CITY AND COUNTY OF HONOLULU
DEPARTMENT OF PARKS AND RECREATION
Under and by virtue of the authority conferred upon her by Chapter 91, Hawaii Revised Statutes (HRS), Section 4-105 of the Revised Charter of the City and County of Honolulu 1973 (1994 Edition) (RCH), Article 9 of Chapter 1, Revised Ordinances of Honolulu 1990 (ROH), and every other enabling power, the Director of the Department of Parks and Recreation of the City and County of Honolulu does hereby prescribe the following:
RULES AND REGULATIONS
RELATING TO THE SALE OF MESSAGE-BEARING MERCHANDISE BY
NONPROFIT ORGANIZATIONS IN CITY PARKS AND FACILITIES
Section 1. Findings and Purpose. The Department of Parks and Recreation of the City and County of Honolulu recognizes that various nonprofit organizations wish to practice First Amendment activities in public fora, such as City and County of Honolulu parks which are under the management and control of the Department of Parks and Recreation.
The Department of Parks and Recreation finds that nonprofit organizations are presently engaged in proselytizing and in the sale of commercial merchandise which may contain messages advocating the purposes, goals and objectives of the organizations and to gain support for such nonprofit organizations.
The Department of Parks and Recreation also recognizes that First Amendment activities are subject to reasonable time, manner and place limitations. It is further recognized that the Department of Parks and Recreation has the duty to ensure use of park facilities by appropriate distribution of users; ensure proper, orderly and equitable use of areas and facilities through scheduling and user controls; ensure protection and preservation of areas and facilities by not overtaxing facilities; and promote the health, safety and welfare of the users of the areas and facilities.
The purpose of these rules is to govern the use of City and County of Honolulu parks and facilities for First Amendment activities by nonprofit organizations who seek to engage in the sale of commercial merchandise which contain statements inextricably intertwined with messages sought to be communicated by the nonprofit organizations. These rules shall also apply to sanctified foodstuff and religious literature distributed by religious organizations in exchange for monetary contributions. The rules are also intended to protect the interest of the
general public by assuring that only nonprofit organizations who have satisfied the requirements under these rules and who have received permits are allowed to participate in these activities within City and County of Honolulu park facilities.
Hawaii, and in particular the island of Oahu, has many scenic locations of special beauty for which the Department of Parks and Recreation has the task of preserving and maintaining. These vistas provide visitors and the residents of Hawaii with recreational, educational and aesthetic amenities; and these interest need protection for the enjoyment of all. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 2. Applicability and Scope. These rules shall apply to all areas of the park system under the control and jurisdiction of the Department of Parks and Recreation, City and County of Honolulu, as defined in Section 10-1.1, ROH 1990, as amended. [Eff: May 25. 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 3. Definition. As used in these rules, unless the context requires otherwise:
"Applicant" means a nonprofit organization which is in the process of applying for a First Amendment activity permit on an application form provided by the Department of Parks and Recreation to conduct the sale of message-bearing merchandise in he City and County of Honolulu park system, pursuant to these rules.
"Application month" shall mean the calendar month preceding the permit month.
"Authorized representative" means any person legally or otherwise properly designated to act for the Director.
"City" means the City and County of Honolulu.
"Department" means the Department of Parks and Recreation, City and County of Honolulu.
"Designated area" shall mean the area within the park system identified and appropriately marked wherein the sale of message-bearing merchandise may occur pursuant to these rules.
"Director" means the Director of the Department of Parks and Recreation, City and County of Honolulu.
"Message-bearing merchandise" shall mean a product bearing a message which is inextricably intertwined with the product and with purpose and activities of the permittee, which permittee will sell or intends to sell, under a permit issued pursuant to these rules. All message-bearing merchandise must constitute or contain a conspicuous political, religious, philosophical or ideological message having intellectual content which is informative of the purpose of the permittee's organization and which is permanent, indelible, or permanently a part of the merchandise and is readable or recognizable from a reasonable distance when the merchandise is used for its intended purpose.
"Nonprofit organization" means an organization, which can establish that it (i) is exempt (or would qualify for an exemption) from the payment of federal income taxes under Section 501 of the United States Internal Revenue Code, (ii) is exempt (or would qualify for an exemption) from the payment of state income taxes as a nonprofit organization under the HRS, or (iii) is organized and operated exclusively for religious, charitable, scientific, literary, cultural, educational, or political purposes on a nonprofit basis in which no part of the assets, income or earnings of which inures to the benefit of any individual, or member thereof.
"Park system" shall mean any park, beach, recreational facility, field, center, place, parking lot, road, or other area under the jurisdiction and control of the department.
"Permit month" shall mean the calendar month in which a permit period begins.
"Permit Section" shall mean the office within the department responsible for processing of the applications to conduct First Amendment activities under these rules and issuance of the permits authorizing said activities.
"Permittee" shall mean the nonprofit organization which has been issued a permit to conduct First Amendment activities in the City park system according to these rules.
"Person" shall mean individuals as well as organizations. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 4. Location and Hours of operation for First Amendment Activities Pursuant to a Permit. Nonprofit organizations, which obtain a permit from the director in accordance with these rules, shall be permitted to engage in the sale of message-bearing merchandise during daylight hours but not earlier than 8:30 a.m. nor later than 5:30 p.m. at the designated areas within the park system. The designated areas for Hanauma Bay Nature Preserve, Sandy Beach Park, and Ala Moana Regional Park are as shown on Attachments A through D.
Whenever a nonprofit organization shall seek a permit to engage in the sale of message-bearing merchandise in a park, facility, beach, recreational area, or other areas under the control and jurisdiction of the department other than the parks named in Attachments A through D, the director shall temporarily designate at least one location in the desired facility where such activity shall occur. A public hearing to amend these rules will be called at the earliest time possible to determine the permanent designated area. The location must be selected using the following criteria: the selected location must allow the organization access to visitors, while at the same time ensuring that free passage shall not be obstructed and that the aesthetic and recreational values of the facility shall be protected.
No permittee shall maintain more than one table, which dimensions do not exceed 3 feet by 3 feet, or other device at each designated area. A separate permit shall be required for each designated area. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 5. Closure and/or Relocation of Areas. The director or an authorized representative may temporarily close and/or restrict the use of all or any portion thereof of park facilities or the designated area if the park and/or park facilities are closed to the public due to damage or scheduled or ongoing maintenance or construction and such closure or relocation is necessary for the protection and preservation of the park and its facilities or for the safety and welfare of persons or property. In addition, the director may temporarily close and/or relocate the designated area if the park and/or park facilities are closed due to natural disaster, severe weather condition, civil disturbance, employee strike or other labor dispute, or a duly declared state of emergency. Permittee(s) at each designated area shall be given reasonable notice by the director and/or authorized representative of any closure and/or relocation, except when exigent circumstances or an emergency would make such notice impracticable.
If construction work occurs at or near any of the designated areas, and the sale of message-bearing merchandise would interfere with the construction work or would create a public safety hazard, the director may temporarily suspend the use of the designated area until such time as the construction work is completed. Upon completion of the construction work, the director may again issue permits to qualified nonprofit organizations for the sale of message-bearing merchandise at the affected designated area. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 6. Prohibition. Except as other wise permitted by these rules and any other provision of the ROH or by contract with the City and County of Honolulu, no person shall engage in any sales activity in or upon the park system or any portion thereof.
Section 7. Application for Permits.
(a) The director, or any authorized representative, may accept applications for permits to conduct First Amendment activities within the park system. All applications shall be on forms prescribed by the department.
(b) Nonprofit organizations shall be eligible for a permit if either: (1) they are in compliance with Chapter 467B, HRS; Section 501 of the United States Internal Revenue Code; and exempt from the payment of income taxes under the HRS or (2) they agree in writing to comply with the provisions of 467B, HRS.
(c) An application for a permit month shall be received by the department during regular business hours between the first and tenth day of the application month. All applications shall be submitted to the permit section of the department.
(d) Each nonprofit organization shall submit no more than one application per application month for each designated area and permit period for which a permit is desired in the permit month. Each application is eligible for one or more permits in the permit month subject to Section 9.
(e) Each application shall be accompanied by a certificate of insurance from a company licensed to do business in the State of Hawaii, containing thereon liability coverage in an amount of not less than $300,000 bodily injury per occurrence and $10,000 property damage per occurrence. The City and County of Honolulu and the State of Hawaii shall be named as additional insured on the certificate of insurance. The director may authorize a waiver of Liability in lieu of the insurance. If sanctified food products are being distributed as message-bearing merchandise, a current copy of the State of Hawaii Department of Health clearance certificate shall also be attached to the application.
(f) All permits shall be valid for a period of one calendar month unless otherwise provided for in Section 9 (b) herein. [Eff: May 25, 1996] (auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 8. Applicant Information. The permit application shall require the following information:
(a) The name and address of the nonprofit organization;
(b) The name, addresses, and telephone numbers of the individuals in charge of organizing and/or managing the message bearing sales activities, and where these individuals may be reached during normal business hours;
(c) The names and addresses of the individuals who are to be involved in the sales of message-bearing merchandise and their affiliation with the nonprofit organization;
(d) A description of the message-bearing merchandise to be used by the applicant at the designated area;
(e) The mission and purpose of the nonprofit organization and the purpose of the sales activity;
(f) Proof of the applicant's nonprofit status. Such proof shall include a certificate or other document from the Internal Revenue Service attesting to the tax exempt status as a nonprofit organization, a file-stamped copy of the nonprofit organization's registration pursuant to HRS Chapter 415B, or a file-stamped copy of a charitable organization registration pursuant to HRS Chapter 467B; and
(g) The location of the designated area and period for which the applicant desires to engage in message-bearing sales activity. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 9. Assignment of Permits at Designated Areas.
(a) Upon receipt of the information required in Section 8 on the requisite forms, the director or authorized representative shall award the applicant a permit on a non-discretionary basis, unless the number of applicants exceeds the allotted space within the designated area. If the latter occurs, then the space within the designated area shall be allocated in accordance with subsection (b), below.
(b) If the number of applicants for any permit period exceeds the allotted space available at a designated area, a lottery shall be held on the 20th day of the application month or, if the 20th day is a Saturday, Sunday, or holiday, on the first business day thereafter, for all permits to be effective in the succeeding month (permit month). The lottery shall be conducted as a rotating drawing or in some other basis which ensure that all applicants participating therein have an equal opportunity to obtain a permit to be effective during the permit month. This may result in permits being issued for less than one month to accommodate all applicants for that month.
(c) No permit issued in accordance with these rules shall be transferable. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 10. Table Size, Staffing and Signage.
(a) The tables used by the permittee for the display and sale of message-bearing merchandise shall not exceed 9 square feet in area, nor shall any side of the table exceed 3 feet in length (see Attachment D).
(b) Each permittee shall be limited to one sign of no more than 2 feet by 2 feet per table. The permittee's name shall be displayed in a readable manner on said sign.
(c) Each permittee shall have no more than two persons representing permittee at each table during the permitted hours of operation under the permit. [Eff: May 25, 1996 (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 11. Manner of Display. Each permittee shall neatly display all items of merchandise on the table. Merchandise may be stacked on the table, provided that each stack of message bearing merchandise shall not exceed 12 inches in height. No items of merchandise shall be displayed in any other area, including, but not limited to, any vehicle parked in any portion of the park system. Any boxes and accessory items at the designated area shall be stored wholly underneath the table. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1 9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 12. Fact Sheet; Sales Receipt.
(a) A laminated fact sheet, at least 8-1/2 x 11 inches in size, shall be displayed at the table and shall contain, in a clearly legible manner, at a minimum, the following information:
(1) The name, address and purpose(s) of the nonprofit organization;
(2) That the nonprofit organization is not in any way associated with the City and County of Honolulu; and
(3) That the message-bearing merchandise is being sold as part of the permittee's activities.
(b) Each permittee shall provide a receipt to the purchaser with each sales transaction if the purchaser so request it. The receipt shall contain:
(1) The name and address of the nonprofit organization conducting the sales transaction; and
(2) The date of the sale, the number and type of items sold, and the dollar amount received for the transaction. [Eff: May 25, 1996 ] (Auth: RCH 1994 § 4-105; ROH 1990 § § 1-9.1) (Imp: ROH 1990 § § 10-1.2, 10-1.3)
Section 13. Permit on site.
(a) The original of the permit issued must be displayed by the permittee, in a conspicuous manner, at each designated area at all times.
(b) Each person engaged in sales activity, pursuant to an issued permit, shall at all times wear and keep visible in a conspicuous manner, a legible identification badge containing the name of the individual and the name and address of the nonprofit organization. [Eff: May 25, 1996 ] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 14. Conformity to Permit Conditions. As a condition of the issuance of the permit, permittee shall agree to abide by the following conditions:
(a) Each permittee shall have no more than two individuals at each table in the designated area as its representatives during the times when sales activities are allowed. Joint staffing of tables is strictly prohibited. Joint staffing means representatives of more than one permittee conducting sales activities at a table simultaneously.
(b) Permittee shall remove tables and accessories from the designated area at the end of each day's sales activity.
(c) Permittee shall, on a daily basis, remove all litter generated in or about the designated area as a result of the sales activities.
(d) Permittee shall abide by all Federal, State, City and County of Honolulu laws, ordinances, conditions, rules and regulations while conducting First Amendment activities.
(e) Permittee, or those individuals acting on their behalf, shall not:
(1) obstruct, delay, impede, hamper, or interfere with the free movement of any persons, traffic or any authorized activities within the park system;
(2) seek to or coerce or physically disturb or molest any person within the park system or persist in proselytizing after such action has been affirmatively declined by any person;
(3) obstruct, interfere, delay, impede, or hamper the work of any City personnel in the park system; or
(4) erect, construct or place any permanent or temporary structure, tent, booth, pavilion, sign or other structure except as permitted by these rules. [Eff: May 25, 1996] (Auth: RCH 199 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 101.2, 10-1.3)
Section 15. Denial of Permit. The director, or authorized representative, may deny the issuance of a permit to any applicant, for the following reasons:
(a) The failure of the applicant to abide by these rules and/or the terms and conditions of any previously issued permit.
(b) Applicant's failure to provide the necessary information or documentation required by Section 8.
(c) Applicant's failure to provide proof of the requisite insurance coverage required by Section 7.
Any person aggrieved by the final decision of the director in the denial of a permit application may appeal therefrom in the manner provided in HRS Chapter 91. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 16. Revocation of Permit. Permits issued pursuant to these rules may be revoked, canceled or otherwise terminated at any time, without prior notice, when:
(a) Permittee violates the conditions or other provisions of these rules or conditions contained on the permit or any applicable Federal, State and County laws, ordinances, rules and/or regulations.
(b) Permittee fails to maintain the insurance required under these rules.
(c) A permit or permission of the State or Federal authorities allowing such activities by permittee is revoked by said authorities.
Any person aggrieved by the final decision of the director in the revocation of a permit may appeal therefrom in the manner provided in HRS Chapter 91. [Eff: May 25, 1996) (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 101.3)
Section 17. Violation - Penalty. Any person violating any provision of these rules shall be subject to the penalties provided in Section 10-1.3 (c) and/or 10-1.6 (d) (1), ROH, as amended. [Eff: May 25, 1996] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Section 18. Severability. If any section, subsection, sentence, clause, phrase or portion of these rules, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the article which can be given effect without the invalid provision or application and, to this end, the provisions of these rules are severable. [ Eff May 25,'96] (Auth: RCH 1994 § 4-105; ROH 1990 § 1-9.1) (Imp: ROH 1990 §§ 10-1.2, 10-1.3)
Adopted this 27th day of March, 1996, by the Director of the Department of Parks and Recreation, City and County of Honolulu, State of Hawaii.
/s/ Dona L. Hanaike
DONA L. HANAIKI, Director
Department of Parks and Recreation
City and County of Honolulu
APPROVED AS TO FORM AND LEGALITY:
/s/ Dawn D. Ishihara
Deputy Corporation Counsel
APPROVED this 14th day of
May , 1996.
/s/ Jeremy Harris CERTIFICATION
JEREMY HARRIS, Mayor
City and County of Honolulu
I, DONA L. HANAIKE, in my capacity as Director of the Department of Parks and Recreation, City and County of Honolulu, do hereby certify that the foregoing is a full, true and correct copy of the Rules and Regulations Relating to the Sale of message-Bearing Merchandise by Nonprofit organizations in city Parks and Facilities, which were adopted on March 27, 1996 , following a public hearing held on March 14, 1996, after public notice was given on February 12, 1996 in the Honolulu Advertiser.
/s/ Dona L. Hanaike
DONA L. HANAIKI, Director
Department 0f Parks and Recreation
Received this 15th day of
May , 1996.
/s/ Genevieve G. Wong
GENEVIEVE G. WONG, City Clerk
ATTACHMENTS (Select attachment below to view in new window)
Attachment A - Hanauma Bay
Attachment B - Sandy Beach Park
Attachment C - Ala Moana Beach Park
Attachment D - Table Size and Spacing