Bennett v. Brownlow
| Citation | 90 P.3d 1245,208 Ariz. 79 |
| Decision Date | 01 June 2004 |
| Docket Number | No. 1 CA-CV 03-0233.,1 CA-CV 03-0233. |
| Parties | Tammie C. BENNETT and James A. Bennett, wife and husband, dba Old Town Square Arts And Crafts Festival, Plaintiffs-Appellants, v. Gheral BROWNLOW and Carol Brownlow, husband and wife; Yavapai County, a political subdivision of the State of Arizona, Defendants-Appellees. |
| Court | Court of Appeals of Arizona |
Jones & Miller By Kenton D. Jones, Prescott, Attorney for Appellants.
Jones, Skelton & Hochuli, P.L.C., By Randall H. Warner Georgia A. Staton, Phoenix, Attorneys for Appellees.
¶ 1 Appellants, Tammie C. Bennett ("Bennett") and her husband, James A. Bennett, appeal from an order granting summary judgment to Yavapai County ("County"). We find that the County violated the First Amendment to the United States Constitution by requiring that sponsors of events on the Courthouse Plaza be non-profit organizations. Therefore, we reverse the judgment and remand for further proceedings.
¶ 2 The Yavapai County Courthouse, surrounded by grass lawns and large trees, occupies the central block of downtown Prescott. Over the years, the County Board of Supervisors ("Board") has modified how it regulates commercial activities on what it refers to as the "Courthouse Plaza." Regulations adopted in 1992 required anyone seeking to hold an arts and crafts show or other large event on the Courthouse Plaza to first obtain a permit. The regulations also authorized the Board to set aside dates for reserved events and other dates for maintenance and preservation of the Courthouse Plaza.
¶ 3 Beginning in 1991, Bennett organized an arts and crafts show known as the Old Town Square Arts & Crafts Festival ("Festival"), which by 2000 included more than 170 exhibitors, selling a wide range of items such as stained glass, fine art, folk art, pottery, jewelry, bronze sculptures, and hand-painted clothing. In 1992, Bennett was informed that her event had been designated a county-reserved activity with certain days reserved for the event on the annual calendar. Each year a permit was issued for the Festival, listing the permittee as the "Old Town Square Arts & Crafts Festival" (or some variation of that name), and generally including Bennett's name as well.
¶ 4 The Williamson Valley Volunteer Fire Department ("VFD") was also involved in the Festival. In exchange for a portion of the profits, the VFD authorized Bennett to use its non-profit tax identification number to represent to the City of Prescott tax authorities that the VFD was co-sponsoring the event. This non-profit sponsorship allowed each exhibitor to submit a ten dollar fee in lieu of obtaining their own City Transient Sales Tax Permit and collecting City sales tax. The VFD was not listed on the County permits.
¶ 5 In 2000, the Board designated the Prescott Downtown Partnership as its representative to manage the Courthouse Plaza. Later that year, the Board approved a new ordinance ("Ordinance") requiring all commercial events on the Courthouse Plaza to be sponsored by a non-profit organization recognized as such by the Internal Revenue Service. See Ordinance 2000-4, § 104(B). The Ordinance specified that "[t]he Sponsor may designate an Event Coordinator who shall serve as the Sponsors representative with respect to management of the Event." Further, "[i]ssuance of a [Courthouse Plaza] Use Permit shall not be construed to confer any preferential right or expectation upon the recipient with respect to any future use of the Courthouse [Plaza]."
¶ 6 While the Ordinance was under consideration, but before it was approved, Bennett and the VFD parted ways after they could not agree on terms for the sponsorship of the 2001 Festival. Attempting to satisfy the soon-to-be-adopted non-profit sponsor requirement, Bennett submitted an application for the "11th Annual Old Town Square Arts & Crafts Festival," listing the Fraternal Order of Police, Lodge 67 ("FOP"), a non-profit organization, as the sponsor and Bennett as "sponsor agent" and "owner-event coordinator." At the same time, Bennett notified the Prescott Downtown Partnership that the "Old Town Square Arts & Crafts Festival owned and operated by Tammie C. Bennett [intends] to take every legal avenue available to continue to apply for and operate the 10 year old festival which she founded in 1991." She noted that other groups had changed their non-profit sponsors and expressed her intent to apply for a permit with a new sponsor. She also stated her "intent to prove that I am best qualified to promote this event as I have established in my past 10 years of owning and operating the event."
¶ 7 After submitting the original application, Bennett was told that she would have to submit a second application because additional information was needed and inclusion of her name on the application as "owner/event coordinator" was inappropriate. Bennett then submitted an application showing the FOP as sponsor and Tammie C. Bennett as "sponsor agent." The VFD also applied for a permit to hold an arts and crafts show on the same dates.
¶ 8 The Prescott Downtown Partnership awarded a permit to use the Courthouse Plaza on those dates to the VFD. Its letter stated, in part:
The Williamson Valley Volunteer Fire Department has sponsored the Old Town Square Arts and Crafts Fair for more than a decade. The PDP believes that, in order to revoke the Fire Department's sponsorship of the event, a serious and overriding reason must be found. Revoking a sponsorship and awarding a major event to another sponsor is a very serious step that must be taken carefully and thoughtfully. Such an action must be looked upon as a final and drastic step, not a first step. The fact that a sponsor has made a change in its festival management personnel is not a reason, in and of itself, to revoke an organization's sponsorship. Therefore, it is the recommendation of the PDP that the Williamson Valley Volunteer Fire Department remain the sponsor for the event dates of July 21 and 22, 2001.
Bennett, but not the FOP, appealed to the County Parks Director, who affirmed the decision. She then appealed to the Board, which declined to hold a hearing to review the administrative decision.
¶ 9 Bennett then filed this lawsuit, asserting a variety of state and federal claims against the County. She separately sued County Supervisor Gheral Brownlow for defamation and tortious interference, alleging that he had caused the split between Bennett and the VFD. The cases were consolidated.
¶ 10 The County moved for summary judgment on all claims against it and Bennett filed a cross-motion. The trial court granted the County's motion, denied Bennett's motion, and entered a judgment that allowed immediate appeal pursuant to Rule 54(b), Arizona Rules of Civil Procedure. Bennett filed a timely notice of appeal.
¶ 11 Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We review an order granting summary judgment de novo. Great Am. Mortgage, Inc. v. Statewide Ins. Co., 189 Ariz. 123, 125, 938 P.2d 1124, 1126 (App.1997). We view the facts in the light most favorable to the party against whom summary judgment was entered. Id. at 124, 938 P.2d at 1125. The constitutionality of a statute or ordinance is reviewed de novo, and legislative enactments are presumed constitutional and a party seeking to challenge one bears a heavy burden to show otherwise. State ex rel. Napolitano v. Gravano, 204 Ariz. 106, 110, ¶ 11, 60 P.3d 246, 250 (App.2002).
¶ 12 Bennett argues that the County violated the First Amendment to the United States Constitution, as well as Article 2, section 6 of the Arizona Constitution, by limiting event sponsors to non-profit organizations.1 She argues that the Courthouse Plaza is a traditional public forum, and the presentation and sale of arts and crafts at the Festival is expressive conduct entitled to constitutional protection.2
¶ 13 The County responds that the Ordinance is directed at commercial activity, not speech, and that laws regulating conduct are valid even where they incidentally impede free expression. It also argues that even if First Amendment analysis is applied, the regulations are valid because they are content-neutral, serve a significant governmental interest, are narrowly tailored, and leave open ample alternatives for communication.
¶ 14 This case does not involve restrictions on traditional speech. It involves restrictions on access to a public place. The Supreme Court has recognized that providing access to the locations where ideas will be exchanged is protected by the First Amendment. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 799, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Nevertheless, public entities are not required to allow unlimited access to all public property for all purposes, and the Supreme Court has recognized that "[e]ven protected speech is not equally permissible in all places and at all times." Id.
¶ 15 Bennett argues that the sales at the Festival are expressive conduct entitled to protection, citing Bery v. City of New York, 97 F.3d 689 (2d Cir.1996). Bery rejected the argument that the sale of art is conduct not protected by the First Amendment, and held that "[t]he sale of protected materials is also protected." Id. at 695-96; see also Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977)
( (Citations and footnote omitted)); ...
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Bennett v. Brownlow
...information was needed and inclusion of her name on the application as "owner-event coordinator" was inappropriate. Bennett v. Brownlow, 208 Ariz. 79, 82, ¶ 7, 90 P.3d 1245, 1248 (App.2004). Bennett then submitted the revised application listing the FOP as the "Sponsor" and herself as the "......