MODEL ORDINANCE

EXEMPTION FROM BUSINESS LICENSE & VENDOR PERMIT

REQUIREMENTS FOR FULLY PROTECTED FIRST AMENDMENT
ACTIVITIES ON TRADITIONAL PUBLIC FORA

Sec. 5.5 Definitions

Display stand means any objects used to create or display purely expressive items or to facilitate
purely expressive conduct protected by the First Amendment. By way of example and not
limitation, the term includes tables and chairs to facilitate the exchange of purely expressive items
or conduct for remunerations, petitioning or leafleting; artist's easels; booths; and props used to
facilitate a performance or entertainment.

City means the ___________.

City council or council means the present governing body of the city or any future council
constituting the legislative body of the city.

Commercial means activity or speech, including but not limited to the advertising or selling of
merchandise, conducted for the primary purpose of proposing or completing a transaction for
generation of profit and which is thereby subject to a lower standard of protection under the First
Amendment than pure speech or expression.

Creative unit means two or more persons jointly engaged in the creation or production of
purely expressive items or engaged in purely expressive conduct, no one of whom stands in an
employer-employee relationship to any of the other members thereof. At least one member of the
creative unit must be present to be fully protected by the First Amendment when creating,
displaying, offering or exchanging purely expressive items for remunerations on sidewalks, parks
or other public forums.

Purely Expressive Conduct/Activities means: (i) performances of artistic self-expression

serving no other purpose than to be expressive; (ii) receiving remunerations in exchange for purely
expressive items or conduct; and, (iii) any other conduct which has been held by the courts to be
purely expressive and fully protected by the First Amendment of the United States Constitution.

Purely Expressive Item means: (i) items of artistic self-expression such having no other
purpose than to be expressive; (ii) items inextricably intertwined with a particularized message;
and, (iii) any other items which have been held by the courts to be expressive and protected by the
First Amendment of the United States Constitution.
 Remunerations money paid for work or a service. Not indicative of profit.

Items inextricably intertwined with a particularized message means an item which is offered
displayed or exchanged for remunerations that is inseparable from and intrinsically intertwined
with the overall expression of a political, religious, philosophical or ideological message, doctrine,
concept, belief or idea. Examples include but are not limited to: bumper stickers; hats or buttons
with messages such as "Earth Now", "Peace Not War" or "Support Unions"; bibles; religious
brochures; election pamphlets; a toy stuffed whale with a "Greenpeace" logo or tag affixed so that
it is intended to convey a philosophical message of "Save the Whales"; and an unlabeled toy doll
of an emaciated child, with no apparent connection to any organization, distributed to donors by
"Save the Children" at a booth with their name and educational handouts.

Artistic self-expression means the performance or display by the creator or creative unit of an
inherently expressive, original, non-functional, work of art. These items or performances include
but are not necessarily limited to: paintings, drawings, sculpture, photography, re-prints of original
work, engravings, written works, stained glass as non-functional "art for art's sake", recordings of
the artist's composition or performances, or performing arts including oration, music, dance,
theater, and film.

Artistic self-expression does not include items which are intended to serve any functional or
utilitarian use or purpose, even if the item is decorative. Examples of such items include
handcrafts, jewelry, tools, clothing, food, pottery, silver work, metal work, woodwork, leather
goods, house wares, appliances, clothing, sunglasses, auto parts, oils, incense, perfume, lotions,
candles, toys, stuffed animals and trinkets.

Artistic self-expression may include items that appear on first impression to be functional or
utilitarian, but have been modified to demonstrate the "art for art's sake" intent of its creator, and
are not intended to serve any utilitarian, functional or commercial uses or purposes. Examples
include but are not limited to:

(1)
A stained glass window not intended or understood to be used as a functional window.
(2)
Pottery as tableware is utilitarian even if it is decorative. However, pottery may become
expressive where it has been modified by its creator to show their intention that the
items are for display rather than for use as tableware.
(3)
While a macram pot hanger has a functional purpose and would not be protected artistic
self-expression, a macram soft sculpture with no other purpose than to hang on the
wall as "art for art's sake" would be protected.

A Traditional public forum means public parks, plazas, or sidewalks or any place designed or
designated for gathering or pedestrian foot traffic.
 Park means a tract of land, great or small, dedicated and maintained for the purposes of free
assembly, pleasure, exercise, amusement, or ornament; a place to which the public at large may
resort to for gathering, exchanging ideas, recreation, air, and light. A park may include various
facilities used by the public generally for gathering and recreation, including gazebos, benches,
restrooms, picnic tables, walking paths, tennis courts, pitching horse shoes, croquet, baseball,
basketball, horseback riding, picnicking, and general outdoor exercise. Recreational parks are
governmental in design because their purpose is to promote and benefit the health and pleasure of
the public."

Sidewalk means areas lawfully open to public use or passage including walkways, paths,
sidewalks and other public ways set apart by curbs, barriers, markings or other delineation for
pedestrian travel, excluding streets and other public ways improved, used or designed for use by
vehicular traffic.

Sec. 5.5.2 - Purpose

It is the purpose of the city council to protect and defend the constitution which includes the rights
of all people to engage in public displays of purely expressive conduct which are fully protected by
the First Amendment. The city council recognizes that exempting such activities from business
license and vendor permit codes is not just a legal requirement, it is necessary for the creation of a
robust, accessible and equitable market place of ideas that is essential to a healthy, well
connected, and adaptive community capable of ensuring our individual liberty and promoting our
collective interests.

The city council recognizes that there are other forms of speech or conduct protected by the First
Amendment which it supports, but which is not addressed in this chapter. It is also the purpose of
the city council to keep public spaces accessible for everyone, facilitate their shared use, keep the
sidewalks free of congestion and to ensure free and safe public passage on sidewalks and streets
by establishing narrowly tailored time, manner and place regulations governing purely expressive
conduct on traditional public fora and for the use of displays and other items in facilitating such
public displays of expression.

Sec. 5.5.2.3 Exemption from Business License and vendor permit

requirements for public displays of purely expressive conduct or purely
expressive items.

The provisions of this chapter shall be deemed or construed to exempt any person or creative unit
from any requirement to apply for or pay for a business license or vendor permit to conduct purely
expressive activities or display purely expressive items in traditional public forums.
Sec. 5.5.2.3.5 - Regulations for use of display stands to facilitate purely
expressive conduct or the exchange of purely expressive items or
conduct for remunerations on sidewalks and in parks.

(a)
The use of display stands for the creation, display, offer or exchange of purely expressive
items or purely expressive conduct for remunerations shall be allowed on city sidewalks and
in city parks subject to limitations that display stands and expressive items shall:
(1)
Leave at least five feet of clear passageway along any sidewalk.
(2)
Not be located within 18 inches of the curb line of any sidewalk.
(3)
Not extend more than eight feet above any sidewalk.
(4)
Not impede access to the entrance of any adjacent building or driveway.
(5)
Not be located within ten feet of a crosswalk, bridge, fire hydrant, fire department
standpipe connection, fire escape, driveway of a fire station, police station, or hospital,
bus stop, any entrance or exit doorway, wheel chair ramp, green, yellow or red zone, or
obstruct a commercial business sign.
(6)
Not lean against or hang from any building or any other structure, including, but not
limited to, structures such as lamp posts, parking meters, mail boxes, traffic signal
stanchions, fire hydrants, fire department standpipe connections, trees, tree boxes,
benches, bus shelters, or traffic barriers which lawfully occupy public space.
(b)
A person erecting or using a display stand or displaying purely expressive items on a
sidewalk, including but not limited to persons engaged in the creation, display, offer or
exchange of expressive conduct or merchandise for remuneration, shall abide by the
provisions of the Chapter relating to vending during special events and abide by all guidelines
set forth therein.

Sec. 5.14.130. - Severability

If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this chapter or
any part thereof, is for any reason held to be unconstitutional or invalid or ineffective by any court
of competent jurisdiction, such decision shall not affect the validity or effectiveness of the
remaining portions of this chapter or any part thereof. The city council hereby declares that it
would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase
thereof irrespective of the fact that any one or more sections, subsections, subdivisions,
paragraphs, sentences, clauses or phrases be declared unconstitutional or ineffective.