No. 39095 (Emergency Rule): Rule R920-4. Special Road Use or Event

DAR File No.: 39095
Filed: 01/28/2015 03:26:34 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The United States Court of Appeals, Tenth Circuit, ruled parts of Rule R920-4 unconstitutional in IMATTER UTAH v. NJORD, 2014 WL 7240717 (2014). This change is to remove the portions of Rule R920-4 the court ruled unconstitutional.

Summary of the rule or change:

This rule change allows persons and groups applying for special event permits under this Rule R920-4 shall be exempt from the insurance, waiver and release of damages, and indemnification requirements of Section R920-4-5, if the special event for which application is made is a First Amendment assembly and is for a non-commercial purpose.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: In its present form, portions of Rule R920-4 violate the Constitution of the United States and the state of Utah. The rule must be changed to eliminate unlawful requirements that it presently includes.

State statutory or constitutional authorization for this rule:

• Section 41-6a-1111
• Section 41-22-15
• Section 72-1-201

Anticipated cost or savings to:

the state budget:

The emergency change should not impact the state budget, as it simply removes unconstitutional provisions.

local governments:

The emergency change should not impact local government, as it simply removes unconstitutional provisions.

small businesses:

The emergency change should not impact small business, as it simply removes unconstitutional provisions.

persons other than small businesses, businesses, or local governmental entities:

The emergency change should not impact persons other than small businesses, businesses, or local government entities, as it simply removes unconstitutional provisions.

Compliance costs for affected persons:

Affected persons should experience a reduction in compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

This emergency rule change in necessary to eliminate aspects of Rule R920-4 that the 10th Circuit Court of Appeals ruled to be unreasonable prior restraints on persons and groups seeking to organize and participate in peaceful First Amendment assemblies on or near State controlled rights of way. I do not anticipate the change will have any fiscal impact on Utah businesses.

Carlos Braceras, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Operations, Traffic and Safety
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]

This rule is effective on:

01/29/2015

Authorized by:

Carlos Braceras, Executive Director

RULE TEXT

R920. Transportation, Operations, Traffic and Safety.

R920-4. Special Road Use or Event.

R920-4-1. Purpose and Authority.

The purposes of this rule are to ensure public safety and minimize disruption to the traveling public when state controlled rights of way are used for parades, marathons, film related activities, and bicycle races, and to enable special events through a responsible and controlled permitting process. However, persons and groups must be able to organize and participate in peaceful First Amendment assemblies on or near State controlled rights of way free from unreasonable prior restraints. The Department shall work to accomplish the purposes of this rule without placing unreasonable prior restraints on persons and groups seeking to participate in First Amendment assemblies, which are defined in Subsection R920-4-6(1) below.  This rule is authorized by Sections 72-1-201 and 41-6a-1111. This rule applies to all highways under the jurisdiction of the Utah Department of Transportation ("Department").

 

R920-4-2. Permit Required for Special Road Use or Event.

Special Road Use permits shall be required for any use of state highways other than normal traffic movement. A special road use or event shall not occupy the roadway until a permit is issued. Permits may be obtained by completing Department application requirements as specified on Department forms.

 

R920-4-3. Application Completion Requirements for Special Road Use or Event.

"Application for a Special Event Permit," or "Application for a Permit to Film on State Roads" shall be completed by [the ]applicants seeking [a ]Special Road Use or Event Permits. All applications for permits shall be made a minimum of 15 days prior to the specified activity.

 

R920-4-4. Special Event Double Booking Conflict Resolution.

Applications for s[S]pecial event permits [may]shall not be accepted more than a year in advance of the actual event date. All special event permits are time and date stamped. In cases where a double booking type conflict [might ]surface, the Department will encourage any secondary, or subsequent, applicant to review the feasibility of collocating with the original applicant. If collocating proves impracticable, the Department will encourage any secondary, or subsequent, applicant to offer a viable alternative strategy that meets the needs of all applicants, while also ensuring adequate public safety measures remain intact. The Department may also rely on local agency assistance with establishing special event permitting priorities. In all cases, the Department has the authority to exercise the discretion in giving priority consideration to an applicant based on an evaluation of historic use, potential economic benefit, and other relevant factors. In cases where none of the aforementioned conflict resolution strategies prove effective in remedying a continuing dispute between multiple applicants, the Department reserves the right to determine which special event permit will be issued based on the earliest recorded application time and date where the Department has determined the applicant has fully completed all application requirements.

 

R920-4-5. Minimum Liability Coverage, Waiver and Release of Damages Form, and Indemnification Form Completion Requirements.

The applicant shall obtain and provide proof of liability insurance at time of application naming the "State of Utah, the Department and its employees" as additional insured under the certificate, with a minimum $1,000,000 coverage per occurrence and $2,000,000 in aggregate. The applicant shall complete the appropriate "Waiver and Release of Damages" and "Indemnification" forms prior to permit issuance. All event participants shall also complete the "Waiver and Release of Damages" form prior to participating in the permitted event.

 

R920-4-6. Waiver and Release of Damages Exception.

[Participants in a free speech event on state rights of way are not required to sign or submit the "Waiver and Release of Damages" form described in R920-4-5, however the applicant of a free speech event is still required to complete the "Indemnification" form prior to permit issuance.](1) "First Amendment assembly" means a demonstration, rally, parade, march, vigil, picket line, or other similar gathering conducted for the purpose of persons expressing their political, social, religious, or other views.

(2) Persons and groups applying for special event permits under this rule shall be exempt from the insurance, Waiver and Release of Damages, and Indemnification requirements of Section R920-4-5, if the special event for which application is made is a First Amendment assembly and is for a non-commercial purpose.

 

R920-4-7. Applicant Record Retention Requirements.

Where multiple participants are involved in the special road use or event, the applicant is responsible for ensuring each event participant completes the appropriate "Waiver and Release of Damages" and "Indemnification" form prior to participating in the event. The originating applicant is the custodian of all signed participant waivers, as specified in R920-4-5, and shall produce these upon demand for inspection and review by the Department at any time within 12 months after the completion of the event. The Department may also require the originating applicant to sign the original forms, as specified in R920-4-5, prior to permit issuance.

 

R920-4-8. Traffic Control Requirements and Considerations.

All traffic control is the responsibility of the applicant. A traffic control plan, in accordance with R920-1, R930-6 and Barricading and Construction Standard Drawings, shall be provided to, and approved by the District Traffic Engineer, or other authorized Department designee. The applicant shall restore the particular road segment to its original condition, free from litter, etc. An alternate route may be required when traffic volumes are high, active road construction is present, an alternate event is already occupying the road, a safer route can accommodate the event, or the event poses a significant inconvenience to the traveling public. Road closures will require traffic control by Uniformed Peace Officers. The Department may require local police, the sheriff's department, the highway patrol, or the Department's Incident Management Team to inspect and monitor traffic control. All railroad crossings and bridges shall be given special attention. The applicant shall coordinate with the appropriate railroad representatives to ensure the event schedule does not conflict with the operation of the railroad.

 

R920-4-9. Public Notification Requirements.

As determined by the Region Permit Officer, the applicant shall distribute a news release to all local radio stations, television stations, and newspapers that announce the event and advise residents of alternate routes and potential delays. The news release shall include the date, times, affected roads, and shall also include an estimate of the anticipated length of delay.

 

R920-4-10. Contingency Plan and Participant Notification Requirements.

The applicant is required to develop plans for, and notify, each event participant on the following contingencies; emergency plans in the event of an accident or injury, closest hospitals, how to obtain emergency assistance, etc., locations of rest areas, locations of water facilities, trash cleanup plans, and that all participants are required to obey all traffic laws, lights, and signs.

 

R920-4-11. Event Route Identification and Private Property Use Requirements.

The applicant shall provide a detailed map showing the proposed course and direction of the event. Locations of parking areas, water stations, toilet facilities, and other appropriate information shall also be included on the map. These areas cannot be located within the state right-of-way. The applicant is responsible for obtaining appropriate permission to locate these facilities on private property.

 

R920-4-12. Adherence to Municipal, County, or other Governmental Agency Permitting Requirements.

The applicant is responsible for obtaining any applicable city, county, or other governmental agency permit. Demonstration of compliance with R920-4-12 may be required prior to the Department issuing any special road use or event permit.

 

KEY: parades, bicycle, races, films

Date of Enactment or Last Substantive Amendment: January 29, 2015

Notice of Continuation: August 1, 2012

Authorizing, and Implemented or Interpreted Law: 41-6a-1111; 41-22-15; 72-1-201

 

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