Case 3:06-cv-01823-BD Document 104 Filed 11/10/2008 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

DARREL RUNDUS, §
Plaintiff, §
§
v. § Civil Action No. 3:06-CV-1823-BD
§ ECF
CITY OF DALLAS, et al., §
Defendants. §

CITY OF DALLAS’ PROPOSED FINDINGS OF FACT

AND CONCLUSIONS OF LAW

TO THE HONORABLE COURT:

Defendant City of Dallas (“City”), files and submits this its Proposed findings of Fact and

Conclusions of Law.

I. PROPOSED FINDINGS OF FACT1

1. SFOT and its predecessors have been private corporations since 1886.

2. Today, SFOT is a Texas non-profit corporation exempt from federal income

taxation under section 501(c)(3) of the Internal Revenue Code.

3. During a period not to exceed 30 days in the months of September and October

each year, SFOT conducts an exposition known as the State Fair of Texas (“the Fair”) using

a 277-acre site in East Dallas known commonly as Fair Park.

4. Fair Park, the site of the Fair, is owned by the City.

5. The Fair is open to the general public who can gain admission by purchase of a

ticket.

6. SFOT’s regulatory regime prohibits Rundus and other members of the Great News

Network (“GNN”) who desire to distribute Bible tracts for free from doing so at Fair Park

during the Fair except from an exhibition booth.

1
The numbers of the Proposed Findings of Fact reference those in the parties’ Amended Stipulated Facts;
therefore, there are gaps in the numbering, but ultimately this provides the Court with an easy reference
point.
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7. There have been a series of agreements between SFOT and the City.

8. The most recent agreement became effective May 21, 2003, is for an initial term

continuing until January 1, 2028, and provides for two automatic five-year extended terms,

unless either the City or SFOT elect not to renew (the “2003 FPC”).

9. The relationship between the City and SFOT has been since 1987, and at all times

relevant to this lawsuit, a landlord-tenant relationship.

10. During the period of the Fair, the 2003 FPC gives SFOT “possession and

occupancy of Fair Park, other than City Permanent Areas and Cultural Facilities.”

20. The City approves the dates of the Fair and keeps Fair Park available for that

purpose.

21. Under the 2003 FPC, SFOT takes over portions of Fair Park 60 days prior to the

Fair (the “Setup Period”) and retains control over those portions for approximately 30 days

after the Fair is over (the “Takedown Period”).

22. During the Fair and the Setup Period and Takedown Period, SFOT maintains

complete control over the areas of Fair Park it leases.

23. SFOT determines who may be on the leased portions of Fair Park; pays utilities

utilized in connection with the leased premises; and receives all revenues generated by

activities on the leased premises.

24. During the Fair, SFOT is exclusively responsible for deciding what persons to

admit, not admit, or remove from the areas of Fair Park it leases, except that the City’s police

officers retain their inherent authority to enforce applicable laws.

25. Pursuant to the 2003 FPC, SFOT has the right to close the possessed premises to

the general public.

City’s Proposed Findings of Fact and Conclusions of Law 2

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26. If the City wanted to bring a group to any of the Fair Park buildings during the

Fair, the Setup Period, or the Takedown Period, the City would have to obtain approval from

SFOT before bringing such a group.

27. In periods of the year other than during the Fair and the Setup Period and

Takedown Period, portions of Fair Park that are principally used during the Fair are gated

and locked.

28. Only SFOT has authority to permit use of those locked areas at any time.

29. SFOT does not pay to the City any portion of the revenues SFOT receives from

the Fair, except to the extent such revenues are used by SFOT to pay its rent and marketing

fee to the City.

30. SFOT does not receive any payments from the City.

31. SFOT does not receive any payments from any city, state, or federal government.

32. Section 3.01 of the 2003 FPC recites the intent of the Defendants to “provide for

continued operation and presentation of the annual Fair at Fair Park in the City of Dallas as

well as...development and improvement of Fair Park as a public entertainment facility, tourist

attraction, campus for Cultural Facilities and public park [and]...the desire of the parties...to

promote mutual cooperation in order to achieve these joint purposes.” It further states that

SFOT “shall be responsible for...operating...the annual Fair, including the annual University

of Texas-University of Oklahoma football game at the Cotton Bowl, the annual Grambling

State University—Prairie View A&M University football game at the Cotton Bowl, other

collegiate or professional athletic events held at the Cotton Bowl during the Period of the

Fair, and operation of the Midway, both during the Period of the Fair and periodically

throughout the year according to this Agreement.”

City’s Proposed Findings of Fact and Conclusions of Law 3

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33. Section 3.02 of the 2003 FPC states that “[i]t is the intent of the parties to award

concession and other contracts on a nondiscriminatory basis and to promote equal access to

business opportunities at Fair Park among all segments of the community.”

34. Article IV of the FPC governs “CONDUCT OF THE ANNUAL STATE FAIR

OF TEXAS” with the City requiring that during set-up and take-down, “Fair Park shall

remain open to the general public, and areas not being used by the State Fair may be

programmed and used by the City in any manner that does not unreasonably interfere with

the set-up and take-down of the Fair.”

35. Article V of the 2003 FPC provides that SFOT “shall program and operate the

Midway during the Period of the Fair and throughout the year as weather conditions permit,”

and states “[i]t is the objective of the City and the State Fair to identify non-Fair

opportunities during the year for operation of the Midway and the State Fair will program

and operate the Midway during such opportunities as are deemed economically feasible by

the State Fair.”

36. The Midway is an SFOT Permanent Area and some rides owned by SFOT are

located on the Midway. SFOT’s administration building, which is owned by SFOT, is also on

the Midway.

37. Although the 2003 FPC contemplates possible non-Fair-time Midway operation

by SFOT, no such operation has occurred under that agreement.

38. Portions of Fair Park are open 365 days a year, but the Midway is not accessible

during the non-Fair period because the Midway is a SFOT Permanent Area, and during the

Fair a ticket is required to access other areas of Fair Park over which SFOT exercises control

under the 2003 FPC.

City’s Proposed Findings of Fact and Conclusions of Law 4

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39. SFOT controls the Midway year-round and the City leaves to SFOT’s judgment

when the Midway can be used for programs during the non-Fair period that are economically

feasible.

40. The 2003 FPC addresses use of the revenue derived from the agreement. Article

VI addresses revenue from concession contracts at Fair Park including the Cotton Bowl.

Section 6.03 and 6.04 of the 2003 FPC state that the “City agrees to cooperate and consult

with State Fair prior to the awarding of any future long-term concession contracts in Fair

Park during the term hereof. . . . The City agrees to receive and give consideration to any

recommendations, suggestions or comments which the State Fair may provide to the City in

connection with the award of long-term concession contracts; provided, however, the City’s

decision to award contracts shall be in its sole and unqualified discretion.”

41. Pursuant to Section 6.03 of the 2003 FPC, the City agrees to include a term in any

long-term concession contracts it negotiates for service within certain areas of Fair Park that

requires the contractor to abide by the rules of the SFOT during the period of the Fair and

gives SFOT a unilateral right to suspend these contracts during the period of the Fair if the

contractor fails to comply with SFOT’s rules and regulations. SFOT has never exercised that

authority because when the City has chosen vendors for such long-term concession contracts,

it has chosen vendors with whom SFOT had a prior relationship.

42. The City cannot enter into concession contracts for SFOT’s Permanent Areas.

43. Pursuant to Section 6.07 of the 2003 FPC, SFOT has the “sole authority to legally

establish all fees, rates, fares, and charges for all concessions, rides, admissions, parking,

exhibits, sporting events, sponsorships and all other activities at Fair Park for the Period of

the Fair, except for fees charged by or at Cultural Facilities.”

City’s Proposed Findings of Fact and Conclusions of Law 5

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44. The City does not limit the sorts of fees that SFOT can derive as it relates to any

activities at Fair Park during the Fair (except, maybe, parking fees), including expressive

activities. The City has never negotiated with SFOT regarding any limitation on SFOT’s

power to charge fees during the Fair.

45. Section 7.01 of the 2003 FPC gives SFOT the right to revenues from all sources,

including exhibit fees, “from Fair Park generated during the Period of the Fair, except for

revenue generated by the Cultural Facilities.”

46. Section 7.02 of the 2003 FPC states that “[SFOT] shall receive the revenue

generated during the Period of the Fair that would otherwise be collected by the City from

concessionaires at Fair Park under contracts with the City, except for those involving

Cultural Facilities.”

47. Section 7.03 of the 2003 FPC states that “[SFOT] shall receive all revenue from

the operation of the Midway whenever operated by [SFOT], including revenue from any

specific concession contracts awarded by [SFOT] for operations within the Midway.

Additionally, [SFOT] shall receive all revenues from temporary concession contracts, rentals,

exhibit fees, events, vehicle parking fees, sponsorships, and all other sources of revenue from

the operations of the State Fair Permanent areas during non-Fair periods; provided, however,

that the City shall receive all revenue from parking fees, rentals, exhibit fees, events,

sponsorships, concession fees, and all other sources of revenue from City events during the

non-Fair periods, even if such revenue is generated from the use of the State Fair Permanent

Areas.”

48. Section 7.04 of the 2003 FPC states that “The City receives all revenue from

concession contracts, rentals, exhibit fees, vehicle parking fees, sponsorships, and all other

sources of revenue in Fair Park except (a) during the Period of the Fair, (b) all revenues from

City’s Proposed Findings of Fact and Conclusions of Law 6

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the Midway, when the Midway is operated by State Fair during non-Fair periods, and (c) all

revenue from the State Fair Permanent areas (except as provided in §7.03 above).”

49. The provisions of Article VII of the 2003 FPC are not a substantive change from

Article VII of the 1987 FPC with respect to SFOT’s rights to revenue from its operations at

Fair Park during the Fair.

50. Article VIII of the 2003 FPC obligated SFOT to pay the City annual rental fees

ranging from $950,000 to $1,750,000 during the term of the agreement.

51. Under Section 8.04 of the 2003 FPC, the City agrees that the entire amount of the

rental fee paid pursuant to the 2003 FPC will be placed in a “special account by the City and

used only for the operation, maintenance, development and improvement of Fair Park.”

57. Section 9.02 of the 2003 FPC states: “In order to provide a sound financial basis

for the future economic integrity of the Fair, the State Fair agrees to develop and maintain a

reserve fund in the amount of at least $4,500,000.”

58. The current reserve amount is set by SFOT with the agreement of the City, in

order to ensure that SFOT would be a position to operate the Fair if SFOT suffered financial

setbacks due to weather or other factors.

59. The net effect of this provision is to exclude reserves from “excess revenue” used

for maintenance and capital improvements in order to ensure that SFOT can operate the Fair.

60. Section 10.02 of the 2003 FPC requires SFOT to require certain of its contractors

to obtain performance and payment bonds under certain circumstances. It also imposes

insurance requirements on SFOT.

67. Under the 2003 FPC, the parties agree to an allocation of utility expenses—the net

effect of which is SFOT pays these expenses before defining “excess revenues” that must be

put back into Fair Park under Article XI.

City’s Proposed Findings of Fact and Conclusions of Law 7

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71. SFOT is governed by an Executive Committee, which is a subcommittee of

SFOT’s Board of Directors (the “Board”).

72. No government employees or officials (or their appointees) sit on the Executive

Committee.

73. No government employees or officials (or their appointees) are voting members

of the Board.

75. The 2003 FPC gives SFOT right to “possession and occupancy of Fair Park...for

the period of the Fair....,” with certain exceptions. By virtue of this grant of power for the

purpose of operating the Fair, SFOT regulates expressive activities on Fair Park during the

Fair.

76. Fundamentally, SFOT reserves the right to exclude any person from Fair Park

during the Fair for any misconduct or violation of SFOT rules or instructions. Here SFOT

enforces, in part, a set of unwritten rules about acceptable conduct at the Fair.

77. SFOT prohibits the distribution of literature without an exhibitor or sponsorship

contract.

78. SFOT has the authority to restrict expressive conduct at the fair by virtue of its

control of the portions of Fair Park where the Fair is conducted. SFOT’s authority to expel

fair-goers includes the power to expel for conduct or speech it deems objectionable, unduly

annoying, harassing, false and deceptive.

79. SFOT has never asked Rundus to leave the Fair simply for engaging in purely

verbal conversations with other fairgoers.

80. As it relates to SFOT’s power to regulate speech activity at Fair Park during the

Fair, SFOT sets forth some of its restrictions on the back of the ticket which must be

purchased for admission to the Fair.

City’s Proposed Findings of Fact and Conclusions of Law 8

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81. One ticket restriction on the 2006 Fair ticket provided that the ticket-holder “may

not engage in political, religious, racial or ethnic propaganda, demonstration, advertising or

other promotional activities. The holder may not solicit contributions, distribute literature,

fliers or promotional merchandise anywhere on the premises.” That language is included on

the 2008 Fair ticket as well.

82. SFOT does allow certain expressive activity via exhibitorship and sponsorship

agreements which give exhibitors and sponsors the ability to engage in expressive activity.

An individual or entity must pay a fee to become an exhibitor or sponsor.

83. Rundus has never applied for an exhibit space at the Fair.

84. Exhibitor fees are set by SFOT based on market rates and SFOT’s revenue goals.

85. The fee that SFOT charges to an exhibitor varies based on a number of factors,

such as the size and location of the exhibit space. SFOT does not take into consideration the

nature of the exhibitor’s activity or offering when setting the amount to charge the exhibitor.

86. A prospective exhibitor or sponsor must submit an application to SFOT.

87. SFOT evaluates potential exhibitor applicants using the following criteria: (i)

uniqueness of exhibit; (ii) type of product; (iii) type of service; (iv) educational value; and (v)

appropriateness for a family audience. Rundus therefore would have to get SFOT’s approval

of his materials if he were to apply to be an exhibitor.

88. The Senior Vice President of Marketing and Vice President of Exhibits approve

or disapprove requests to be exhibitors and sponsors.

89. Exhibitors (and sponsors) must comply with SFOT’s Exhibitor Rules And

Regulations.

90. Approved exhibitors must sign a standard Fair Exhibits Contract, which includes

the Exhibitor Rules and may include a Sweepstakes Addendum.

City’s Proposed Findings of Fact and Conclusions of Law 9

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91. Exhibitor Rule 9 provides that “Distribution, sampling, promoting of products

outside of the contracted booth/space (as defined by [SFOT]) is strictly prohibited.”

92. The City had no involvement in SFOT’s decision to enact Exhibitor Rule 9.

93. SFOT reserves the right to revoke an exhibitor contract if the business or

exhibitions of the exhibitor, or the manner of conducting same, are objectionable to the

general public.

94. This amounts to a judgment call by SFOT officers concerning what sort of

conduct is “objectionable.” There is no evidence that this authority has ever been exercised.

95. An exhibitor may display and distribute materials, provided that it does so only

within the leased exhibit space. Therefore, if Rundus paid for a booth, he would only be

allowed to display and distribute materials from within the booth. SFOT directs exhibitors or

sponsors who leave their contracted exhibit space to distribute materials to return to the

contracted exhibit space.

96. Pursuant to SFOT’s regulations, an exhibitor must staff its booth for 12 hours per

day for the duration of the Fair.

97. SFOT also restricts an exhibitor’s placement of banners as well as the use of

audio or visual devices to attract attention to booths, e.g. an exhibitor cannot display banners

in front of, or outside, the booth and cannot use amplifiers or media that project noise outside

the booth space.

98. Exhibitors who leave their defined, contracted exhibit space to distribute materials

are asked by a SFOT official to return to their space and adhere to Exhibitor Rule 9.

99. In addition to the fees charged for booths, SFOT requires exhibitors to hold SFOT

and the City harmless and to procure insurance.

City’s Proposed Findings of Fact and Conclusions of Law 10

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100. SFOT derives a significant portion of its annual revenue by entering into

exhibitor and sponsorship contracts with various entities.

101. SFOT regularly rents exhibit space to religious organizations.

102. From 2004 to 2006, SFOT leased exhibit space to the following religious

organizations: Christian Educational Services, Church of Scientology Celebrity Center

Dallas, Fair & Rodeo Evangelism, Full Gospel Businessmen’s Fellowship International, and

Amazing Grace Mission.

103. In 2006, SFOT charged the Full Gospel Business Men’s Fellowship

International $11,500 to rent an exhibit space from which the Full Gospel Business Men’s

Fellowship International distributed religious literature.

104. Many religious organizations lease exhibit space year after year.

105. SFOT does not treat religious exhibitor applicants differently than non-religious

exhibitor applicants.

106. SFOT does not treat non-profit exhibitor applicants differently than for-profit

exhibitor applicants.

107. Except in the limited circumstances described above, SFOT strictly prohibits the

distribution of advertising, flyers, or other literature or engaging in other promotional

activities within the Fair. Those restrictions are referred to below as the “Literature-

Distribution Restrictions.”

108. SFOT enforces its Exhibitor Rule 9 and its other restrictions on expressive

activity at the Fair without regard to whether the message or product is commercial or

noncommercial.

109. The City had no involvement in SFOT’s adoption of the Literature-Distribution

Restrictions or its other restrictions on expressive activity.

City’s Proposed Findings of Fact and Conclusions of Law 11

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110. The City has no involvement in SFOT’s decisions concerning who can and

cannot enter the Fair, who can and cannot say what at the Fair, and who can and cannot

distribute literature on SFOT’s leased property.

111. The reasons given by SFOT for the Literature-Distribution Restrictions are: (a)

SFOT’s need to maintain the orderly movement of the crowd given the large number of

exhibitors and persons attending the Fair; (b) SFOT’s interest in protecting fairgoers from

deceptive and misleading speech; (c) SFOT’s interest in protecting fairgoers from harassment

and undue annoyance; and (d) to protect the rights of those who pay for the ability to

distribute materials and to protect SFOT’s financial interests. SFOT’s concern with respect to

its “orderly movement of the crowd” rationale is not based on the impact that any particular

person would have if he or she were to violate the Literature-Distribution Restrictions, but

rather on SFOT’s view of the cumulative effect of many people violating the Literature-

Distribution Restrictions.

112. SFOT has no institutional knowledge concerning the origins of its restrictions

upon expressive activities at Fair Park during the Fair.

113. SFOT’s vice president for marketing has ultimate responsibility for enforcing

SFOT’s policies regarding expressive activity at Fair Park during the Fair. At his deposition,

he could only remember one incident involving a non-exhibitor’s effort to distribute literature

to fair-goers since he joined SFOT in 1999 (apart from Rundus’s efforts). He was unaware of

a complaint arising from Rundus’s activity. He could not recall specific complaints of false

and deceptive speech and did not know if records were kept regarding any such complaints.

He could not recall complaints about harassing and annoying speech.

City’s Proposed Findings of Fact and Conclusions of Law 12

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116. The physical layout of the portion of Fair Park that is used for the Fair is such

that a fairgoer is more or less always within the eyesight of a SFOT official and/or a City

police officer.

117. If SFOT determines that a fairgoer is violating restrictions on expressive activity

at Fair Park during the Fair, SFOT asks the person to comply with its restrictions. If the

person refuses to comply, SFOT asks the fairgoer to leave the Fair. If the fairgoer refuses to

comply, SFOT tells a DPD officer that a fairgoer is not welcome at the Fair, the officer treats

the matter as one of criminal trespass, and responds accordingly.

118. The officer will treat the matter as one of criminal trespassing based on SFOT’s

control of the leased premises of Fair Park. DPD officers respond to criminal trespass issues

raised by SFOT in the same manner that they would for any private citizen in control of

owned or leased property. That is, the police officers do not undertake to examine the reason

the person in control of the property considers a person unwelcome.

119. The police officer ensures that the violator receives the legally required trespass

warning and then either escorts the violator off the premises or arrests the violator for

criminal trespass.

120. The City’s police officers do not attempt to enforce SFOT’s many rules

regarding conduct that exhibitors and sponsors can and cannot engage in, such as limits on

sign placement and the like.

160. The Dallas Police Department (“DPD”) polices the Fair.

161. DPD assigns approximately 160 uniformed DPD officers to work at the Fair by

providing security, maintaining the peace, and addressing criminal violations. DPD officers

also provide services that allow SFOT to operate the Fair such as guarding SFOT’s Coupon

City’s Proposed Findings of Fact and Conclusions of Law 13

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Exchange, escorting SFOT coupon takers to and from the “bank area” of Fair Park, and

providing motorcycle escorts and security for special events.

162. The police officers who work at the Fair frequently encounter the types of

criminal activity normally associated with an event of the Fair’s magnitude: vehicle break-

ins, stolen cars, assaults, theft, public intoxication, and criminal trespass.

163. DPD maintains a large presence at the Fair because during the Fair there are a

very large number of people within a relatively small area, at least some of whom have been

drinking alcohol. Given those circumstances, there is a potential for criminal conduct at the

Fair and DPD’s general policy is to staff events where it knows that crime may occur.

164. Assignment to the Fair is a duty assignment of the DPD. Officers change to this

assignment from their regular duty and then return to their regular slot when the Fair is over.

165. SFOT regards safety as a top priority at the Fair.

166. In 2006 these officers were under the command of Deputy Chief Jesse Reyes.

168. Reyes defines a successful year at the Fair for DPD as making the Fair a safe

place for Fair customers.

169. Reyes considers the Fair a major event and the DPD ensures staffing levels in

order to protect public safety.

170. City police officers do not receive training or other specific information about

the terms of the arrangements between SFOT and the sponsors, exhibitors, vendors, or others

with whom SFOT may have arrangements.

171. From the standpoint of DPD officers, they are not controlled by SFOT when

enforcing City ordinances or state laws at Fair Park during the Fair, policing the fairgrounds

for public intoxication, vehicle break-ins, fights or assaults, etc.

City’s Proposed Findings of Fact and Conclusions of Law 14

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172. There is no real difference between an officer’s duties and responsibilities when

working at Fair Park during the Fair and the officer’s duties and responsibilities when

working at Fair Park after the Fair is over.

173. Thus, excluding the crime of criminal trespass, if DPD officers see a violation of

state law they arrest the offender or otherwise address the violation without regard for

whether the offender has or has not been asked by SFOT to leave the property.

228. The City and SFOT entered into a new FPC effective 1987 (the “1987 FPC”).

By means of the 1987 FPC, SFOT no longer managed Fair Park throughout the year.

229. The change benefited SFOT by allowing it to concentrate on operating the Fair.

II. PROPOSED CONCLUSIONS OF LAW

The Court concludes that:

1 The Dallas City Council is the final policymaker for the City of Dallas.

2. There is no official City policy regarding expressive activities at the Fair.

3. The City is not liable under 42 U.S.C. § 1983 for the acts of SFOT with regard to

SFOT’s expressive activity regulations.

4. There is no official City policy which was the moving force behind and actual

cause of the alleged constitutional violation.

5. Because the City is not liable for any constitutional violations, no relief is granted

as to Plaintiff’s claims.

City’s Proposed Findings of Fact and Conclusions of Law 15

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Respectfully submitted,

City Attorney for the City of Dallas

/s/ Daniel Martin Weir

Daniel Martin Weir
State Bar of Texas No. 24054310
Barbara Rosenberg
State Bar of Texas No. 17267700
Dallas City Hall
1500 Marilla Street, 7DN
Dallas, Texas 75201-6318
Telephone: 214.670.1330
Telecopier: 214.670.0622
dan.weir@dallascityhall.com

City’s Proposed Findings of Fact and Conclusions of Law 16

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CERTIFICATE OF SERVICE

I certify that on the 10th day of November, 2008, I electronically filed the foregoing
document with the Clerk of the Court for the U.S. District Court, Northern District of Texas,
using the electronic case filing system of the Court. The electronic case filing system sent a
“Notice of Electronic Filing” to the following attorneys of record who have consented in writing
to accept this Notice as service of this document by electronic means:

Bryan Neal
Micah Prude
Attorneys for State Fair of Texas, Inc.

Patrick Gillen
Wm Charles Bundren
Attorneys for Plaintiff

/s/Daniel Martin Weir

City’s Proposed Findings of Fact and Conclusions of Law 17