MEMORANDUM

A丁丁ORNEY WORK PRODUCT -

EXEMPT FROM PUBLIC RECORDS DISCLOSURE
UN丁!L CLOSE OF ALL RELATED PROCEEDINGS

Date:   November 20, 2018

丁o:     Files

From:  County Attomey’s O冊ce

Subject: Trespass Waming for Pubiic Prope巾y - Constitutional Requi「ements

l,  Libe巾V lnterest and Due Process

individuaIs have a constitutiona=y protected判berty interest” in iawfu=y visiting

Public property that is othervise open to the public. Catron v. C句y ofSt・ Pefersbu働658

F.3d 1260 (11th cir. 2011). Cafron invoIved, htera〃a, a COnStitutionaI cha=enge to the

City’s lrespass ordinance" that authorized ce直ain city agents to exciude wamed

individuaIs from specific city land from one to two years, aS Weii as the city’s

enforcement of that ordinance. /d. at 1263. Despite this Iiberty interest言ndividuaIs do

not have unfettered rights to use ai看public p「operty under a= conditions and at aIl times.

/匂at 1266, 1267. This libe直y inte「est may be forfeited, for example by trespass for

CauSe言f due process is p「ovided. /d. at 1267. Due p「OCeSS 「equIreS nOtice and

COUNTY ATTORNEY’S OFFICE

18500 Murdock CircIe l Po巾Chariotte, FL 33948
Phone: 941,743.1330 1 Fax: 941.743,1550
meaningfui opportunity for a hearing. /d, Such notice and oppo巾unity for hea「ing may

be provided post-dep「ivation. /d・ at 1266.1 Acco「dingIy, the County must p「ovide due

PrOCeSS in association with any deprivation of a Iiberty inte「est, SuCh as th「ough

t「espass.

2.  First Amendment SDeeCh and Expression

Owners of pubIic property, aS PrOPrietors, have the right to designate their

PrOPe直y for spec棉c uses and to p「oscribe conduct that is inconsistent with those uses.

United Sfafes v. Kokhda, 497 U.S. 720, 725; 110 S.Ct. 3115, 3119; 111 L.Ed.2d 571

(1990);的fo肋Pawn & Jewe旬y /nc. v. Cify of Ho均ywood, 337 F.3d. 1275 (11th cir.

2003); /SKCON Mamら/nc. v. Mefropo〃tan Dade Coun劫F/ohda, 147 F.3d 1282 (11th

Ci「. 1998); and U.S. v. G胸eh, 920 F.2d 878 (11th cir. 1991). Govemmentownership of

PrOPerty does not automaticaiiy open that p「OPe巾y to the public fo「 a= uses. Kok肋da,

Supra, 1 10 S.Ct. at 31 19; Unifed Sfates Posta/ SeMce v. Counc〃 of GI℃enbu岬h Civic

Assns., 453 U.S. 114, 129; 101 S.Ct. 2676, 2685; 69 L,Ed.2d 517 (1981); Come〃us v,

NAACP Lega/ Defense and Educaf/onal Fund, /nc・, 473 U.S. 788; 105 S.Ct. 3439; 87

L,Ed,2d 567 (1985).

With 「espect to activities protected by the Fi「St Amendment (SPeeCh, eXP「eSSion,

etc.), the constitutionality of restrictions on access or use are dependent upon the type

Of fo「ums existing on pubiic p「OPerty (i.e., `t「aditionai pubIic fo「ums”, “designated pubiic

forums’’, and “non-Pubiic fo田mS"), Pe仰/ Educ. Assh. v. Pelry Loca/ EducatoIS’Assh,

460 ∪.S. 37; 103 S.Ct, 948, 955; 74 L.Ed.2d 794 (1983); Kokinda, 110 S,Ct, at 3119,

1 The Catron Court found the St. Pete「sburg ordinance invaiid because it fa=ed to p「ovide a “p「ocedu「aI

means fo「 a wa「nIng-reCipient to cha=enge the wa「ning.” /d. at 1268.

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 A. T「aditional Public Fo「ums

Pubiic streets, Sidewalks and parks are considered to be ’1raditionaI public

fo「ums”, Whe「e First Amendment activities such as speech and exp「ession have

t「aditiona=y occ…ed. To be constitutiona=y permissibie, any gOVemment 「eguiation of

SPeeCh or exp「ession within traditionaI public forums must pass “strict scrutiny” by the

Courts. PeIry, 103 S.Ct. 948, 955, That means that in order to be constitutionai, the

reguIation must be “viewpoint neutral", “nar「OWIy taiIo「ed to serve a sign甫cant

gove「nment inte「est”, and Ieave open ample avenues for altemative exp「ession. Peny,

103 S.Ct. 948, 955. Within these paramete「s, Fi「st Amendment activities are subject to

“「easonable time, PIace and mamer restrictions’’, Which may be enforced without

「uming afoul ofthe Constitution, ld.

B, Desianated PubIic Fo田mS

Govemment prope巾y that is not a traditional pubiic forum but is intentiona=y opened up

to the pubIic for limited exp「essive purposes (for example, the Commission meeting

「OOm On Board Meeting days) is considered to be a “designated public forum" or “Iimited

Pubiic forum’’. Pem/, 103 S.Ct at 955; LambさChape/ v. Ctr Mo万ches Union Free Sch.

Dist., 508 U.S. 384 (1993)(PubIic meeting 「OOmS are ‘’iimited pubIic forums”); Rowe v.

Cify of Cocoa, F/o万da, 358 F,3d 800 (11th ci「. 2004)(PubIic meeting 「ooms a「e “Iimited

PubIic fo「ums”). Limitations on Fi「st Amendment Activity in designated pubIic fo田mS

are subject to the same analysis and 「estrictions as in traditionai pubIic forums. Pe/ry,

103 S.Ct at 955,

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 C. Non-PubIic Forums

On the other hand, County buiIdings that have not, by tradition, designation or

CuStOm, been intentiona=y opened up for unfettered Fi「st Amendment activity a「e “non-

Pub=cfo「ums". Peny, 103S.Ctat955; U.S. v, G鯨油920 F.2d 878 (11th Cir. 1991). 1n

“non-PubIic fo「ums", reStrictions on Fi「st Amendment activities are not subjec=o “strict

SCrutiny" by the cou巾S aS they are in t「aditionai or designated public forums. Rather,

rest「ictions within non-Pub=c fo「ums need onIy be “reasonabIe" in Iight of the purpose

and use of the fac掴ty (in this case, the conduct of County business), and ’Viewpoint

neutraI." Pe仰/, 103 S.Ct at 955; G胸e互920 F.2d at 884; /SKCON Mami /nc., 147

F.3d. at 1286.

3.  Ordinance 2016-027 - Trespass Waminas for Countv Prope巾V

On June 28, 2016, the Board of County Commissioners of Cha「lotte County,

F看orida (“BOCC") enacted a trespass ordinance, Ordinance 2016-027, COnCeming

County fac冊es. §1-2-82, Code of Laws and O「dinances of Charlotte County, FIorida.

丁he purpose of the O「dinance was to “maintain a safe and o「deriy environment which is

COnducive to the designated use of County property and to the e冊cient rende「ing of

County services’’; tO discourage, “unlawful, unSafe, destructive or otheMise prohibited

activity on County p「ope巾y that interfe「es with the designated use of County property o「

the e冊cient rendering of public services”; and to protect the “liberty interest” of persons

On County property. /d.

OnIy the County Administrator, Or his/her designee, has the authority to issue

Trespass Wamings under the Ordinance. §1-2-82(C)(1). The County Administrator has

designated the Deputy County Administrator and the Assistant County Administrato「 as

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having the authority to issue Trespass Wamings in the County Administrator’s absence.

丁he CharIotte County Sher肝s Office (“CCSO") has been designated as having the

authority to issue Trespass Wamings unde「 the O「dinan∞ Oniy in cases whe「e the

County Administrator o「 his/her designee are unavailabIe・ Any Trespass issued is fo「 a

Period of one (1) year and app=es oniy to the spec田C County property on which the

P「Ohibited conduct o∞urred, §1-2-82(C)(2)(f) and (C)(3). The O「dinance p「ovides a

mechanism whereby a citizen who has been issued a Trespass Waming, but who

needs to come to County fac冊es to conduct Iegitimate County business, may do so for

those purposes only. §1-2-82(C)(3).

A. The丁resDaSS Ordinance P「ovides Due Process

Fina=y, aS 「equired by Cafron言he O「dinance provides procedu「al due p「ocess

Via a spec師c provision for appeal of a Trespass Waming. /d, §(C)(6). Spec甫ca看Iy, the

Ordinance provides for Notice, the帥ng of an appeai and a timef「ame for the appeal

P「OCeSS aS a Whole, Id. The appea=s quasi」udiciaI and hea「d by a neutraI magistrate,

Who has the authority to controI the conduct of the hearing. /d・ Acco「dingly, the

County’s T「espass Ordinance provides appropriate due process when a Trespass

Waming affects the “Iiberty inte「est’’of an individuaI・

4,  FaciIitv Ru!es

In addition to, and concomitant with, the Ordinance, the BOCC enacted Fac掴ty

RuIes, Which govem the conduct of citizens and pe「sons using County faciIities, the

Violation of which couid subject an individual to a Trespass Waming.2 The Fac帥ty

Rules appIy to buiIdings and property owned, leased, managed or contro=ed by the

BOCC, including traditional, designated and non-Public fo「ums" /d, §(b)(5); and Fac掴ty

2 The Fac冊y RuIes we「e amended on Octobe「3, 2018"

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RuIes. Generaiiy speaking, the Faciiity RuIes p「ohibit unlawfui conduct and conduct

that interferes with the orde「Iy use of County fac冊es for County business purposes.3

丁he Fac帥ty Ruies aiso specify traditional pub=c forum a「eas whe「e First Amendment

activity is permitted, FaciIity Rules, aS amended, Rule 6, The Trespass Ordinance and

Fac掴ty Rules aiso p「ovide for the issuan∞ Of a Trespass Wa「ning for vioiations of the

Fac掴ty RuIes, after wa「ning. Fac掴ty Rules, Rule 15, 16. Fina看iy, the Facility RuIes are

COnSPicuously posted in every County-OWned or -COntrO=ed buiIding, aS Weii as posted

On the County’s Website, tO enSu「e that pe「sons using County fac冊es unde「stand what

COnduct is p「Ohibited.

A. The Fac掴tv RuIes are VaIid Time. PIace and Manner Restrictions in AII
Fo「ums

The Fac掴ty Ruies ensu「e the County’s significant govemment interests are met:

that County property is reserved for its designated uses, County business is done in a

Safe, lawfuI and orderIy mamer, and pubIic services are provided e冊CientIy,

Fo「 exampIe, activities typica=y unde直aken in traditional pubIic forums (SuCh as

Petitioning, PamPhIeteering, demonstrating or protesting) a「e not a=owed inside of

County bu皿ngs, but are ailowed in “traditionaI pub看ic forum” areas, SuCh as, “OutSide of

the entryway of any County owned buiIding, On any Pubiic sidewalk o「 public right-Of-

Way near O「 adjacent to any County-OWned building, Or in areas otherwise designated

fo「 expressive activity”. FaciIity RuIes, aS amended, Rule 6. The onIy restriction is that

these activities be done in an “orderIy mame「 and without harassment to empIoyees or

to the pubIic.’’ld. These 「estrictions are entireIy “viewpoint-neut「al” (in fact, nO mention

3 For example, RuIe 9 prohibits, “[d]is「uptive, harassing o「 unsafe behavior, including conduct which

intentiona=y interferes with empIoyees in the perfo「mance of thei「 duties or intentiona=y interfe「es with the

P「OPe「 uSe Ofthe County fac冊y by othe「s.’’Fac冊y Ruies, aS amended, Rule 9・

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Of viewpoint is made at aII), Serve the significant govemment inte「est of maintaining

Order, and ieave open all other aitemative forms of expression, AccordingIy, they

COnStitute “reasonabie time, Piace and mamer” rest「ictions, Which are constitutiona=y

Pe「missibIe in these ‘`traditional pubIic forums.” Come〃us, 473 U,S. 788, 800

(P「eVenting disruption a significant govemment inte「est); Rowe, 358 F,3d 803

(Significant govemmenta=nte「est in maintaining o「der); and Co〃inson v. Go#, 895 F.2d

994, 1000 (4th cir. 1990) (PrOViding order and faimess to a= a significant govemment

interest),

With respect to designated public forums (e.g,, the BOCC meeting room on

Boa「d Meeting days), First Amendment protected activity is aIso a=owed, Subjec=o

rules goveming citizen conduct contained in the BOCC RuIes of Procedure. These

「uIes a「e viewpoint neut「aI (again, Viewpoint is not even mentioned in the Rules), and

incIude limiting expression to the purpose of the designated forum (e.g., County

business), P「OViding for a time limit for public input (3 minutes), and ensuring safety and

Order. These restrictions are also reasonabIe time, PIace and mamer 「estrictions within

a designated pubIic forum and a「e entireiy constitutionally permissible. Chamley v.

了bm ofSou抑Pa/m Beach, 2015 WL 12999749 (S.D. Fia. 2015),

Fina=y, at the County, nOn-Pub=c fo「ums incIude lobbies, O冊ces, WOrk areas and

a「eas not designated fo「 pubIic access. Gay Guardian Newspaper v. Ohoopee

RegionaI Lめrary System, 235 F.Supp,2d 1362, 1367 et. seq. (S.D, Ga. 2002)(Iobbies

a「e gene「a=y conside「ed ``non-PubIic fo「ums”); Se#ck v. Unifed States, 1 999 W」 778588

(N.D.川. 1999)(Iobby in federai o冊ce bu=ding a “non-Pub=c fo「um’’.) These a「eas have

never, by tradition or designation, been intentiona=y open by the County for First

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Amendment activities, Which is enti「eiy within the discretion of the County, Come〃us,
一〇-一一一〇○○、-  ￣- ￣  -臆 ￣￣二一一一二￣ニー￣￣-￣￣￣￣￣￣  ￣ -臆     臆喜一一丁 臆一一一一一

105 S.Ct. at 3477, The Faci看ity Rules, aS aPPIied to non-Pubiic forums, are both

’`reasonabIe’’(they simpIy require that visitors obey the law and not interfe「e with the

use of County p「OPerty fo「 County pu「POSeS) andくくviewpoint neut「a看” (again, Viewpoint is

not even mentioned in the RuIes). AccordingIy they are Constitutiona=y permissible,

Pelγy; 103 S.Ct at 955; G胸e互920 F.2d at 884; /SKCON M/amら/nc., 147 F.3d, at

1286.

Accordingiy, the Fac冊y RuIes do not unconstitutiona=y 「est「ict activities

gua「anteed by the First Amendment in traditional or designated public forums: First

Amendment-P「OteCted activities a「e a=owed, COnSistent with each type of forum, With

Pe「missibIe time, Place and mamer restrictions that serve significant gove「nment

interests, a「e entireiy viewpoint-neutrai and Ieave open ampIe alte「natives fo「

expressive activities. Likewise, the FaciIity RuIes do not unconstitutiona=y 「estrict First

Amendment activities within non-Pubiic forums, in that they are 「easonable and entireIy

Viewpoint neutra上

Attachments:

County O「dinance 2016-027;

Original Fac帥ty Ruies;
Amended Fac掴ty Rules; and
丁respass Waming notice fom・