City settles suit over selling art in public places

The city of Laguna Beach has reached a settlement of the remaining

portion of a federal court civil rights lawsuit filed by Laguna

artist Michael Lavery.

According to City Atty. Phil Kohn, the settlement preserves the

constitutionality of city ordinances that prohibit commercial sales

of merchandise in all public parks, specifically including art shows

and exhibitions.

Lavery was fined $250 on Oct. 31, 1999 for selling his art in

Heisler Park. In a subsequent meeting between Lavery, the city

manager and the chief of police, the city’s regulations were

explained to Lavery who said he understood them and would abide. The

fine was dismissed.

Several months later, Lavery sued the city, the police department,

two police officers and the city manager, claiming that the citation

deprived him of his civil rights.

Lavery kept pressure on the city to drop this ordinance and

alleged that the city’s ordinance violated his First Amendment rights

and his rights to due process and equal protection.

“The most interesting aspect is that Lavery felt his civil rights

were under assault,” Kohn said Thursday. “The city regulated

effectively the ban of commercial sale in public parks.”

Lavery thought it unconstitutional to regulate his artwork in

public parks. Lavery could not be reached for comment by press time.

Kohn said the district court and court of appeals ruled in favor

of the city ordinance that banned selling artwork and that sales are

not entitled to special protection.

Kohn who has been the city attorney since 1982 said this issue was

never subject to litigation, that it had just been honored.

He said if parks were left open for commercial activities --

especially Heisler Park, which is popular with locals and tourists --

there would not be room for public enjoyment.

Kohn said certainly there are alternatives available, having an

art shop, a gallery, commissioned art shows and there is the ability

to reserve a portion of the cobblestones [at Main beach].

“[The ordinance] is not prohibiting him from expression and

painting and is not interfering with his ability to be an artist,”

Kohn said.

It’s when the line is crossed from producing it to selling --

that’s when the city’s regulations kick in.