Court Backs Limits on Laguna Artists

A federal appeals court has ruled that the city of Laguna Beach can restrict the sale of art in public places, dealing a blow to a local painter who sued for the right to earn a living in Heisler Park.

A three-judge panel of the U.S. 9th Circuit Court of Appeals found that the city has the right to control commerce in public places and that its blanket ban on art festivals, concerts and other commercial activities in public places does not unfairly infringe upon the free-speech rights of artists.

“The city has a substantial interest in preventing commerce in Heisler Park, maintaining its aesthetic beauty, and structuring the orderly movement of pedestrians through the park,” the panel ruled. “Without the prohibition on art shows and exhibitions, Heisler Park, because of its status as a popular destination, could become bogged down -- both by crowds and aesthetically -- by artists selling their work in the park.”

The decision, which was issued this month as a non-precedent-setting ruling, is being challenged by plaintiff Michael Lavery.

In recent motions filed by his attorney, Lavery is asking for another review by the same three-judge panel and requesting that the issue be addressed by the full appeals court. Such requests are rarely granted.

Lavery and his attorney did not return phone calls Thursday. City attorneys said they could not comment while the case was pending.

Lavery, easily recognizable in his straw hat as he stands behind a large easel on bluff tops at Heisler Park north of Main Beach, has been crusading for years to make his lawsuit a national test case for struggling artists who can’t afford to pay the high rents at galleries. He argues that he and other artists have no choice but to earn their living on streets and parks.

His fight has struck an especially raw nerve in Laguna, fueling a debate over whether the city is betraying its artistic roots by cracking down on Lavery.

There is no clear legal precedent on the question of whether art can be sold in public places. In what is arguably the strongest ruling on the issue to date, the U.S. Court of Appeals, 2nd Circuit in 1996 found art to be a form of free speech that, like newspapers and books, can be sold freely on New York City streets. The U.S. Supreme Court refused to take up then-Mayor Rudolph Giuliani’s challenge.