Tuesday, December 22, 2015

Criminalizing art in St. Augustine (2001)

Street artist gets probation -- $150 fine; other charges dropped

Staff Writer
Published Thursday, February 08, 2001
St. Augustine Record

A 70-year-old artist arrested in March on charges of offering prints of paintings for sale on St. George Street was sentenced Wednesday to six months of probation and fined $150, while four other charges against her were dropped.

Jane Marjory Cole was found guilty Jan. 26 after a non-jury trial on a second-degree misdemeanor charge of unlawful sale or display of merchandise. She was arrested March 22 after two St. Augustine police officers said Cole was trying to sell prints displayed near 95 St. George St.

At her sentencing hearing Wednesday afternoon, Assistant State Attorney Amy Osteryoung agreed to drop four other charges against Cole, including two charges of violating the city's street performer ordinance by painting on St. George Street in early January.

Cole said she did not violate the city's ordinance, which prohibits the sale of ''goods, wares, merchandise, food stuff, refreshments, or other kinds of property or services'' on North St. George Street.

Cole's attorney, Thomas Cushman, said the street vendor ordinance is vague and that the street performer ordinance, which addresses not only vendors but street performers, superseded it because it was more specific, outlawing the sale of ''visual art.''

Cole said she does not agree with the guilty verdict: ''I think it's wrong.''

Cushman tried to keep Cole from getting probation, while Osteryoung told the judge she would, as a plea offer, drop the four other charges in exchange for probation.

''By her pleading to one, the state doesn't need to get anymore charges,'' Osteryoung said. ''She's been punished once. I don't need to keep punishing her.''

Cole was also charged in November with putting derogatory handbills on public trash cans about then-Mayor Len Weeks and about the city's stance on street performers and vendors.

Osteryoung said dropping the four charges was not the result of any pressure from city officials concerned the city would have to compensate those arrested under the street performer ordinance if a judge decides it's unconstitutional.

''That was my decision,'' Osteryoung said. ''I just went ahead and did it as part of the plea.''

The revised street performer ordinance prohibits dancing, acting, playing musical instruments, mime, magic, singing or artistry, including drawing and painting, on North St. George Street. A previous street performer ordinance was ruled unconstitutional.

County Judge Charles Tinlin ordered Cole to pay a $150 fine and told her that if she violates the law during her six months of unsupervised probation, her probation will be revoked and she will be jailed for 60 days. Unsupervised probation means Cole does not have to report to a probation officer.

The judge also declared that a conviction would not go on Cole's record, although Tinlin issued a ruling the day after the non-jury trial stating that Cole was guilty as charged.

''It's an indication, I believe, of the way the judge felt about the case,'' said Cushman, who had asked the judge not to convict her. ''I think it was pretty clear to me the judge was imposing sentence because he felt he had no choice.''

St. Augustine Police Chief David Shoar said the prosecution's decision to drop the charges does not seem to indicate a lack of faith in the city's street performer ordinance.

''Charges are dropped all the time out there on a daily basis,'' Shoar said. ''I'm not concerned at all.''

Word of Cole's sentencing and the dropped charges spread quickly among street performers and vendors along St. George Street. Jeff Masin was performing a one-man-band act at Hypolita Street Wednesday afternoon. He said he has been performing since Saturday, and that no police officers have arrested or warned him.

City Commissioner Bill Lennon said prosecutors showed preference to Cole by dropping the street-performer ordinance charges against her.

''If it were you or I who broke the law, they wouldn't drop anything,'' Lennon said.

Cushman told the judge he plans to file a notice of appeal, which would go before the Circuit Court in St. Johns County. He also said he plans to file an affidavit of indigency, asking the county to foot the cost of hiring a court reporter to make transcripts of Cole's court proceedings, which could cost between $500 and $750, Cushman said.

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