." Gentlemen of the Board of Supervisors, I have an additional request for you. I ask that you direct staff to issue unambiguous policy guidelines to the effect that no county permit is required for otherwise legal events involving fifty or fewer participants. Sincerely, Larry Modell cc: Sgt. Dave Anderson, Sheriff's
Dept. From: Larry Modell Dear Mr. Cossey: Thank you for sending me copies of the permits for the Penngrove July 4th parades for 2000 and 2001, which I am using as a reference point for how other events involving county roads have been treated. In comparing their permit to ours, I notice their permit fee (upper right corner of page) is shown as $.00, whereas ours shows $155.00. Am I correct in assuming the two Penngrove events were not charged a permit application fee? If so, what is the reason for this? And on what basis does your office decide whether to charge an application fee? If, on the other hand, the forms are misleading and the Penngrove applicants DID pay a permit application fee, please send me documentation establishing that fact. Also, I would like to see any insurance documentation the Penngrove applicants sent you for those two events, particularly the equivalent to the two documents you required us to submit: (1) certificate of liability insurance showing the limits of insurance; and (2) the county's Insurance Policy Endorsement form, filled out and signed by the insurance agent. I have arranged to receive faxes at a nearby friend's home, so please fax the documents to (707) 795-0665, with my name (Larry Modell) on the cover page. Sincerely, Larry Modell
|
