Posted by: Patricia Salkin | July 10, 2012

Ninth Circuit Upholds State Permit Requirement for Commercial Use of State Beaches But Strikes Provision of Overbroad Discretion by Government Officials

Plaintiffs are a native Hawaiian pastor who performs wedding ceremonies and a wedding planning company. They brought suit against the defendant, Hawaii Department of Land and Natural resources, claiming that regulations requiring permits for commercial weddings were unconstitutional. Specifically, they unduly burdened their right to organize and participate in weddings. The regulation stated, ““No person shall engage in commercial activities of any kind without a written permit from the board or its authorized representative.” To acquire a permit, an enterprise had to pay a fee and acquire insurance for the event. Even with a permit, the whole event had to be concluded from set-up to clean-up within 2 hours.

The district court granted summary judgment to the defendant holding that the beaches are not a traditional public forum and, in the alternative, the regulations were reasonable time, place and manner restrictions. Plaintiffs appealed.

The Court of Appeals first addressed the Defendant’s contention that the Plaintiffs lacked standing to bring a suit. The court noted that the defendants had standing even though they had never been denied a permit and had in fact been awarded over 7,000 permits. This is because plaintiffs who challenge a permitting system are not required to show that they have applied for, or have been denied a permit. A plaintiff need only show that they have declined to speak, or modified their speech in response to the permitting system.

The court next moved on to the Plaintiff’s First Amendment claim. The court determined that its resolution depended on the answer to three questions: (1) Do wedding ceremonies constitute protected speech? (2) What is the nature of the forum? (3) Are the challenged restrictions permitted in the forum?

In answering the first question, the court first acknowledged that the First Amendment protects expressive conduct as long as that conduct conveys a particular message that is likely to be understood in the surrounding circumstances. Couples often express their religious commitments and values in their wedding ceremonies and even if those message vary by wedding, their particular message remains easy to discern; that a wedding is a celebration of marriage and the uniting of two people in a committed long-term relationship. The court had no problem classifying this as protected speech.

In determining the nature of the forum, the second question, the court noted that the Supreme Court has divided types of forums into three categories: Traditional public forums, designated public forums and limited public forums. The court declined to try to classify the beaches, however, instead subjecting the regulations they uphold to the most stringent test for restrictions on forum access and the regulations they invalidate to the least exacting test. 

The court began its analysis of the regulations by noting that time, place and manner restrictions are allowed in a traditional forum as long as they are justified without reference to the content of the speech, are narrowly tailored to achieve a compelling state interest and leave open ample alternative channels for communication of the information. The Court then applied this test to the Plaintiffs three objections, the permit requirement, the restriction on accessories and the insurance requirement.

Permit requirements can be classified as reasonable time, place and manner restrictions but a fourth criterion must be applied in addition to the three part test outlined above: The permit scheme may not delegate overly broad licensing power to a government official. In applying the test, the court first noted that the permit system served a significant governmental interest in that keeping public beaches open to the public, minimizing congestion, maximizing usage and encouraging safety and cleanliness were all legitimate interests. Second, the court found that the regulation is narrowly tailored to achieve these interests. Significantly, the court noted that under the current system, no permit had been denied and the defendant in fact had no discretion to deny an applicant as long as they properly registered with the permitting website. In addition, the permit requirements are all directly aimed at the legitimate interests listed above.  The court next found that, as the test requires, the permit system was content-neutral as it expressly applied to all commercial activities to be performed on the beach, not just weddings. Next, the court determined that there are ample alternative channels for expression. The permit system here did not foreclose the entire medium of beach weddings in that other, non-state beaches were available, unencumbered by the permit system.

Finally, the court addressed the issue of whether the permit requirement delegates overly broad discretion to a government official. Generally, the court found that as long as an applicant meets the criteria for a permit and pays the fee, the regulations leave little discretion to the defendant in granting the permit. However, the court found that the power to revoke or change the conditions of a permit is not sufficiently constrained. Time, place and manner restrictions must offer adequate standards to guide the official’s decision and render it subject to effective judicial review. This is not the case here as the defendant is able to revoke a permit at any time for any reason and in the “sole and absolute discretion of the chairman”.

The court next addressed the Plaintiff’s challenge to the restriction on accessories. As was discussed, the state has a legitimate interest in maintaining their beaches and alternative means are available to the plaintiffs. The court also held that the regulations are narrowly tailored to serve legitimate interests and are content neutral.

Finally, the court upheld the insurance requirement as the state has a legitimate interest in protecting themselves from damage or liability brought about by the permitee. They also held that it was narrowly tailored to serve the interest as the insurance required did not pose a substantial burden on an applicant. It is also content neutral as nothing in the requirements turn on the type of wedding or any other content-based discrimination. Nor does the price or amount of insurance required vary depending on the type of wedding or what may be said at it.

In conclusion, the court upheld the permit requirement, limitation on accessories and insurance requirement but found that the grant of discretion to the defendant to revoke or add terms invalid.

Kaahumanu v. Hawaii, 2012 WL 2018171 (9th Cir. 6/6/2012)

The opinion can be accessed at:

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