Mood for a Day, Inc. v. Salt Lake County

• Decision Date: 27 November 1995
• Docket Number: Civil No. 92-C-765B.
• Citation: 953 F.Supp. 1252
• Parties: MOOD FOR A DAY, INC., Plaintiff, v. SALT LAKE COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Utah

953 F.Supp. 1252

MOOD FOR A DAY, INC., Plaintiff, v. SALT LAKE COUNTY, et al., Defendants.

Civil No. 92-C-765B.

United States District Court, D. Utah, Central Division.

November 27, 1995.

Brian Barnard, Andrea Garland, Natasha Hawley, Salt Lake City, UT, for Plaintiff.

Patricia Marlow, Darrell Smith, Salt Lake City, UT, for Defendants.

OPINION AND ORDER

BENSON, District Judge.

INTRODUCTION

This case presents a fundamental free speech issue: Did the Salt Lake County Fair Board have the right to expel plaintiff's promarijuana booth from the 1992 County Fair?

FACTUAL BACKGROUND¹

The Salt Lake County Fair finds its roots in the "Black and White Days" of the 1930s. As early as 1932, 4-H Club members in Salt Lake County, Utah, began meeting annually to display their livestock and handicraft, taking the name for their fair from the black and white Holstein dairy cattle predominant in the area. (Affidavit of Roene Wood ¶ 1.) From 1932 to 1934, the members met each fall in a different city in Salt Lake County. (Id.) In 1935, the fair's name changed to "Farm Bureau Days" when the local Farm Bureau became involved. (Id. ¶ 2)

In 1936, leaders from the 4-H Club, Farm Bureau, and Future Farmers of America held the first official "Salt Lake County Fair" in Murray, Utah. (Id. ¶ 3.) The organizers held it in Murray again in 1937. That same year, the unofficial conglomeration of agricultural organizations that had become known as the Salt Lake County Fair Association decided to incorporate. In June 1937, the Association became Salt Lake County Fair, Inc., a nonprofit Utah corporation. The newly formed Fair corporation created a Board of Directors consisting of various interested individuals and organization leaders. In addition, the articles of incorporation appointed various officers to oversee the operations of the Fair.

The articles of incorporation describe the reasons for the Fair organization:

The objects and purposes of this Association are to promote the general welfare of the members by effecting improvement in the production, quality, sale and distribution of products of the soil and of manufactured articles, and generally to enhance the interests of the community by establishing, conducting and maintaining fairs and exhibitions within the County of Salt Lake, State of Utah; and in effecting such objects and purposes, to cooperate with the Utah State Farm Bureau Federation, the Salt Lake County Farm Bureau Federation, the Extension Service of the United States Department of Agriculture, the Utah State Agricultural College, and other educational institutions, in fostering educational exhibits, contests, and demonstrations, including the activities of the "Future Farmers" and of the "4-H Clubs."

(Articles of Incorporation art. II.) Under the articles, the special powers of the Board of Directors include the power "[t]o arrange for, sponsor, conduct and manage the display of all desirable and proper exhibits of every kind at any and all County Fairs held in Salt Lake [C]ounty, State of Utah." (Id. art. VIII(b).)

In 1937 or 1938, Murray City leaders convinced the new Fair Board to locate the Fair permanently in Murray. (Wood Aff. ¶ 5.) The city offered to donate approximately 2.8 acres of land for a permanent site. (Id. ¶ 4.) From that time forward, the Salt Lake County Fair has been held in Murray, continuing with its principal themes of livestock, agriculture, and handicraft displays.

Over the years, as Salt Lake County has become less rural and increasingly urbanized, the Fair has nevertheless maintained its primary agricultural and handicraft focus. (See, e.g., Statement of Darrell H. Smith, Exh. A to Defendants' Statement of Uncontroverted Facts.) Fair exhibits and displays include livestock, home economics, hobbies, horticulture, flowers, and fine art. (See, e.g., Exh. ee to Statement of Undisputed Facts in Supp. of Plaintiff's Am.Mot. for S.J.)

The Fair is open to the public at large. People of all ages attend. However, the Fair has had a special orientation to youth and to families. For example, the Board of Directors has always had the policy that no admission fee be charged to patrons of the Fair, to allow parents with large families to bring all of their children to the Fair. The result has been a family oriented event, with a large number of children and teenagers on the premises at all times. (Wood Aff. ¶ 7.)

In addition to the agricultural and craft displays and exhibits, there are more than 200 booths located throughout the Fairgrounds. (See Plaintiffs Undisputed Facts, Exh. ee.) The Fair Board leases these booths to various commercial, governmental, and educational entities and exhibitors to display products and disseminate information during the Fair. (Plaintiff's Facts ¶ 56.) The only consistent Fair Board policy restricting a certain type of booth prohibits leasing booth space to political candidates and political parties. (See Deposition of Darrell Smith at 53; Deposition of Grace Cameron at 78.)²

Besides that narrow exclusion, the Fair Board has leased space to all comers subject to the rules and regulations of the Fair. These rules include the written Fair Board policy, printed in every Fair "Premium Book" and made available to booth lessees, which reads:

The Board reserves the right to remove from the grounds any exhibit that may be falsely entered, or may be deemed unsuitable or objectionable, or to remove any signs, banner or advertising matter of any kind which may be deemed unsuitable or objectionable by them without assigning any reason therefor.

(1992 Fair Premium Book ¶ 24.) In addition, "[t]he Board reserves the right to reject all articles which are offered for exhibit simply as a means of advertising or that are objectionable to Fair patrons." (Id. ¶ 7.) Finally, the Premium Book includes this language: "The Salt Lake County Fair, Inc., management reserves to its board the final absolute right to interpret these rules and regulations and to settle and determine all matters, questions and differences in regard thereto, or otherwise arising out of, connected with or incidental to the Fair. The decisions of the Fair Board will be final." (Id. ¶ 1.)

Plaintiff Mood For A Day, Inc., describes itself as an "educational corporation teaching the public about the use of hemp." (Amended Complaint ¶ 4.) Its original articles of incorporation state that its corporate purpose is to "hold Educational Seminars and Programs concerning Marijuana." (Art. of Inc., art. III, Plaintiff's Exh. c). Its articles of amendment changed the corporate purpose to state, in part: "The purpose of Mood For A Day is to hold Educational Seminars and Programs concerning the industrial and agricultural uses of hemp, traditional hemp culture, and ecologically safe methods for the manufacture of industrial commodities such as paper and plastics." (Articles of Amendment dated Feb. 17, 1992, Amendments I.a, c, Plaintiff's Exh. c.) The articles of amendment also recognize that "[n]o substantial part of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation." (Id. Am. I.f.)

In July 1992, Mood For A Day entered into a lease agreement with Salt Lake County Fair, Inc., for a booth at the 1992 County Fair. One of Mood For A Day's representatives, Maury Modine, signed the agreement on behalf of the organization. The agreement ran for the duration of the Fair, August 10-15, 1992. The lease agreement reads, in part: "The Salt Lake County Fair, Inc. shall have full interpretation, amendment and enforcement of all conditions, rules and regulations, including all articles for sale or distribution." (Lease Agreement, Plaintiff's Exh. aa, ¶ 4 (spelling corrected).) The agreement also provides that "[e]xhibitors must conduct their activities within their leased area." (Id. ¶ 5.) Plaintiff had leased a booth the previous year and had operated it for the duration of the 1991 Fair without incident.

As the week of the 1992 Fair progressed, the Fair Board and its employees began receiving numerous complaints from Fair patrons about the plaintiff, its booth, and its activities. Patrons complained that the booth was promoting illegal drug use and the legalization of marijuana to minors. Patrons also complained that plaintiff's representatives were leaving their booth, distributing their materials at varied locations on the grounds, stopping young people outside of their booth in an effort to distribute their materials, aggressively approaching patrons, and blocking the walkway. Patrons also complained about the "obscene" content of materials being sold from the booth; about foul and abusive language in and around the booth; and about groups of "young toughs" and "unsavory looking characters" hanging around the booth. (Fair Board's Amended Answers to Interrogatories ¶¶ 28-29, 49(c); Affidavit of Gene Fullmer.)

Fair Board employees fielded these complaints and observed the activities of Mood For A Day firsthand. (Gene Fullmer Aff. ¶¶ 1-5; Affidavit of Karen Fullmer ¶¶ 1-4; Cameron Depo. at 49-50.) On Tuesday or Wednesday, August 11 or 12, defendant Grace Cameron observed plaintiff's representatives distributing materials outside the booth. Cameron approached one of plaintiffs representatives and informed him he was not allowed to distribute information outside the booth area. Cameron did not identify herself as a Fair employee. Plaintiff's representative ignored her admonition. (Cameron Depo. at 52-54; Fair Board's Am. Answers ¶ 34.)

Plaintiffs booth contained a variety of materials. Hanging in plaintiff's booth and stacked up for distribution were signs or bumper stickers that read, "Thank You for Pot Smoking." Plaintiff sold T-shirts that read, "If You Don't Smoke Pot You Have Shit For Brains" and "Urine Testing Really Pisses Me Off." Plaintiff distributed a news-letter titled "You Just Wanna Get High." Plaintiff had another handout titled "How Dangerous...