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Fort Williams vendor issues hinges on 'free expression'

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Posted: Wednesday, June 26, 2013 6:50 am | Updated: 9:08 am, Wed Jun 26, 2013.

CAPE ELIZABETH – Put off by a recent public battle over so-called “street artists” in Portland, as well as a lawsuit in New York, Cape Elizabeth has decided not to fight an artist who began selling his work at Fort Williams Park earlier this year. Instead, it may invite more artists to join in the use of public land for purposes of “free expression.”

On June 20, the Fort Williams Advisory Commission voted unanimously to recommend four pages of “Rules and Regulations for Vending of Expressive Matter in Fort Williams Park.” Those rules, which will go before the Town Council in a public hearing at its July 8 meeting, would allow up to eight artists to sell their work, or performers to collect donations, in an area adjacent to the central parking lot of the historic site.

The issue began with a March 4 letter to Town Manager Michael McGovern from local artist Kris Kristiansen. In an April 5 email, Kristiansen wrote, “It is my understanding that a sidewalk or public park, whether it belongs to a nation, state, city or town, is considered a ‘public forum’ for the purposes of the First Amendment, which would include Fort Williams Park.

“Generally, apart from abiding by public safety considerations, there are no rules and the artists do not have to request permission or obtain a permit.  Unfortunately, I have also read of places, mostly large cities, where a First Amendment artist has been illegally harassed by local officials and police to the point where the artist is forced to go to court to have their rights upheld,” write Kristiansen.

That prompted an April 6 email from Town Council Chairman Jim Walsh to McGovern.

“It certainly looks like he is setting the stage to make a ‘statement’ this summer,” Walsh wrote, to which McGovern replied he would consult with town attorney Tom Leahy.

Two days later, on April 8, McGovern wrote to Kristiansen, “You have no constitutional right to establish your own business on municipal property without first obtaining a license from the town. You may not utilize municipal property at Fort Williams Park and at Portland Head Light for private sales except with written permission of the Town of Cape Elizabeth. Any attempt to do so will be dealt with in accordance with the enforcement provisions of the municipal codes.”

According to Public Works Director Bob Malley, that letter was never sent to Kristiansen, after it was sent to Leahy for review. Malley said he was somewhat surprised when he first saw Kristiansen in the park days later, but said he was told the attorney was reviewing the issue and to “let him be for now.”

Kristiansen did not immediately return an email asking for comment, and he was not at the park during any of three visits by a reporter last week.

On May 30, the three-member ordinance committee met with attorney John Wall, from the Portland law firm Monaghan Leahy, to review court decisions relating to the First Amendment rights of street vendors.

The unanimous recommendation was to add a single sentence to the Chapter 12 of the town’s code of ordinances relating to “miscellaneous offenses” asserting the town’s right to govern commerce in the park, as it has the past two years. The proposal reads, simply, “The town council is hereby authorized to adopt rules and regulations to manage commercial activities in the Park, activities that include, but are not limited to, vending.”

That line will be the subject of the July 8 public hearing, and should come early on the agenda, soon after the 7 p.m. start of the council meeting at town hall. After the hearing, the council will take up the advisory commission recommendations, which set boundaries for the eight allowed vending spaces, as well as limitations, such a prohibitions on selling directly from a motor vehicle, using speakers or other amplification methods, or from trying to attract customers by calling out to them.

At the June 20 advisory commission meeting, members questioned what constituted artistic expression. Chairman Bill Brownell said, “It’s a moving target,” but cited concern regarding recent issues in Portland’s Old Port district, where street artists vie for dollars from cruise ship passengers.

On May 20, the Portland City Council ended two years of acrimony by passing relatively modest restrictions on street artists, including a ban on the use of open flames, a reference to flaming-stick jugglers that frequent parks there. But councilors punted on other recommendations from a special task force, such as a requirement to register at city hall and to stay of sidewalks less than 8 feet wide.

The American Civil Liberties Union of Maine had threatened to file a lawsuit over the registry requirement.

Meanwhile, Leahy found a precedent that could hurt Cape’s case if it tried a bolder approach.

“The courts in Maine have never addressed this,” said Brownell. “But the second circuit court of New York City has spoken to the right of street artists to sell on public property and has said they do have that right.”

Other commission members, however, seemed incredulous, appearing to vote for the rules only reluctantly.

“What if somebody wants to sell birdhouses?” asked Lise Pratt. “It makes no senses to me that we have to allow them in without any licensing whatsoever.”

That free use of the park has reportedly bothered food vendors who since 2011 have paid upward of $4,000 to work Fort Williams. The town also called on food vendors to carry a $400,000 insurance policy with coverage good for at least $2 million on bodily injury and property damage.

Gross said in a May 27 email that the vendors had begun “expressing frustration” with the seeming unfairness. Photographer Richard Morin, who has an agreement to sell his work at the gift shop, also questioned the free sales, given that he returns 50 percent of his proceeds, $8,000 last year, to the park.

McGovern replied in a June 3 email that the forces are in motion to regulate artists in the park, and that “the ongoing process will likely identify a more permanent area for ‘artistic expression.’”

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