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Make Art, Not War 

Attorney helps artists fight restrictions on street sales

Wednesday, Jun 16 1999
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Make Art, Not War
Attorney helps artists fight restrictions on street sales
By Claudia Rosenbaum

To the two eagle-eyed San Francisco police officers, it appeared that someone was holding up artwork on Haight Street. Closing in to investigate, they could make out an unknown subject waving an 11-by-14-inch drawing above the heads of the steady stream of pedestrians in front of Ben & Jerry's.

The cops probably did not notice that the black-and-white print was a self-portrait that artist Joseph Clark had drawn of himself at a bus stop, or that Clark was beaming with pride as he eagerly showed off his newest work and tried to sell it to passers-by.

The cops ticketed Clark for peddling art without a permit. "What country is this? What about freedom of expression?" Clark says he asked one of the officers. "I told him it was his job to protect me from people who tell me to put my art away."

After a few terse words, the police arrested Clark and put him in the back of a cruiser. He was booked, and spent eight hours in jail before being released at 4:30 a.m. on his own recognizance and given a court date. His artwork was returned to him with identifying initials written in big black permanent marker across its front.

That arrest, in October 1996, would prove to be only the first for Clark. Prosecutors decided not to pursue the charge, but since then Clark has become something of a serial illegal art peddler, at least in the eyes of the police.

A 27-year-old San Francisco native, Clark has continued trying to sell in the Haight, and police have kept arresting him, or issuing him countless tickets for peddling without a permit. Ten months after his first arrest, Clark once again found himself in the back seat of a police cruiser headed for jail, although again prosecutors declined to press the case.

Several months later, he was hauled in for a third time. When he retrieved his artwork from the police evidence room after the most recent arrest, Clark says, he found that most of his prints had been ruined by an open beer can the arresting officer picked up off the street and tossed into Clark's backpack. That case is also on the back burner, but Clark does face possible fines of up to $1,000 for tickets he has received.

This time, however, through a stroke of luck, Clark has an attorney on his side who is willing to take on the city's laws that strictly limit the ability of artists to peddle their wares on the street.

When he showed up for a recent hearing on his tickets, Clark says, he was sitting on a bench inside the Hall of Justice when he decided to see if he could enlist some help. Clark started asking any-one dressed in a suit if he could "spare a lawyer." He caught the ear of Danny B. Schultz, an attorney who works for Tony J. Serra's law office, which specializes in civil and criminal rights cases.

Standing in the hallway, Schultz listened to Clark's tale of woe, and agreed that Clark's First Amendment rights were being vio-lated. After doing some legal research, Schultz concluded that the San Francisco law against street artists peddling without a permit was unconstitutional.

Now, Schultz is representing Clark, and other artists, for free in a battle to undo the law. Schultz says he'll make a federal case out of it if he has to. Schultz and the artists he is now trying to help say the city's myopic laws on street sales aren't just illegal, they're inane.

"I didn't go out to break the law," Clark says. "I went out there thinking I was an American. For this country to say that I have this right and for this city to take it away ... to me, that's treason."

Clark is by no means the only painter afraid of selling on the street. There are those who, after being arrested several times in the Haight, gave up and now discreetly sell downtown without permits. Other artists say they have been harassed off the street altogether. Adam LaBay, 22, who draws highly detailed ink work, says he quit selling in the Haight after receiving five tickets, $1,300 in fines, and the threatened loss of his artwork (one drawing typically takes him three months to complete). He now works at Juice World and displays his drawings at the City Art Gallery in the Mission.

"There's a reason why a lot of great artists don't come here and instead go to New York or L.A.," LaBay says while taking a smoke break on Haight Street in his red Juice World apron. "What kind of effect does it have on a kid, if she looks outside and sees someone being arrested for selling or displaying their art?"

Both Clark and LaBay say they looked into getting permits to sell their art in the Haight. But they learned that the city does not issue permits for that neighborhood. Street artists can only "legally" sell in areas around Fisherman's Wharf, the Embarcadero, or downtown. In those touristy locations, artists must have permits and sit in assigned spots behind regulation booths.

Those were not the areas where Clark or LaBay wanted to sell. LaBay heard the Haight was a progressive neighborhood for art. He quit his job, broke up with his girlfriend, said goodbye to Grand Rapids, Mich., and landed on the street with $4 in his pocket.

Clark, a graduate of Clayton Valley High School, used to come to the Haight with his father as a child and later alone. He remembers marveling at all the artwork and artistic expression that seemed to flow freely in the streets. It wasn't until Clark was working as a telemarketer for Time Life Books that he realized he could make a career out of selling his art. A supervisor noticed a drawing of Clark's on the back of an envelope and told him it could be worth something. After work, Clark made copies of his drawing, went out to Powell Street yelling "art for a quarter," and made $6 right away. He was hooked.

"My art sold and it felt wonderful," says Clark.
Wonderful, until he started getting arrested.
Now, with Schultz in their corner, the artists have rekindled an almost 30-year-old battle between street artists and the city.

Before 1971, artists throughout the city were arrested for peddling without permits. The strife among street artists, merchants, and the police culminated in mass arrests that year at Union Square. Ultimately, then-Mayor Joseph Alioto intervened and gave the Board of Supervisors the authority to issue permits, and determine where artists could sell.

The city's newly formed Art Commission was given the task of working out the details, and the board designated just one spot in the city -- the Embarcadero -- for street art sales.

Unhappy with the restrictions, street artists gathered enough signatures to put an initiative on the ballot that would allow them, once they registered with police and the tax board, to sell anywhere in the city. The initiative passed in 1974.

That frustrated the Art Commission and city officials. At the next election, the Board of Supervisors successfully pushed its own ballot initiative, undoing the one passed by the artists. Once again, sales would be allowed only in designated areas, although the permitted locations were expanded to include Fisherman's Wharf and areas downtown.

That's where things stand today, and Art Commission Director Howard Lazar contends that the artists are getting a great deal. Permits cost about $350 a year, and the artists get locations in one of the world's prime real estate spots.

Over time, officials have considered expanding permitted sales into more areas. But they've concluded that neighborhoods like the Haight and the Castro -- long considered havens of free speech and expression -- have sidewalks too narrow to accommodate the activity.

If artists could get the backing of merchants and property owners, Lazar says, he would present a proposal to the board asking for spots in the Haight. The process would take a minimum of three to six months, and there is no guarantee the board would go along with it.

"Unless store owners and residents say it's OK, then believe me, I don't feel there's a chance of getting spaces up there," Lazar says.

That's not the way Schultz sees it.
The Board of Supervisors, Schultz points out, can't rewrite the Constitution. If the underlying purpose of the city's rules is to keep the sidewalks free of congestion, there are less restrictive ways to do that, Schultz says.

"Your constitutional rights are something every American is born with," he says. "They [street artists] should not be required to take their zero cents and go on a lobbying campaign against some powerful group that thinks they are second-class citizens. The Art Commission wants to put them through some tedious, tiresome ordeal and wants them to go up against the merchants, a powerful group with lots of money. And all these guys have are their pictures."

Margaret Russell, a constitutional law professor at Santa Clara University Law School, agrees with Schultz. There's a strong First Amendment tradition guaranteeing freedom of expression in traditional public forums, which includes streets, parks, and sidewalks, she says.

She is skeptical that the only suitable locations "in the whole city, with three-quarters of a million people, are these three tourist areas."

Schultz says he'd like to resolve the situation by talking to the city rather than filing suit. A constitutional challenge could take years to work its way through the court system. His office is collecting evidence, videotapes of artists selling without obstructing foot traffic, in case negotiations with the Art Commission fail.

"These artists are focused on their art, people are liking it, and they are excited by that," he says. "That's how people become artists. For the city not to promote that just seems insane."

And Schultz is also helping Clark fight the tickets and potential fines that he faces. On June 1, Clark pleaded not guilty to four criminal infractions concerning his display and peddling of art in the Haight. With Schultz preparing for a July 14 court date, Clark feels hopeful.

For insurance, Clark says he now always carries five pens in his pockets, so he can still draw when police again seize his artwork.

The June 16 Bay View article "Make Art, Not War" contained two factual errors. The director of the San Francisco Art Commission is Rich Newirth. Howard Lazar is the director of the licensing program for street artists. Also, the commission was created by charter in 1932, not in the early 1970s. SF Weekly regrets the errors.

About The Author

Claudia Rosenbaum

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