MacDonald v. Chicago Park Dist., 97 C 2963.
| Decision Date | 15 August 1997 |
| Docket Number | No. 97 C 2963.,97 C 2963. |
| Citation | 976 F.Supp. 1125 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | Robert MacDONALD, Plaintiff, v. CHICAGO PARK DISTRICT, a body political and corporate, Defendant. |
Wayne B. Giampietro, Witwer, Poltrock & Giampietro, Chicago, IL and Richard J. Wilson, Orlando, FL, for Plaintiff.
Steven A. Weiss, Schopf & Weiss, Chicago, IL, for Defendant.
Before the Court is Plaintiff's Second Application for Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 65. For the reasons set forth below, this Court grants in part, and denies in part, Plaintiff's Second Application for Preliminary Injunction.
This matter is brought under 42 U.S.C. § 1983, and alleges a violation of rights secured by the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. Plaintiff, Robert MacDonald in his underlying Verified Complaint for Declaratory Judgment and Permanent Injunction ("Complaint"), seeks a declaration that the Chicago Park District's (the "Park District") grounds for permit denial, set forth in Chapter VII, § C(5)(e), of the Chicago Park District's Ordinance (the "Ordinance"), is unconstitutional. Mr. MacDonald also seeks an injunction permanently prohibiting the Park District from enforcing that portion of the Ordinance.
On March 4, 1997, Mr. MacDonald applied to the Park District for a permit to hold "Hempfest/Stop the Drug War Rally and March" on May 10 and 11, 1997. On March 12, 1997, the Park District denied his permit application. On March 18, 1997, Mr. MacDonald appealed the denial of his permit application to the General Superintendent of the Park District. That appeal was denied on March 26, 1997.
One month later, on April 25, 1997, Mr. MacDonald filed a Complaint, simultaneously filing therewith his Emergency Application for Preliminary Injunction (the "First Application"). The First Application was referred to this Court on April 29, 1997, and an evidentiary hearing was held on May 6, 1997. This Court issued a Report and Recommendation on May 9, 1997, recommending that the First Application be denied because of its untimely filing, one month after denial of the appeal, and only fifteen days before the rally at issue was to begin.1
On May 23, 1997, Mr. MacDonald filed the instant Second Application for Preliminary Injunction (the "Second Application"), in which he requested an order enjoining the Park District from enforcing its permit ordinance, and permitting him to hold a rally on August 23 and 24, 1997.2 On July 2, 1997, the parties consented to the exercise of jurisdiction by this Court concerning the Second Application. On July 21, 1997, an evidentiary hearing was held on the preliminary relief requested in the Second Application.
Mr. MacDonald wishes to hold another rally addressing drug policy reform, specifically the legalization of marijuana, in a public park controlled by the Park District.4
One year ago, in August of 1996, the Park District issued two permits to Mr. MacDonald to hold similar events. After those events — the "Festival of Life" and the — the Park District's Deputy General Counsel, Joan Fencik,5 mailed Mr. MacDonald written notice that his security deposit would not be returned. That letter, dated September 17, 1996, stated that the Park District was retaining Mr. MacDonald's security deposit due to expenses incurred by the Park District for: delivery and use of portable toilets; opening and cleaning the underground bathrooms at Butler Field; cleaning the stage and seating area at Butler Field (adjacent to Petrillo Bandshell) after the events; and restoring that seating area to its usual configuration. Ms. Fencik's letter also stated that, at the events, multiple violations of the permits' terms occurred, including: alcohol consumption; unpermitted vendors; unpermitted vehicles; unpermitted tents and canopies; improper location of the generator, in violation of the fire code; and loitering by individuals who remained in the park past 11:00 p.m. No hearing was held prior to these determinations, nor was Mr. MacDonald ever found guilty of violating any ordinance. The Park District never sought to impose any fine against Mr. MacDonald (other than the forfeiture of his security deposit) for the alleged multiple violations of the terms of the permit.
On March 4, 1997, Mr. MacDonald applied to the Park District for a permit to hold "Hempfest/Stop the Drug War Rally and March" on May 10 and 11, 1997 (from noon until 10:00 p.m. each day). Mr. MacDonald sought to hold the rally at Butler Field, in Grant Park's Petrillo Bandshell. The purposes of the rally were, again, to provide a forum for public speech on drug policy reform, including the legalization of marijuana, and to raise money for this cause. The rally was expected to draw approximately 10,000 people and would have featured live music, as well as vendors occupying about fifty tents.
Eight days after he submitted his permit application, Ms. Fencik denied Mr. MacDonald's permit by letter dated March 12, 1997. Ms. Fencik cited three reasons for denial of Mr. MacDonald's permit: (1) multiple violations of the two permits issued to him in August of 1996; (2) failure to provide proof of his unincorporated association's tax-exempt status; and (3) inability of his association to enter into contracts. However, during the May 6, 1997 hearing, Ms. Fencik conceded that the latter two grounds did not provide a legitimate basis for denying Mr. MacDonald's permit. Thus, the Park District's denial of the permit rested upon the alleged existence of prior violations. This ground for denial is expressly provided for in § (C)(5)(e) of the Ordinance.6
Although his First Application was not granted, Mr. MacDonald held a rally, on May 10 and 11, 1997. (Tr. at 10-11.) During the rally, the Park District cooperated with Mr. MacDonald, and assisted him by opening up bathrooms, bringing in garbage cans, "allow[ing] him to have a bullhorn", and allowing sound amplification (through portable speakers attached to poles). (Tr. at 11-12.) No trespassing or other complaint was made against Mr. MacDonald for this event.
On May 23, 1997, Mr. MacDonald filed the Second Application, which is currently before the Court, seeking an order compelling the Park District to issue a permit to hold a rally at Butler Field on August 23 and 24, 1997 (in supporting memoranda, Mr. MacDonald also seeks to enjoin Chapter VII, § C(3) of the Ordinance and to compel the Park District to also allow a rally on May 9 and 10, 1998). He has not submitted a permit application for either rally.
The Grant Park Symphony Orchestra and Chorus is scheduled to perform at Butler Field, in Petrillo Bandshell, on the evenings of August 23 and 24, 1997. .) There is a rehearsal of the Orchestra scheduled from 11:30 a.m. until 2:00 p.m. on August 23, 1997. (Id.) Testimony from Ms. Fencik supports a finding that prior unrelated events in Butler Field have in the past disrupted the symphony.
The Park District requires a group of more than fifty people that desires to assemble, or anyone who wishes to use amplified sound other than for his/her own personal enjoyment, to obtain a permit for use of the public park. An application for a permit must be submitted between ten to sixty days in advance of the event, depending on whether the event is a "picnic", an "athletic event", or a "festival."
The Park District is supposed to make a decision regarding the permit application within fourteen days. However, it can extend the decision-making period for an additional fourteen days. The Park District need not provide any reason for such an extension (Tr. at 63.)
Permit fees and application deadlines are broken down by category, according to the schedule of fees. There are slightly conflicting descriptions on each of the fee schedules submitted into evidence. . Group weddings and picnics involving 50 people or more pay a $10 application fee, a user fee of $50 per 250 attendees, a security deposit of $100 per 250 attendees, and are required to have a $1 million certificate of insurance. The group picnic and wedding application (and the application fee, user fee, security deposit, and insurance certificate) are due no less than 14 days before the event. Athletic events — races and corporate-sponsored tournaments that do not include vendors, stage, amplified sound7 or alcohol — pay a $53 application fee, a $1,050 user fee, a $1,575 security deposit, and are required to have a $1 million certificate of insurance. The athletic event application and application fee are due no less than 45 days before the event. Corporate Festivals with one stage, one source of amplified sound, less than 10,000 square feet of tents, (no corporate giveaways/sampling/signage, alcohol or rides allowed) pay a $105 application fee, a $525 per day user fee, a security deposit of $1,050 and are required to have a $1 million certificate of insurance. Corporate festivals with one stage, one source of amplified sound, up to 25,000 square feet for tents, (alcohol, corporate sponsorship, and signage are okay) pay a $105 application fee, a $4,200 per day user fee, a $1,575 security deposit, and are required to have a $2 million certificate of insurance. Similar corporate festivals with multiple stages or sources of amplified sound pay a $105 application fee, a $8,400 per day user fee, a $1,575 security deposit, and are required to have a $2 million certificate of insurance. All applications and application fees for corporate festival permits are due no less than 60 days before the event.
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