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Artist’s fight to sell work continues

Mike Swanson

Laguna Beach artist Michael Lavery earned what he and his lawyer

consider a split decision from the U.S. Court of Appeals last month

on whether he can paint and sell art in public places within city



Lavery was fined $250 on Halloween in 1999 for selling his art in

Heisler Park. The fine was later dropped, but Lavery has kept

pressure on the city to drop the ordinance that doesn’t allow artists


to sell their work in public places.

“My case is a complicated one,” Lavery said, “and one I’m not

going to back down from.”

A district court granted summary judgment to the city of Laguna

Beach in February 2002 on all of Lavery’s charges, which his

attorney, James Fosbinder, appealed. The appellate court reversed the

district court’s grant of summary judgment to the city on the issue

of municipal liability, but affirmed every other decision, including


that Lavery’s First Amendment rights were not violated.

The Los Angeles Times reported last week that Laguna Beach beat

Lavery in court, but Fosbinder said that’s far from the truth.

“They reversed the most important part in our suit,” he said. “The

appellate court essentially said the city is liable, and when we go

back to district court, they’ll answer the question of how liable. We

didn’t win the decision from a lawyer’s perspective, but Michael

Lavery won.”


Fosbinder said despite what they see as a victory, he and Lavery

will ask the U.S. 9th Circuit Court of Appeals to revisit the case

with its entire panel, rather than the three-person panel that issued

its judgment on April 10. He and Lavery said they thought the panel’s

three-page explanation for its decision was not treated with care.

“We’ve never had an appellate court not issue an opinion like

this,” Fosbinder said. “We were astonished with what a trivial matter

they thought it was. They really gave us the short shrift, and we’d

like to see more time put into what is a major issue.”

Lavery said he won’t be happy with only a monetary victory,

regardless of the size. He wants laws concerning selling public art

to mirror laws regarding books, newspapers and music. He believes

it’s everyone’s First Amendment right to paint a picture in public,

with other paintings on display around you, and sell them if someone

makes an offer.

“I’ve been here since 1985,” Lavery said, “and nobody cared if you

painted pictures in public back then. The city didn’t implement a

policy of arresting its artists until these big-money galleries

started popping up all over town. I’m fighting for all the local

artists who can’t afford to pay $30,000 to rent gallery space and

need alternate places to do business.”

About freely selling art in public places such as Heisler Park,

the appellate court disagreed with Lavery.

“The city has a substantial interest in preventing commerce in

Heisler Park,” the decision reads, “maintaining its aesthetic beauty,

and structuring the orderly movement of pedestrians through the park.

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.”

Fosbinder believes the case has more to do with a person’s First

Amendment rights than the city’s interests.

“We were the lawyers who fought for Venice and Santa Monica,”

Fosbinder said, adding that he didn’t classify the two areas as

outdoor shops, but as collections of individual artists making a

living next to other artists doing the same thing.

Fosbinder said he’s worked on several First Amendment cases like

Lavery’s, including his first in 1984, defending the Dead Kennedys’

right to perform outside the Dallas Convention Center while Ronald

Reagan’s national Republican Convention went on inside.

Lavery plans to continue his court battle with the city until a

statewide precedent is set that protects artists’ rights to produce

and sell art in public places.