More than half a year after a revised Los Angeles City ordinance regulating vending and the time, place and manner of public expression activities went into effect on Ocean Front Walk in Venice, a group of Boardwalk activists are challenging the constitutionality of the law.
Attorney Carol Sobel filed a lawsuit in Central District of California federal court October 16th against the City of Los Angeles, on behalf of plaintiffs Venice Food Not Bombs, Lani Ware, James Lafferty, Wayne Kennan and William Greenslade.
The lawsuit alleges that the revised city municipal code section 42.15 violates both the First and 14th Amendments of the U.S. Constitution.
Under the ordinance, which went into effect on the Boardwalk March 25th, vending activity — defined as selling, offering for sale, exposing for sale, soliciting offers to purchase or bartering — on the west side of the Boardwalk is prohibited.
But the provisions do not apply to certain exemptions, such as performance artists, people vending newspapers and items created by the vendor, or any other item that is inherently communicative and has nominal utility apart from its communication.
According to the ordinance, examples of items that have more than nominal utility and may not be sold include housewares, appliances, articles of clothing, lotions and jewelry.
Among other provisions of the ordinance are that the exempted activities are prohibited on the Boardwalk between 10:30 p.m. and 9 a.m. daily, and noise generated must be limited to a distance of 50 feet from the source.
Persons engaging in the exempted activities must hold a valid public expression permit issued by the city Department of Recreation and Parks with spaces allocated in a lottery system.
Portions of municipal code section 42.15 were revised by city attorneys in late 2005 after a previous First Amendment lawsuit was filed against the original law.
The Los Angeles City Council approved the revised ordinance in January.
The Los Angeles Police Department (LAPD) has been enforcing the new regulations since late March, but some Boardwalk permit holders allege that the revised law still violates the First and 14th Amendments because it is an “impermissible” restriction on protected expressive activities in a traditional public area.
“It doesn’t work,” said Sobel, the attorney for the plaintiffs. “It’s not constitutional.”
In the lawsuit filed October 16th, the plaintiffs allege that the ordinance is not a reasonable “time, place and manner” regulation because it is vague and overly broad.
The plaintiffs also allege that the ordinance is enforced in a way that denies them equal protection of the law while permitting other speakers to engage in violation of the same laws for which the plaintiffs have been cited.
Plaintiffs are challenging the definition of “nominal utility” in the ordinance, claiming that police who are enforcing the regulations are the ones deciding what items may be legally vended on the Boardwalk, Sobel said.
“You can’t sell a book if you didn’t write it yourself,” she said.
Another main aspect being challenged is the 50-foot noise restriction, because the plaintiffs claim that it is unlikely that any form of expressive activity on the Boardwalk will not be heard from a distance of 50 feet, she said.
But city attorney officials asserted that they addressed the concerns of the public when revising the ordinance and will defend its legality.
“We worked very hard to craft an ordinance that addresses the concerns of the community,” said Jonathan Diamond, city attorney spokesman. “We will defend the ordinance as the litigation proceeds.”
Concerning the challenges of the “nominal utility” definition, Diamond said the ordinance specifically defines what items are allowed and not allowed to be vended on the Boardwalk.
“The ordinance is crafted in a way that makes it pretty clear what’s appropriate and what’s not,” Diamond said.
Plaintiff Venice Food Not Bombs, a group that provides information about the plight of low-income people and gives meals and clothing to those in need at the Boardwalk, claims in the lawsuit that group members were cited and arrested after they had set up before noon in a space that was not assigned to them in the lottery system.
Lani Ware, a plaintiff who is an artist and activist in Venice, claims she was cited for displaying a banner protesting the Bush regime because the banner was displayed in a “non-designated” area.
James Lafferty, a plaintiff who is a political activist in Los Angeles, said he wants to seek donations for a book titled Articles of Impeachment, but claims he is not allowed to do so under the ordinance because he did not write the book himself.
Plaintiff Wayne Kennan, an avid musician who works professionally as a cinematographer, said he and his daughter want to bring their instruments to the Boardwalk to sing but are afraid to do so because of the possibility of being cited or arrested for violating the 50-foot noise regulation.
William Greenslade, a plaintiff who is a longtime Venice resident and Boardwalk participant, claims he has been cited for violating the ordinance by vending handmade sculptures that are not created by him.
In filing the lawsuit, Sobel said the plaintiffs are hoping to ensure that the “First Amendment is alive and well in what Los Angeles calls its historic free speech area.”
A federal court hearing for a request for a preliminary injunction regarding the lawsuit was scheduled Wednesday, November 8th, Diamond said.