Saturday, December 29, 2001

Waikiki Street performers, from left, T Tron and CJ entertained last night on Kalakaua Avenue.

Street performer
law struck down

A judge rules that the city law
is too broad and is unconstitutional

By Leila Fujimori

A Circuit Court judge struck down a city ordinance yesterday, ruling that mimes, jugglers, musicians and other Waikiki street entertainers have a constitutional right to perform.

Judge Virginia Crandall ruled the city ordinance restricting street performances was unconstitutional, violating First and Fourteenth Amendment rights to free speech and due process. Her ruling permanently prohibits the ordinance.

"I agree with the judge," said T Tron, a silver-painted mime in front of the International Marketplace on Kalakaua Avenue last night. "We bring good entertainment to the people, free entertainment. So actually it's good for the tourists."

In a 42-page ruling, Crandall called Ordinance 00-08 overbroad and its restrictions sweeping. The law had restricted Waikiki street performers to six designated locations.

A balloon sculptor who goes by the name of Balloon Man performed last night in Waikiki. He was critical of the mayor's efforts to limit street entertaining.

Crandall stated the ordinance "provides too few locations for expressions." The ruling also stated that banning singing, rapping, reciting, dancing, miming, juggling, puppeteering, magic, acting, art and music covers almost every form of expression, other than holding up a sign or speaking.

"(The city) tried to outlaw street performers under the guise of regulation," said Earle Partington, who, along with ACLU attorney Brent White, represented three street performers against the city.

Partington objected to the ordinance because it forbade performances along the length of Kalakaua Avenue, which gets the bulk of Waikiki foot traffic.

"With street performers, they go where the crowd goes," Partington said.

The ordinance, which was signed into law by Mayor Jeremy Harris on April 11, 2000, restricted performances to six locations on sidewalks.

But the city had agreed not to enforce the ordinance until after a decision on the case, Partington explained.

The designated areas were either fairly remote, such as on Ohua Street, or too small so no crowd could gather, such as at Lewers Street.

The judge's ruling came almost a year after the end of a trial in which a magician, a saxophone and bongo drum player and a church leader of singing teens sued the city.

"The city is disappointed with Judge Crandall's ruling regarding the street performers ordinance," city attorney Greg Swartz, who defended the case, said yesterday in a statement.

Having street performers on Waikiki sidewalks presents "significant safety problems and detracts from the ambience of Waikiki," Swartz said.

"Given the seriousness of this matter, (the city) will either appeal to the state Supreme Court or revise the ordinance as necessary to overcome Judge Crandall's concerns," Swartz said, although he noted he had not reviewed the ruling.

The city had enacted ordinances and engaged in litigation to resolve the Waikiki sidewalk congestion problems due to T-shirt vendors who sold from tables along Kalakaua Avenue, other solicitors and numerous news rack stands.

Crandall stated that Ordinance 00-08 was overbroad because of sweeping types of expression that do not contribute to the problems the city attempted to prevent.

"It's unfortunate that the judge did not agree with our effort to make Waikiki safe," said Councilman Duke Bainum. "This law was drafted specifically because of concerns raised by the police, residents and others."

Partington said it took courage for Crandall to issue a ruling that would not be popular with city officials and businesses who want street performers out of Waikiki.

Crandall said there were other less burdensome alternatives, including limiting performers to one at a time; banning performances that are dangerous; limiting performers to locations where there are buffers, which prevent pedestrians from stepping onto the street; and stepping up enforcement of laws that prevent peddling on, or obstruction of, sidewalks.

Rose "Psychic Rose" Stevens, 65, said she is licensed to peddle, but said things on Kalakaua used to be different when there were more street performers.

"When people were singing, dancing, making jokes, this street was real happy," she said.

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