April 2017 - Parks & Recreation - 25

contacted the board and expressed concern that the ban, as it affected commercial photographers, might violate the
First Amendment.
The board began looking at all options
for balancing the competing interests
at issue, such as a permitting process
for commercial photographers only on
weekends, or only for larger groups.
None of these options, however, addressed all the problems that arose from
commercial photographers attempting
to take photographs of people within the
small, confined area that conflicted with
other park users.
Commercial Activity Permit
On June 17, 2015, the Village passed
Ordinance No. 459, " Regulation of Solicitations and Commercial Activities, "
which superseded the previous ordinance. In pertinent part, Ordinance 459
prohibited the use of park property, unless the Village Board of Trustees had issued a permit. The intent of the permitting process was to " help to ensure that
the Village is aware of the activity taking
place within the park, that the proposed
date/time/location does not conflict
with the scheduled activities/events/operations, and that no harm is done to the
landscape of the park. "
In reviewing a permit request, the
Ordinance required the Board of
Trustees to consider the " disruption
of or conflict with the public's use and
enjoyment of the park " and whether
" the issuance of such permit may result in crowded or congested conditions due to the anticipated number of
attendees for a planned event. " Further, a permit request review would
consider whether a commercial activity would exceed one hour and whether the number of people involved
would exceed 10. In so doing, a permit
review request would also consider
whether " the time requested conflicts

with a period of peak visitation to the
park or other scheduled events, activities or operations. " The permit fee was
set at $100.
Taking commercial photographs in the
park without a permit would violate the
ordinance and subject individuals and
businesses, including Havlak, to penalties of up to $1,000 in fines or 90 days in
county jail pursuant to the Village Code's
general penalty provision. Faced with
the threat of prosecution for violating
the ordinance, Havlak claimed she was
" refraining from engaging in commercial
photography in the Park. " According to
Havlak, complying with the application
process would chill her First Amendment speech rights.
Commercial Photography
Discrimination
As characterized by Havlak, the challenged ordinance was " akin to a
content-based regulation because it
discriminates between commercial photographers and amateur photographers. "
That being said, Havlak recognized the
" safety and fair use of the Park for all users are legitimate government interests. "
Havlak, however, argued, " the ordinance's restriction of commercial activity such as commercial photography has
no relation to these [park safety and fair
use of the park] interests. "
According to Havlak, " non-commercial and commercial photography are
equally disruptive to public use of the
Park, and that any distinction between
the two is meaningless. " As a result,
having " failed to articulate any harm
exclusively caused by commercial activity, " Havlak contended the Village
had " not met their burden to show that
the ordinance serves a significant governmental interest. "
Moreover, Havlak maintained the ordinance was unconstitutional because
three criteria to be considered by the

governmental decisionmaker in deciding
to issue a permit were " too vague, " specifically " disruption of the public's use
and enjoyment of the Park, use of models or equipment, the sale of products or
equipment. " Havlak also maintained " a
different park is not an adequate alternative forum in which to take the desired
photographs " because Twin Oak Park
was " a unique and beautiful space " and
" photographic artists have a right to decide the appropriate setting for their expressive works. "
Accordingly, Havlak petitioned the
federal district court to issue a " declaratory judgment that the ordinance is
unconstitutional " and issue an order
enjoining (i.e., prohibiting) the Village
from enforcing the ordinance against
Havlak. In response, the Village
claimed, " the challenged ordinance
withstands constitutional scrutiny "
because the ordinance was " narrowly
tailored to serve a significant government interest and leaves open ample
alternatives for communication. " In
so doing, the Village asserted " a significant interest in mitigating disruption of Park activities and ensuring
the public is able to use the relatively small Park. " Further, the Village
maintained Havlak had " ample alternative channels for their photographic
expression, namely, a significant number of parks located in the greater St.
Louis area that provide a similar stage
for photographs. "
Photo Shoot Congestion
Havlak testified that having to get a
permit in advance of a photo shoot in
the park would make it almost impossible for her to use the park because
sometimes she changes location at the
last minute due to weather and lighting. She testified that a wedding party was most commonly comprised of
about 15 people, although on occasion,

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April 2017 - Parks & Recreation

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