Judge rules in favor of artists

Judge rules in favor of artists



By RICHARD PRIOR
richard.prior@staugustine.com
Publication Date: 05/12/09

A federal judge in Jacksonville has blocked the City of St. Augustine from keeping visual artists from displaying and selling their work on the Plaza de la Constitucion.

The preliminary injunction on behalf of Bruce Bates, Richard Childs, Elena Hecht and Kate Merrick was signed Monday by U.S. District Judge Marcia Morales Howard.

"I'm just sitting here smiling," plaintiffs' attorney Thomas Cushman said Monday evening when reached at home. "This has been a long time coming.

"It's refreshing to find out that the Constitution is once again alive in St. Johns County."

Cushman was joined by Jacksonville attorneys Bill Sheppard and D. Gray Thomas in the April 13 argument that the city code violates the plaintiffs' First Amendment rights by "restraining and chilling" free expression.

Bates is a caricaturist; Chiles a sculptor and painter; Hecht a photographer; and Merrick a painter.

The city was represented by City Attorney Ron Brown and private attorney Michael H. Kahn of Melbourne.

When artists were allowed to display and sell their work on the Plaza, according to the city, crowds blocked the sidewalks, creating a problem with traffic control. Also being sold were sunglasses and other inexpensive tourist items that were not considered visual art.

Howard said the city's stated goals of "maintaining aesthetics, promoting public safety and assuring the orderly movement of pedestrians" may be grounds for "some restriction of protected expression."

However, she found that the ordinance "appears to burden substantially more speech than is necessary to further the City's interest."

The city also argued that the ordinance "serves the governmental interest of protecting the merchant economy."

Howard ruled that the record presented to her "fails to disclose how or why the restriction at issue serves that interest. Indeed, nothing ... submitted to the Court suggests that there is a need to protect the local merchant economy, much less how the Ordinance serves to do so."

Howard highlighted two aspects of the case for special mention.

She noted that all of the statements about the city's "significant governmental interests" refer to the Plaza. But the restrictions have a much broader reach.

"(T)he Ordinance, without any further explanation, prohibits vending activity throughout the entirety of the Historic District. ... far in excess of the 49,560 square feet constituting the grounds of the Plaza. ..."

The Historic District stretches approximately from Castillo Drive on the north to Bridge Street on the south, and from Cordova Street on the west to the Matanzas River on the east.

"While the City may have expressed laudable goals with regard to the Plaza de la Constitucion ... it has entirely failed to explain why a prohibition of vending activities throughout the entirety of the Historic District is necessary to serve those goals," Howard wrote.

The judge also took issue with the city's "suggested alternative locations" for artists. Those areas "consist of empty lots and narrow street corners, far from public view."

She pointed out that one of the "alternative avenues of communication" "consists of the median in the middle of Castillo Drive."

Cushman, who took up the cause of street vendors years ago, had special praise for his co-counsel.

"What a wonderful job Sheppard and Thomas and that crew did," he said. "We should have gotten them involved years ago."

The judge's ruling bars the city from enforcing that section of the code "pending further order of the court."

"This is the preliminary injunction," said Cushman. "We still have a trial to go through on a permanent injunction, damages and attorney fees."

The city now has several options, he said.

"They could appeal, go to mediation on damages, or simply read the order," said Cushman. "It applies only to visual artists.

"They don't have to amend their ordinance, and it would still keep the Plaza from becoming a flea market."

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