CAPE ELIZABETH – Residents of Cape Elizabeth will have to wait a little longer to find out if their town will become a case study in constitutional law.

On Monday, the Town Council unanimously agreed to grant itself the power to regulate commercial activity inside Fort Williams Park, but then voted 4-2 to postpone a series of proposed regulations to its next meeting, on Aug. 12.

Those rules, approved by the seven-member Fort Williams Advisory Commission at its June 20 meeting, would place limits on where in the park, and under what conditions, so-called “street artists” could peddle their work. The issue has percolated in town since May 6, when Alewife Cove resident Kris Kristiansen set up a table beside Portland Head Light to sell prints of his coastal-themed artwork, claiming that the First Amendment to the U.S. Constitution gives him the right to do so free from any permit fee and most municipal oversight.

“I am disappointed that the town of Cape Elizabeth sees me as a problem to be regulated and managed,” said Kristiansen, objecting at Monday’s public hearing to the proposed rules, which would force him to move away from the iconic lighthouse to a strip of grass located next to the park’s primary parking lot.

Kristiansen and his wife Martha complained that the new limitation places them on a slope inaccessible to seniors and adults pushing strollers, where they would be subject to dust clouds kicked up from cars in the parking lot. The site also would put them off the beaten path trod by tourists, who bypass the lot to exit buses and trolley cars directly outside historic lighthouse.

“It is more than a little hypocritical of the town to talk about preserving the pristine beauty of the lighthouse from commercialism when it has a gift shop, museum, two food vendors and a brand-new wooden shed to house the person collecting $40 from every bus, all clustered around the lighthouse,” said Martha Kristiansen.

The proposed rules also would put a cap on street artists, limiting the designated strip of grass to eight vendors at any one time, with strictly delineated sites available on a first-come, first-serve basis.

For that reason, Town Manager Michael McGovern said, “it is important to get this done very soon,” because, as word spreads of the Kristiansen’s fight for park access, “we could get a major influx of individuals.”

However, Councilor David Sherman cautioned against hasty adoption of the advisory commission’s recommendation.

“I remain unconvinced that we need to adopt these rules tonight,” he said. “I’m not seeing that this is an urgent matter. We haven’t been overrun yet, so I’d like to take some time looking at it.”

Councilors Jamie Wagner and Caitlin Jordan also said they’d like more time to review the proposed rules package, as well as precedent set in Portland and New York City, cited by Town Attorney Tom Leahy, relating the right of artists to sell their wares on public property largely unburdened by public oversight or licensing fees.

“I’d like to review the case law,” said Wagner.

“Well, the lawyers are all working together on this,” quipped Council Chairman Jim Walsh.

Councilors Frank Governali, Sherman and Wagner voted to table a vote on the new rules. Walsh and Katharine Ray took McGovern’s side and opposed the delay. (Editor’s note: The print version and an earlier online version of this story misrepresented the votes of Sherman and Walsh. It has been corrected.)

After the meeting, the council agreed to conduct a site walk of the artist alley area. That tour will take place at 5:30 p.m. on Tuesday, July 30. Immediately afterward, the council will convene at town hall for a workshop on the proposed rules in advance of a vote at its regular Aug. 12 meeting.

Any measure adopted at that meeting would go into effect immediately as 30 days will have passed since Monday’s ordinance change, which gave the council the power to adopt rules governing commercial activity in the park “that include, but are not limited to, vending.”

At Monday’s meeting, the council also upped the penalties for violating any of the various ordinance provisions relating to Fort Williams Park, from $250 total to $250 per day of infraction. Seemingly, that higher penalty would apply to the new provisions, if adopted at the Aug. 12 meeting, which place limits on artist behavior, as well as location. For example, the advisory commission proposal bars artists from calling out to park visitors in an attempt to entice them over to their vending sites, or from using any other form of sound amplification.

However, those restrictions came as little consolation to Ocean House Road resident Carl Dittrich, one of four approved food vendors who, for the past three seasons, have paid upwards of $4,000 for a license to sell food in the park, on top of the price for $2 million in insurance coverage the town requires each to carry. Part of Dittrich’s concern was that, while the new rules do try to move “street artists” away from the lighthouse, they also, on Leahy’s advice, largely capitulate to the Kristiansen’s First Amendment argument. Barring an about-face by the Town Council, there will be no attempt to charge artists any sort of permit or licensing fee.

Dittrich wondered aloud if he’d be better off to give up on his hot dog cart, with all its accompanying maintenance and overhead, and instead place a table next to Kristiansen to sell the birdhouses he makes out of lobster buoys.

“I love art, but this is totally a commercial venture,” Dittrich said of the Kristiansens’ effort to market their work in the park. “That’s the only reason they’re there. It just doesn’t seem fair. I have nothing against artists selling things but it’s going to become a circus if it’s allowed.”

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