Artists, city await injunction decision

Artists, city await injunction decision



By PETER GUINTA
peter.guinta@staugustine.com
Publication Date: 04/15/09

U.S. District Judge Marcia Morales Howard is considering a preliminary injunction request to declare unconstitutional the section of the St. Augustine City Code that prohibits artists and other vendors from selling their wares on the Plaza de la Constitucion.

The artists' attorneys, D. Gray Thomas and Bill Sheppard of Jacksonville and Thomas Cushman of St. Augustine, argued that the city code violates First Amendment rights by "restraining and chilling" free expression.

The plaintiffs are caricaturist Bruce K. Bates, sculptor and painter Richard Chiles, photographer Elena Hecht and painter Kate Merrick.

According to the original complaint, "The city restricted the display of art, banned street artists from St. George Street for use of the Plaza, implemented a lottery system for the Plaza, exempted some visual artists from the lottery system, refunded permit fees that had been collected unlawfully, abolished the lottery permit system and ultimately banned street artists from the Plaza entirely."

This, in essence, demonstrates "a deliberate attempt to quarantine visual artists," the complaint said.

On Tuesday, Cushman said the crux of the case was that the city believes it has established alternative areas where the artists could sell their work.

However, the artists believe those places to be untenable or unsafe. They include the Special Events Field, the parking garage's pedestrian area, the median of Castillo Drive, the Visitor Information Center, the lot behind the Lightner Museum and sidewalks near Casa Monica Hotel.

"It's ridiculous and insulting," Cushman said of the suggested alternative areas.

City Attorney Ron Brown and private attorney Michael H. Kahn of Melbourne represent the city. Kahn successfully defended the city against a First Amendment case filed by artists and musicians on St. George Street in 2007.

He said Tuesday that both sides disagree on two points -- that the ordinance is narrowly tailored and that it allows "ample alternative avenues of communication."

The city believes code is carefully written and clearly allows artists alternative areas.

When artists were allowed on the Plaza, the city says, pedestrian traffic control became a problem when sidewalks were blocked by crowds. Trash and garbage were left behind by vendors. In addition, city merchants complained that Plaza artists were undercutting them.

"The Plaza is a historic part of the historic district," Kahn said. "(The artists) may actually use the Plaza during special events, such as the Fourth of July. They would need to get permits. It's not like they don't have access."

Brown said the city will wait for what Judge Howard decides.

Both sides praised her for being well-prepared, being engaged and for carefully following the arguments. However, there's no telling when her decision on the preliminary injunction would be made.

If the injunction requested by the artists is denied, a trial on the evidence will probably follow, Brown said.

If the injunction is granted, the city will look what the court found, re-examine at its own ordinances and look for grounds of appeal.

"This is not about art. It's about vendors," Brown said. "The city views all vending acts as vending. We'll let the courts sort it out. Whatever guidance the court provides us, we'll follow it."

Cushman said essentially the same thing.

"There was really no argument that the Plaza is a public forum," he said. "The city spent $25,000 in the 2007 case. They won on St. George Street and rewrote the ordinance. But the city has better things to do than fight the citizens' civil rights with their own money."


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