Oil painter Bruce Bates stopped in front of Kilwins Chocolates and gestured toward the second-story balcony of the simple tan-and-blue-trimmed building on St. George Street in downtown St. Augustine.
Deep gray thunderheads had built up into a threatening skyscraper of storminess against a remnant of the bright blue sunny afternoon. “Look at that sky,” he exclaimed. “I mean that is absolutely gorgeous.”
If Bates had had tubes of paints with him, he might have broken out his brushes right there and captured the moment. But if the artist had made any art on St. George Street that day, he would have been breaking the law. It’s illegal in the city of St. Augustine to make or sell art anywhere on the streets or sidewalks or public areas of the city’s historic district. If Bates had painted a landscape scene — in violation of the law — he would be subject to arrest, a $500 fine, 60 days in jail, or all three.
Bates says the city’s art laws are absurd, counter-productive, unnecessary and fundamentally unconstitutional.
“I believe we are the only city in America that criminalizes painting,” he observes.
The city’s ever-more draconian restrictions on artists prompted Bates and three other visual artists to file a federal lawsuit in June. It claims the city restriction on artists making and selling their work in public violates their First Amendment right to freedom of expression.
The idea of protecting the making of art as freedom of speech makes sense to most people, but the idea that the selling of art is protected speech is a bit of a stretch. For a visual artist like him, Bates explains, communication with his audience isn’t completed only by the performance of painting, or when a person views his work. The message of the art is communicated when a person acquires it and takes it into his or her life and communes with it over time. That idea was laid out in the landmark freedom of speech case Bery v. City of New York, which distinguished between art sold on the street and art displayed in a museum or sold through
St. Augustine’s battle with street art isn’t new. And the city has lost several earlier rounds. It began more than 30 years ago when the city outlawed street performers and then visual artists from selling their work on St. George Street — the central promenade through the historic downtown district and the hub of tourist activity — and then extended the law to include artists making and selling their work there. As the conflict continued for decades, with lawsuits, arrests and changing iterations to city laws, the result is that now, street artists are unconstitutionally barred from their audience.
Bates graduated from New York’s Pratt Institute and worked on Madison Avenue as an art director. He did a print campaign for Vogue Magazine and one for Reach toothbrushes before taking a job as the creative director of the Professional Golfers Association. Bates began doing his own art full time in 2006. He says he likes to paint scenes on the street and talk to people about his work and sell art to regular people, rather than gallery-goers.
“I want to share the energy and be able to talk with them about my art,” he says. “When a visitor comes here, it’s charming to meet a painter painting a streetscape of downtown St. Augustine. People love it. It’s a memory. But you can’t have a guy painting who has to duck down behind a tree to make a sale.”
In 2009, United States District Judge Marcia Morales Howard barred the city from enforcing a 2007 law that outlawed the sale of merchandise in the historic district. Bates and three other artists filed the suit after the city began citing artists for selling their work from tables set up along the shaded sidewalks of the Plaza de la Constitución.
Before even hearing that lawsuit, Judge Howard ordered the city to stop enforcing the 2007 law because its broad restrictions on visual artists selling their work violated their constitutional rights. In response, the city has since restricted artists to a handful of spots leased for $75 a month in the open-air market at the easternmost end of the Plaza, removed from St. George Street. The only other spot where artists are allowed is next to the Visitor Information Center, where the city requires that they pay $125 a month and carry $300,000 in liability insurance.
Portrait artist Ellen Merrick, who was a plaintiff in both the current lawsuit and a similar lawsuit filed in 2007, says she no longer sets up downtown to offer on-the-spot charcoal and pastel portraits to passersby. Not enough people visit the market to make it worthwhile, she says.
The restrictions make it almost impossible for a street artist like her to survive, she says. She still makes art, of course, but complains that the Slave Market is too far away from the hub of tourist activity to draw customers. She also described it as uninviting and “desolate looking,” because usually a handful of vendors [are] there selling jewelry and scarves and other items. It’s mostly flea market kind of things rather than artists.
Merrick says she now cleans houses to make ends meet.
“For years after I moved here in 1997, I was out there and I did OK. I never made a lot, but we are used to that as artists,” she says. “It made a difference in paying my bills and I liked working for myself.”
“They just made it very difficult for artists to earn a living. Everything is against the law,” says St. Augustine attorney Tom Cushman, who is one of the attorneys representing the artists in the current and the 2007 federal lawsuit. He’s been involved in the fight since the 1990s.
Calling all artists: St. Augustine, Artist Paradise (1933)
The city of St. Augustine has no professional football team. No convention center. No world-class aquarium. None of the talismans upon which cities cast their hopes and their cash. It’s a testament to the there-there, to paraphrase Gertrude Stein, that without doing much of anything, St. Augustine attracts more than five million people every year. They are drawn by its quaint, cluttered bohemian charm, part Disney stage set, to be sure, but also a present built upon the very real sediment of a history dating back 450 years to its founding in 1565. The Spanish Colonial feel of the historic district is partly reconstruct, some 32 buildings, most of which were built around 50 years ago at the urging of Gov. LeRoy Collins to create a Williamsburg-like historic district, most completed in time for the city’s 400th anniversary. The district also includes reconstructions from the British and early American and second Spanish period as well as buildings that date back hundreds of years, like the González-Alvarez House, the first story of which was built circa 1732. Even the tourist attractions are historic in their own right — the Alligator Farm Zoological Park and the Fountain of Youth Archaeological Park prefigure the grand era of the Florida roadside attraction. Both opened in the 1800s. Henry Flagler’s palatial Ponce de León Hotel opened in 1888, decades before the Florida boom of the 1920s led to such spectacular Mediterranean Revival confections as pink Don CeSar Hotel in St. Pete Beach, which opened in 1926.
St. Augustine has long attracted artists, free-thinkers and the much-sought-after so-called “creatives” that cities pant over today. In the 1930s, it sought out artists as a way to give St. Augustine soul. Jewelry store owner and amateur painter J. Dexter Phinney envisioned St. Augustine as the “Art center of the South,” according to a book by R.W. Torchia, Lost Colony: The Artists of St. Augustine, 1930-1950.
“St. Petersburg, Miami and other prominent tourist cities have their shuffle-board courts, their horseshoe pitching, etc., but none has the rich historical significance, the quaint and picturesque buildings and scenes that make the Ancient City appeal so greatly to the artistic,” Torchia recounted Phinney saying in 1933 when he spoke to the city’s Kiwanis Club.
The campaign worked. By the 1950s, the St. Augustine Art Association boasted 532 active members, according to a promotional flyer distributed by the city’s Chamber of Commerce. Artists who summered in Roxbury or Provincetown up north spent the temperate months in St. Augustine’s art studios. In contrast to today’s restrictions, the Chamber promoted St. Augustine as a place where an artist could paint outdoors 365 days a year, with a range of “subjects from marines to 18th century streets.”
And the city’s business class recognized the benefit of its creative class. Every month, the business community gave out an award for the best original art.
At a St. Augustine Art Association meeting in 2011, artists and the children of artists reminisced about what life was like in St. Augustine during its arts colony heyday. They recalled that artists offered classes in drawing and painting. They’d bring each other their latest work to critique and trade art for dental work or a meal. One artist told how he and a fellow painter would paint scenes in downtown during the day and then sell their art to tourists in the afternoon, before ending the day at the Tradewinds Lounge in the company of other artists and patrons.
Fast-forward to 2015, when the prestigious Oil Painters of America held its annual conference in St. Augustine from April 29 to May 3. In addition to an awards ceremony, lectures and painting demonstrations, the OPA held a plein air (open air) painting competition on April 29. Artists chose an outdoor scene and painted it at the location, from real life, in one day.
Len Cutter, whose Cutter & Cutter Fine Art Brilliance in Color Gallery sponsored the OPA conference, contacted the city before the competition to check for any restrictions. The artists were told that the historic district was off-limits. Though he says the artists found other subjects and left happy, Cutter admits the city missed an opportunity to promote its historic downtown to some very talented artists and to have scenes of its historic district immortalized in oil.
“Next time they come, it might be nice to have artists out there painting,” says Cutter. “These artists came from all around North America and were here painting … These were some of America’s foremost artists in terms of oil painters. To have artists of that caliber restricted from going where they will … is a burden.”
If the city of St. Augustine would get out of its own way, the city could again be the scene of a vibrant arts community, says Cushman.
“I have this vision of St. Augustine as an arts colony again, where high quality art is being created and sold. It would be a source of revenue and a source of pride for the city,” says Cushman. “I don’t understand how [city officials] can be so short-sighted.”
Instead, Cushman laughs, the city has made artists seem like drug dealers. He mentions the late Greg Travous, whom Cushman represented in exchange for works of art. Travous sold his artwork in the Plaza in protest of city laws, and he was arrested more than 10 times as a result. He told friends not to bail him out of jail. Cushman described Travous as having been reduced to the practicing the sneakiness of a drug dealer, taking a patron behind a live oak to make a surreptitious sale.
Plaintiff and sculptor Helena Sala moved to St. Augustine in 2001 because she thought it was a place that was friendly to artists.
“My bad,” she says.
The Problem That Wasn’t
Although the city has effectively banned artists from its historic district, in a review of city council commission meeting minutes, Folio Weekly found no reference to the problems created specifically by visual artists. City commissioners complained about vendors in the historic district and the flea market atmosphere they created. They complained about the littering and about the harassment of pedestrians, but the artists themselves were never discussed as a problem. City Manager John Regan did not respond to a query from Folio Weekly on what problem the city solved by outlawing art being created outdoors.
Instead of simply allowing visual artists to once again make and sell their art in public after Judge Howard’s 2009 injunction, the city opened up the central Plaza de la Constitución to anyone with something to sell, artists as well as vendors selling sunglasses, chocolate-covered bananas, T-shirts, jewelry, homemade cosmetics and other goods and services. Bates believes the move was a cynical attempt to influence public opinion by turning the park anchoring the historic district into a flea market.
“It was a free-for-all,” says Bates.
Cushman, who represents the artists along with the civil rights law firm of Jacksonville attorney William Sheppard, accuses the city of creating a nuisance in order to create a public outcry for more restrictive regulation.
“We won in federal court in 2009 and then the city acted like a bunch of spoiled children,” says Cushman. “They say they can’t do anything and opened it up like a flea market for a couple of months. The city did that intentionally to irritate the population, when all the injunction says is that you can’t interfere with free expressions in the protected areas of art, sculpture, painting and photography. It didn’t say anything about selling jewelry or snow cones or pizza. But the city opened up the Plaza to everybody. They went out and recruited people to go down there and sell.”
Four months later, city commissioners passed new restrictions. Since then, both artists and vendors have been restricted to one spot in the historic market in the easternmost end of the Plaza, removed from the tourists on St. George Street. Vendors and artists compete by lottery for one of 12 spots and pay $75 a month to exhibit there. They can also make and sell their art at the parking garage by the city’s visitor center — for $125 a month, as long as they carry $300,000 in liability insurance. The four artists who filed the suit in June say the regulations are so limiting that they are illegal. They hope that a federal judge agrees and, once again, opens up the entire historic district as a place where they can create and sell their art.
“When the artists were in the Plaza, it was beautiful. It added charm to the city. It added romance to the city,” Bates says. “People would look across St. George Street and go, ‘Oh, there is an artist painting in
the park. How nice. Let’s watch.’ They might buy a piece of art while they’re in St. Augustine from a real artist who they were able to meet and to talk to. It added charm to their experience.”
Bates hopes that the new lawsuit will make the historic district accessible again, and allow artists to set up on St. George Street or in the Plaza, to be free to make art where they find it and to sell their work to anyone interested in buying it.
As he walked down St. George Street during a recent Sunday meeting with Folio Weekly, Bates pointed out locations along the city’s historic promenade where he might set up an easel or sit with a sketch pad — beside a smooth concrete wall, in the shaded alcove of a building, on one of the 41 concrete benches — without blocking the flow of pedestrians or the window displays and entryways of St. George Street businesses.
Even on a sweltering Sunday, throngs of people walked down St. George Street, wearing sunglasses and brightly colored vacation plumage. Bates wants to show that artists, tourists and commerce could all fit here. And he wants to make the point that the city would be better for it.
“Some of the most beautiful buildings in the country are [in St. Augustine], buildings that are hundreds of years old … We want to be able to capture a scene, the light coming through the clouds and dappling over the ground or beaming across the side of a building,” Bates says. “Hopefully, artists will be allowed to go and paint in the city as long as they don’t impede pedestrian traffic or block anyone’s doorways.”