Clean Up City of St. Augustine, Florida: Artists' Lawsuit Heads to Court: City's Insouciant Insurance Defense Lawyer's Federal Court Filing Excerpts -- IN HAEC VERBA

MARKS GRAY shareholder (partner) EDWARD LOUIS BIRK, author of "Employment Lawyers: If you want to litigate, do not investigate," TRIAL ADVOCATE QUARTERLY, FLORIDA DEFENSE LAWYERS ASSOCIATION (SUMMER 2002).

The same insurance defense firm that lost the Rainbow flags case in 2005, showing insensitivity to First Amendment rights is at it again, possibly misrepresenting facts to the United States District Court for the Middle District of Florida in the case of Bates et al. v. City of St. Augustine, in which an oral argument will be held before Judge Brian J. Davis tomorrow morning at 10 AM.

Some excerpts:

"In a statement of pure conjecture, Plaintiffs here try to minimize risks associated with their purported equipment of easels and brushes. The real risk is that someone could trip and fall as a result of Plaintiffs’ equipment and wares. Moreover, as articulated above, the greater question is the cost of the insurance premiums for such indemnity coverage and Plaintiffs have provided no basis for 1) the amount of such premiums, or 2) that such premiums are unconstitutionally burdensome."

"The ordinance addresses serious safety concerns including limiting the traffic on sidewalks and public streets and limiting after-hours vending to prevent crime. Because Plaintiffs have failed to meet this required prong, their Motion for Preliminary Injunction should be denied."

"The City’s interest in protecting the public from dangerous conditions outweighs any minimal restrictions on the Plaintiffs’ ability to express themselves through exhibition of their art. Public interest is served by the City promoting public safety and the orderly movement of pedestrians and protecting the local merchant economy. First Amendment rights are not without limits and must be balanced with the right of the sovereign to protect public safety, health, and welfare. The ordinance leaves ample channels of communication open for Plaintiffs to express themselves. (quoting Schneider v. State of New Jersey, 308 U.S. 147 (1939)) (“[M]unicipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for the movement of people and property, the primary purpose to which the streets are dedicated.”). The same reasoning applies here. The City enacted the ordinances for traffic control, safety, and aesthetics. The ordinances are not an attempt to control any particular message. “That the city's limitations may reduce the potential audience to some degree is of no consequence, for there has been no showing that the remaining avenues are inadequate.” One World, 175 F.3d at 1288."

"Plaintiffs contend the ordinances give greater latitude to the activities of performers than to the vending of wares or art and thus violate the Equal Protection Clause. If true, that distinction is not arbitrary and is supported by the distinction between purely expressive conduct and conduct which includes commercial speech. Once again, there is no viewpoint discrimination in this area. It simply is a recognition that purely expressive conduct is entitled to greater protection (less regulation) than commercial (sic) speech."

"In addition, street performers are likely mobile while vendors and their equipment are more stationary. As such, Plaintiffs have more options to find a space within the City and perform their creative activities that constitute expressive conduct. Vendors (sic) will by definition be engaging in financial transactions with the public and therefore the ability of government to regulate their activities is greater."

"If the Court finds that a portion of the ordinance is invalid or subject to injunction, the Court should sever that portion from the remaining valid portions of the ordinance. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772 (1988). Florida law clearly favors severance of the invalid portions of a law from the valid ones. According to the Florida Supreme Court, “[s]everability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions.” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla.1999) (citing State v. Calhoun County, 126 Fla. 376, 383 (1936)). The doctrine of severability is “derived from the respect of the judiciary for the separation of powers, and is ‘designed to show great deference to the legislative prerogative to enact laws.’” Id. (quoting Schmitt v. State, 590 So. 2d 404, 415 (Fla.1991))."

Submitted this 12th day of August 2015.
/s Edward L. Birk

Edward L. Birk, Esquire
Florida Bar No.: 068462
Alison H. Sausaman, Esquire
Florida Bar No.: 112552
MARKS GRAY, P.A.
1200 Riverplace Blvd., Suite 800 Jacksonville, Florida 32207