N.C. Municipal Attorneys
Summer Conference
Southern Pines, August 1-3, 1996
Legal Issues Involving Street Festivals
David Lawrence
Institute of Government
I. Authority to Allow Street Fairs and Festivals
A significant number of early twentieth century cases held that cities were without authority to authorize festivals, fairs, or carnivals in the public streets.
E.g., City Council of Augusta v. Reynolds, 50 S.E. 998 (Ga. 1905).
City of Richmond v. Smith, 43 S.E. 345 (Va. 1903).
Van Cleef v. City of Chicago, 88 N.E. 815 (Ill. 1909).
Marth v. City of Kingfisher, 98 P. 436 (Ok. 1908).
These courts generally held that such festivals, fairs, or carnivals were nuisances per se, and that a city was without statutory authority to license such a use. In addition, some of these courts were concerned that in effect the streets were being closed to all through traffic, which was inconsistent with their status as streets.
Obviously, North Carolina cities routinely authorize streets festivals of one kind or another. These early cases date from a period in which Dillon's Rule was generally much more tightly interpreted than is true today, and therefore, the general authority over city streets that is granted in G.S. 160A-296 is almost certainly sufficient to support what cities are in fact doing.
II. City Liability for Injuries Caused by Negligence of Street Festival Operator
City Operation
Presumably a city will be liable for its own negligence if it is operator of a street festival.
Private Operation
A number of early cases, all from other states, held cities liable for the negligence of private operators of street festivals, fairs, and carnivals.
E.g., Van Cleef v. City of Chicago, 88 N.E. 815 (Ill. 1909).
City of San Antonio v. Ashton, 135 S.W. 757 (Tex. Ct. Civ. App. 1911).
Chaney v. Village of Riverton, 177 N.W. 845 (Neb. 1920).
By and large these cases took the position that the city was responsible for providing a safe street, that the plaintiff was injured because of an unsafe condition in the street, and that therefore the city had failed its duty. Some of the cases did not even require that the city have any notice of the unsafe condition.
By the late 1920s and after, however, the courts seem to have moved away from this strict view of city responsibility. They distinguished between dangerous conditions in the street itself and danger arising from some private use of the street. A city was not liable for the latter, even if the private use was inappropriate.
E.g., Heller v. Smith, 194 N.W. 271 (Iowa 1923).
Kreiger v. Village of Doylestown, 158 N.E. 197 (Ohio Ct. App. 1927).
Thomas v. City of La Grande, 102 P.2d 213 (Or. 1940).
North Carolina law appears to be in accord with this later group of cases. In Goodwin v. Town of Reidsville, 160 N.C. 411, 76 S.E. 232 (1912), the court refused to hold the city liable for improper use of the city streets (in that case, by boys playing baseball in the street) as opposed to defects in the condition of the street itself.
III. Charging Admission to a Street Festival
I found no cases challenging admission charges to festivals held in the public streets, but I believe a mandatory admission charge would be difficult to sustain.
1. A number of the early cases based their antagonism to street fairs in the apparently exclusiveness of the fairs: no other use of the street was permitted while the fair was active. The courts noted that the purpose of the streets was to permit travel, and to deny that public travel was to misuse the street. Charging someone to walk down the street appears also to be a misuse of the street easement. (I don't believe it is necessary to allow vehicular traffic, however.)
2. In Britt v. Wilmington, 236 N.C. 446, 73 S.E.2d 289 (1952), the Supreme Court was considering whether a city could pledge on-street parking meter fee proceeds as security for bonds issued to build off-street parking decks. The court said:
"Streets of a municipality are provided for public use. A city board has no valid authority to rent, lease or let a parking space on the streets to an individual motorist 'for a fee' or to charge a rate or toll therefor. Much less may it lease or let the whole system of on-street parking meters for operation by a private corporation or individual."
IV. First Amendment Issues: Booths and Walking Around
Private Operation
In Gastonia a street festival has been run by a private organization, under a permit from the city. The city provides police protection for the festival, carries off the trash, and makes a small donation. All other aspects of the festival are the responsibility of the private organization, and the city has no role in the organization's policy on booths. That policy is to deny booth space to groups or persons espousing controversial causes. A local union denied booth space brought suit to challenge the constitutionality of the policy.
In United Auto Workers, Local # 5285 v. Gaston Festivals, Inc., 43 F.3d 902 (1995), the Fourth Circuit held that the organization was entirely private and therefore not subject to First Amendment obligations. In rejecting an argument that the city had "ceded control" of its city streets to the private organization, the court noted, among other factors, that (1) the city required a permit for operation of the fair and (2) the city retained the right to re-open the streets at any time. The court also noted that the organization's booth policy did not prohibit union members from walking through the fair area and handing out literature; they just could not get a booth. It is not clear whether the court thought the organization would have been entitled to prohibit literature distribution or oral communication by union members.
Public Operation
In Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 69 L.Ed.2d 298 (1981), the Court upheld Minnesota state fair regulations that required that a religious group distribute materials, sell literature, and raise funds only at a specific location in the fairgrounds. The group did not have a constitutional right to roam through the fair and do those activities. In the course of its opinion, the Court made these two statements:
"[R]espondents make a number of analogies between the fairgrounds and city streets, which have 'immemorially been held in trust for the use of the public and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. But it is clear there are significant differences between a street and the fairgrounds. A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment." Therefore rules made for streets do not apply to the fairgrounds.
"First, the [state fair rule] does not prevent ISKCON from practicing Sankirtan anywhere outside the fairgrounds. More importantly, the Rule has not been shown to deny access within the forum in question. . . . [ISKCON's] members may mingle with the crowd and orally propagate their views."
See also, Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc. 862 S.W.2d 297 (Ky. 1993), in which the Kentucky court upheld a city policy denying booth space at a street festival to controversial groups. In a probable misreading of First Amendment cases, the court held that as long as both sides of an issue were denied access, the rule was content neutral.
V. Free Rider Concessionaires
Can a city prevent vendors, not licensed by a private group operating a street fair, from setting up on private property on the margins of the fair and selling in competition with sponsored vendors?
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