FOLIO FEATURE
First They Came for the Artists
Attorney Thomas Cushman defends constitutional rights of homeless in St. Augustine’s latest moral panic
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Jennifer, a Stage-4 cancer patient, was sitting with her cat on a leash in the courtyard of St. Augustine’s Lightner Museum and City Hall. Then she got sick. When St. Augustine police arrived on the scene, without even performing a wellness check, officers seized her bottle of green tea, claiming it smelled like vodka. We’ll never know. They poured it out on the spot, thus destroying the “evidence,” and transported her to jail, where a Breathalyzer test revealed a blood-alcohol level of ... zero.
Jennifer remained incarcerated for 36 hours. Then she walked from the jail to attorney Thomas Cushman’s office. Jennifer refused to plead guilty, and a jury convicted her of violating the city’s open-container ordinance. An officer had testified that the Florida Department of Law Enforcement refuses to accept or process container bottles for alcohol and that officers are trained to pour out alleged alcohol evidence and not preserve it.
Assistant City Attorney John Cary—performing in front of his first jury—asked Judge Charles Tinlin to throw the book at Jennifer for her brazen refusal to cop a plea. The judge wisely refused, sentencing her to time served. No city records support any claim of FDLE refusal to test container contents in alcohol possession cases, or SAPD instructions to destroy evidence in open-container cases before trial, at the time of arrest.
Homelessness, vagrancy and panhandling are facets of an issue that is reaching moral-panic proportions in the Ancient City. SAPD’s response has been a mixed bag, sometimes overstepping its bounds and sometimes being accused by local hardliners of indulging the indigent population. Tom Cushman and other longtime residents see the current “crisis” as the sequel to another culture war waged at the close of the 20th century, this one against the archetypal degenerate: the artist. Did St. Augustine’s relentless 25-year campaign to criminalize anyone drawing, singing, playing music, painting or entertaining on St. George Street contribute to increased panhandling while tarnishing its ambience and authenticity?
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Anthea Churchman, a living historian, has lived and worked in St. Augustine since 1983, when historic-oriented entertainers populated St. George Street with hammered dulcimers, fiddlers, colonial puppetry and artists with easels.
“There were very few panhandlers on St. George until after the city adopted the street performer ordinance, making art and music a crime,” she recalled.
“The city created a vacuum,” said Helena Sala, a visual artist who successfully sued St. Augustine for First Amendment violations. “It’s a political situation.”
“Homeless” and “panhandlers” are not synonyms. “There’s a lot of compassion for the truly homeless, people down on their luck,” Sala said. She calls many panhandlers “opportunists” creating a “racket.”
St. George Street was once alive with buskers, music, artists, fun and spontaneity. But by 1996, the talented artists, musicians and buskers were called “vermin” and “gypsies” by then-Mayor Claude Leonard “Len” Weeks Jr., a commercial landlord. That’s when the itty-bitty city began passing ordinances banning art and music on St. Augustine’s historic streets.
City burghers criminalized singing, playing music, painting, drawing and entertaining along St. George Street, citing spurious public safety concerns. People were allegedly blocking sidewalks and having a good time being entertained as their partners shopped in the once-hip shops on the popular pedestrian street. The authorities promised alternative venues for street entertainment, including the Plaza de la Constitución. Promises were broken, leading to litigation.
Now, after several lawsuits, the city’s odd anti-artist ordinances remain—holdovers from Weeks’ Kulturkampf.
St. George Street has lost its historic charm and heritage-related stores; it is dominated by kitsch commerce and panhandlers.
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Yes, the artists were replaced by panhandlers, both on the street and in the crosshairs of city authorities—and vigilantes.
“The actions of the city over the years has taken a toll on the number of artists willing to face jail and fight for their rights,” Cushman told Folio Weekly. “And the artists have, to a certain extent, been replaced by poor, hungry individuals, victims of hard financial times. This is a more complex problem than the artists have fought, and sometimes the city’s response has been better, sometimes not.”
As evidence of the latter, in 2018, St. Augustine hired Michael Kahn, the same lawyer who crafted the anti-artist ordinances—which created the panhandling problem—to save the day. No outside peer review, no law professors, just another con job.
“Kahn was hired to clean up the mess that he created,” said Sala.
Peripatetic, self-promoting Melbourne constitutional lawyer Michael Kahn has billed the city of St. Augustine at least $204,509.26 for legal work to criminalize art and music on St. George Street, running off buskers and artists and musicians, and regulating adult entertainment.
The city’s modus operandi has been to create “crises” by non-enforcement, then seek draconian legislation to remedy them. During 2017-’18, after a Tampa federal court upheld panhandlers’ First Amendment rights, authorities in St. Augustine went more than eight months without enforcing its aggressive panhandling ordinance. Kahn concocted his latest ordinance as a First Amendment workaround, and he charged the city $25,000 for it (with a rider stipulating that he would be paid $300/hour to defend it in court). Then-Mayor Nancy Shaver candidly called the agreement a “loss leader.”
Among the witnesses called by Kahn at his 2018 panhandling hearing was Weeks, who helped Kahn cause the panhandling problem in the first place. The former mayor testified that a homeless man urinated outside the window of his office on Cuna Street. He then showed photos of a man sleeping on the ground. (The man later died.)
Another witness, Roy Hinman, M.D., expertly testified to the potential public health risks posed by feces and urine left in public spaces.
Kahn’s ordinance passed, but none of Dr. Hinman’s recommendations appear to have been implemented. Nor was the ordinance amended to remove a possibly unconstitutional provision: a ban on panhandling free speech within 20 feet of any business entrance. The prohibition could run afoul of McCullen v. Coakley, the Supreme Court’s decision against a Massachusetts law banning people within 35 feet of an abortion clinic. Neither the city nor Kahn ever responded to years of questions about that legal precedent.
There are more sweeping precedents as well. In the landmark 1972 case, Papachristou v. City of Jacksonville, the Supreme Court unanimously struck down Jacksonville’s criminal vagrancy law as unconstitutional. Justice William O. Douglas delivered the lyrical decision, citing Henry David Thoreau and Walt Whitman—supporters of nonconformity—and finding the law was “void for vagueness” because it “encouraged arbitrary arrests and convictions” and did not place citizens on notice of what conduct was prohibited.
(Turns out, Jacksonville Ordinance Code § 257 criminalized bohemians with a too-broad brush: “Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.”)
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As draconian as Kahn’s ordinance is, local vigilantes want to go even further. Enter St. Augustine Vagrant Watch & St. Augustine Citizen Night Watch—two names for one Facebook group. Moderators Wade Ross and Evelyn Hammock were called as witnesses when Kahn pitched his ordinance in 2018. Ross, Hammock and other members remain active, harassing and gossiping about people downtown. Like Jacksonville’s unconstitutional ordinance, these vigilantes use the archaic term “vagrant” to smear the targets of their ire.
Some vagrant-watchers are more active than others. Hammock was arrested just before midnight Feb. 14, 2019. She was patrolling the grounds of the city-owned Lightner Museum and City Hall with a Ruger pistol (and a valid concealed-carry permit), apparently looking for sleeping homeless people to report or confront. The State Attorney has since dismissed the charges.
Why is Vagrant Watch so aggressive? Members believe that the St. Augustine Police Department isn’t enforcing Kahn’s ordinance as robustly as it should. SAPD Chief Barry Fox emphasizes empathy, social services, warnings and citations, not the mass arrest of homeless people for victimless crimes. As Lincolnville resident Mark Frazier said, “It’s time to solve our problems rather than try to arrest our way out of them.”
As a result, hardliners like Vagrant Watch are now accusing the city of being too merciful with people experiencing homelessness. St. Augustine is, after all, an internationally recognized “Compassionate City,” one of the first.
On Feb. 27, 2019, Vagrant Watch went so far as to appeal to scandal-ridden St. Johns County Sheriff David Shoar, asking him to send deputies to make the arrests it claims SAPD will not. Shoar demurred.
One city lawman quipped that the vigilantes would “like to round up the homeless, put them on cattle cars and send them to concentration camps.”
As if on cue, a letter published in The St. Augustine Record on March 18 stated, "I think it is about time that county and city leaders, as well as the police department and Sheriff's Office, do their jobs and get rid of the homeless."
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Subjected to illegal arrests, fired from jobs when employers learn they’re homeless, priced out of affordable housing by dodgy developers, stalked by vigilantes: Welcome to the world of the poor and homeless in St. Augustine, Florida. Five million tourists visit annually, yet workers seek living wages and affordable housing in vain.
Solutions to homelessness and panhandling—separate but related problems—continue to evade local leaders, who refuse to even discuss living-wage laws, rent control and enforcement requirements for affordable housing.
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