June 2010 - Parks & Recreation - 25

By James C. Kozlowski, J.D., Ph.D.

law review

Pool Pass Confiscated
for " Lurking " around Children

he Due Process Clause of the Fourteenth Amendment provides that no

state shall " deprive any person of life, liberty, or property, without due process of law. " U.S. CONST. amend. XIV § 1. Procedural due process requires
a person who may be deprived of a liberty or property interest to be provided notice
and an opportunity to be heard at a meaningful time and in a meaningful manner. A
city's unwritten policy is procedurally deficient and denies due process when it includes no guidelines and allows police officers unfettered discretion to ban a person
from a public park for an indefinite period of time. Further, such an unwritten policy
is unconstitutionally vague when the policy fails to give adequate notice of what conduct is prohibited.
In the case of Kennedy v. City of Cincinnati (6th
Cir. 2/16/2010), plaintiff Robert Kennedy alleged his
constitutional rights had been violated when a pool
supervisor (defendant David Hudepohl) employed
by the Cincinnati Recreation Commission ( " CRC " )
had a city police officer (defendant Jeffrey Zucker)
confiscate Kennedy's pool pass and order Kennedy
not to enter any CRC recreational property open to
the public for an indefinite period of time.
The federal district court denied a motion by
defendants Zucker and Hudepol for summary
judgment which would have dismissed Kennedy's claims without a trial. In so doing, the federal
district court held that " access to the public pools
constitutes a cognizable property interest " and,
therefore, further trial proceedings were necessary
to determine " what process Kennedy was afforded
regarding the revocation of his pool pass. "

shutterstock

Creeping People Out
The City of Cincinnati, through the Cincinnati Recreation Commission ( " CRC " ), operates swimming
pools and recreation facilities. Recreation programs
and facilities are open to all citizens regardless of
race, gender, color, religion, nationality, sexual orientation or disability.
The City offers access to its swimming pools by

issuing pool tokens, which cost $10. Pool tokens,
however, are not issued automatically. The City retains " discretion to refuse to issue a token depending on circumstances " and must refuse to issue a
pool token for the following seven reasons:
1. The City may not issue a token to a person suspected of having an infectious or communicable
disease.
2. The City may not issue a token to a person with
head lice or ringworm.
3. The City may not issue a token to a person with
an obvious infectious wound.
4. The City may not issue a token to a sex offender.
5. The City may not issue a token to a known violent
or dangerous person.
6. The City may not issue a token to persons known
to have violated pool rules in the past.
7. The City may not issue a token to a person who
is obviously high or intoxicated.
When a pool token is issued, the new member
completes and signs a membership card, which
states:
I agree to follow the rules and policies and procedures of the Cincinnati Recreation Commission. I
understand that my membership may be revoked
without a refund if I do not follow the rules.

Membership cards are kept at the pool where

www.NRPA .ORG

JUNE 2010

Parks & Recreation 23

June 2010 - Parks & Recreation

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