Is this the ordinance that the city is citing in order to prohibit tents for OccupyHouston or is there another?

Sec. 28-49. - Major event safety zones.

(a)Definitions. As used in this section, the following terms shall have the meanings ascribed in this section:

Major event means a sporting event or other function that is expected to draw 75,000 or more persons to simultaneously congregate in an area of one square mile or less at or near a convention and/or sporting venue within the city.

Safety zone means a zone established under subsection (b), below.

Tent means a temporary structure covered with fabric or another type of membrane. The term
is intended to also include canopies and air-supported, air-inflated, and tensioned membrane structures, as well as conventional tents.

(b)Establishment of safety zone. In consultation with the fire chief, police chief, and traffic engineer, as well as the director of planning and development and the director of any city department or other public agency that is acting as the host for a major event, the mayor is authorized to establish one or more safety zones in the vicinity of venues for the major event. Based upon the recommendations of the traffic engineer, the fire chief, police chief and directors, which shall take into consideration the nature of the event, the numbers of persons and vehicles expected, the street and highway configurations, the condition and traffic flows expected on the streets, highways, and sidewalks, the location of police and fire stations, hospitals, and other critical facilities, security plans for the event, and other relevant factors, the mayor shall establish the safety zone and the period that it will be in effect. Any such safety zone shall be established for an area with specified boundaries and shall be limited to a stated period of time at which large numbers of persons and vehicles are expected to be within the safety zone for the event or for activities relating to setting up and taking down apparatus for the event. The order establishing the safety zone shall be signed by the mayor and filed with the city secretary at least ten days before the time period
for the safety zone commences. The city secretary shall cause the notice to be published in a newspaper of general circulation at least one time before the period commences and shall post the notice on the same bulletin board used for open meetings notices.

(c)Unlawful acts. It shall be unlawful for any person to erect or cause to be erected or to use or cause to be used any tent within a zone safety during the time that the safety zone is in effect.

(d)Defense to prosecution. It is a defense to prosecution under subsection (c) that the tent is part of the support apparatus set up by or for the major event and was set up by or on authorization of the persons conducting the major event and is not being used for merchandise sales or other activities of a commercial nature.

(Ord. No. 03-1314, § 2, 12-23-03)

Synopsis of Rule of Law.  A law is unconstitutional if it criminalizes a substantial amount of free speech and gives the police unconstitutional discretion in enforcement.

Facts.  Appellee, observed a friend intentionally stopping traffic on a busy street in Houston, to allow a vehicle to enter traffic. Two Houston police officers then confronted the friend of the Appellee, and when one named Officer Kelley began talking to him, Appellee began shouting at the officers in an admitted attempt to divert Officer Kelley’s attention from his friend. Appellee shouted at Officer Kelley to pick on someone his own size, to which Officer Kelley asked Appellee if he was interrupting his duties as a police officer. Appellee then stated that yes he was, and shouted to Officer Kelley to once again pick on someone his own size. Appellee was then arrested under a Houston ordinance that prohibited “willfully or intentionally interrupting a city policeman by verbal challenge during an investigation.” Appellee was acquitted after a nonjury trial in municipal court. Following his acquittal, Appellee brought a suit in District Court seeking judgment that the ordinance was unconstitutional on its face and as applied to him. The District Court held that Appellee’s evidence did not demonstrate that the ordinance had been unconstitutionally applied. The Court of Appeals reversed, causing the City of Houston, Texas to appeal to the United States Supreme Court.

Issue.  Whether the Houston ordinance inhibits the free expression of ideas protected by the First Amendment?

Held.  Yes. Houston’s ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinance’s plain language is undoubtedly violated everyday, yet only some individuals, chosen by the police at their discretion, are arrest. Therefore the ordinance is substantially overbroad.

Dissent.
Believes that the Court should not have reached the merits of the constitutional claims, just certified the decision of the Texas Appeals Court. But, nonetheless this dissent in part agrees with the decision of the Court, but like the concurrence disagrees with the Court’s use of the case Lewis v. New Orleans.

Does not believe that the Houston ordinance, in the absence of an authoritative construction by the Texas courts, is unconstitutional.
Concurrence.  Does not agree with the reasoning of the Court, which used Gooding v. Wilson and Lewis v. City of New Orleans as support for the decision.

Discussion.  This case stands for the idea that an ordinance, statute, or other regulation must be sufficiently specific as to prohibit only lawless conduct, and not protected speech. This case also stands for the idea that a regulation will be held constitutional if the regulation affords too much discretion for the agency charged with regulating it, here the city police department of Houston. In fact this decision states that police officers must show some restraint in their actions because the preservation of individual liberties, in the face of some expressive disorder is of paramount importance. The remaining question following this case is when does the level of expressive disorder become so great that it allows the police to restrict individual liberties.

http://www.oyez.org/cases/1980.....986_86_243