ACLU of Maine scrutinizes Cape Elizabeth limits on park art vendors

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CAPE ELIZABETH — A proposal to regulate art vendors in Fort Williams Park has caught the attention of the American Civil Liberties Union of Maine.

ACLU spokeswoman Rachel Healy said Wednesday that the town’s proposed rules have raised concerns among members of the Portland-based non-partisan legal group.

“It might be too restrictive of First Amendment-protected activities,” Healy said. “We hope that all towns will think carefully before adopting regulations that could potentially be unconstitutional.”

The proposal, which calls for a limit on the number of art vendors who can operate in the park and restricts their locations, is scheduled for consideration by the Town Council at its next meeting on Tuesday, Aug. 12, at Town Hall.

The proposed rules follow several months of consideration and debate.

The issue came up in May when artist Kris Kristiansen began selling reprints and original oil paintings from a stand near Portland Head Light. Shortly afterward, the town tasked the Fort Williams Advisory Commission to draft rules that would preserve the “aesthetic, historic and open-space characteristics of the park” while maintaining visitors’ First Amendment rights to free speech.

The commission recommended limiting the number of open-air art vendors within the park to eight, and restricting them to an area near a parking lot, away from the lighthouse.

In early July, however, during a Town Council meeting, Kristiansen argued that the rules would violate his constitutional rights and the proposed area near the parking lot is unsuitable for artists and patrons. The council voted 4-2 to table the discussion.

Then, on July 30, the council met at Fort Williams Park to look at potential vending areas. Afterward, the panel met in executive session.

The resulting proposal, which is dated July 31, is very similar to the original.

Healy said it is too soon to discuss the ACLU’s next move, but said the group, which is dedicated to defense of the U.S. Constitution and the Bill of Rights, would scrutinize the proposal.

“We will definitely take a closer look at it and consider a possible course of action,” she said.

Town Councilor Jamie Wagner, an attorney, said he appreciates and respects the role of the ACLU.

“That’s their job,” he said. “That’s what I’d expect from the ACLU and I commend them for that.”

Wagner said he hadn’t looked at the latest version of the proposal and wouldn’t comment on whether the proposal restricts First Amendment rights. But he also said there is legal precedent for municipalities to restrict art vendors in public parks.

“I’m confident that the council can come up with regulations that should be satisfactory to other vendors, to artists who wish to paint and sell there, and to the fort as a whole,” he said. “I’m confident that (regulations) could be lawful and not overly restrictive.”

Councilor David Sherman, also a lawyer, said it’s difficult to comment on the ACLU’s statement because it’s vague.

Sherman said he believes the proposed rules are legally sound, but they might not be needed.

“I’ve reached a comfort level as to the constitutionality of the proposed regulations,” he said. “An issue for debate is not whether they’re constitutional, but whether they’re necessary, given that we only have a husband-and-wife team of artists selling art in the park.”

The ACLU’s statement comes as good news to Kristiansen and his wife Marilyn. The Kristiansens have argued that the town’s proposal would violate their First Amendment rights to free expression, but the couple cannot afford a lawyer, they said.

“We are very pleased that the ACLU, as the acknowledged experts on First Amendment law, might consider offering their guidance to the town,” the Kristiansens said Thursday in a written statement. “It’s important for artists and the town that the rules should be fair and just for everyone involved.”

Kristiansen, a self-taught artist who is originally from Scotland, works daily about 300 feet away from iconic Portland Head Light. His art stand – a folding table  – includes rows of matted prints arranged in wooden compartments like LPs in record bins. Most prints are moderately priced at $12 and depict maritime scenes. 

The stand sits halfway between the lighthouse and a parking lot, alongside a gravel walkway. From the base of the lighthouse, Kristiansen’s stand is obscured by a row of rosa rugosa. A row of portable toilets sit on the far side of the stand behind a weathered wooden fence.

Kristiansen argues that his location has no impact on the park’s aesthetics. Maybe if there were more artists setting up in the park there could be an impact, he said, but so far Kristiansen is the only one.

On Wednesday, a group of out-of-state visitors walked past Kristiansen’s stand. Charlie Martin, from upstate New York, said the art stand doesn’t affect the park’s aesthetics, but he can see both sides of the issue.

“I don’t think he’s a problem. He’s off to the side and he’s not a problem of any kind. I think he’s fine,” Martin said of Kristiansen and the art stand. “But if he attracts more vendors, it could become a problem.”

Ben McCanna can be reached at 781-3661 ext. 125 or [email protected]. Follow him on Twitter: @BenMcCanna.