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.

William Hessian, a member of the newly formed Creative Community Coalition, said a registry would be an unnecessary barrier to artists and run contrary to the city's image as welcoming to artists.

"We want people to come into Portland and be a part of ( the art community) immediately and not have to register," Hessian said

Ron Slater said he's been fighting new rules since 2004. He said it was "ridiculous" that a man walked around town with an assault rifle shortly after the school shooting in Newtown, Conn., that killed 26 people, including 20 children. Portland police couldn't even ask him his name, because of the Second Amendment, he said.

"I believe the First Amendment is first for a reason," Slater said. It's the most important."

Mike Shaughnessy, a professor of sculpture at the University of Southern Maine, said street art is an important form of "creative entrepreneurialism." Artists are testing their work and the marketplace to see what sells, he said, noting they could someday be successful.

"Those people will become . . . the Angela Adamses, the leaders. You want to make this place hospitable for them," he said. "I would encourage you to keep it as open and vibrant as you can . . . allow it to be spontaneous."

The Portland Downtown District voiced support for all of the proposed restrictions, as did two business owners.

Sandra Jones owns Something's Fishy, an Exchange Street business that's been open for more than 30 years. She spearheaded a petition drive asking the city to crack down on street artists and "allowing the Old Portland to become a flea market especially on cruise ship days."

Jones said she served on the Portland Chamber's cruise ship committee in 1990, which helped make the city a popular cruise destination, giving business owners a reason to hang on during the long winters.

Now that the number of cruise ships has increased, so has the number of street artists, said Jones.

"Now I find my ability to make a living threatened by the street artists," Jones said. "I've paid my taxes; I've paid my dues."

Photographer Jim O'Reilly, who said he represented artists that set up in Bell Buoy Park, suggested the rules being proposed were simply a way to appease business owners.

"I think the issue is a largely a smoke screen," said O'Reilly. "I think people bring up safety because they're looking for an avenue to get this done for the businesses."

Marrion Ladd, an organizer of the Creative Community Coalition, was pleased with the committee vote, except for the registry. But she was comforted that the ACLU of Maine seemed ready to challenge that requirement -- if approved by the full council -- in court.

"I feel good about that," she said.

 

Staff Writer Randy Billings can be contacted at 791-6346 or at:

rbillings@mainetoday.com

Twitter: @randybillings

 

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