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
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,”
It’s when the line is crossed from producing it to selling --
that’s when the city’s regulations kick in.