Title of Regulation: 1VAC30-150. Regulations for Public Use of Robert E. Lee Monument, Richmond, VA (adding 1VAC30-150-10 through 1VAC30-150-50).

Statutory Authority: § 2.2-1100 of the Code of Virginia.

Public Hearing Information:

March 6, 2019 - 10 a.m. - Department of General Services, 1100 Bank Street, Richmond, VA 23219

Public Comment Deadline: March 8, 2019.

Agency Contact: Rhonda Bishton, Director's Executive Administrative Assistant, Department of General Services, 1100 Bank Street, Suite 420, Richmond, VA 23219, telephone (804) 786-3311, FAX (804) 371-8305, or email rhonda.bishton@dgs.virginia.gov.

Basis: Section 2.2-1102 A 1 of the Code of Virginia authorizes the Department of General Services to prescribe regulations necessary or incidental to the performance of the department's duties or execution of powers conferred by the Code of Virginia. Executive Order 67 (2017) directed the department to promulgate this regulation.

Purpose: This regulation is promulgated to replace emergency regulations issued in response to the events of August 2017, when a "Unite the Right" rally evolved into a violent incident of civil unrest in Charlottesville, Virginia and necessitated a State of Emergency declaration by then Governor, Terence R. McAuliffe, to address the violence. Executive Order 67 details the rationale for requiring a review of the regulations at the Lee Monument, and that rationale is incorporated by reference here. Executive Order 67 was published in 34:2 VA.R. 393 September 18, 2017. This stage begins the regulatory process to make the proposed regulations permanent.

Substance: No substantive changes from the emergency regulations, which were published in 34:8 VA.R. 767-769 December 11, 2017.

Issues: The primary advantage of this regulation is that it offers guidelines for public assembly at the Robert E. Lee Monument, which seek to protect public safety, Commonwealth-owned property, and the residents and property around the monument, while providing a space for members of the public to exercise their First Amendment rights. The disadvantage of the regulation is that it limits the times for public assembly, the items allowed during a permitted event, and the number of attendees in an effort to maximize safety in this unique space situated in a residential area in the middle of a heavily traveled intersection.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of General Services (DGS) proposes to promulgate a permanent regulation for public use of the Robert E. Lee Monument.

Result of Analysis. The benefits likely exceed the costs for the proposed regulation.

Estimated Economic Impact. The statute of Robert E. Lee located at 1700 Monument Avenue in Richmond, Virginia and the surrounding 25,000 square feet of land, known as the Lee Monument, is state-owned property. The events at a "Unite the Right" rally on August 12, 2017, turned into a violent incident of civil unrest in Charlottesville, Virginia and necessitated a State of Emergency declaration by then Governor McAuliffe. Executive Order 67 followed on August 18, 2017, and required "full review of permitting processes and other relevant regulations." The executive order stated:

Unlike a city park, the Lee Monument serves a limited purpose and has not historically been an open forum for expressive activity. It sits in a traffic rotary, in a major thoroughfare through the City of Richmond, in the middle of one of the most scenic and historic residential areas in the United States. Current standards contemplate up to 5,000 people gathering at the Lee Monument. Given the size of the Lee Monument, the fact that traffic continually passes around it, and that there is no pedestrian crosswalk for access, I have concluded that permitting any large group would create a safety hazard in the current circumstances. Current policies also allow for permits to be issued from sunrise to 11:00 pm, which also could, given the Lee Monument's proximity to private residences, interfere with the quiet enjoyment of those properties. Moreover, the Lee Monument is a State-property island in an area otherwise regulated by the City of Richmond, yet there is no formal requirement for coordinating approval through the City of Richmond's permitting process. This regulatory gap, which has heretofore been handled informally, must be addressed.

DGS promulgated emergency regulations on November 17, 2017. DGS now proposes to adopt those regulations permanently. One of the changes compared to the previous informal permit process is submission of more detailed information (e.g., a waste management plan, whether the event is being advertised, the type of the event, etc.) in addition to previously required information about the names and addresses of the group or organization, of its principal officers, and of the individual member responsible for the conduct of the event, etc. The submission and review of such additional information would likely add to the administrative costs that would be incurred by the applicant as well as by DGS. However, the additional information would also help DGS and the Division of Capitol Police determine staffing requirements to ensure public safety.

The proposed regulation also requires proof that all permit applications, including required road closure if necessary, have been submitted to the City of Richmond. Abutting streets around the monument are the property of the City of Richmond and subject to the city's permit rules. DGS may only consider approval of applications if the city has determined that no city permit is required, or if the required city permits have been issued. This requirement may add to the administrative costs of the City of Richmond, which would have to now evaluate each request and make a determination. For example, based on the publicly available City of Richmond criteria,¹ currently the City of Richmond may not require a permit for events where fewer than 300 people will participate, but this proposed regulation would require the applicant to obtain a formal determination from the city to that effect.

The proposed regulation has no bearing on the criteria the City of Richmond have in place or will have in the future. Therefore, the proposed regulation does not impose any additional burdens on applicants who would already have to obtain a permit from the city other than proving to DGS that such a permit is issued by the city. This proposed requirement would indirectly promote compliance with city permit rules. However, one unintended consequence could be that future event planners may be more inclined to limit attendance to fewer than 300 people and hold their events on the city-owned sidewalk surrounding the monument; therefore avoiding the need for any permits from the city or DGS.

The proposed regulation also reduces the maximum occupancy on the monument grounds from an established informal limit of 5,000 to 500 persons for the reasons stated in the executive order (i.e., limited size of the monument grounds, traffic in the surrounding area, lack of pedestrian crosswalk for access) to minimize safety hazards. Similarly, time limits are proposed to minimize traffic disruptions on a key thoroughfare and for the quiet enjoyment of surrounding private residences.² Finally, the proposed regulation establishes a list of prohibited items and activities (e.g., bricks, stones, alcohol, penetration of the ground, open burning, etc.) allowed during a permitted event. These proposed changes would limit the choices available to event planners compared to the previous informal permit process but are also expected to improve public safety during permitted events at the monument.

Businesses and Entities Affected. The proposed regulation would apply to applicants wishing to use Lee Monument grounds for special events. Events have been permitted and held at the Lee Monument in the past, including the Easter Parade and the Monument 10K. The Monument 10K should not be affected by the proposed regulation because the event has not sought a permit to specifically use the monument grounds in the last several years. The regulation may not apply to established events (i.e., events permitted in the past more than three consecutive years). For example, if Monument 10k were to apply for a permit, they may be grandfathered. An event may also be exempt from some of the proposed timing, duration, and prohibited item list at DGS's discretion based on this proposed regulation.

Localities Particularly Affected. The proposed regulation applies to a state-owned property in the City of Richmond.

Projected Impact on Employment. The proposed regulation would necessitate additional time to prepare and review an event application but is unlikely to have any discernible impact on employment.

Effects on the Use and Value of Private Property. The proposed regulation is expected to minimize disruption around the monument and would mitigate potential negative impacts during a few events but is unlikely to significantly affect the use and value of private property in that neighborhood.

Real Estate Development Costs. The proposed regulation is unlikely to affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation is unlikely to impose costs and other impacts on small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed regulation does not adversely affect small businesses.

Adverse Impacts: 

Businesses: The proposed regulation does not adversely affect businesses.

Localities: The proposed regulation would introduce additional administrative costs on the City of Richmond, but it may also strengthen compliance with the City of Richmond event permit rules by requiring proof of such a permit.

Other Entities: The proposed regulation imposes limits on time, duration, items allowed, and participation of and at events at the Lee Monument. Any entity wishing to hold an event under previous less stringent rules may perceive to be adversely affected.

________________________

¹See http://eservices.ci.richmond.va.us/APPLICATIONS/SPECIAL
EVENTS/, accessed on Sept 6, 2018.

²Events may occur only Monday through Friday 9 a.m. to 4 p.m. and 7 p.m. to 9 p.m.; Saturday 9 a.m. to 9 p.m.; Sunday 2 p.m. to 9 p.m.

Agency's Response to the Economic Impact Analysis: The department has reviewed the economic impact analysis by the Department of Planning and Budged and has no comment.

Summary:

The proposed action establishes the regulations for public use of the Robert E. Lee Monument located at 1700 Monument Avenue in the City of Richmond.

CHAPTER 150
REGULATIONS FOR PUBLIC USE OF ROBERT E. LEE MONUMENT, RICHMOND, VA

1VAC30-150-10. Purpose, applicability, and definitions.

The Robert E. Lee Monument, located at 1700 Monument Avenue, is the largest monument on the City of Richmond's Monument Avenue. The 60-foot high statue, composed of a granite base and 14-foot tall bronze equestrian statue of Robert E. Lee, stands in the middle of Lee Circle, a traffic circle at the intersection of Monument Avenue and Allen Avenue. The purpose of this chapter is to establish and codify regulations governing the use of this state-owned property. This chapter applies to the Lee Monument.

The following word or term when used in this chapter shall have the following meaning unless the context clearly indicates otherwise:

"Lee Monument" means the statue of Robert E. Lee and the surrounding 25,000 square feet of state-owned property located at 1700 Monument Avenue in the City of Richmond. The Lee Monument does not include the abutting sidewalk or streets, which are the property of the City of Richmond.

1VAC30-150-20. General rules.

The following rules apply to any person, including permit applicants and permit holders at the Lee Monument.

1. The Lee Monument shall be closed to the public from sunset each night until sunrise the following morning.

2. Any gathering that is expected to draw 10 or more participants requires a special event permit.

3. The maximum occupancy of the Lee Monument is 500 persons.

4. There shall be no motor vehicles on the Lee Monument at any time.

5. No banners, flags, posters, or other objects shall be placed on or affixed to the statue itself.

6. No persons shall climb on the statue itself. This provision also applies to the steps of the statue.

7. Unlawful activity is prohibited.

1VAC30-150-30. Rules regarding permitted events.

A. All permitted events must be coordinated with the City of Richmond to ensure that such event will not interfere with major vehicular traffic within the traffic circle. The areas surrounding the Lee Monument are residential zones. In conjunction with § 18.2-419 of the Code of Virginia and the City of Richmond's noise ordinance level restrictions, events at the grounds may only occur during the following hours, unless the times referenced in this subsection conflict with subdivision 1 of 1VAC30-150-20.

1. Monday through Friday: 9 a.m. to 4 p.m. and 7 p.m. to 9 p.m.

2. Saturday: 9 a.m. to 9 p.m.

3. Sunday: 2 p.m. to 9 p.m.

B. Permitted events may last a maximum of two hours, with an additional 30 minutes to set up and 30 minutes to break down the event. If the City of Richmond will require road closure, permitted events will be authorized to last one hour, with an additional 30 minutes to set up and 30 minutes to break down the event. Permitted events shall not exceed these time parameters.

C. The following items and activities are prohibited on the Lee Monument, and any violation will result in an immediate revocation of the permit and removal from the Lee Monument:

1. Weapons: any pistol, rifle, shotgun, or other firearm of any kind, whether loaded or unloaded, air rifle, air pistol, paintball gun, paintball rifle, explosive, blasting cap, knife, hatchet, ax, slingshot, blackjack, metal knuckles, mace, iron buckle, ax handle, chains, crowbar, hammer, or any club, bludgeon, or any other instrumentality used, or intended to be used, as a dangerous weapon.

2. Bricks, stones, rocks, or pieces of asphalt or concrete.

3. Glass bottles, glass jars, or glass containers of any kind.

4. Tents, tables, scaffolding, or staging.

5. Penetration of the ground by any object.

6. Stick-holding placards.

7. Solicitations, sales, collections, or fundraising activities.

8. Food, alcohol, or beverages of any type.

9. Auxiliary and portable lights.

10. Open air burning. Hand-held candles with drip guards are acceptable.

11. The use of unmanned aircraft systems (drones).

12. Hazardous, flammable, or combustible liquids or materials.

13. Animals, except service animals that are individually trained to do work or perform tasks for people with disabilities.

14. Fossil-fuel powered generators.

15. Any mask, hood, or other device whereby a substantial portion of the face is hidden or covered unless otherwise permitted by law.

D. Nothing in this chapter shall prohibit a disabled person from carrying, possessing, or using a wheelchair, cane, walker, or similar device necessary for providing mobility so that the person may participate in a permitted event.

E. Nothing in this chapter shall prohibit certified law-enforcement officers or other public safety officials acting in their official capacity from carrying or possessing materials, weapons, or devices used in the performance of law-enforcement duties.

F. Certain portions of subsections A, B, and C of this section may not apply to established events that have been approved for more than three consecutive years by the Department of General Services and the City of Richmond permitting processes prior to the enactment of this regulation.

1VAC30-150-40. Special event permit process.

A. Requests for a special event permit must be submitted in writing, on the forms required by the Department of General Services, and must be submitted to the Director of the Department of General Services at least 45 days prior to the requested event date.

B. All applications shall contain at a minimum, the following information:

1. Type and purpose of event, meeting, or function.

2. Name, address, telephone numbers, and email address of the applicant.

3. Name of the organization, date of origin, status (corporation, unincorporated association, partnership, nonprofit corporation, etc.), address, and telephone numbers. If applicable, the federal tax ID number, registered agent's address, telephone numbers, and email address.

4. Organization's primary point of contact, to include name, title, permanent address, telephone numbers, and email addresses.

5. Organization's primary and alternative point of contact who will be on-site at the Lee Monument for the event, to include name, address, telephone numbers, and email addresses. The organization's on-site primary point of contact shall be responsible for the conduct of participants at the event.

6. If the event is designed to be held by, on behalf of, or for any person other than the applicant, the applicant shall file with the director written documentation from the person or organization seeking to host the event, authorizing the applicant to apply for the permit on behalf of the person or organization.

7. The estimated number of participants for the event. The maximum occupancy for the Lee Monument is 500 persons.

8. Requested date and start and end times.

9. Whether the event is being advertised, to include advertising on social media platforms.

10. Proof that all needed permit applications have been submitted to the City of Richmond, to include a road closure permit if necessary. The applicant understands that if the City of Richmond will require road closure, authorized events will be permitted to last one hour, with an additional 30 minutes to set up and 30 minutes to break down the event. All events will begin at the agreed upon time and must fall within the allowable time periods addressed in this section.

11. List of requested items or equipment to be used during the event.

12. Waste management plan and a point of contact for the plan, including name and telephone number.

C. Notwithstanding the 45-day requirement for a special event permit, the applicant may apply for a permit for an event that is proposed to be conducted in less than six days, provided:

1.The applicant submits a completed special event permit application in accordance with this chapter.

2. A showing by the applicant, in writing, clearly describing why the circumstances giving rise to the proposed event did not reasonably allow the applicant to apply for a permit within the 45-day time period.

3. The event has not been planned for more than six days in advance of the proposed event.

4. Proof that all needed permit applications have been submitted to the City of Richmond, to include a road closure permit if necessary. The applicant understands that if the City of Richmond will require road closure based on the size of the event, authorized events will be permitted to last one hour, with an additional 30 minutes to set up and 30 minutes to break down the event. All events will begin at the agreed upon time and must fall within the allowable time periods addressed in this section.

D. Permit applications may be submitted up to one year in advance of the proposed event.

E. The Director of the Department of General Services shall take action on all permit applications within 10 business days of receiving a complete special event permit application, and as soon as practicable but not more than three business days for applications submitted for events to be held within six business days. If no permits are required by the City of Richmond, the department shall approve or deny the application within 10 days. If one or more permits are required by the City of Richmond, the department shall acknowledge receipt of the application within 10 business days, but the Director of the Department of General Services shall not grant final approval until proof that all permits required by the city, to include a road closure permit, have been issued.

F. The Director of the Department of General Services shall deny a request for a permit if:

1. Another application has been previously submitted with a request for the same date and time;

2. Upon advisement from law enforcement, the director determines that approving the permit and allowing the event to occur would pose a significant threat to public safety;

3. Any of the conditions are not agreed to by the applicant;

4. The director concludes that the event could not possibly conform to the conditions prescribed in this chapter;

5. Any of the information contained in the application is found to be false or inaccurate; or

6. The City of Richmond denies a needed permit.

G. If a permit request is denied, the director shall send, in writing, an explanation of why the event permit was denied and if applicable, provide the applicant with alternative times or dates.

H. If a permit is denied due to a preexisting application for the same time and date, the director shall notify the applicant if the originally requested date and time become available.

I. Authorization for the use of the Lee Monument will be set forth in a letter addressed to the applicant.

J. The director or the director's designee may contact the applicant and the event organizer at any time to discuss or clarify the contents of the application or any additional conditions or restrictions to be applied.

1VAC30-150-50. Permit holder responsibilities.

A. The event organizer is responsible for providing a safe and secure event and may be required to provide general security, crowd control, and assistance to participants based on the size of the event. If general security is required by the Commonwealth, it shall be provided by law-enforcement personnel licensed by the Commonwealth of Virginia.

B. By submitting an application for a special event permit under this chapter, the applicant understands the following statements and conditions and agrees to comply with all rules, conditions, and restrictions:

1. The applicant agrees to all prohibitions and restrictions identified in this chapter;

2. The applicant and organization agree to indemnify the Commonwealth of Virginia against any loss or damage to the monument that may occur in connection with the applicant or event organizer's use of the property;

3. The applicant agrees to leave the premises clean and orderly.

4. The applicant and participants agree to obey all state and local laws and ordinances;

5. The applicant agrees to notify law enforcement, to include the Division of Capitol Police, if any unlawful activities occur during the permitted event. In addition to 9-1-1, the applicant should call the Capitol Police emergency number at (804) 786-4357. For nonemergencies, applicants should call (804) 786-2568;

6. Unlawful activities will be handled by law enforcement, to include the Division of Capitol Police; and

7. The applicant shall be required to notify the Director of the Department of General Services of any changes to the information contained in the permit application as soon as practicable.

C. Violations of this chapter shall result in immediate revocation of the permit by the Director of the Department of General Services or the director's designee, and in the event such revocation occurs, all participants shall be required to immediately vacate the monument. Failure of any person to immediately vacate the monument after proper notice shall be considered trespassing in violation of § 18.2-119 of the Code of Virginia.

FORMS (1VAC30-150)

Request to Hold an Event at the Lee Monument (undated, filed 12/19/2018)