February 15, 2013

Registry likely for Portland street artists

A City Council committee rejects many proposals but backs free registration despite legal qualms.

By Randy Billings rbillings@pressherald.com
Staff Writer

PORTLAND – The city is pressing forward with a plan to create a registration system for street art vendors, likely setting up a legal showdown with free-speech advocates.

click image to enlarge

Members of the Creative Community Coalition, from left, Abbeth Russell, William Hessian, Marrion Ladd and Asher Platts work on their presentation Monday at Russell’s and Hessian’s home in Portland. The city said Tuesday it is pressing forward with a plan to create a registration system for street art vendors, likely setting up a legal showdown with free-speech advocates.

Tim Greenway / Staff Photographer

Other proposed restrictions on street art vendors -- allowing them to set up only on sidewalks 8 feet or wider and banning them from Bell Buoy Park -- were struck down Tuesday by the City Council's Public Safety, Health and Human Services Committee.

The panel also punted on a proposal to ban street art vendors from setting up during business hours within 10 feet of an nonfood retailer, pending further staff analysis.

And instead of banning art vendors from Bell Buoy Park, committee members asked staff to draft a proposal to create a corridor so emergency officials can transport patients from the fireboat while keeping the rest of the park open to artists.

The city has been wrestling with street artist regulations since 2011, when concerns were raised about vendors selling items they don't make. Also, concerns were raised about artists setting up tables on sidewalks, making them impassable.

Code Enforcement Officer Chuck Fagone was given the task last summer of enforcing existing street artists rules, which limited displays to 12 square feet and required vendors to leave 4 feet of sidewalk passable. He also had to distinguish original art from other merchandise, such as T-shirts from big retailers that were being resold.

"That was a struggle trying to define what is art," Fagone said.

Tammy Munson, director of inspections, said she had personally witnessed the public safety concerns, especially in Bell Buoy Park -- a coveted area for street artist vendors during cruise ship season.

"I've been down there on different occasions and I have had trouble getting through," Munson said.

The city's Street Artist Task Force late last year recommend additional restrictions.

But dozens of artists spoke against the proposed resolutions during the nearly hour and a half public hearing. Only a few business owners spoke in support.

Artists said their displays are protected under the First Amendment and made the city more vibrant. Business owners expressed concern about their doorways being blocked, and the "flea market" atmosphere of the Old Port.

Zachary Heiden, legal director for the American Civil Liberties Union of Maine, was among dozens of people who spoke against imposing more restrictions, citing "very substantial First Amendment concerns" with the proposed registry.

Heiden said he has been working with the art community for eight years on the issue.

The registry is intended to help ensure that artists know the rules, City Councilor Edward Suslovic said.

But Heiden said a court would likely consider the proposed registration as a form of content-based discrimination. As such, the city needs to satisfy a very high burden of proof that they've chosen the least restrictive solution to that burden.

"I'm skeptical they'll be able to satisfy those tests," he said.

The city has been notified that it will likely face a legal challenge over the registry requirement, said Trish McAllister, the city's neighborhood prosecutor.

"I can't say to you we would win that legal challenge," McAllister said. "There's no question there is a risk here."

City Councilor Jill Duson said she believed the registry proposal is a reasonable "time, place and manner" requirement -- an important legal threshold.

"I think it is possible for this type of requirement -- a registration without fee -- to survive a legal challenge," Duson said. "We need to take the risk of making a bad decision to try and strike the right balance."

During the public hearing, artists and their supporters reacted strongly to proposed restrictions on where they could set up their tables.

(Continued on page 2)

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