Open Letter to Mayor Rhodes
Honorable Mayor Rhodes,
This is a follow up to my presentation to the City Council on May 13th 2008 concerning street performing within Myrtle Beach. I have enclosed specific problems and suggested solutions, which I have also sent to Thomas Ellenburg to assist with his review.
I myself have performed on the streets in 38 States, including South Carolina. I have been under contract to do the magic shows at Barefoot Landing for the last six years, and in that time not one person has ever complained that I asked for a tip.
The rights and privacy of street performers must be respected if this legislation is going to “encourage such performances”. I see this legislation as something that would discourage me from performing in Myrtle Beach.
Professional performers, like myself, can get contracts and paid gigs and don’t need to perform on the streets. If you really want to encourage street performing, then it is important that it be kept within the reach of ALL CITIZENS, and not just the professional performers.
Sincerely.
[signed]
JoeJoe, the Amazing
Sec 19-172 (1): “No person may perform in a public area without a permit issued pursuant to this section”.
Problem: This effectively bans non-licensed residents from singing and dancing as they walk down the street.
Solution: Append “this shall not apply to impromptu behavior by persons not holding themselves out as public performers“.
Sec 19-172 (1): “The Business License Inspector shall issue a permit to each applicant after the applicant has completed a business license application that has been accepted and a fee of fifty dollars”.
Problem: Street performing is free speech with the full protection of the First Amendment and not subject to the same regulations and restrictions as a business.
Solution: Replace with something along the lines of “the City Clerk shall, upon the payment a nominal fee to cover the cost of issuing a permit, allow such person to register as an unlicensed solicitor and issue a permit to such person“.
Sec 19-173 (3): “performances may take place at the following times: Monday through Thursday, between 7:00am and 12:00pm midnight”.
Problem: 12:00pm is noon, not midnight. Can performers perform till midnight or only till 12:00pm?
Solution: Fix typographical error. Also check “12pm” in Sec 19-173(2)
Sec 19-173 (9): “a performer may not by word, conduct, or signage solicit money before, during or after the performance”
Problem: Unconstitutional abridgement of free speech.
Solution: Replace with code that says something like performer may not aggressively solicit money from persons that are not interested in the performance; the idea being that if the performer has performed a show for an audience, they would be allowed to ask their audience to put money in their hat, but still prohibit people from standing around asking for money for no other reason than to be asking for money.
Sec 19-173 (9): “Performers may not offer for sale recordings of their own work, in the form of records, cassettes, videotapes, or compact discs”.
Problem: Unconstitutional abridgement of free speech.
Solution: Replace with code that allows performers to sell works of art that they themselves created, but still prohibit the sale of works of art that they purchased for the purpose of reselling. This only applies to art that they themselves created, and only if they themselves are selling it (ie: they cannot hire someone to sell it for them).
Sec 19-172 (5): Upon issuing a permit, the Business License Inspector City Clerk shall also give the performer a copy of this section.
Problem: A copy of a legal sounding document can be confusing.
Solution: It would be more helpful if the City Clerk provided to the applicant a list of guide lines, such as that the public has the right to refuse the performance, and the public has the right to refuse any solicitation, that the performer may not verbally harass any member of the public for exercising their rights, and the performer may not infringe upon any of the public’s rights. This can help prevent potential problems with performers that are not aware of the general public‘s rights to refuse performance.
Sec 19-172 (2): A completed application for a permit, and the permit itself, shall contain the applicant's name, residence address and telephone number, and shall be signed by the applicant.
Sec 19-172 (7): A performer shall clearly display his or her permit while performing, and shall allow inspection of the permit by any law enforcement or code enforcement officer on request.
Problem: Just as the general public has a right to privacy, so do public performers. Members of City Council would not want to walk around with their name, address, and phone number posted on their forehead for anyone and everyone to have access to, and no other segment of society is required to do so either - a business license lists the business information, not the owner’s home phone number. In fact, not even convicted felons are required to post their home address and private phone number on their person.
Solution: Repeal first part, but still allow inspection by law enforcement officers on request.
Alternatively, a “performers badge” that only listed an ID number and/or “stage name” of the performers choosing would be acceptable to me. Being able to be identified as “Bozo the Clown” would keep the badges in proper character, and still give the general public an identifying name that could be cross-referenced by proper authorities.
I should point out that while I myself would not mind wearing a badge, other performers may take issue with it, such as a “human statue” where the badge may destroy the artistic illusion that they are a statue and not a person. I am not aware of any court rulings on the issue, it should be up to the council to use their best judgment to determine what they believe is the “least restrictive” way possible.
Sec 19-173 (1): Performances may take place in public areas, except within one hundred feet of an elementary and/or secondary school, library, or church while in session, a hospital at any time, and except in public areas excluded by the City Council by Resolution and the Manager pursuant to Executive Order pursuant to this section; On private property, with the written permission of the owner or other person in control of such property.
Problem: If performer has permission (written or verbal) of the owner to perform on private property, they are outside the jurisdiction of the City to regulate public performances. Again, performers do not need a business license to exercise protected free speech and it should be up to the private venue to determine their own regulations on the time, place, and manner of performance - not the City Council.
Solution: Repeal last sentence concerning private property.
The following court rulings clearly show that this City ordinance violates the civil rights of it’s population making it a liability to the taxpayers. City Council should immediately suspend it’s enforcement until such time that this ordinance can be brought up to legal standards that will comply with the Constitution of the United States, specifically the 1st and 14th Amendments.
“…while Edward Munch himself would not need a license to sell ‘The Scream’ (or prints of it) from a sidewalk table, a vendor wishing to sell the popular neckties featuring the painting’s distraught figure undoubtedly would need a license. The necktie merchant uses the Munch design not as art in itself, but to sell ties. His end is starkly commercial, with not a tinge of purpose conveying even collateral or residual artistic expression. But Munch did not paint ‘The Scream’ to market pieces of cardboard” 2004 Christopher Mastrovincinzo and Kevin Santos vs. New York City 313 F SUPP 2D 280
“The fact that plaintiff accepts contributions of passersby during his public performances, thus, does not dilute the plaintiff’s protection of the First Amendment” Goldstein vs. Nantucket 477 F. Supp. 606, 609 (1979)
“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” 1988 Riley vs. National Federation of the Blind North Carolina, 487 U.S. 781, 801
“Once it is decided that the activity here is expressive activity, fully protected by the First Amendment, the fact that plaintiffs are not nonprofit organizations does not affect the level of protection accorded to their speech” Perry vs. the LAPD No. 96-55545 DC No CV-95-03028-LEW
“Furthermore, to tell appellants that they are free to sell their work in galleries is no remedy for them. They might not be at a point in their careers in which they are interested in reaching the public that attends exhibits at art galleries -- if, indeed, they could get their works accepted for showing. Appellants are interested in attracting and communicating with the man or woman on the street who may never have been to a gallery and indeed who might never have thought before of possessing a piece of art until induced to do so on seeing appellant’ works” 1996 Bery vs. New York, 97 F. 3d 684
This is a follow up to my presentation to the City Council on May 13th 2008 concerning street performing within Myrtle Beach. I have enclosed specific problems and suggested solutions, which I have also sent to Thomas Ellenburg to assist with his review.
I myself have performed on the streets in 38 States, including South Carolina. I have been under contract to do the magic shows at Barefoot Landing for the last six years, and in that time not one person has ever complained that I asked for a tip.
The rights and privacy of street performers must be respected if this legislation is going to “encourage such performances”. I see this legislation as something that would discourage me from performing in Myrtle Beach.
Professional performers, like myself, can get contracts and paid gigs and don’t need to perform on the streets. If you really want to encourage street performing, then it is important that it be kept within the reach of ALL CITIZENS, and not just the professional performers.
Sincerely.
[signed]
JoeJoe, the Amazing
Sec 19-172 (1): “No person may perform in a public area without a permit issued pursuant to this section”.
Problem: This effectively bans non-licensed residents from singing and dancing as they walk down the street.
Solution: Append “this shall not apply to impromptu behavior by persons not holding themselves out as public performers“.
Sec 19-172 (1): “The Business License Inspector shall issue a permit to each applicant after the applicant has completed a business license application that has been accepted and a fee of fifty dollars”.
Problem: Street performing is free speech with the full protection of the First Amendment and not subject to the same regulations and restrictions as a business.
Solution: Replace with something along the lines of “the City Clerk shall, upon the payment a nominal fee to cover the cost of issuing a permit, allow such person to register as an unlicensed solicitor and issue a permit to such person“.
Sec 19-173 (3): “performances may take place at the following times: Monday through Thursday, between 7:00am and 12:00pm midnight”.
Problem: 12:00pm is noon, not midnight. Can performers perform till midnight or only till 12:00pm?
Solution: Fix typographical error. Also check “12pm” in Sec 19-173(2)
Sec 19-173 (9): “a performer may not by word, conduct, or signage solicit money before, during or after the performance”
Problem: Unconstitutional abridgement of free speech.
Solution: Replace with code that says something like performer may not aggressively solicit money from persons that are not interested in the performance; the idea being that if the performer has performed a show for an audience, they would be allowed to ask their audience to put money in their hat, but still prohibit people from standing around asking for money for no other reason than to be asking for money.
Sec 19-173 (9): “Performers may not offer for sale recordings of their own work, in the form of records, cassettes, videotapes, or compact discs”.
Problem: Unconstitutional abridgement of free speech.
Solution: Replace with code that allows performers to sell works of art that they themselves created, but still prohibit the sale of works of art that they purchased for the purpose of reselling. This only applies to art that they themselves created, and only if they themselves are selling it (ie: they cannot hire someone to sell it for them).
Sec 19-172 (5): Upon issuing a permit, the Business License Inspector City Clerk shall also give the performer a copy of this section.
Problem: A copy of a legal sounding document can be confusing.
Solution: It would be more helpful if the City Clerk provided to the applicant a list of guide lines, such as that the public has the right to refuse the performance, and the public has the right to refuse any solicitation, that the performer may not verbally harass any member of the public for exercising their rights, and the performer may not infringe upon any of the public’s rights. This can help prevent potential problems with performers that are not aware of the general public‘s rights to refuse performance.
Sec 19-172 (2): A completed application for a permit, and the permit itself, shall contain the applicant's name, residence address and telephone number, and shall be signed by the applicant.
Sec 19-172 (7): A performer shall clearly display his or her permit while performing, and shall allow inspection of the permit by any law enforcement or code enforcement officer on request.
Problem: Just as the general public has a right to privacy, so do public performers. Members of City Council would not want to walk around with their name, address, and phone number posted on their forehead for anyone and everyone to have access to, and no other segment of society is required to do so either - a business license lists the business information, not the owner’s home phone number. In fact, not even convicted felons are required to post their home address and private phone number on their person.
Solution: Repeal first part, but still allow inspection by law enforcement officers on request.
Alternatively, a “performers badge” that only listed an ID number and/or “stage name” of the performers choosing would be acceptable to me. Being able to be identified as “Bozo the Clown” would keep the badges in proper character, and still give the general public an identifying name that could be cross-referenced by proper authorities.
I should point out that while I myself would not mind wearing a badge, other performers may take issue with it, such as a “human statue” where the badge may destroy the artistic illusion that they are a statue and not a person. I am not aware of any court rulings on the issue, it should be up to the council to use their best judgment to determine what they believe is the “least restrictive” way possible.
Sec 19-173 (1): Performances may take place in public areas, except within one hundred feet of an elementary and/or secondary school, library, or church while in session, a hospital at any time, and except in public areas excluded by the City Council by Resolution and the Manager pursuant to Executive Order pursuant to this section; On private property, with the written permission of the owner or other person in control of such property.
Problem: If performer has permission (written or verbal) of the owner to perform on private property, they are outside the jurisdiction of the City to regulate public performances. Again, performers do not need a business license to exercise protected free speech and it should be up to the private venue to determine their own regulations on the time, place, and manner of performance - not the City Council.
Solution: Repeal last sentence concerning private property.
The following court rulings clearly show that this City ordinance violates the civil rights of it’s population making it a liability to the taxpayers. City Council should immediately suspend it’s enforcement until such time that this ordinance can be brought up to legal standards that will comply with the Constitution of the United States, specifically the 1st and 14th Amendments.
“…while Edward Munch himself would not need a license to sell ‘The Scream’ (or prints of it) from a sidewalk table, a vendor wishing to sell the popular neckties featuring the painting’s distraught figure undoubtedly would need a license. The necktie merchant uses the Munch design not as art in itself, but to sell ties. His end is starkly commercial, with not a tinge of purpose conveying even collateral or residual artistic expression. But Munch did not paint ‘The Scream’ to market pieces of cardboard” 2004 Christopher Mastrovincinzo and Kevin Santos vs. New York City 313 F SUPP 2D 280
“The fact that plaintiff accepts contributions of passersby during his public performances, thus, does not dilute the plaintiff’s protection of the First Amendment” Goldstein vs. Nantucket 477 F. Supp. 606, 609 (1979)
“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” 1988 Riley vs. National Federation of the Blind North Carolina, 487 U.S. 781, 801
“Once it is decided that the activity here is expressive activity, fully protected by the First Amendment, the fact that plaintiffs are not nonprofit organizations does not affect the level of protection accorded to their speech” Perry vs. the LAPD No. 96-55545 DC No CV-95-03028-LEW
“Furthermore, to tell appellants that they are free to sell their work in galleries is no remedy for them. They might not be at a point in their careers in which they are interested in reaching the public that attends exhibits at art galleries -- if, indeed, they could get their works accepted for showing. Appellants are interested in attracting and communicating with the man or woman on the street who may never have been to a gallery and indeed who might never have thought before of possessing a piece of art until induced to do so on seeing appellant’ works” 1996 Bery vs. New York, 97 F. 3d 684
posted by JoeJoe at 3:33 PM
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