Vague, Capricious and above all..Arbitrary!

The sign below has been altered for illustrative purposes

Quigley gets first warning before 100 dollar fine.

It looks like he's preparing for his handcuffs doesn't it?

CITY CODE Sec. 22-6 ....(Prohibited)"Street performer or street performances includes acting, juggling, singing, playing musical instruments, pantomime, mime, magic, dancing, artistry or the creation of visual art and wares, which includes drawings or paintings."

The Federal Courts have consistently ruled that visual art (paintings, prints and photography) is fully protected by First Amendment making public parks the quintessential location for free speech. Bery vs N.Y.C. Mayor Guiliani was forced to concede that display on public property was guaranteed by the U.S. Constutucion. He then argued that sales of these protected items (paintings and prints) are not part of the guarantees. The courts disagreed, citing an earlier case, Lakewood vs. Plain Dealer Pub that wrote “It is well settled that a speaker's rights are not lost merely because compensation is received;  a speaker is no less a speaker because he or she is paid to speak.”  Guiliani lost the case and appealed it to the Supreme Court who refused to overturn the appeals court decision.So, Why is it so hard for the City Of St. Augustine to honor the high courts decisions? "We have our own rules down here", said then Asst. City Attorney Whitehouse back in 2006. Since then, over twenty citations have been issued and three artists have been jailed on six occasions for exercising the rights that have been well settled by the Federal Courts.In May 2009 Federal Judge Marcia Morales Howard ruled against the city. The City of St. Augustine was forced to vacate all charges and pay the artists and attorneys over 80 thousand dollars for legal fees.

On Saturday, August 28th artist Suvo set up in the Plaza de la Constitucion and was approached by an officer who requested that he turn off the video cam, apparently wanting to speak "off the record". Since there was a non artist citizen witness there Suvo complied (big mistake) The officer then said that a meeting was held and it was decided that Suvo could display and sell but cannot "draw a crowd." (a ticket for violating the ordinance 22-6 was issued the previous month and was dropped when Suvo requested a court date for a hearing.) When asked what defined a "crowd" the officer stated that this was a "muddy" area. Suvo continued to display and tried to sell his art until the day darkened, about seven more hours.

The next day artist Dean Quigley set up his easel and a small rack of works for sale and as pictured above was told by the same officer from the day before that he is in violation of 22-6 ordinance and was asked for id and social security number. It  was put on record that he was warned and the next time he would receive a 100 dollar fine. This time as opposed to the numerous time in the past few years he was not told to leave.

Artist Scott Raimondo yesterday asked the same officer about the ordinance and was told that it is in full effect that the area of the Plaza was restricted and that no one can display sell or paint in the restricted area (covering 94% of the total area) The 75 dollar illegal permits are also not being enforced (until THEY want to).

The City is practicing arbitrary and capricious enforcement that is the very definition of vagueness. We call it "making it up as you go along." "An unjust law is no law at all ",St. Augustine of Hippo

Charming Cobras In The Square

U.S.Flags are legal now ?

See here *

The Marrakesh marketplace in Morrocco had nothing on the Plaza de la Constitucion this weekend. Sales of factory made "African Drums" and some kind of lotion called Shea butter, amongst the boiling pots of corn on the cob, Italian ices, water vendors, costume jewelry and counterfeit purses and sunglasses.

In May, a Federal judge ordered that the city cannot ban artists (prints, sculpture, paintings and photographs) The city administration for some unknown reason, has decided not to enforce the ordinance prohibiting sales and requiring a permit of any kind for the sales of merchandise on the streets and parks of St. Augustine. This pretty much contradicts the reason for the ordinance in the first place, to prevent a flea market atmosphere.

The Plaza has now been discovered by an affable group of Ghanaians who have set up four separate stands all selling the same goods such as exotic glass and plastic beads, kalimbas , drums and sculpture.

Vendor to Couple about 20 feet away:"Hey you over dere! Come here! I have something to show you!"

The couple slowly walks over (zombies!?, hypnotized!?)

Vendor:"I have goods here that you will love, here, rub dis into your skin" (offering an open container of some yellow waxy substance)

As if in a trance the couple dip into the container and rub a small amount onto their forearms.

Vendor:"Dis is a magical ointment called Shea buttah." Stops and calls out to another couple who have already walked past....."MADAME !Free Samples Here! You Need To See Dis!" They continue to walk on.

Back to first couple "Ok you can have ninety percent off! You will love dis! It not only is a wonderful moisterizer but can prevent colds and the flu! You can see beautiful skin on African women who use shea butter. Some actually eat spoonfuls for internal problems. Only five dollahs! Ok, Ok, Wid dat,I give you dis beautiful bracelet for your little girl. No? "(Followers of the Holy Spirit Movement rebel group of Uganda smeared their bodies with shea butter in the belief that it would stop bullets)

The vendor immediately abandons the conversation turning to another couple perusing the goods. "NO Chawj Foh Looking !, Ninety percent off! I have carved dis just for you! (pointing to an obvious mass produced wood sculpture sold in flea markets all over.Yes, at least this is a constitutionally protected artwork)

That day we had the regular five local artists of prints, paintings sculpture and photos and twenty one vendors of general merchandise.

*

The artist Suvo was jailed on Memorial Day 2008, for offering newspapers and American flags for sale. The ordinance has not been changed. The court date is set for August 8, 2009.link

Life, Liberty and the Pursuit of Happiness

Suvo aka Greg Travous

On Monday April 13 at 2pm in the Byron Simpson United States Courthouse, Courtroom 10 B, U.S.District Judge Marcia Morales Howard will hear the plaintiff's (artists) Motion For Preliminary Injunction against the City of St. Augustine's code 22-6

prohibiting visual artists from selling their works on public property.

There has been much acrimony and misconceptions over this issue that I thought that it would be best to use my personal experience as a way of illustration. Follow me if you will. I will not go into great detail on this blog since this weblog was never created as a personal exercise but as a way for the general public to follow a dedicated group of artists who believe that the creators of our U.S. Constitution meant for us to be able to express ourselves without government interference other than limited and reasonable time place and manner restrictions.

St. Augustine is among a group of cities and towns that lends itself well to the display and sale of art, particularly since the Plaza De La Constitution could be described as this nation's oldest park. Public parks are recognized as the quintessential forum for public speech. The courts have already determined that "sale" does not diminish free speech rights. Check your news vendors.

So into town there comes an aging boomer type guy in an old beater Cadillac with Illinois plates and a 100 pound Rottweiler. He claims to be an artist who is travelling the South exhibiting and selling his paintings and prints as the law allows on public property. This doesn't sit well with Patrolman Walter Wachowski who says to the artist, "I wanna know your story !", running a fruitless computer check on this reprobate three times in one week After deciding that to do business in Florida you must have a Florida Driver's license and plates, he says, "If you are going in that car I am going to arrest you , impound your car and your dog".

This was the beginning of the latest artist battle with the City of St. Augustine

This was 40 months ago. The artist has been arrested, jailed or cited a dozen times and is currently out on bond with close to 2000 dollars in fines hanging over him. This case will determine whether the artist is returned to jail for the crime of "offering art for sale".

Local taxpayers will be footing a bill for close to 100,000 dollars after undercover police are paid overtime, court time and outside legal counsel . See what you started Patrolman Wachowski.*

* Patrolman Walter Wachowski says to everyone who'll listen that he's ready to retire, travel and "shoot stuff" with his many guns.

Editorial by Suvo

“What this country needs is more free speech worth listening to.”

Hans Duckett

The recent story in the St.Augustine Record was entitled "Both Sides See Win In Artist Suit". The title perpetuates the impression the populace has of the city administration and vice verso. Is it naive to believe that government and the people are supposed to be the same thing? Can our elected government have direct opposition to the people that they supposedly serve? It can happen when the elected officials and the city administrators decide that it is practical to bow to a minority. This minority is the group that came forth with campaign funds and golf outings and promises to keep the community vibrant with growth and progress particularly in their own interests.

We, the artists involved, have seen this close up. Last year a secret closed door meeting regarding our ouster from the streets was clearly obvious. When the ordinance was passed by unanimous vote to ban the artists the mulch boxes that contained our exhibits were removed the day before the vote. Whoops! The parks department slipped up on that one! No plausible deniability there.

Mayor Boles represents himself as a fighter vs the artists. Local readers, ask yourself this......Is he fighting for your interests? His friend and client, gallery owner Len Cutter is having difficulty selling his overpriced Dr.Seuss prints in one of his four galleries surrounding the Plaza. Look for blame........it must be those street artists....they are taking MY tourist dollar. Handle it Joe! Take care of it Bill! Get them out of there!

A clarification to the news story...........We have no spokesperson. As advocates of free speech we along with everyone else sometimes hold our tongues and clench our teeth when we hear something that conflicts with our own beliefs or philosophies. But everyone has the right to be heard. That said.............this is a visual arts issue not a street performer issue. Those who have spoken before this last City Commission meeting rehashing old narratives and shaking their fists have not been involved in the Federal lawsuit nor have we seen them anywhere near our past protests. Coming out of the woodwork now does not help us. We are leaving this in the hands of the Federal Court for now. Debate now?..........why?

Bates et al v. City of St.Augustine

Four artists have filed suit today in the United States District Court against the City of St.Augustine for repeatedly arresting and prosecuting artists who dare to defy the bans against sale of art on public property and by communicating to artists that they would be arrested and jailed if they sold, or offered or sale, their art within the City’s historic district.

Plaintiffs are asking the court for preliminary and permanent injunctions restraining the enforcement and application of what they say is an illegal City Code.

Previous cases in other Judicial Districts have affirmed artist's rights in this matter.

The artists are represented by the Jacksonville Florida firm of Sheppard, White, Thomas & Kachergus and St.Augustine atorney Tom Cushman.

From The Studio To The Street

"Peces de Colores" quadtych , each 12"x 12"x 1.5" giclee on canvas

YOU MAY BE NEXT

Fellow Citizens,

If you've never been arrested, it goes like this. (provided that you do not resist and we definitely do not recommend doing that)

It's Saturday Afternoon - You are handcuffed with your hands behind your back . You wonder what is going to happen to your art and your dog.

You are put into the back seat of a police car and delivered to the County Jail where the cuffs are removed .

You empty your pockets and give over your wallet.

You wait on a metal bench with no back in booking. Do not try to lie down or lean on your elbow even if your back is killing you. You will get a sharp command to "SIT UP!"

A nurse who is busy carrying on a joking conversation about another corrections officer's hangover will ask some cursory questions without ever looking at you. Blood pressure is taken. You mention your aching back and are completely ignored . The hungover officer is sucking oxygen from a clear mask. You think of of Dennis Hopper in the film "Blue Velvet".

You cool your heels on the bench another forty five minutes listening to the banter amongst the officers who are behind a reinforced plate glass window with paper trays slots for documents to be passed and signed. You are invisible. They discuss last weekend's BBQ, the "asshole" over in Putnam County and other idle chatter while they move papers around, stamping and stapling."I'M NOT GOING TO TELL YOU AGAIN DUDE, SIT UP !" Your sciatica is shooting electric pains down the back of your left leg. You feel some resentment being called "Dude" by someone half your age. You are thinking about your 13 year old dog and wonder how he is faring in custody somewhere.

A guard takes you down the hall where you are fingerprinted and photographed with the traditional front and left side poses. A plastic bracelet is crimped onto your left wrist. On it is your Id with the tiny front view photograph and a bar code.

Next you are put into a sticky "holding cell" that smells of vomit. Another short metal bench. Try to lie down and you are again barked at from the window slot ( NO LYING DOWN !). You ignore the warning since your sciatica is acting up and you are weary.

After an hour has passed you are sent to a stall where you take a brief shower (you are being observed) You change into an issued orange jumpsuit, poly cotton boxer shorts and rubber sandals. Your clothes are put into a brown paper bag.

You are also given a stained plastic covered 2 inch thick mattress , a set of sheets, a toothbrush, a tiny toothpaste tube and a comb. Awkwardly carrying the mattress and items you are taken to a lock down cell on the second floor loggia,semi circled around what looks like a common area for prisoners. A few prisoners are occupying the other cells A few yell out requests to the guard ,"Can I make a phone call?", When is food coming?"etc. The door closes.Your cellmate is a guy named Dave who was charged with stealing a bottle of rum from the liquor store. You immediately sense that it has been sometime since his last shower. Sounds are distorted with reverberating echos bouncing around the cinder block walls.The intercom in each cell makes some sort of human voice sound once in awhile but the exact words are indecipherable.

You will not go anywhere until the next morning since you were arrested on Saturday and the judge will not come in until Sunday. The judge will set your bond and a court date. If you are accustomed to reading before you sleep at night forget it. After reading some of the graffiti scraped on the walls (Sheriff Shoar Sucks! Jesus Loves You) There is not a lot of diversion other than your mind to occupy yourself. A food tray is delivered but you do not eat it keeping in mind that the food contract went to the lowest bidder. You will eat when you get out. You try to sleep worrying about your 13 year old dog.

Sunday Morning. Eighteen hours after your arrest, a garbled scratchy sound comes from the intercom speaker and the gate clicks open. You and five other prisoners are chained at the ankle and handcuffed .You are all strung together with a "belly chain" and you can't help but think of the old Woody Allen monologue where they escape prison as a giant "charm bracelet" (Did we really laugh at that?) Dave is chained next to me and the guy on the other side of Dave is causing trouble cause of the smell. "SHUT THE FUCK UP!", says the guard. He does.The others seem more adept at making our way down the hall. You can't seem to get the group rhythm down and your missteps affect everybody chained to you. You don't care.

After standing around for a half hour ("NO LEANING AGAINST THE WALL!") you and your chain gang buddies are shuffled into a room with a desk in front and five rows of benches (again no backs!) facing the front. The group is told that the judge will be arriving soon and we are not to discuss our case or speak without being addressed by the judge. It you do so you may be removed from the room. The judge enters looking annoyed (It IS Sunday) papers are shuffled three or four others are up front. Two are not in uniform (Public defenders? Prosecutors?) Two sleepy looking tangle haired women prisoners are brought in and placed on the benches in front of us. Looking around at the prisoners you notice something in common. Lots of facial hair and tattoos. You wonder why criminals would want to mark themselves to be so identifiable. One guy seems still a little inebriated and starts spouting off about the unfairness of his situation. He is unchained from the rest of us and taken away.

Cases are called. DUI and domestic violence dominates the charges , after all this is Sunday morning after a full moon Saturday. Writer Raymond Chandler wrote , " ....On nights like that every booze party ends in a fight. Meek little wives feel the edge of the carving knife and study their husband's necks. Anything can happen...." A few are in for drug possession and you wonder why they don't leave their drugs at home since most have had these charges before.

Your case comes up. The judge is perplexed "This is a city ordinance violation?" A ridiculously small bond is set at 100 dollars. Great! You are confident that your friends will bail you out. You are anxious to get out to find where they have taken your 13 year old dog . He must be in distress!

Eventually you do not get out for another 12 hours. Your stomach is churning not having eaten for a day, Declining the food trays slid under your gate you start imagining what you will eat when you get out. The twenty dollar bill in your wallet can get you a nice meal.......mmm, a burger....no.... a steak!

Finally, you are told to drag your mattress to the front of the common area and are given your clothes. You get dressed and are relieved that you will be going home. "Go down the hall to the last room. "Do not stray from the yellow line!", says the jailer. You enter the room where you are told that they want to swab the inside of your mouth for a DNA sample. "No", you say, "I'm not gonna do that". "OK, THEN YOU'RE  GOIN' BACK IN THE CELL AND YOU CAN ROT THERE!," the jailer bellows. Once again you undress and put your clothes in a brown paper bag with your name written on it with a sharpie pen. This time you get no "gift bag" of toothpaste, comb etc. I find out later that DNA samples are taken of all inmates who have prior felonies, of which I have none.

You are finally released at 8:30 pm , Sunday Night. Friends posted bond. They waited hours earlier for your release but finally went home.Their inquiries as to when the release would be is, met with the response ,"I don't know". You have been incarcerated for almost 31 hours.You say, "Hey. I had twenty dollars in my wallet!" The large heavy breathing , obese , angry jailer says, "We took that for administrative expenses." Looking at his name tag you see that his last name is "Pious". You feel robbed.

With no money, not wanting to disturb anyone on a Sunday night, you walk the two miles back to your car and on the windshield you discover a red tag from the police stating that your car will be towed if not removed in 48 hours. It's 10 PM Sunday night and another artist is set up in the Plaza. He loans you some money to get something to eat. Tomorrow you will find out where they took your old dog.

On Monday morning you get your dog back after paying 75 dollars to Animal Control who housed him. You promise him that this will never happen to him again. The animal control people said that he was not happy there and would not eat.You get a "free" leash outta the deal.

Six months later your "unauthorized art" is returned in the courtroom and you are found innocent of the charges. You wonder if you will ever see that twenty dollars that was taken from your wallet.

In addition to this incarceration the artist Suvo has been arrested and jailed on the same charges three more times. Eleven other citations had been issued as well.  UPDATE...In May 2009, Federal Judge Marcia Morales Howard ruled against the City of St. Augustine and in favor of the artists in Bates et al VS The City of St. Augustine. All charges were vacated and costs were billed to the City of St. Augustine. Over 100, 00 dollars has been spent by the city in outside legal fees on indefensible unconstitutional ordinances.It is now September of 2010 and the city continues to harass artists by threatening fines and arrest.

New

Dream #9, mixed media on paper,11" x 14"

Memorial Day

The real crime are those pale skinny legs


"It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Riley v. Nat'l Fed'n of Blind of North Carolina, 487 U.S. 781, 801 (1988).

As a demonstration of First Amendment Rights, artist Suvo "offered for sale" (one dollar) 8"x 12" American flags in the Plaza on Saturday. The only flags purchased was by a naturalized citizen from Poland. Shortly thereafter Suvo was handcuffed and jailed. God Bless America ! Are you shocked? Complacency and apathy seems to rule here in America these days If you are not concerned that citizens American rights are being eroded, then you are not paying attention.

Does our small remaining group of artists have the resources to continue our protests? No! Sure, we hear everyone tell us how wrong this is. Frankly, we are uninterested in hearing this. We've heard it enough. Most will wait until their rights are violated on their front doorsteps.

Where Is Suvo ?

5-7 E mail from Suvo to plazanews@mail.com


In this photo Karl and I are at the confluence of Florida'a Withlacoochie and the Suwannee River. I am on the last leg of a "Southern Circle" trip through Savannah,Ga.,Atlanta,Ga,Asheville,N.C.,Cherokee N.C.,Tallahassee, Fl.and soon I'll be back in old St. Augustine after staying on Amelia Island for a few days.

I talked with artists in each of those towns and saw an amazing amount of talent. Whenever I set up my easel there was always someone stopping to talk. It is a good thing meeting people, but difficult to paint. I am a studio artist meaning that I do not paint the landscape on site. I really need my stuff around me.........yeah, "Old School "Scott,....even my computer, it is another tool for me. In this photo you will see a pristine brush and an already framed painting. I did not see a technicolor rooster pecking around the riverbank. A passing canoeist posed this picture and we downloaded it to the "jump drive" on my keychain. Technology!

Look at Karl gazing at the flowing peat colored water. Florida is a beautiful state. Karl and I are happy that we live here. St. Augustine is a gem of a city in Florida and it saddens me that some in the city are as intolerant of the street artists as they were of Martin Luther King back in '64.

May 13 is not a court date ! ( Offense - offering art for sale in the Plaza) but a pre trial date. I am confused by all of the preliminaries of Florida's court system. Nothing to see on that day but me and my attorney Tom Cushman just standin' there and that is not all that interesting. Perhaps you will come to see the lovely and gracious Judge Patty Christianson doing her marvelous judicial work and perhaps she will also read this.

"Mama,Why Is The Policeman Taking My Picture?"

Scene of The Crime

Here is a narrative that is typical of the treatment that street artists in St. Augustine receive.


"Well,out of the clear blue they came up to me Thursday, April 3 in the middle of doing a portrait of a 6 year old birthday boy tourist grandson at the corner of Charlotte and Hypolita to interrupt the rapport I had going with this youngster and issued me a citation. No less than two police cars and three policemen stayed for 20 minutes while the boy and his visiting grandparents watched. They said I could be arrested if I set up again. They took a picture of my easel. One of the shopkeepers thought there must have been a major accident. It was embarrassing and humiliating and I kept apologizing to my clients for the unpleasant experience on their vacation. They had returned from a previous trip two years ago when I had done another sibling to have this one done for his birthday. I take a lot of pride to give my portrait sitter a pleasant experience during the portrait session and it was upsetting that the police were so disruptive to this with no regard for the impact on the tourists. What a great birthday memory for this family to bring back to Ohio! Other tourists going down the street on the other side called out: Do you have time for another one?"I called out: "Looks like NOT!", pointing to the police officers.Quite a shock to the peace and community feeling that's built up over two years on that corner with the local businesses benefiting as I often sent people to the surrounding shops and restaurants."
Nancy Christensen

George The Lame Duck

Left, Little Red Riding Hood , Right, Commissioner George Gardner

At one time we were told that city commissioner and former mayor George Gardner was sympathetic to the free speech rights of visual artists. Gardner has decided not to run for another term. As a former print reporter George was good at telling everybody what they wanted to hear but short on following through. Artist Suvo can tell you that Gardner rudely took three phone calls as he (Suvo) tried to discuss this issue with the commish. "The guy is a phony", says Suvo. "He was completely uninformed and it was clear that he had made up his mind, I was ushered out after only a few minutes."His vote to have artists expelled from the historic district was joined by the other four commissioners. Gardner sent out an e mail newsletter where he explained that this was done because County Judge Tinlin ruled that all vendors (sun glass merchants, flea market items etc.) must be permitted or the alternative would be to ban all vending in the historic district including First Amendment protected materials ( paintings, prints, sculpture and photographs) This fallacy was repeated in the press by Mayor Joe Boles and Erroll Jones. The St. Augustine Record also reported this as fact. City prosecutor Robin Upchurch included this as "fact" in her presentations to the commissioners.(See The Big Lie) Here is the truth:

"The Court finds that the ordinance 22-6 as applied to the defendants is an unconstitutional restriction "of their freedom of speech or expression as guaranteed under the First and Fourteenth amendments to the U.S. Constitution as well as Article One of the Florida Constitution." St. Johns County,St. Augustine FL. Heard 9/26/07 by County Court Judge Charles Tinlin. Decision rendered 10/10/08

Anyone following this case could read Tinlin's decision on this blog. Nothing in the judges decision states that the city must permit all merchandising or ban all merchandising. We do not agree with his entire interpretation some of which is faulty and flies in the face of the First Amendment. There is a substantial difference in what is protected speech guaranteed by the First Amendment and other "merchandise such as jewelry and beads.

So long Commissioner. We prefer to have those who disagree with us to be direct and say so. Go back to your "do nothing" committees and workshops.

The Crime of "Thinking About It"

Last Saturday three artists were set up near the canon by the Government House. At about 2PM two police officers approached asking Suvo what he was doing. "I' m thinking about selling some art". There was a small group of tourists looking at Suvo's work at the time. Sgt Mc Cully ordered the patrolman to arrest and handcuff Suvo. His art was confiscated and he went to the St. John's County jail where he was kept for twenty four hours.

We do not need to harp on this and get into the polemics of the U.S. Constitution. This is just plain WRONG.

Art Under Control

"Freedom of Expression in St. Augustine depends upon whether or not (Asst. City Attorney)Robin Upchurch approves of it or not."-- Tom Cushman, defense attorney for the St. Augustine Artists on Trial.

ST. AUGUSTINE, FLORIDA, USA -- In an unprecedented slap-in-the-face to the U.S. Constitution, St. Augustine city attorneys, Ron Brown and Robin Upchurch, repeatedly stated at the trial of the St. Augustine Artists that they intend to ban Free Speech from the city's park altogether.

During the trial, city attorney Ron Brown admitted that he and assistant city attorney Robin Upchurch are currently and frequently "micro-managing" who can and can't exercise their First Amendment Rights in St. Augustine's City Park, the "Plaza De La Constitucion."

Testimony given by police officers under oath revealed that the Police were given directions in the form of a two page memo from assistant city attorney, Robin Upchurch, as to what Upchurch believed to be acceptable art. Upchurch, who has no formal training or education in art, directed the Saint Augustine Police Department in a March 23, 2007 memo, as to what mediums artists could and could not use that would be acceptable forms of art to her, that could be shown in the City's park.

On March 31, one week after Upchurch issued her memo to the St. Augustine Police Department, the police raided the city park and began citing and arrested artists whose art work did not meet Upchurch's standards as acceptable art.
Referring to the artists who show their work in the city park Upchurch stated, "It has become a huge problem."

Confronted by Judge Tinlan that the city's ordinance may be unconstitutional because it is not "content-neutral," Upchurch said that the city was "making an exception" for the artist's First Amendment rights by allowing them to show their art work in the city's park. At one point Judge Tinlan asked Upchurch if she would rather do away with the First Amendment language in the ordinance, what Upchurch called an "exception," to the city ordinances that allows the artists to show their work. "Absolutely, your honor," said Upchurch. At that point, and throughout the remainder of the trial, Upchurch repeatedly said she would recommend to the city commission "First thing tomorrow" that the city do away with the language in the ordinance which allows artists to show their "paintings, photographs, prints and sculptures" in public, effectively banning the artists' Free Speech from the city's park altogether.

Upchurch and Brown, repeatedly made reference to a well documented national case, Bery V. New York. But while referencing the case, Upchurch and Brown failed to acknowledge that in that case the Federal court ruled it is "unconstitutional to require licenses for artists to display and sell their work in city parks." St. Augustine's city ordinances currently require a permit for the artists to show their work, however no permits are currently being issued by the city, and the city has up to now, been "making an exception" for some artists who meet their criteria as "acceptable" artists.

City governments may restrict the "time, place, and manner of speech," provided that the law is narrowly tailored "to serve a significant government interest" and leaves open alternative channels for communication. City attorneys Upchurch and Brown stated during the trial, that the artists have other alternatives channels, other areas in the city where they can go to show their art work, and that they intend to kick the artists out of the city park.

Referring to the city's intent to Ban the Artists, "What good is having a Constitutional Right, a First Amendment Right to Free Speech, if the St. Augustine Government only allows you to speak in a place where no one can hear you," said Bruce Bates, one of the artists who currently shows his work in the city park.

"The city would like us to go to the back of the bus," Bates said, referencing a well-known civil rights case during the 60's, "And we're not about to let a hand-full of neo-fascists roll back the calendar on Your First Amendment Rights, after all, Artists Rights, Are Your Rights Too."
-->From: http://mysaintaugustine.com/