Visual artists awarded limited injunction

Monday, May 11, 2009, United States District Judge Marcia Morales Howard temporarily lifted the ban on “visual artists” selling their works in the Plaza de la Constitución.

City commissioners and staff plan no action until further study of the order, which was announced by City Attorney Ron Brown at the end of Monday’s City Commission meeting.

In the motion, plaintiffs contend that their artistic works are constitutionally protected modes of expression and that the streets and sidewalks of the Historic District, from which they are banned, constitute traditional public forum.

Recognizing that “a government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content neutral, narrowly tailored to serve a significant government interest and leave open ample channels for the information,” plaintiffs argue that the ordinance is not narrowly tailored and fails to leave open sufficient alternative channels of communications.

The city does no dispute plaintiff’s assertion that their works constitute protected expression or that the area from which they are restricted constitutes a traditional public forum.

However, the city contends that the ordinance withstands constitutional scrutiny because it is content-neutral, serves significant government interests, is narrowly tailored to serve those interests and provides ample alternatives of expression.

The court noted that the motion is one for preliminary injunctive relief and is necessarily before the court on an expedited schedule.

The factual record contained herein may not be completely developed, therefore, the following facts and conclusions of law do not necessarily reflect what may be established on a record more fully developed following trial on these issues.

Accordingly, the determinations in this order are expressly limited to the record before the court at this time and do not indicate or limit the ultimate outcome of the issues presented in this matter.

Defendant, the City of St. Augustine, is hereby preliminarily enjoined from enforcing or threatening to enforce St. Augustine City Code section 22-6, as amended by St. Augustine Ordinance Number 2007-23, against visual artists, pending further order of the court.

According to the order, although the motion appears to attack the ordinance at issue as unconstitutional both facially and as applied to plaintiffs, plaintiffs clarified in a hearing held April 13, 2009, that they seek to enjoin its enforcement based on the contention that it is unconstitutional as applied to them.

The motion requests that the court enjoin enforcement of the ordinance, generally. However, during the hearing, plaintiffs clarified that the relief sought was specifically limited to enjoining the enforcement of the ordinance against visual artists.

The lawsuit against the city was brought by caricaturist Bruce K. Bates, sculptor and painter Richard Chiles, photographer Elena Hecht, and painter Kate Merrick.

Brown said the ruling does not, in his opinion, address other city ordinances prohibiting street performers, visual art and wares vending, and commercial sales in the Plaza, along St. George Street, or anywhere else in our historic district. He added his initial interpretation is that the ban is lifted only on the four visual arts represented by the plaintiffs in the case.

He said the earliest the commission could effect any ordinance changes in response to the ruling would be July 1.

At least two commissioners, Don Crichlow and Leanna Freeman, indicated they’re comfortable with artists in the plaza, and Mayor Joe Boles said he doesn’t favor special meetings to speed any ordinance change.

The injunction is preliminary. A further court hearing is scheduled for March 1, 2010, and Brown said mediation is also possible.

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