PHOTO: Musician Jackson Strong is handcuffed in South Pointe Park on Sunday, June 12th, after performing and then peacefully protesting Miami Beach's permitting law. 

We, residents of Miami Beach, musicians, and music enthusiasts petition our local government officials to strike down all mentions of "street performance" in Miami Beach Code of Ordinance Article XV Sec. 18-904. which states the following - 

"Permit required.

It shall be unlawful for any person to engage in any street performance or artist vending on public property in the Lincoln Road area or to engage in any street performance or artistic vending from or using a portable table on Ocean Drive, Collins Avenue, Washington Avenue or the city's beachwalks without first obtaining a permit as required by this article. This section does not alter or interfere with the applicability and/or enforcement of any other provisions of this Code, including but not limited to, sections 70-4, 70-41, 74-1, 82-1, 142-874(a), and 142-1361 concerning vending and peddling."

We hereby state the current system of a lottery based permitting system infringes on citizens first amendment right to artistic free speech. 

We want to live in community that embraces our arts, and our music.

There is a long legal precedent in US case law has found laws requiring permitting of street performance as unconstitutional, violating the 1st amendment of the U.S. Constitution. 

Examples of these cases are found below: 

1979

In Goldstein v. Town of Nantucket, the Town of Nantucket had tried to regulate street performers as vendors, which the court did not accept as valid. Local businesses had complained about the competition from street artists.[5]

1983

In Davenport v. City of Alexandria, Virginia, a judge ruled that a ban on street performing and other business-related activities on the streets of the central city area was unconstitutional. Several courts found that there was no legitimacy to the city's allegations of safety issues that were alleged to be related to street performing.[6]

1985

In Friedrich v. Chicago, 619 F. Supp., 1129. D.C. Ill., a Chicago court ruled in favor of allowing street performers in the city. In Chicago street performing was restricted in certain areas. In the decision, street performers won injunctive relief from the city's enforcement of the ban in some of the contested areas. They also obtained relief from a permit scheme on the use of amplifiers because the scheme was judgmental and at the discretion of the issuers.[7]

1990

In Carew-Reid et al. vs. Ny Metropolitan Transportation Authority et al., street performers defeated a ban on the use of electronic amplifiers on the NY subways. The courts ruled that it was the volume of the sound, not the use of amplifiers, that was at issue.[8]

1991

In Jews For Jesus, Inc. vs. Massachusetts Bay Transportation Authority, a religious group defeated the banning of expressive behavior with a captive audience in paid areas.[9]

1996

In Bery v. New York, 97 F. 3d 684, 2d Cir., local businesses had complained about the competition from street artists, visual artists won the right to sell their art.[10]

1997

In Harry Perry and Robert "Jingles" Newman v. Los Angeles Police Department,[11] argued as Case 96-55545 before the Ninth Circuit Court Of Appeals, street performers won the right to perform and sell their original music CDs and tapes on the street. Local businesses had complained about the competition from street artists and tried to prohibit street performing.[11]

1999

In Turley v. NYC, US 2nd Cir Appeal 98-7114, argued in 1999, the judge ruled that New York City street performing permit schemes were too complex and difficult to obtain, and that the costs were unreasonably high. Turley also won relief prohibiting the seizure of instruments by police.[1]

2001

Street Performers won a lawsuit in Waikiki, Hawaii. After local businesses had complained about the competition from street performers, they got the city to push through an ordinance to ban street performing on a very popular area, allegedly for safety reasons. But the street performers prevailed in court by proving the safety concerns were not founded.[12]

2003

District Judge Henry Lee Adams Jr. issued an injunction barring the city of St. Augustine, Florida from enforcing a recent ordinance banning street performances on St. George Street. Local businesses had complained about the competition from street performers. Judge Adams's order stated, "Street performances are a form of expression protected by the First and Fourteenth Amendments of the United States Constitution." Merchants got the city to ban street performing for alleged safety issues. After public outcry, and a lawsuit[13] with Judge Adams decision, St. Augustine acceded and as of March 2003 allows street performing.[14]

2004

A San Francisco street performer known as the World Famous Bushman was charged with four public nuisance misdemeanors. A jury cleared him of the first complaint, and the district attorney subsequently dropped the remaining complaints.[15]

2005

A judge rejected Seattle Center rules on street performers. "Magic Mike" Berger, a magician and balloon-twisting street performer, took the Seattle Center to court and won injunctive relief and a court ordered settlement of over US $47,000. Seattle Center had some of the most liberal rules regarding street performing but even they could not pass constitutional muster. The business improvement district formed to manage Seattle Center claimed that they had the right to manage 62 square blocks in the center of the city like private property. They wanted to limit street performers by giving preference to approved street performers, regulating the times, places, and numbers of street performers performing. The judge rejected the regulations, pointing out that... "while a street performer cannot offer a meek oral request for a donation from passers by, a beggar who does not perform can solicit Seattle Center visitors with relative impunity, subject only to general criminal prohibitions on aggressive panhandling."[16]

2007

9th Circuit Decision filed on August 29, 2007 affirmed artist Steve White's right to display, and sell his original self-expressive art in the public fora. White v. City of Sparks [Nevada] (500 F.3d 953) addressed prior restraint in licensing schemes, it reaches into other areas of law not seen in other opinions "Nor are we convinced by the city’s argument that White’s sale of his paintings removes them from the ambit of protected expression. “[T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5 (1988); see also Riley v. Nat’l Fed’n of the Blind of N. C., 487 U.S. 781, 801 (1988) (“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.”); Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 633 (1980). [17]

2010

Judge blocks Venice boardwalk permit system. U.S. District Judge Dean D. Pregerson says the lottery system for performers and sellers violates the 1st Amendment. He also strikes down a rule barring the use of musical instruments or amplified sound between 9 am and sunset in designated areas. [18]

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The current system of a lottery based permitting system infringes on citizens first amendment right to artistic free speech. 

 

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REFERENCES to U.S. case law on this subject matter are available here. 

We ask anyone for striking Article XV Sec. 18-904 from Miami Beach Code of Ordinance to sign this petition, and if possible, join us at the next meeting of the Miami Beach Commission on June 22nd, 2022 at 8:30am. 

Location:

City Commission Chambers, Third Floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida