HomeMy WebLinkAbout46. 16-159MARCH 8, 2016 MARCH 22, 2016 16-115 16-159 ORDINANCE
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PURPOSE: APPROVE AMENDMENTS TO THE CITY OF OSHKOSH
MUNICIPAL CODE SECTION 5-18 PERTAINING TO SPECIAL
EVENTS, MARCHES & PUBLIC ASSEMBLIES
INITIATED BY: CITY ADMINISTRATION
A GENERAL ORDINANCE OF THE CITY OF OSHKOSH APPROVING
AMENDMENTS TO THE CITY OF OSHKOSH MUNICIPAL CODE SECTION 5-18
PERTAINING TO SPECIAL EVENTS, MARCHES AND PUBLIC ASSEMBLIES
The Common Council of the City of Oshkosh does ordain as follows:
SECTION 1. That Section 5-18 II. A. first unnumbered paragraph of the Oshkosh
Municipal Code pertaining to the definition of a Special Event is hereby repealed and
recreated to read as follows:
Examples of Special Events include but are not limited to activities such as
running/jogging/walking events; boat, bicycle, running or road races and other
forms of competition and athletic events; music, theater, film performances or
concerts; water ski demonstrations, air shows, carnivals, equipment shows,
cultural events such as art fairs, antique shows, religious services, classes,
meetings, parties, and other gatherings meeting the above criteria. A Special
Event is not intended to include events such as a family gatherings; nonprofit
organization, business, or company picnic; or other similar events unless other
criteria listed above apply.
SECTION 2. That Section 5-18 II. C. of the Oshkosh Municipal Code pertaining to
the definition of Extraordinary Services is hereby repealed and recreated to read as
follows:
C. “Extraordinary Services” means reasonable and necessary services provided
by the City which specifically result from the Special Event. Extraordinary
services result in measurable financial costs which are above and beyond the
normal levels of public health and safety services on a non-event day.
Extraordinary services will normally be those services requiring city
employees to be specifically assigned to tasks in support of the Special Event
and/or those services resulting in overtime pay or similar costs which result
from the event. Examples of extraordinary services may include police
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protection, traffic control, fire monitoring, dedicated paramedic services, parks
services, and other services necessary to ensure the protection of
participants and citizens, the proper functioning of City services, and the
proper administration of this Ordinance and policy. The City will make
reasonable efforts to adjust the schedules of employees to minimize the
requirement for overtime pay or other costs for Extraordinary Services where
sufficient advanced notice of the event is provided.
SECTION 3. That Section 5-18 II. D. of the Oshkosh Municipal Code pertaining to
the definition of March is hereby repealed and recreated to read as follows:
D. “March” means a group of persons, of any number, moving from one place to
another on a public way or public place, which requires a street closing or
otherwise requires police officers to stop, reroute or alter the normal flow of
vehicular or pedestrian traffic because marchers are unlikely to comply with
traffic regulations and controls. A march is for the purpose of conducting
activities which are protected by the Constitution. All circumstances which do
not meet the specific definition of a March will be reviewed as a Special
Event.
SECTION 4. That Section 5-18 II. F. of the Oshkosh Municipal Code pertaining to
the definition of Organizer is hereby created to read as follows:
F. Organizer means any person, persons, or entity that arranges, plans,
coordinates or takes other substantive actions to gather persons for a Special
Event, March or Public Assembly. The determination of whether someone is
an Organizer shall be based upon common understanding and definitions of
the words “organize”, ‘organizer”, “arrange”, “plan” and “coordinate” with the
ultimate determination based upon the totality of the circumstances after
considering all relevant factors, including but not limited to, the following:
1. Whether the person, persons or entity establishes or takes substantive
actions to establish the date for such Special Event, March or Public
Assembly.
2. Whether the person, persons or entity arranges, plans or coordinates or
takes substantive actions to arrange, plan or coordinate the activities
associated with the Special Event, March or Public Assembly.
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3. Whether the person, persons or entity arranges, plans or coordinates or
takes substantive actions to arrange, plan or coordinate the activities of
persons to assist with the operation of the Special Event, March or Public
Assembly.
4. Whether the person, persons or entity erects or arranges, plans or
coordinates or takes substantive actions to arrange, plan or coordinate the
erection of temporary structures, placement of barricades or cones, signs,
or other structures or objects to facilitate the Special Event, March or
Public Assembly.
5. Whether the person, persons or entity advertises and promotes the
Special Event, March or Public Assembly by means of traditional
advertisements, banners, flyers, web-based promotion, social media or
other means.
6. Whether the person, persons or entity creates or causes another to create
original content related to the advertisement or promotion of the Special
Event, March or Public Assembly.
7. Whether the person, persons or entity pays any costs or expenses for the
purpose of the Special Event, March or Public Assembly.
8. Whether the person, persons or entity receives revenue from the Special
Event, March or Public Assembly, directly or indirectly, by admissions,
concessions, sales of other products or services.
Organizer does not include persons or entities which solely advertise or promote
a Special Event, March, or Public Assembly as part of a contract or agreement
for advertising services, such as a newspaper who accepts advertisement for an
event, a convention and visitors bureau, tourism bureau or persons who merely
pass along information pertaining to a Special Event, March, or Public Assembly
through word of mouth, social media or otherwise. Organizer does not include
persons or entities that provide sponsorship through the provision of money,
goods or services, whether in exchange for advertising or not, for a Special
Event, March or Public Assembly with a separately identified Organizer.
The City Manager, or their designee, shall have the exclusive authority to
determine whether or not a person, persons or entity meets the definition of an
“Organizer” under this ordinance.
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SECTION 5. That Section 5-18 IV. A. 1. of the Oshkosh Municipal Code
pertaining to permit requirements for Special Events is hereby repealed and recreated to
read as follows:
1. Completed written applications for a Special Event permit along with the
application fee shall be filed with the City Special Events Coordinator.
Applications shall be on the form approved by the City and signed by the
person or authorized representative(s) of the entity organizing the Special
Event. In lieu of the application fee*, the event organizer may submit with its
application a request that the fee be waived* and provide in detail the reasons
of financial hardship and any other reasons for such request. The application
may be filed as early as desired by the applicant, but shall be filed no more
than one (1) year before, and no less than 60 days prior to the event.
SECTION 6. That Section 5-18 IV. B. 1. of the Oshkosh Municipal Code
pertaining to permit requirements for Marches and Public Assemblies is hereby repealed
and recreated to read as follows:
1. Completed written applications for any March or Public Assembly permit
along with the application fee shall be filed with the City Special Events
Coordinator a minimum of five (5) business days prior to the proposed March
or Public Assembly. Applications shall be on the form approved by the City
and signed by the person or authorized representative of the entity organizing
the March or Public Assembly. In lieu of the application fee, the event
organizer may submit with the application form a request that the fee* be
waived and provide in detail the reasons for financial hardship and any other
reasons for such request.
SECTION 7. That Section 5-18 V. A. of the Oshkosh Municipal Code pertaining to
application information and the requirements related to duration and hours of operation
for Special Events is hereby repealed and recreated to read as follows:
A. Duration and hours of Operation: The Special Event application shall specify
the specific days upon which the event shall occur or, in the case of seasonal
or recurring events, the days within the season or period within the calendar
year upon which the event will occur. No Special Event shall be open to the
public except between the hours of 8:00 a.m. and 11:00 p.m., unless such
other hours of operation are specifically approved by the Council. The permit
application shall also specify the hours during which pre-event and post-event
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takedown operations will occur, and no such pre-event and post-event
activities may be conducted other than as specified.
SECTION 8. That Section 5-18 V. C. of the Oshkosh Municipal Code pertaining to
application information related to parking for Special Events is hereby repealed and
recreated to read as follows:
C. Parking: A Special Event permit application shall include a plan identifying
areas that may be reasonably expected to be utilized by event participants for
off-street and on-street parking. The applicant shall take all reasonable
precautions to minimize adverse effects on the neighborhoods that will be
directly affected by parking and traffic related to the event. The police
department shall post temporary parking–related regulations on public streets
for the Special Event only if it is determined to be necessary by the Police
Chief for public safety or as may be directed by the Common Council within a
permit approval process.
SECTION 9. That Section 5-18 VI. A. of the Oshkosh Municipal Code pertaining
to application review for Special Events is hereby repealed and recreated to read as
follows:
A. Applications for Special Event permits shall be processed in the order of their
receipt. Persons or groups holding an approved Special Event may reserve
dates for the event to be held the following year provided they submit to the
City Special Events Coordinator notification of their intent to hold the event,
the date(s) on which the event is expected to be held, and the application fee
within sixty (60) days after the end of the Special Event. This notice and fee*
will reserve the dates identified until the formal application is submitted, or the
notice of intent is withdrawn, and will have priority over any other applications
received. Dates will not be reserved if an application also includes a request
to waive the application fee. Unless the City receives a notification of intent to
hold an event as described above, the use of City property and allocation of
City resources shall be based upon the applications as they are received
without regard to events that may have been held in previous years.
Recurring events with separate agreements approved by the Council will
have priority over the above reservations for the reservation of dates and the
allocation of City Services.
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SECTION 10. That Section 5-18 VII. A. 1. of the Oshkosh Municipal Code
pertaining to application fees is hereby repealed and recreated to read as follows:
1. Special Event, March, and Public Assembly Permits (non-refundable)
a. Single day event $25.00
b. Multiple day event (consecutive or recurring) $35.00
SECTION 11. That Section 5-18 VII. D. 1. of the Oshkosh Municipal Code
pertaining to the considerations for reviewing application fees and/or extraordinary costs
is hereby repealed and recreated to read as follows:
1. The Special Event’s benefit to the quality of life to the City as a whole;
SECTION 12. That Section 5-18 VIII. of the Oshkosh Municipal Code pertaining to
indemnification and hold harmless requirements for Special Events is hereby repealed
and recreated to read as follows:
INDEMNIFICATION AND HOLD HARMLESS
VIII.
Organizers of Special Events, Marches, and Public Assemblies shall be required
to sign an agreement in a form acceptable to the City in which they agree to
indemnify the City of Oshkosh, and its departments, and hold the City and its
departments, employees, and agents, harmless from any liability to any person
resulting from any damage or injury to property or any person which occurs in
connection with the permitted event proximately caused by any actions or
inactions of the event’s organizer, their officers, employees, or agents, or any
person under their control insofar as permitted by law.
SECTION 13. That Section 5-18 IX. of the Oshkosh Municipal Code pertaining to
insurance requirements for Special Events is hereby repealed and recreated to read as
follows:
IX. INSURANCE
All Special Event organizers shall procure at their expense, a policy of insurance
subject to the City’s minimum requirements for Special Events.
The insurance required by the City of Oshkosh is primary coverage for incidents
which may occur on City property or to City employees during the vent, and any
insurance or self-insurance maintained by the City of Oshkosh, its officers,
council members, agents, employees or authorized volunteers will not contribute
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to a loss. All insurance shall be in full force prior to commencing the event and
remain in force throughout the entire event, including the clean-up period after
the event.
The certificate of insurance shall be satisfactory proof of insurance of said
policies and shall be filed at the office of the Special Events Coordinator for the
City of Oshkosh a minimum of thirty (30) days prior to the scheduled event.
A copy of the certificate of insurance may be accepted by facsimile transmission
or an email attachment with the original to be received no later the ten (10) days
prior to the event. The event shall not be allowed to proceed without submission
of insurance documentation. The City’s act of receiving and retaining proof of
insurance information without comment shall not be considered acceptance,
waiver, or modification of any term or requirement herein, or any applicable law.
SECTION 14. That Section 5-18 XII. of the Oshkosh Municipal Code pertaining to
severability is hereby repealed and recreated to read as follows:
XII. SEVERABILITY
If any provision of the Ordinance or application thereof to any person or
circumstances be held invalid, the remainder of this Ordinance and the
application of such provision to other persons or circumstances shall not be
affected. The City of Oshkosh reserves the right to amend or repeal this
Ordinance at any time upon proper notice; and all rights; privileges and
immunities conferred by the Ordinance or by acts done pursuant hereto shall
exist subject to such power.
SECTION 15. This ordinance shall be in full force and effect from and after its
passage and publication, except that the Section 10 of this ordinance pertaining to
application fees shall be effective for Special Events, Marches and Public Assemblies
occurring on and after January 1, 2017.
SECTION 16. Publication Notice. Please take notice that the City of Oshkosh
enacted ordinance #16-115 (A GENERAL ORDINANCE OF THE CITY OF OSHKOSH
APPROVING AMENDMENTS TO THE CITY OF OSHKOSH MUNICIPAL CODE
SECTION 5-18 PERTAINING TO SPECIAL EVENTS, MARCHES AND PUBLIC
ASSEMBLIES) on March 22, 2016. The ordinance amends various provisions of the
City’s Special Events Ordinance to incorporate the position of Special Event
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Coordinator, to make wording more clear and to define an Organizer for purposes of the
ordinance. The Ordinance also establishes an application fee for Special Events,
Marches and Public Assemblies occurring on or after January 1, 2017 of $25 for single
day events and $35 for multiple day events.
The full text of the ordinance may be obtained at the Office of the City Clerk, 215
Church Avenue and through the City’s website at www.ci.oshkosh.wi.us. Clerk’s phone:
920-236-5011.
CITY HALL
215 Church Avenue
P. O. Box 1130
Oshkos 5 902-�1130 City of Oshkosh
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TO: Honorable Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
DATE: March 3, 2016
RE: Ordinance to Approve Amendments to the City of Oshkosh
Municipal Code Section 5-18 Pertaining to Special Events, Marches
and Public Assemblies / Definition of Organizer
BACKGROUND
Judge Gritton dismissed the City's claims against Joseph Kubiak for charges
related to the two Oshkosh Pub Crawls conducted in 2014, as well as, the Fall
2015 Oshkosh Pub Crawl.
At the end of testimony at the trial the Court requested that the parties provide
additional legal analysis pertaining to whether the City's ordinance was
unconstitutionally vague because it did not define the word organizer.
Throughout the litigation, Mr. Kubiak never challenged the constitutionality or
validity of the Special Event Ordinance. Instead, the issue of whether the City's
ordinance was unconstitutionally vague was raised by the Court during the trial.
We believe that existing law should have resulted in a determination that the
ordinance is valid. Anyone challenging the constitutionality of an ordinance has
the burden of establishing the unconstitutionality of the ordinance beyond a
reasonable doubt. We do not believe that Mr. Kubiak has met that burden, and
we do not believe that the Court's decision meets that burden. The word
organizer as used in the special events ordinances was not intended to have a
special or unique meaning because its common meaning adequately identifies
those persons (organizers) subject to the ordinance. The law allows courts to
use dictionaries to determine the common meaning of words. The City pointed
out that an organizer is someone who organizes, and that to organize means to
arrange, plan, coordinated, to gather people into a group to work on something
or do something, and to prepare for or organize an activity or event.
The Court did not clearly articulate the standard being applied. While the Court
appeared to appreciate the difficulty of requiring the City to specifically define
who an organizer may be for every particular circumstance, the Court
determined that it could not figure out whether Mr. Kubiak was an organizer of
this event and therefore the ordinance must be defective and unconstitutionally
vague.
ANALYSIS
Although we believe the Court's decision to be in error, we have drafted a
definition of the word organizer in response to the concern raised by the Court.
The approach that we have taken is essentially the same approach that we
expected from the Court in its decision. That is, whether someone is an
organizer of an event should be determined on the totality of the circumstances
and should consider all relevant factors.
The proposed ordinance lists several factors that may indicate that a person is an
organizer and should be held responsible for the costs and other consequences
of an event in the proposed ordinance. Although we recognize that because of
the wide diversity of events and methods of organization, there is no "one-size-
fits-all" definition for organizer. It ultimately depends on what the event is and
how the event is carried out. It would be impossible with the variety of events
and variety of ways one might undertake various activities, for example,
advertising of an event, to define an organizer by saying if one does this or that,
they are an organizer.
Finally, the proposed definition gives exception to certain activities and events
from meeting the definition of an organizer. For example, although the Oshkosh
Convention and Visitors Bureau may advertise an event on their website, the
proposed definition makes clear that this alone would not make the OCVB or a
similar organization the organizer of an event.
FISCAL IMPACT
It would be very difficult to measure the potential fiscal impact of this ordinance.
The ordinance allows the City to recoup from organizers the costs associated
with special events, marches and public assemblies which require the provision
of extraordinary services by the City. Because the Court determined that the
ordinance was unconstitutionally vague as it related to the lack of a definition of
organizer, particularly as applied to the specific case involving the pub crawls,
this proposed revision would allow the City to essentially reset and reevaluate the
pub crawls and all events under the definition to make a determination whether
the person/organization should be required to file an application for a permit and
whether any extraordinary costs associated with an event should be charged to
that person/organization.
RECOMMENDATION
Staff recommends approval of the ordinance.
Res�ectfully Sub 'tted,
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City Attorney
Approved: �
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Mark A. Rohloff
City Manager
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TO: Honorable Mayor and Members of the Common Council
FROM: Kathryn Snell, Special Events Coordinator
DATE: March 3, 2016
RE: APPROVE AMENDMENTS TO THE CITY OF OSHKOSH MUNICIPAL
CODE SECTION 5-18 PERTAINING TO SPECIAL EVENTS, MARCHES
AND PUBLIC ASSEMBLIES
BACKGROUND
On March 9, 2010, the Common Council adopted a Speciai Events, Marches, and Public
Assemblies Ordinance which ailows the City to recover certain costs related to extraordinary
services provided to specific special events. The Ordinance had provided that applications for a
Special Events permit would be gathered through the office of the City Clerk. As of October, 2015
a Special Events Coordinator position was created to accept and process applications and work
as a liaison between City departments and event organizers.
ANALYSIS
The proposed Ordinance reflects the shift in Special Event job duties from the City Clerk to the
Special Events Coordinator. With a Special Events Coordinator now hired, staff has surveyed
other municipalities locally and around the state regarding their Speciai Event fee structure and
have found that most are charging for extraordinary services, facility use, additional permits,
licenses etc., in addition to charging an application fee for each Special Event. This fee assists
in offsetting the costs of reviewing and processing the special event applications by City staff.
Staff is recommending a Special Events application fee be applied to all Special Events being
held in the City of Oshkosh after January 1, 2017. All events submitting applications in 2016 for
events to be held in 2017 would be assessed the application fee. The recommended fees are:
Single day event $25.00
Multiple day event (consecutive or recurring) $35.00
Sections within the Ordinance with asterisks where a reference to a fee is represented will not
show as amended unless the Special Event Application Fee is approved; at that time these
asterisks will be removed from the Ordinance.
The Council has previously waived all costs related to community-wide parades and residential
neighborhood block parties. Staff is recommending that this practice be continued with
community-wide parades and neighborhood block parties remaining exempt from this application
fee. Typically these events have no or very little cost associated with them and staff believes the
value of continuing to promote these types of activities outweighs any costs which may fall upon
the City as a whole from these events.
FISCAL IMPACT
The proposed Ordinance would aliow the City to recover some costs related to special event
applications. Following is the financial impact that would have been realized in 2014 and 2015
had this fee been in place.
2014
Single Day Events
Multiple Day Events
2015
Single Day Events
Multiple Day Events
RECOMMENDATION
$1,875.00
1 365.00
$3,240.00
$1,775.00
1 120.00
$2,895.00
Staff recommends approval of the Ordinance as proposed.
Respectfully Submitted,
Kathryn Snell
Special Events Coordinator
Approved:
at,tr, j�.
ark A. Rohloff
City Manager