The newly ruled decision protecting artists who practice their freedom of expression in the Plaza de
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Being a local St. Augustine artist whose creative, artistic endeavors have been suppressed by unconstitutionally applied & enforced local ordinances which prohibited the display & sale of my art- the ruling made by federal judge Tinlin on Tuesday, May 12th, 2009 brings me a long-awaited sense of gratitude & satisfaction! On behalf of the artists' community, I would like to thank those who have pioneered & gone before the courts to uphold our civil rights! I, like many others, was once a visitor to this beautiful town- who became so enchanted & inspired by seeing those artists in the plaza going down there to represent their work, that I too decided to move here & give it a whirl. Things went beautifully, until all art was banned in our public forum, the Plaza de la Constitucion. How could this happen in the land of the free? I asked. Having been forced to pursue other avenues, if anything, only enriched me in the long run. Being a jewelry designer by artistic choice was not an option if I wanted to continue representing my work in the plaza. Upon the city's unlawful decision to stop issuing vendors' permits- during a closed door meeting- giving only about a week or two notice, many aspiring artists were suddenly unemployed. Knowing I still had the constitutional right to free expression in a public forum, without the purchase of a city issued permit, I began going down to the plaza & making art on site. To be outside, under a canopy of trees with the sun shining down through the branches, was in itself a blessing. And to sit out there making art & displaying my collection, was my constitutional right as a U.S. citizen. To then hear rumors that we artists were no longer even allowed to exercise the 1st & 14th amendment rights, disappointed me. Instead of risking harrassment & citations by law enforcement, I chose to stay home to raise my children & put my art on the back burner. Then, suddenly, I found inspiration in making wire sculptures which express a voice- affirmation art, wire words representing positive thoughts & mantras- decorated with beads. Now that we are protected under federal ruling to exercise our freedom of expression in the plaza once again, I am ready to reveal my newest works of art! Now is the time for our community to be brought back to it's roots. The plaza was created to provide a central local marketplace for merchants & artisans & is our nation's oldest marketplace. We need to exercise our civil rights & express ourselves in art, dance, performance & music in order to be heard.... Why not do this where we were meant to- in our local, public parks & other public forums. Here is a copy of the latest scoop on the subject: Judge rules in favor of artists By RICHARD PRIOR | More by this reporter | richard.prior@staugustine.com | Posted: Tuesday, May 12, 2009 ; Updated: 12:51 AM on Tuesday, May 12, 2009: 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 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. 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." Reader Comments Posted by: starlightfarm2001 at May. 12, 2009 at 7:01:16 am It would be nice to have the street artists back. Posted by: fleamarketGerry at May. 12, 2009 at 7:36:40 am Someplace downtown there could be a GIANT FLEA MARKET. It would draw more business than most of those over-priced, CHEESEY store fronts. COME TO THINK OF IT, HOW COME THE ST. AUGUSTINE PIER on WEDNESDAY CAN RESTRICT WHO CAN SELL AND WHO CANNOT? THE PIER PARKING LOT IS SUPPORTED BY PUBLIC TAX DOLLARS and ALL VENDORS SHOULD BE ALLOWED IF THERE IS ROOM. SOUNDS LIKE ANOTHER LAWSUIT!!! Posted by: spinachface7 at May. 12, 2009 at 8:07:29 am The city argues they "must protect the merchant economy" Yeah right those greedy traitors have had a stranglehold on the historic district for years! Ity is not their private hunting grounds, , there comes a time in the course of human events when a govt. of despots must be thrown off! Read the constitution next time Mayor Boles , you dont own the streets! This is America land of the free, where talent ,and hard work rule! Not money and family heritage. That is true. Down with King George and all the oppressors! Posted by: spinachface7 at May. 12, 2009 at 8:15:21 am spinach in your face, all of you liars, including the traitor susan Burk Posted by: spinachface7 at May. 12, 2009 at 8:19:03 am People who lied ,said they would help artists, onlyscrewed , them in the ground, Errol Jones, George Gardner, Susan Burk,, used artists to get votes,! Posted by: PMenendez at May. 12, 2009 at 8:25:07 am No selling sunglasses though, right? Posted by: nonspook at May. 12, 2009 at 9:16:35 am I don't get the head(lie) ? " Judge Rules In FAVOR Of Artists " Yet, the article says you can't sell downtown. What gives ? Posted by: compass at May. 12, 2009 at 9:25:05 am Hooray! It is nice to know that just plain fun will be Back in the downtown. Posted by: spinachface7 at May. 12, 2009 at 10:31:55 am One of the basic premises of the Constitution is Freedom of Speech and Freedom of the press, both of which this city has spent huge amounts of money trying to surpress in Federal court, They lost 26,000 to The Saint Aug dog, they are losers! Long Live The Saint Aug Dog!!! Long Live Art !!! How much will they spend trying to crush the spirit of Artists. Also do not sing any Religious songs at school , how much did those losers spend on that? St. Johns County wake up. Posted by: silence_dogood at May. 12, 2009 at 10:44:29 am nonspook: the article says that only 1st Amendment protected art can be sold downtown. No sunglasses...no tee shirts...no jewelry... no merchants or vendors... 1st Amendment protected artists only. Paintings, sculpture, prints and photographs...only. No flea market type items... no illegal knock-off designer purses... nothing but art! Posted by: SouthEastFirePhoto at May. 12, 2009 at 10:54:28 am Yeah!! Score one for the artists. Posted by: roger_jolley at May. 12, 2009 at 11:04:07 am The logic runs this way: When you give an artist money, you are buying an intangible, it is speech, expression, so is the money exchanged, protected under the First Amendment. When you give a commercial vender your money, it is a purchase and nothing more, REGULATED and controlled under the Commerce Clause of the Constitution that requires regulation by government. This is the end product of the analysis by multiple court rulings that continue to be upheld as I stated above. We can understand from this point in time and move forward, or we can allow the City Manager to stick his head back in the sand and continue to spend tax dollars on behalf of the downtown merchant power group. Posted by: roger_jolley at May. 12, 2009 at 11:21:47 am After I read the ruling, I'm going back down to my old spot in front of the Columbia restaurant right on St. George Street and do my show. Of course I'll make sure the TV press that is somewhat honest and doesn't spin as much in favor of city hall knows of my impending arrest for publicly defying the city's discredited ordinances. The two ordinances are connected at the hip, the language is nearly identical and the street performer ordinance defines an artist selling their work as a street performer. The dueling definitions between the two ordinances causes a serious conflict for the court. I'll finish reading the ruling twice, and both ordinances twice. Then I am likely to pack up and go try and do my old show. I rarely perform anymore, I have a lung disease that causes me to go into coughing fits at odd times- not good for doing my show, ya know? If they want to publicly arrest me, OK. I think cooler heads will prevail and they will allow us first amendment public forum users back onto all our streets, parks and plazas until the trial, or appeal, whatever other foolish thing the city manager is contemplating. Lets be clear. The City Commission is by law not allowed to interfere in Police matters. All city enforcement decisions including police enforcement are City Manager Harriss's alone. That means the illegal police enforcement methods that the Judge used as a basis for the injunction, if used against me on St. George Street may well spark a new Federal matter for the F.B.I and the U.S. Justice Department- under new management these days. SAPD may not get the pass they've enjoyed from federal law enforcement up to now, Klan courtesy I think. Posted by: Parentforkid at May. 12, 2009 at 12:39:24 pm I went downtown this past weekend and enjoyed the performers as I walked down St George St. That's the charm of St Augustine. My grandparents down to my grandkids were born and raised in St Augustine and do not shop downtown. The stores & sighseeing are so overpriced! What else is there to do at the Plaza de la? Posted by: redjohn48 at May. 12, 2009 at 1:29:13 pm I wait until "religeous" art starts being sold on public soil. Old Leonardo might have had a tough time in today's world. Posted by: acureforgravity at May. 12, 2009 at 1:32:43 pm spinachface "The city argues they "must protect the merchant economy" Yeah right those greedy traitors have had a stranglehold on the historic district for years!" It's even more the landlords, who not only collect usurous rent but also a piece of the sales. If those landloards could figure out how to charge the street performers and artists rent they'd be a little more tolerant. You can always buy authentic St. Augustine trinkets made in China with slave labor! My mom used to come down just for the street performers, and while there would spend plenty of money in the shops. The last time she was here she barely bothered with St. George Street as it's so dull. Posted by: roger_jolley at May. 12, 2009 at 5:32:02 pm Can anybody see a middle ground? Posted by: roger_jolley at May. 12, 2009 at 5:33:15 pm <<Posted by: nonspook at May. 12, 2009 at 9:16:35 am I don't get the head(lie) ? " Judge Rules In FAVOR Of Artists " Yet, the article says you can't sell downtown. What gives ?>>> Article says they can sell, 1st sentence.....what are you smoking? Posted by: cameragirl at May. 12, 2009 at 6:15:46 pm Roger Jolly- Can you not just be glad for the artists and show some support for them without trying to hijack this into being all about you? You had your shot and you blew it! Don't go and screw this up for them! Posted by: cameragirl at May. 12, 2009 at 6:20:21 pm Roger Jolly- can you not just be glad for the artists and support them without hijacking this into being all about you? You had your shot and you blew it! Don't screw this up for the artists! Posted by: itsthelaw at May. 12, 2009 at 10:19:03 pm Why didn't they ask "God"? I hear he owns this town. lol Posted by: roger_jolley at May. 12, 2009 at 10:56:57 pm There were no artist ever.... selling on the street until 1996 when Tom Cushman won our case for protected speech. When I came back onto the street, a handful of artist who used to go off the street to make a sale and who hid their portfolios for fear of arrest came out into the open and city police left me and the artist alone, for well over 7 years. There were not enough artist to matter one way or the other back then, the work my fellows and I did built up the community that still struggles to survive today. All the lawyers in this case started out as my lawyers and the street performers will be back in lawful performance on St. George Street before the fat lady sings....,I hear her warming up in the background, I'd better get on with it. In 2000, the artist abandoned the performers, claiming since they were quiet the merchants wanted them without performers. After performers left town, artist became the target. When the artist are gone, will the city and judges come for your guns next? Posted by: skookum at May. 13, 2009 at 9:40:21 am Okay how long before the next ordinance? 30, 60, 90 days. And that will cost how much to run through the courts AGAIN! I wish I dad a law firm that gets paid to try to cover the cities ***** on thier stupidity. Oh wait the have one. Posted by: Citizen at May. 13, 2009 at 11:13:56 am I've always had a tough time thinking throught this issue. On one hand. I think that the artists add to the flavor of St. Augustine and I enjoy viewing their work. Therefore, on that basis I believe that they should be allowed to display and sell their art. On the other hand, does anyone really think that this is freedom of speech issue? I know what the courts have ruled, and using those precedents makes sense from the legal perspective to accomplish the objective. But I still view this as an commercial argument under the guise of a 1st ammendment rights banner. In other words, money, not freedom, remains the primary objective. That bothers me some. Maybe it shouldn't, but it does. Posted by: lighthouseglow1959 at May. 13, 2009 at 11:46:28 am en.wikipedia.org/wiki/Art Posted by: roger_jolley at May. 13, 2009 at 6:09:03 pm That has been precisely the problem. It is thought to be a loop hole for disguised commerce. It is not. Judge Watson ruled clearly that (art and) performance is not commerce, even if i sell a cd of my songs or video of my performance. The money is expression when it comes to first amendment expressions like art and music or books. The State of Florida Dept. of revenue does not get a sales tax from the RECORD, for example, the government can not interfere in the free exchange between publisher and buyer, nor artist or performer and buyer- it is protected. Commercial speech or commerce is expressly regulated. The State code and the UCC code both point out a dealer must collect tax on any sale of art over $100, yet the artist is not required to collect and remit sales tax for art sales of any amount. I'll look for a link and post it. Posted by: roger_jolley at May. 13, 2009 at 6:14:03 pm In other words, money, not freedom, remains the primary objective. Neither the publisher nor the artist can create their works if they are not paid, the traditional way that artist and newspaper publishers have distributed their protected speech is by sales which are like-wise protected as expression. When the little champ buys in bulk and resales, tax is paid. When the publisher or artist sells, no tax is paid. Does that explain things any better? Posted by: roger_jolley at May. 13, 2009 at 6:30:07 pm www.leg.state.fl.us/statutes/index.cfm This is the first one, defines terms- note exception to dealer definition at the end. I'll find the other statute. Posted by: roger_jolley at May. 13, 2009 at 6:36:37 pm This one singles out original artist saying the term dealer does not apply to one selling their own art or prints. The DOR backed away from issuing a ruling when I pressed them on three different filings several years ago. I think the law is clear and shows that art sales is something besides commerce, it always expresses, even though sold. www.leg.state.fl.us/statutes/index.cfm Posted by: Cameragirl at May. 14, 2009 at 8:41:37 am Hey Roger, I'm sure the IRS would like to have a discussion with you about that art sales do not have to be taxed... Posted by: roger_jolley at May. 14, 2009 at 2:48:43 pm <<<Posted by: Cameragirl at May. 14, 2009 at 8:41:37 am Hey Roger, I'm sure the IRS would like to have a discussion with you about that art sales do not have to be taxed...>>>> Already done. The IRS and the Fla. DOR back pedaled as fast as possible and even withdrew agents pressuring street artists downtown after I confronted the local head of DOR office in Jacksonville. IRS will not accept my free-will gifts from doing my street show as income- I tried, they sent a letter saying it is not income- imagine that:) The IRS actually has a special booklet- you should check it out- it will point out flaws in the way you are thinking of these matters. Its a shame everyone wants to publish their opinion without FIRST checking out the facts, allegations and context. Check the facts, don't rely on what you think you know- that is a recipe for public (and expensive) disaster. Perhaps city commissioners should check out both the State law posted above and the IRS publication. I'll try and find it and post a link for you Cameragirl. I'm sure you prefer to be well informed. You can comment by logging in. - Jenna , posted 05/14/09 |
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