Artists sue over Plaza sales -- Preliminary injunction hearing will be within 10 days

Artists sue over Plaza sales -- Preliminary injunction hearing will be within 10 days

By PETER GUINTA
http://staugustine.com/stories/030709/news_030709_001.shtml

St. Augustine officials on Friday received a copy of a federal lawsuit filed against the city by four artists alleging that their First Amendment rights to sell art on the Plaza de la Constitucion are being violated.

The lawsuit requests a temporary then permanent injunction to prevent enforcement of City Code 22-6, which bans any type of vending on the Plaza.

A preliminary injunction hearing will be scheduled within 10 days.

The lawsuit language claims the city is "unconstitutionally restraining and chilling the plaintiffs' visual artistic expression in a traditional public forum."

Attorney Tom Cushman is representing plaintiffs Bruce Bates, Richard Childs, Elena Hecht and Kate Merrick with his co-counsel being attorneys William Sheppard and Gray Thomas of Jacksonville.

Bates is a caricature artist, Childs is a sculptor and painter, Hecht is a photographer and Merrick a painter.

"From time immemorial, public places have always been recognized (as places of) free expression," Cushman said. "Art is free expressive conduct, it's protected speech. It's different from general merchandise."

Police have made arrests for violating 22-6, even detailing undercover officers to the Plaza to catch artists selling art surreptitiously.

According to Cushman, the city has adopted and amended its ordinances ban St. George Street artists to the Plaza, created a lottery permit system in the Plaza, "exempted some artists from the lottery, refunded permit fees that had been collected unlawfully, abolished the lottery system and ultimately banned artists from the Plaza entirely."

City Attorney Ron Brown said he needs a chance to review his copy of the complaint over the weekend, but added, "We made amendments to that ordinance and believe it to be constitutional."

Brown said the city hired attorney Michael Kahn of Melbourne to act as its First Amendment counsel. Kahn was successful several years ago in defending the city's limited prohibition against street performers on St. George St, which is still in place.

Artist Greg Travous, who has 19 city citations still unresolved, said Friday, "We're not allowed in the Old Town any more. We held a garage sale to raise money for this lawsuit and made more money selling rummage than we do selling art."

Cushman's office has a copy of the Bill of Rights on the wall. He said he's a "fundamentalist" as far as the First Amendment is concerned.

The complaint says the city "failed to adequately demonstrated any governmental interest...sufficient to justify the restrictions."

"The general public has been very receptive and likes the artists," he said. "I don't know why the city doesn't."

Part of the answer may lie in the definition of "art." In a previous case in circuit court, artists were accused of selling items they called art but the city didn't.

Cushman said, "It doesn't prohibit the production of art on the Plaza, just its sale in Historic Districts 2 and 3, which is where the tourists are. Art is difficult to define. If someone calls it art, who are we to say otherwise?"

He said the city should open up the Plaza to all artists.

"It would be good for everybody's business. Tourists are enchanted by artists," he said.

He estimated the city will pay $20,000 for special counsel to fight taxpayers' rights to free speech.

Brown said there was a "pretty high standard of proof" the artists must establish to get an injunction. And, he said, the artists are asking the judge not to request a bond.

"The bond covers (financial) injuries if the injunction is imposed improperly," he said.

Mayor Joe Boles said if the city loses, another ordinance would be written to make the ban constitutional. But he doubted the city would have to do that.

"Anybody with a filing fee can take a whack at the apple," he said. "They don't always get a bite."