1. law, govt and politics
2. government

Alachua County
Attorney’s Office
Michele Lieberman, County Attorney
MEMORANDUM
TO:
Charles Chestnut, Alachua County Board of County Commissioners Chairman
FROM:
Sylvia E. Torres, Assistant County Attorney
THROUGH: Michele Lieberman, County Attorney
DATE:
April 13, 2015
SUBJECT:
Legal Parameters for County Properties Use Policies
To institute constitutionally and statutorily sound policies for private use of County properties, the
Board of County Commissioners must establish policies which are consistent with First
Amendment jurisprudence, meet a present and sufficiently strong public purpose and comply with
the duties imposed by statute. Though discussed separately below, constitutionally and statutorily
sound policies must meet all of these requirements.
FIRST AMENDMENT ANALYSIS
The First Amendment to the United States Constitution reads, in relevant part: “Congress shall
make no law… abridging the freedom of speech….” This constitutional right, to speak free from
interference by the federal government, has been applied, through the Fourteenth Amendment, to all
levels of government, including the County. See generally, Gitlow v. NY, 268 U.S. 652 (1925).
The constitutional mandate that the County avoid actions which abridge free speech is implicated in
the drafting and application of many county policies some of which may not, on their face, appear
to be directed at speech. A county policy regulating private use of public properties implicates this
constitutional mandate in multiple instances, including when the County determines the identity of
the private individuals or groups who are allowed to use the properties and the terms by which the
individuals or groups are allowed to use the properties. Courts consider two factors to determine
the burden a government must overcome to justify actions which may affect free speech: the nature
of the forum and the nature of the restriction. See e.g., M.N.C. of Hinesville, Inc. v. U.S. Dep't of
Def., 791 F.2d 1466, 1472 (11th Cir. 1986).
Courts applying the free speech mandate to policies about the use of public properties are clear that
there is no constitutional requirement that a government make all of its properties equally and freely
available to all classes of people simply because the property is government-owned. See e.g.,
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■ Home Page: www.alachuacounty.us/Depts/Attorney/Pages/CountyAttorney.aspx
April 13, 2015
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Bloedorn v. Grube, 631 F.3d 1218, 1233 (11th Cir. 2011). The level of access required for a
government property depends on the categorization of the forum in question. Public properties are
categorized as traditional public forums, public forums created by government designation, limited
public forums, and nonpublic forums. Pleasant Grove v. Summum, 555 U.S. 460 (2009). To
determine the proper category for a government property, a court would take into account the
physical characteristics of a property, the traditional uses made of the property, the government’s
intent and policy concerning a usage, and the presence of any special characteristics. Bloedorn, 631
F.3d at 1233.
Traditional public forums are public properties “which have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.” Pleasant Grove, 555
U.S. at 469 (internal citations omitted). In these traditional public forums, governments are strictly
limited in their ability to regulate private speech. Id. Governments may impose reasonable time,
place and manner restrictions so long as those restrictions are content- and viewpoint-neutral and
are narrowly tailored to serve a compelling government interest. Id. Content-neutral regulations do
not restrict the topic of conversation to any government-determined topic. Viewpoint-neutral
restrictions do not limit the ideologies which may be expressed on any topic, such as allowing only
proponents of an issue speak but denying opponents the same right, but may limit the topic which
can be discussed.
o County parks and sidewalks are traditional public forums. The County may restrict the time
that parks are open for safety reasons or may close sidewalks for non-speech related reasons,
such as repair.
Public properties which are not traditional public forums but are intentionally opened to the public
for free speech purposes are designated public forums. Ark. Educ. Television Comm'n v. Forbes,
523 U.S. 666, 677 (1998). These are properties which the government was not required to open up
to the public for private speech and does not have to continue to hold open for private speech. If a
forum is open for this purpose, though, it will be treated by courts like a traditional public forum.
Government regulations in designated public forums will be upheld if they are reasonable time,
place and manner restrictions so long as those restrictions are content- and viewpoint-neutral and
are narrowly tailored to serve a compelling government interest. Pleasant Grove, 555 U.S. at 469.
o Public comments periods during Board of County Commissioners meetings are designated
public forums. The Board does not have to provide these forums but, since the Board
intentionally chose to create the forum, the County cannot restrict the topics discussed
during these periods or limit the viewpoints expressed. The County can, on the other hand,
designate certain times and places for this private expression and limit the amount of time
that any one person can speak.
Traditional and designated public forum considerations:
o Policies for these forums must be all of the following:
(1) Reasonable time, place manner restriction;
(2) Content- and viewpoint-neutral; and
(3) Be only as broad as necessary to serve a compelling government interest.
o These policies should include consistent standards for application of the regulation. Clear
standards limit the discretion of a government actor to reject or further limit access to a
group because that discretion can lead to preference or discouragement of speech due to the
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government actor’s exercise of that discretion in a viewpoint or content-based manner.
Bloedorn, 631 F.3d at 1236.
o Any terms of that access (e.g., fees, insurance, times available, security deposits) should be
consistent to avoid favoring certain speech over other speech. Any policy which waives the
costs incurred by the County, whether fiscal or in-kind costs, for certain speakers but not
others could be a content-based restriction because, in essence, the County would be
supporting certain speakers over others by the County incurring the costs. A proposed
policy which waives the costs for all speakers could be deemed to treat all speakers alike
and may, therefore, be consistent with the First Amendment, but, nonetheless, could be
challenged on the basis of lacking a public purpose. Please see “Note on County
Sponsorship,” below, for explanation of how sponsorship changes this analysis.
o The County should be able to articulate compelling interest to regulate these forums and
should narrowly tailor restrictions to meet that interest.
Government-owned properties which the government opens up to certain groups of people or opens
up for private speech on a specific topic are limited public forums. Government regulations in
these limited public forums will be upheld if they are reasonable and viewpoint-neutral. Id. As the
U.S. Supreme Court explained in Davenport v. Wash. Educ. Ass’n, “when the government permits
speech on government property that is a nonpublic forum, it can exclude speakers on the basis of
their subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light
of the purpose served by the forum.” 551 U.S. 177, 189 (2007) (emphasis added).
o Public comments on specific motions of the Board of County Commissioners are limited
public forums. The Board has intentionally created a forum for private speech on a specific
topic. The County may restrict the topic of speech so long as it does not restrict the
viewpoint of a speaker on the selected topic.
Limited public forum considerations:
o Policies for these forums must be both of the following:
(1) Reasonable; and
(2) Viewpoint-neutral
o If the forum is to be restricted by categories of private groups or people, then the policies
need to make clear which categories of groups or people may use the forum. All groups or
people who qualify under the policy must be allowed access to the forum subject to
reasonable restrictions such as availability on a first-come-first-serve basis or obtaining
insurance, regardless of the popularity or lack thereof of the message articulated by
attendees.
o If the forum is to be restricted by topics, then the policies need to make clear which
categories of private speech topics will be allowed to be discussed in the forum. All persons
wishing to speak (or listen) on a topic must be allowed access to the forum subject to
reasonable restrictions such as availability on a first-come-first-serve basis or obtaining
insurance, regardless of the popularity or lack thereof of the message articulated by
attendees.
o Any terms of that access (e.g., fees, insurance, times available, security deposits) should be
consistent to avoid favoring certain speech over other speech. Please see “Note on County
Sponsorship,” below, for explanation of how sponsorship changes this analysis.
o The County should be able to articulate a reasonable justification for limiting the use of the
forums to certain classes of people or certain topics.
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Finally, government buildings that have never been designated for indiscriminate expressive
activity by the general public are nonpublic forums. The government may place restrictions on
nonpublic forums so long as they are reasonable and viewpoint-neutral. Ark. Educ. Television
Comm'n, 523 U.S. at 678.
o The County has many nonpublic forums. For example, the County Attorney’s conference
room is not open to the public unless invited. While the invitees are in a meeting in the
conference room, they may be required to speak only to the topic of the meeting, though the
County cannot restrict any particular ideological view.
Nonpublic forum considerations:
o Policies for these forums must be both of the following:
(1) Reasonable; and
(2) Viewpoint-neutral
o The County’s restrictions can be the strictest over these forums, though the County should
have a viewpoint-neutral basis for denying access to speakers (such as the need to maintain
order and to avoid disruption of County work, or safety of commissioners or employees).
o The County should be able to articulate a reasonable justification for limiting the use of
these forums.
PUBLIC PURPOSE ANALYSIS
Alachua County, as a charter county, has home rule powers to exercise any power for county
purposes except where expressly prohibited by law. An overriding principle in the exercise of this
power is the use of public funds for public purposes. A “public purpose” is defined as the
promotion of the public health, safety, morals, general welfare, security, prosperity, and
contentment of all the inhabitants or residents within a given political division. State v. Blunt, 751
N.W.2d 692, 701 (ND 2008). Specifically, what is and what is not a reasonable and adequate
public purpose for valid expenditures of public funds is a factual determination for the legislative
body, in this case the Board of County Commissioners. Upon making appropriate legislative
findings, the Board can adopt a policy which allows a property to be used by the private individuals
or groups notwithstanding that the Board is using public money to pay for the infrastructure and the
maintenance of the properties, so long as that use does not interfere with the public use of the
properties. Fla. Op. Att’y Gen. 2006-12 (2006). The Board’s legislative findings in areas where it
has home rule powers are presumed to be reasonable, unless its unreasonable character appears on
its face. See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 510 F. Supp. 2d 691, 723 (Fla. M.D.
2007). In at least four instances, the Florida Supreme Court has approved the use of public land by
private enterprise if the public interest or benefit is significant enough. State v. City of Tampa, 146
So.2d 100 (Fla. 1962); Linscott v. Orange County Indus. Dev. Auth., 443 So.2d 97 (Fla. 1983);
State v. Osceola County Indus. Dev. Auth., 424 So.2d 739 (Fla. 1982); State v. Hous. Fin. Auth.,
376 So.2d 1158 (Fla. 1979).
If the County absorbs the cost of making a property available to a private individual or group for a
private purpose, this would likely be considered an expenditure of public funds, which invites the
question of whether the taxing power of the County is being used for a public or private purpose.
Article VII, Section 10 of the Florida Constitution provides, in pertinent part: “Neither the state nor
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any county… [shall] lend or use its taxing power or credit to aid a corporation, association,
partnership or person.” Art. VII, Sec. 10(a)-(d), Fla. Const. The purpose of this constitutional
provision is “to protect public funds and resources from being exploited in assisting or promoting
private venture when the public would be at most only incidentally benefitted.” Bannon v. Port of
Palm Beach Dist., 246 So.2d 737, 741 (Fla. 1971).
The legislative body, in this case the Board, is the primary determiner of what constitutes a public
purpose. Donovan v. Okaloosa Cnty., 82 So. 3d 801 (Fla. 2012). Its determination is presumed
valid by a court unless it is patently erroneous, Strand v. Escambia Cnty., 992 So. 2d 150 (Fla.
2008), arbitrary or unreasonable, State v. Daytona Beach Racing and Recreational Facilities Dist.,
89 So. 2d 34 (Fla. 1956). Public purposes may include all activities related to the conduct of
government, the exercise of government functions, or provision of government services. City of
Ormond Beach v. Cnty. of Volusia, 535 So. 2d 302 (Fla. 5th DCA 1988).
In cases where public resources are used but a county has not pledged its credit or exercised its
taxing power (implicating Article VII, Section 10, Fla. Const.), only a “public purpose” is required,
rather than a “paramount public purpose.” Donovan v. Okaloosa Cnty., 82 So. 3d 801, 810 (Fla.
2012). The distinction is important when considering how County resources would benefit a private
party. As the Florida Supreme Court explained in Donovan v. Okaloosa Cnty., “[w]here only a
public purpose is required [] it is immaterial that the primary beneficiary of a project be a private
party, if the public interest, even though indirect, is present and sufficiently strong.” 82 So. 3d at
810 (internal citations omitted). Therefore, a determination by the Board that use of a County
facility meets a present and sufficiently strong public purpose will be upheld by a court unless the
determination is patently erroneous, arbitrary or unreasonable, regardless of any benefit received by
a private party.
Public purpose considerations:
o The Board should make a clear legislative finding of what uses of county facilities serves a
public purpose and should state what purpose that serves.
o All nongovernmental persons or organizations seeking to use a facility for the purposes
stated by the Board should be given equal access (priority, time and other terms of access),
in accordance with standard terms and conditions.
o Please see “Note on County Sponsorship,” below, for explanation of how sponsorship
changes this analysis.
RELEVANT STATUTORY DUTIES
The County has the statutory duty of supervision and control of its tangible personal property. Fla.
Stat. §274.03. All County properties have some form of tangible personal property in them such as
microphones, chairs, tables, desks and video devices. While a government may delegate custody to
a custodian, the government still retains primary responsibility for the property. Fla. Stat. §274.03.
When leasing a property to a private individual or group, the County may meet its responsibility by
stationing an employee to supervise the use of the personal property or by entering a contract with a
custodian (in this case, the private party) which delegates the supervision and control of the
property to a private party. A County property use policy should address this statutory duty through
one of these means.
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Florida Statute, Sec. 106.15(4), makes it a first degree misdemeanor to solicit or knowingly accept
any political contribution in a government building unless the building is rented for the specific
purpose of holding a campaign fundraiser. A County properties use application form should draw
the applicant’s attention to this statute and should offer an option of declaring a “campaign fund
raiser” as the specific purpose for renting the property.
Florida Statute, Sec. 255.045, makes it a statutory mandate for persons who sponsor or promote an
event held on public property to reasonably protect the property or facility and to provide for all
necessary cleanup, repair and restoration of the property to return the property to the condition prior
to the event. Per this statutory provision, this cleanup, repair and restoration must be accomplished
within 15 days after the event is concluded. Fla. Stat. §255.045(1). Fines for not cleaning up,
repairing and restoring can be up to $500 per day after the 15th day. Fla. Stat. §255.045(3). This
statutory section does not supersede any law, rule, ordinance or properly adopted policies which are
more stringent than the requirements of this section. Fla. Stat. §255.045(2). A County properties
use policy should address this issue to avoid the application of the statutory rule, allowing 15 days
to return a property to pre-event condition.
Recommendations for constitutionally and statutorily sound policies for use of County properties
This Office recommends that the Board consider the following issues.
1)
For those facilities which will not be accessible to the private parties without explicit
invitation (nonpublic forums):
a.
Declare these to be nonpublic forums. These facilities cannot include sidewalks,
streets or parks which are traditional public forums. Private use of these nonpublic
facilities beyond mere incidental use will be prohibited.
b.
Articulate a governmental interest for restricting private access to these facilities
(e.g., avoid disruption of government work; provide for the safety of employees;
protect the sensitivity of documents and public property and equipment).
2)
For those facilities which will be open to certain groups of people or for private speech on
specific topics (limited public forums):
a.
Declare these to be limited public forums.
b.
Determine which groups or people, or topics will be allowed in the facilities. The
categories of people or topics must be expressed in a manner which is explicit
enough that the administrator of a policy has clear direction and is exercising little
discretion in allowing access. For example, regulations permitting an administrator
to restrict events to only those which promote a positive image of a jurisdiction and
promotes a family-oriented environment have been found unconstitutional because
they grant too much discretion to an employee to apply a policy in a discriminatory
manner. Bledsoe v. City of Jacksonville, 20 F.Supp. 2d 1317 (Fla. M.D. 1998). The
selection of groups or topics must be viewpoint-neutral. For example, a policy could
limit the use of a county facility to homeowners associations or registered political
parties but could not limit the use of a facility to homeowners associations who
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c.
d.
e.
f.
3)
oppose annexation or registered political parties who support a particular candidate
for governor.
Articulate a legitimate governmental interest in the restrictions (e.g., maintaining
order, protecting government property, traffic safety).
State a public purpose for use of county resources to provide access to these private
people or groups, or allow private speech on these topics (e.g., promote economic
development, provide social services).
Determine consistent terms use (e.g., fees, insurance, times available, security
deposits) to be applied to all groups or persons in a category. If the Board wants to
change a term for group (e.g., not require insurance for groups providing food to
homeless people), then it must apply the changed term to all groups in a particular
subcategory and should state an additional, viewpoint-neutral public purpose for the
change in term. Please see “Note on County Sponsorship,” below, for explanation of
how sponsorship changes this analysis.
Require that all groups or persons using a county facility comply with the duties
imposed by statute and indemnify the County against misbehavior of event
attendees.
For those facilities which will be open for private speech on any topic (designated public
forums):
a.
Declare these to be designated public forums.
b.
Determine content- and viewpoint-neutral, reasonable time, place and manner
restrictions with enough particularity to avoid discriminatory application of the
regulations. For example, determine that a forum will be open from dawn to dusk,
no alcohol consumption will be allowed, speakers may only be amplified to a certain
decibel, and, if traffic will be more than X#, a traffic maintenance plan will be
required.
c.
Articulate a compelling, content- and viewpoint neutral governmental interest in
these restrictions and explain how these regulations serve that interest. For example,
a compelling, content- and viewpoint neutral governmental interest in restricting
access to a facility to no more than 200 people is the safety of attendee since only
200 people are allowed by the fire marshal. Note that the nexus between the
government interest and the restriction must be extremely close for regulation of
designated or traditional public forums.
d.
State a public purpose for use of county resources to provide the “free speech” forum
for private speech.
e.
Determine consistent terms of use (e.g., fees, insurance, times available, security
deposits) to be applied to all groups or persons using the facility.
f.
Require that all groups or persons using a county facility comply with the duties
imposed by statute and indemnify the County against misbehavior of event attendee.
Note on County sponsorship: When the County sponsors an event, any speech at the event is, in
essence, transformed from private speech to public speech and is therefore not subject to the
analysis above (which only applies to government actions limiting private speech). The County can
choose to sponsor events so long as it meets the public purpose requirements and statutory
mandates. The County should put proper safeguards on place to assure that the public purpose and
statutory mandates are met. Fla. Att. Gen. 06-12 (citing Fla. Att. Gen. 02-18).
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Our Office has provided a recommended draft policy and is available to answer any questions
regarding this memorandum.
xc:
Members of Board of County Commissioners
Lee Niblock, County Manager
James Harriott, Assistant County Manager
Sean McLendon, Assistant to County Manager
Gina Pebels, Administrative Services Director