Disbelief and Legal Maneuvers Meet Chamber’s Refusal to Budge on Creekside Exclusion
FlaglerLive | September 23, 2011
Few people can believe it—county commissioners, government and first amendment lawyers, political candidates and others: the Flagler County Chamber of Commerce is standing by its decision to exclude two non-partisan candidates in the Palm Coast City Council election from having booths at the Creekside Festival on Oct. 8 and 9, even though Democratic and Republican clubs and the tea party will have booths there.
The candidates—Dennis Cross and Bill McGuire—will be allowed to walk around the festival like any other person attending, but they won’t be allowed to hand out literature.
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None of the five Flagler County Commission members are comfortable with the chamber’s decision, and three are stunned by its refusal to budge after commissioners sought a compromise on Monday, though commissioners are divided over what action to take next when they discuss the matter again at an Oct. 3 meeting.
“I think their decision is incredibly wrong,” Commission Chairman Alan Peterson said, “but maybe not legally wrong and therefore we need to determine that. I don’t think the county commission should impose its opinions upon any organization that would invalidate that organization’s rules and regulations. But I am very disappointed in the decision that the chamber has made. I think it will have long-term, detrimental impact to the effectiveness of the chamber.”
Commissioner Milissa Holland went further. “I fully intend at the next county commission meeting not only to raise this issue but ask that the chamber either reverse its decision, or ask by the unanimous support of the county commission to reverse it, and further set up a formal policy in regard to our public facilities.” The policy would ensure that similar situations would not arise in the future, since the county is on the hook for appearing to endorse the chamber’s exclusionary rule even if the county itself is not promulgating that rule. Most commissioners—with Nate McLaughlin’s and George Hanns’s exceptions—are especially concerned by the political backlash the chamber’s decision is having on the commission itself.
Barbara Revels, likely the most supportive member of the business community on the commission, is not behind the chamber’s decision, either. She was still waiting for legal opinions on the county’s liability, but even assuming that legally the chamber was entitled to exclude some people as opposed to others, Revels said she might consider compelling the chamber to change its rule. “At this time I would tend to say yes I would want to do that. I’m not saying yes, but I think I would want to,” Revels said Friday.
Commissioner George Hanns was less committal about what role the commission should play. Personally, he said of the chamber’s decision, “I don’t necessarily agree with it. If that’s the case they shouldn’t allow any political groups in there, including the Democrats and the Republicans.”
What Lawyers Say
Legally, there are different views on the chamber’s rights. The chamber is renting Princess Place from the county for the two-day festival. As a private renter of a public space, the chamber does have more say than the county would to set parameters on who uses the grounds, three lawyers said, but they disagreed on the extent to which those parameters apply.
“The fact that they’ve allowed the chamber to have a private event may have given the chamber a right to say no, to control the content of their activity,” Sid Nowell, Bunnell’s city attorney, said, “but I think the fact that it is dedicated public property outweighs the right of the chamber to restrict the content on the property.” Speaking as a government attorney, he said, “If you’re going to allow anybody on there, any party on there to spread whatever their political message is, then you have to allow everybody, you can’t pick and choose what message you want to be heard on public property.”
Kevin Wimberly, a private practice attorney with the Longwood-based Walters Law Group, which specializes in First Amendment law, said that if it was strictly a private event, the Creekside Festival, even on public land, gives the chamber the right to include some participants and exclude others—just as, for example, if a church held an event there and wanted to exclude atheists from participating. “The chamber is a private organization, and they’re not required to follow the first amendment,” Wimberly said. “The government would not be in the right to interfere with that private group’s internal rules.”
That said, Wimberly said, “this seems to be less a First Amendment legal issue and more of a common sense issue. If you’re going to invite the main parties to your festival, you’re kind of making it a political issue even if you’re saying you don’t want it to be a political event.” From a common sense perspective, he said, “it just looks bad.”
Wimberly added another caution: if the county has a role in organizing the event, then the county’s imprint is in play—as is First Amendment law. It depends to what extent the county is involved.
The Chamber’s Costs and the County’s Involvement
Al Hadeed, the county commission’s attorney, was researching that very question Friday, saying that his legal opinion to the commission will depend on the extent of county involvement—including, for example, the use of county ambulance services, policing, county staff involvement, use of county equipment, what the promotional material says (none of it that’s been examined so far includes the county as a sponsor), and so on. Holland was particularly disturbed by the lack of clarity on public safety arrangements, though later in the day those arrangements became clearer, as did the chamber’s role: the county is not on the hook for any of those costs. The chamber is paying for policing, music, portable toilets, the ambulance, all the entertainment, and all the equipment.
It did not seem clear what sort of permits the chamber pulled for its special event. The absence of a permit where all event parameters would have been set out suggests that the county’s role is more direct than merely that of a landlord permitting an event at a distance. But the commission’s own actions may answer that question, since the commission is on record in each of the last two years as itself approving the festival and enabling the chamber to advertise with signs (which require a permit).
“If under the law our involvement is such that the First Amendment applies, then it’s our obligation to assure that the event is conducted in a way that complies with the first amendment,” Hadeed said.
Since Monday, there’s been somewhat of a scrambling within the administration to distance the county from Creekside, even though the county was involved in the planning of the event, in key respects, in ways that it usually isn’t with other events—including Carl Laundrie, the county communications director, attending planning meetings. But that involvement is nowhere near what it used to be when the county did, in fact, sponsor Creekside in its earliest days, back in 2005. These days, the chamber assumes virtually all but a few costs.
Commissioner Nate McLaughlin, who was staunchly against the chamber’s actions when the matter was brought to the commission’s attention Monday, reversed course Friday, saying that legally the chamber was within its rights. The issue for him, he said, was whether the county was a co-sponsor of the event. He said he was under the impression that it was, but that he’s since been told otherwise. Laundrie’s involvement, he said, was on a voluntary basis—on his own time, not the county’s time—an assertion Holland ridiculed.
“Our Involvement Is a Little Bit More”
On Monday, Peterson asked Craig Coffey, the county administrator, specifically how the county was involved, “other than the fact that the county’s property is being utilized.”
“Every event in our county parks,” Coffey replied, “the county is involved. For example, we had a lacrosse tournament a few months ago, and our only involvement, our only fee collection was to offset costs, but we were involved in the planning, but only the outside, because we’ve got to plan for the garbage pick-up, cleaning the restrooms and all that stuff. Here our involvement is a little bit more, we do have a staff member that attends, because it’s a bigger event, so we’re a little bit more involved in this event than we would in a normal event. I’ll just say that. We have another event at Princess Place like the month after called Pangea. Pangea is a tourism-type event, they invite people from all over the country. Our involvement is just like any other event, we don’t dictate their policies and who they invite, and we wouldn’t want political people necessarily at that event. But they’re probably not allowing any political people, I would assume, at that event.”Other matters are muddying the chamber’s decision and the county’s attempt to distance itself from the festival. Commissioners have wondered whether they have the legal right to decide what may or may not take place when an organization or an individual rents county space. In fact, the county had provided for Mardy Gilyard, the football star, to hold a night concert at Carver Gym the night before the Potato Festival (where Gilyard held a”field day” on the grounds near Carver Gym). But the county, acting on the sheriff’s advice, yanked whatever allowances had been made for the concert when officials deemed themselves uncomfortable about the promotional material Gilyard had sent out, and feared that those attending might have gang connections. (See the flier advertising the event to the right.)
In other words, the county has set precedent where it had endorsed a use of one of its facilities only to take back that allowance.
The chamber’s application for vendors or booths specifies that only four categories may apply: non-profits, handmade arts and crafts, retail arts and crafts, and food vendors. None of the political organizations granted a booth fit any of those descriptions: the Democratic, Republican and tea party organizations are not non-profit organizations by IRS standards: none has a 501-c-3 designation, nor can the Republican or Democratic organizations have that designation, since they overtly advocate for political candidates.
But they do fit under state non-profit status, Dan Parham, the head of the Flagler County Executive Committee, said, which may explain why they were permitted into the Creekside Festival. Parham disagrees with the chamber’s decision to exclude other political booths.
On Monday, Doug Baxter, the chamber president, said all candidates could have their campaign literature distributed at any of the booths. No longer: according to the chamber’s directive as of Thursday, Parham said, “they’re asking that we don’t have any campaign literature for any of the candidates and for the candidates not to work at our booths. So the party booths are going to be some dull places.”
The DeLorenzo Business
The main reason the chamber’s decision is raising a ruckus has as much to do with the First Amendment as with the appearance of favoritism.
Four candidates are running in two races for the Palm Coast City Council: Bill McGuire is facing incumbent Holsey Moorman in one, and Jason DeLorenzo is facing Dennis Cross in another, for the open seat being vacated by Mary DiStefano. DeLorenzo is married to Rebeccca DeLorenzo, vice president of the chamber. The chamber’s decision looked like a sweet deal for DeLorenzo, who, as of earlier this week, anyway, could have had his campaign volunteers at the Democratic booth or his campaign material there, in accordance with chamber allowances.
Now that that’s changed, DeLorenzo said Friday afternoon, no candidate could be seen to have any leg up on any other, “because we’re all in the same boat. None of us can be in the party booth and none of us can have our own booth so it doesn’t help one candidate, we’re all together.”
DeLorenzo himself is asking his volunteers to wear DeLorenzo campaign shirts and visit Creekside. DeLorenzo will be on the clock both days, working at the Home Builders Association’s Green Expo (he is the association’s legislative affairs director), a large spread at the Creekside Festival. Will he be wearing a DeLorenzo shirt? “I would anticipate yes, but I am on the clock so I would have to check with the board.”
One way or another, in other words, DeLorenzo will be in a high-traffic area, a mega-booth of sorts, interacting with people coming to him—presumably to talk about green matters, as opposed to politics—as opposed to candidates walking around hoping that people will listen to them. The set-up inevitably carries on some appearance of advantage that would have been eliminated if the chamber followed through on a majority of commissioners’ original proposal on Monday: to provide for a non-partisan area where any of the council candidates can distribute what they please and speak with whomever they please.
In the Chamber’s Defense
In a statement defending the chamber’s actions Thursday, Lea Stokes, the chamber board’s chairwoman, noted the chamber’s sponsorship of political forums (its August forum for the city elections, in conjunction with local realtors and home builders, was the best attended of any this season) places the chamber squarely on the side of educating voters, contrary to criticism about doing the opposite at Creekside. And even there, the limitations are few.
“All candidates running for city council are invited to attend Creekside Festival and to bring their friends and families,” she said. “However, we ask them to leave campaign signs, literature and canvassing behind so they, like all our guests, can enjoy what makes the Creekside Festival one of Flagler County’s most popular traditions: family fun, great food, live music, arts & crafts, and more in a picturesque, natural setting.”
For now, and putting aside the chamber’s jiggering of the rules again subsequent to its decision Thursday, commissioners have been taking criticism for the chamber’s action, and will likely continue to do so. “They’re making the commissioners who reluctantly feel that they are required to accept the chamber’s position pay a political price,” Peterson said. Yet he defended the chamber’s right to stick to its original decision, if it was on firm legal ground, and even if he, personally, objects to it. “If I think it is philosophically and legally permissible, then I think as an elected official I have to pay that price.”
But Peterson agreed with Holland that the case opens the door to revisiting the county’s special events policy.