Despite questions about constitutionality, Cape Elizabeth passes rules to limit art vendors in seaside park
CAPE ELIZABETH, Maine — The Cape Elizabeth Town Council unanimously approved restrictions on art vending at Fort Williams Park, a process that a local artist described as a “railroad” and a legal group said “raises questions.”
The new rules, which go into effect Monday, Aug. 19, limit the number of art vendors in the park to eight. They also restrict the artists to a single location, on a narrow strip of lawn near a parking lot.
Artist Kris Kristiansen, who has been selling original works and reprints at the park since May, said the council’s 6-0 decision ignored his constitutional right to free speech. He and his wife, Marilyn, agree sales of art on public property can be regulated by municipalities, but only if the activity creates safety issues, congestion or other problems.
As the sole independent art vendors in the park, the Kristiansens contend their presence is harmless and doesn’t meet the legal standard.
“With only one artist, the town rules are overreaching and premature,” Marilyn Kristiansen told the council during a public comment period Monday.
The rules are intended to “protect the scenic beauty of the park, preserve landscape and iconic views, and prevent excessive commercialism, congestion and public safety issues.”
The vote followed several months of consideration and debate, including a Town Council workshop and tour of the park. Despite lengthy consideration, the adopted rules are essentially the same as the original proposal that was tabled in early July.
Councilor Jamie Wagner, a lawyer, said he reviewed pertinent case law and believes the town’s rules are legally sound.
“I take First Amendment rights very, very seriously,” Wagner said. “These are reasonable time, place and manner restrictions.”
Councilor David Sherman agreed.
“I don’t want to interfere with the Kristiansens’ First Amendment rights,” Sherman said, “but I do think this is a reasonable balance that has been struck by the council.”
Zachary Heiden, legal director for the American Civil Liberties Union of Maine, said Wednesday his organization appreciates that the Town Council “expressed an interest in protecting the First Amendment right to free expression.”
But he said the arbitrary limit of eight artists raises questions.
“People travel from all over the world to visit (Fort Williams), and any regulation of the use of that space must be consistent with the Constitution,” Heiden said in a written statement. “We will be watching closely to see how these new restrictions are implemented.”
Last week, before Monday’s council meeting, ACLU of Maine spokeswoman Rachel Healy said the organization, which is dedicated to defense of the U.S. Constitution and the Bill of Rights, would “consider a possible course of action.”
Healy on Wednesday said the ACLU isn’t backing down. “We definitely haven’t ruled anything out in terms of next steps,” she said in an email.
Kristiansen, a self-taught artist who is originally from Scotland, has worked daily on a grassy field about 300 feet from Portland Head Light. The new location will put him about 600 feet away on a grass-covered berm, which Kristiansen said will reduce his visibility and make him inaccessible to elderly or disabled park visitors. The site also exposes Kristiansen — an asthma sufferer — to dust from a nearby gravel parking lot.
Councilor Jessica Sullivan said the site that was chosen for art vending is suitable.
“I thought it was reasonable, visible and I’m very pleased to support it,” she said.
Councilor Katharine Ray said the town could “work with whomever to make sure it was flat enough and accessed from wheelchairs.”
After the meeting, Marilyn Kristiansen said the couple will comply with the new rules, but will continue to explore their options.
“Our next course of action is to ask the American Civil Liberties Union (for assistance),” she said.