Are Mass Gathering Ordinances Legal?
(from Maine Townsman, August/September 2001)
by Michael L. Stultz, Staff Attorney, MMA

In recent months, several municipalities have called MMA Legal Services to inquire about the constitutionality of enacting or enforcing a mass gathering ordinance, primarily in response to concerns associated with "Hempstock," an annual event sponsored by Maine Vocals, a group that advocates the legalization of marijuana.

Some would like to prohibit this event, while others would police it as a potential disturbance. But always, the Constitution of the United States guarantees everyone the right to freely assemble and to freely express an opinion.

These freedoms are not, however, unconstrained. The courts do recognize limits on when people can gather, and on the kinds of activities in which they can engage. Criminal laws, for example, prohibit certain behaviors, and regulate others. There are privacy laws that protect against trespass and unwanted intrusions. And so much that happens around us and in our communities reflects various controls designed to promote and protect the general health, safety and welfare. What happens, though, when guaranteed rights and the exercise of personal liberties collide with a municipality's police power, and specifically, whether a municipality can use a mass gathering ordinance to deny a permit for such a gathering, is the matter this article will briefly explore. 

Where this juxtaposition between rights and municipal police power occurs, there is always the concern about a possible constitutional violation. More particularly, the denial of a permit for a mass gathering could subject a municipality to a successful claim for damages and attorney's fees for having violated federal civil rights laws. The potential for such a claim may make municipalities less than enthusiastic about reviewing applications for temporary, large-scale events. However, as stated below, so long as a municipality fairly and evenly handles applications under its mass gathering ordinance, and so long as the ordinance contains reasonable standards, and is content-neutral, a court is likely to uphold the ordinance.

The State of Maine has a Mass Gathering statute, located at Title 22 M.R.S.A. 1601. It requires application for a permit from the Department of Human Services (DHS) for any gathering "held outdoors with the intent to attract the continued attendance of 2,000 or more persons for 12 or more hours," at 22 M.R.S.A. 1601(2), and then proceeds to set forth criteria for DHS to evaluate in determining, using a reasonable certainty standard, whether the gathering presents a "grave and imminent danger" to the public or its safety. If there is no such grave and imminent danger, the permit shall issue. In its review of applications for permits for the holding or promoting of a mass outdoor gathering, DHS may request assistance, and shall receive it, "from all public officers and departments and agencies of the state, and its political subdivisions such cooperation and assistance as may be necessary and proper," at 22 M.R.S.A. 1602(3). Moreover, DHS shall not issue a permit until it first discusses the application with the municipal officers of the municipality in which the event is scheduled to be held. With respect to municipal ordinances and regulations, the law specifically declares that nothing within its pages shall preclude a municipality from enforcing any ordinance or regulation which is more stringent. 

There is no reported decision by the Maine Supreme Judicial Court or by the Federal District Court for Maine addressing the constitutionality of this statute. Whether it would survive a challenge, and to what extent, is unknown. For this reason, it is necessary to look outside of Maine for guidance in determining whether mass gathering statutes and ordinances similar to Maine's statute or to municipal ordinances are constitutional. But even with that, there is scant information available from reported sources on the question of mass gatherings. Nevertheless, cases from other jurisdictions give us some understanding of the relevant issues and areas of concern.

Essentially, a municipality that wishes to regulate mass gatherings has two options-either do nothing, or institute a home rule ordinance. By choosing to do nothing, a municipality relies solely upon State law. This approach offers the advantage of avoiding the headaches that accompany the drafting process, and those associated with enforcement. It also shifts the burden and expense of defending the law, if challenged, into the hands of the State. Besides, DHS is obliged to discuss the application with the municipal officers before granting the permit, and presumably, that process would afford the municipality the opportunity to address peculiarly local concerns. It must be born in mind, however, that the Office of the Attorney General is unlikely to seek injunctions or to bring enforcement actions against persons who hold mass gatherings without a State permit, particularly since State law requires a showing of a person's (subjective) intent to hold a mass gathering that exceeds the threshold limits for a permit. This is difficult to prove.

By contrast, a municipality may choose to enact and administer an ordinance to deal with mass gatherings. If so, it may be better able to exercise the level of local control it might otherwise prefer. There may be some unique or particular characteristics that could be reflected in a local regulation, and a municipality can exercise its home rule authority in providing for more stringent requirements. This is because the mass gathering statute is, by its own admission, a minimum standard.

In applying home rule authority to adopt a mass gathering ordinance, a municipality needs to abide by some basic guidelines. These are general in nature, stem from cases dealing with the subject, and represent a conservative, defensive posture that is designed to protect the municipality. While we cannot guarantee against legal challenge, we can offer some suggestions about how to steer clear of the obvious constitutional shoals. 

As remarked earlier, local government has the right to protect the public health, safety and welfare. So doing represents a legitimate function of the police power. Generally, where a municipal ordinance has as its objective the provision of the public health, safety and welfare, and the ordinance is a reasonable means to serve that same end, where and when the exercise of that power is not arbitrary or capricious, the ordinance will be upheld. Even where an ordinance creates classifications (singles out a group or activity), the courts will uphold it if the classification bears a fair relationship to a legitimate public purpose. So far, so good. However, it is when fundamental liberty rights (freedom of speech and assembly are two examples) are affected by an ordinance that the courts take a closer look in evaluating more strictly such an ordinance.

Whenever a local regulation impacts freedom of speech and association, which a mass gathering ordinance does (even if only incidentally), it must sustain a higher level of scrutiny (as opposed to the reasonable relationship to a legitimate government purpose test).

o It must be narrowly drawn to serve a significant governmental interest.
o It must be content-neutral.
o It must specify in what period of time an application will be reviewed and a decision made.
o Its impact on first amendment rights must amount to nothing more severe than a reasonable time, place and manner restriction that serves a significant government interest.
o It cannot be unnecessarily intrusive, and there must be available alternative means of communication. (These criteria apply equally to religious gatherings, nonprofits, and governmental activities.)

Regarding particularly the concern of managing mass gatherings, we can say that securing the safe and orderly maintenance of large gatherings of people is a legitimate and significant interest. Serving this interest by licensing (permit) requirements which do not directly intrude upon the nature and conduct of speech and assembling at all, but which merely address the logistical difficulties inherent in mass gatherings of people, is constitutionally permissible. In other words, in exercising discretion to grant or deny a permit, a local official cannot examine the speech and or group per se in making a determination to grant or deny the application because the official favors or dislikes whom the applicant is and what he/she/it represents. Irrespective of the applicant, the official must use definite, objective standards that are applied in an evenhanded manner, to all applicants, all the time. The official must act on the application in a stated period of time, using standards intended solely to maintain the safety and orderly gathering and maintenance of a large number of people. Thus, if an applicant is denied a permit, it is because they failed to comply with a neutral standard intended to protect public safety, health and welfare. 

At this point in our discussion, the focus has been on the constitutionality of ordinances designed to deal with the mass gathering of people at short, weekend-type events. But our research shows that some communities, confronted with longer-term events, take a different approach - that of using zoning regulations designed to address environmental concerns. It is briefly noted here that courts have upheld zoning restrictions intended to protect the nature and character of rural and residential communities as a legitimate exercise of a municipality's police power. Such power is not limited to removing filth, stench and health and safety hazards, but can also be used to protect aesthetic and scenic values. Municipalities are permitted to enact restrictive zoning ordinances pursuant to a comprehensive scheme designed to promote a quite and peaceful environment. Again, however, if such zoning restrictions press against fundamental freedoms, they must pass review under a higher level of scrutiny, as discussed above. (Zoning and land use calls to mind the new Religious Land Use and Institutionalized Persons Act that prohibits any governmental entity from enacting or enforcing any land use regulation that imposes a "substantial burden" on the exercise of religion by any person, including religious assemblies and institutions, unless the government can demonstrate that the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest (see Townsman, "Legal Notes," May 2001).

The advice and observations herein should not deter municipalities from enacting a mass gathering ordinance as much as it should serve to indicate that careful attention needs to be paid if the obvious pitfalls are to be avoided. In essence, hold to the basics, maintain an even hand, play fairly, create reasonable standards, and don't impermissibly discriminate.