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Artisans consider litigation

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Mike L
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Posted: Thu May 8th, 2008 08:23 pm

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ajBookchin

I would certainly like to think free speech especially as applied to persons or artists as the case may be who originate, create and perhaps sell only their own original work, speech, music CD, poem that falls within the classification of fine art/ free speech is not a taxable item, nor was it ever intended to be. Can't you just picture John Q Adams being told he had to pay a trasaction privelege tax on a speech? I suppose and hope the courts will define this more clearly and also perhaps broaden the definition of fine art to include some works of art that happen to also be utilitarian. Perhaps the Suit against AJ will do this. In a way I hope that AJ fights the suit as perhaps we can get it to a higher court and get rulings at least on the tax issue.

I don't think any artist originally intends to create works of art to sell. I know for myself my hobby certainly did not start out as that. If I do sell a photgraph it certainly makes me feel good that someone considers it beautiful enough to take home and hang in their house. In my own field of photography, I seriously doubt that I ever could sell enough to even pay for the equiptment I purchase. Good cameras and lenses are way out there in the price range. Displaying my work is for me just a way to allow people to admire it, and if someone purchases something, so much the better. I am not saying some artist don't produce to profit. I am just saying I don't think that was their intent when they first painted a picture or sculpted or whatever their medium. If they became good enough....maybe so.

An artists under the option x or fed court ruling has to sell only his/her own original work (for some reason in NYC this does not apply) and thus it would be very difficult to sell anything in a mass quantity. Even an author can sell copies of his own book or a newspaper, but once it is taken and copied and sold by a publisher it becomes commerce and is no longer protected.

And as for the vice mayors statement...The city may not have tried to obstruct, impede or influence the content of speech, but I dont believe I heard content of speech in his statement. The city has tried to obstruct free speech and the artists rights to display and sell on public property and also by the letter that was sent to the business owners by the city clerks office as an instrument of intimidation to the business owners (IT WORKED !) to keep the artists from displaying on their property, also private property.

Things are going to come out in the law suit which I can't reveal yet, but the truth will become public knowledge. Maybe before then, if what I am hearing about channel 15 conducting an investigation of our local government and it's practices is true.

ajBookchin
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Posted: Thu May 8th, 2008 04:21 pm

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Mike L wrote:
...Option x would simply get something on paper which says AJ (or whatever city adopts it) recognizes that Fine art is Free Speech and therefore not taxable. ...
What did the founding fathers intend by the statement "free speech".

I expect they were seeking a guarantee that the government could not obstruct, restrict, impede or influence the content of speech; I doubt they were seeking a guarantee that speech be 'free' of taxation. I also understand this to be the reason why the state holds up the case regarding the sale of newspapers. I do not know the specific case they are citing, but I am familiar with the concept of "general applicability" which we have discussed before on another thread.

As I understand "general applicability" (I hope I'm using the correct term), the Supreme Court has stated that commerce protected by the First Amendment may be taxed, so long as the tax is generally applied and not established to target a specific medium, speaker, or audience. Given that the city of Apache Junction requires a privilege tax for all artists within the community conducting a commercial transaction, I expect their requirement might be Constitutional.

Obviously, we now return to the argument of what is "commercial"??? There are two definitions of commercial creating a conflict towards resolution. Commercial can mean production of commodities meant for the mass market; I expect this does not apply to yourself or artists like Mr. White. However, commercial is also defined as any activity having profit as a chief objective; I expect this definition may apply to yourself or artists like Mr. White.

Therefore, if the city of Apache Junction is requesting that a privilege tax be collected on all transactions conducted with the goal of earning a profit by an individual or a company and if the city applies the privilege tax indiscriminately, I would expect the city's application of the privilege tax to be found as not in conflict with the First Amendment.

I would also like to comment that I understand the vice mayor's statement regarding the issue being taxes, not the First Amendment, especially in this case where city government has not attempted to obstruct, restrict, impede or influence the content of speech.

Mike L
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Posted: Thu May 8th, 2008 05:23 am

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ajBookChin

I don't know for a fact the league of cities even considered that. What does seem logical to me is that if you have a group of cities each doing their own thing as far as taxation of different things and exemptions of certain things, how are you ever going to get them all to agree? So...the option thing comes into existence. One way to get the cities and towns united but still have independence so to speak.

As far as the correlation between option x and the first amendment. I am speaking for myself here and not necessarily all my artist friends, Option x would simply get something on paper which says AJ (or whatever city adopts it) recognizes that Fine art is Free Speech and therefore not taxable.

We have many laws on the books when it comes to civil rights that should not need be on the books simply by interpreting the constitution. Women's Suffrage and of course slavery and negro voting etc. We still have to have law upon law it seems just to define what is already law. And of course to keep city and State governments in check also. This coming law suit is going to challenge the state tax code also as it pertains to fine art. The state is relying on a law passed I believe in 1937 pertaining to the sale of newspapers to justify the present taxation of fine art, so where is the correlation in that. Newspaper sales are obvously commerce.

Maybe the reason we have so many laws is simply because we have way too many lawyers and a litigous society.

ajBookchin
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Posted: Wed May 7th, 2008 05:29 pm

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Mike L wrote:
... or maybe when the league of cities set this whole thing up they realized some of the cities were aware that the taxation was against the constitution so they set it up where the cities could have the option. ...
How can the League of Cities give municipalities an option to do something unconstitutional???

Mike L wrote:
... I watched the city council meeting last night and apparently vice mayor Eck still does not get it. He still thinks it is about the tax instead of violation of first amendment rights. ...
What correlation exist between Option X and the First Amendment??? How would adopting Option X "solve" the problem??? Or wouldn't it solve the problem???

Mike L
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Posted: Wed May 7th, 2008 04:47 pm

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In a way I agree with you. Option x has been around a long time and maybe someone challenged this a long time ago or maybe when the league of cities set this whole thing up they realized some of the cities were aware that the taxation was against the constitution so they set it up where the cities could have the option. There are a lot of other options also for cities to tax or not to tax but it is eerie how closely the wording of option x defining fine art is the same as the feds. Also I quoted someone at one of the council meetings which I can't remember who but it was something like our forefathers made law with not only the consequence in mind but also the consequence of it coming back to bite you in the butt. The cities in their greed have seem to have forgotten this.

I watched the city council meeting last night and apparently vice mayor Eck still does not get it. He still thinks it is about the tax instead of violation of first amendment rights. The artists don't really give a rat's butt about the tax! period! why should they? It is passed along to the consumer anyhow. Besides it is not like anybody is making any real money out there. The city council, and the mayor care about the tax. It is like they swore to enrich the city coffers instead of to uphold the constitution of the people. I don't think they realize how little revenue they are talking about. I would certainly invite any of them to spend the day out in the hot sun with me and see just how much we are talking about. Most days we are lucky to get people to stop and compliment our work much less purchase anything. Especially in this economy, the last thing people are going to spend money on is something they want instead of basics.

What we have been arguing all along and still want relief from is government interference on our first amendment rights of free speech. What they need to grasp is that fine art = free speech! It is not commerce.

I don't know if the artists had anything to do with it or not, or if more people are just aware, but seems like a large percentage of the people speaking at council meetings are complaining about constitutional rights being violated.

ajBookchin
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Posted: Wed May 7th, 2008 02:56 pm

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What I do not understand... If the First Amendment does prevent local governments from demanding a sales tax or privilege tax on fine art, why is Option X or other local legislation required??? Why would we create an exception for the transaction of a product if it is already excepted by the Bill of Rights??? Wouldn't local legislation such as Option X, by default, legitimize the fact that a privilege tax may be applied to fine art???

Mike L
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Posted: Wed May 7th, 2008 06:15 am

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As one of the artists who has done everything we can except actually get down on our knees and beg for the council and mayor to pay attention to the fact we actually had a legitimate complaint, I find it very sad that it has come to this. No one wanted the city of AJ to be sued. If the council had heeded what was being told them at meeting after meeting and had given some serious consideration to passing option x instead of giving it lip service and laughing it off everyone would have been happy.

As for Steve's claims being groundless, does the city attorney actually believe that the attorneys who won the Sparks case all the way to the supreme court and are qualified to argue cases before the Ninth Judical court and the supreme court are going to file a suit if they feel it is groundless? Wake up and smell the Coffee Senor atty.

There is much more to this than the city is admitting or telling. I personally went down to city hall within the last month and asked about a business license. I told the nice lady helping me that I was considering opening a photo gallery and selling my own work. No one told me that as an artist I did not need a business license. I was given an application to fill out and I told her I would take it home to fill out.

In fact I would challenge anyone to find the word artist in the city code anywhere. I have researched it and came up empty handed. So just where is it that it says an artist can sell original works of art in public places and does not need a license? We want to see something in writing that says we can do this without fear of arrest or citation or having or work confiscated. We have repeatedly asked for this through certified letters and have been ignored or stonewalled. Recently we asked for the information through the Freedom of Information act. It will be interesting to see if they can ignore that request.

The comment about A J being just like Scottsdale is interesting in the fact that Steve White did challenge Scottsdale and they agreed to hold off enforcing their city codes for licensing until after the Ninth Circuit court gave their ruling. Somewhere in the time frame they decided to forget their decision as one of the artists tried to set up in a public park a couple of weeks ago ( on a weekend with no one to call) and the parks dept. called the city police who ran him off. After conversing with the mayors office and being told he had to have license and TPT permit Steve stepped in and sent them an E-mail reminding them of previous correspondence and they immediately backed down. Also Tempe has agreed to re-write their city codes and has a stand down for the police to leave the artists alone.

In my personal opinion our attorney has a vendetta against Steve White and has swayed the council and mayor in the wrong direction all this time. Sometimes it seems it is more important to attorneys and prosecutors to win than to see to it that the law is obeyed and justice is done. All one has to do is go back over the statements that have been made publicly and you can see how much he has flip-flopped around this issue.

The city of A J also sent letters of intimidation to the business owners of Los Vaqueros bar and grill and the Golden West Restaurant threatening them with $2500 a day fines and loss of license, imprisonment etc. if they continued to allow those illegal vendors to set up in their parking lots. If what Mr. Stern is saying is true, How is it that the arists who were primarily setting up there suddenly became illegal vendors? This is another matter that we have been trying to get answers from the city, but again have been stonewalled.

Like I said it is unfortunate that it has come down to litigation time to seek federal protection, but I expect the truth will at least come out of it. Of course maybe the city will do as Sparks did and put a No-tell clause in the settlement so the taxpayers of the city will never know the details. It is nice to hear that the city has actually finally agreed to fall in line with federal law, but let's see it on the code books or at least in a public letter.

Mike L
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Posted: Wed May 7th, 2008 06:15 am

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AJ Editor
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Posted: Tue May 6th, 2008 04:49 pm

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Artisans
consider
litigation

By Terrance Thornton

Independent Newspapers

Bolstered by a federal court ruling supporting the First Amendment rights of artists to sell their works in public, Steve White of Apache Junction may now be setting his legal cross hairs on the city, but officials say his claims are groundless.

After five years of litigation, the Sparks, Nev. City Council last week agreed to settle a First Amendment lawsuit with Mr. White and his attorneys for a total of $250,000.

The case was filed in a Nevada Federal District Court and was appealed to the 9th Circuit Court of Appeals in San Francisco. The court ultimately found that Mr. White had a First Amendment "freedom of expression" right to sell his own original paintings in certain public areas within the city.

The U.S. Supreme Court declined to hear the city’s appeal of the 9th Circuit Court of Appeals ruling.

Mr. White is now turning his attention to his hometown, where he is accusing the city of Apache Junction of illegally imposing business tax licenses and transaction privilege taxes on local artists.

City officials adamantly dispute Mr. White’s accusation, but Mr. White contends any tax assessed on original works of fine art are unconstitutional.

According to city code, no artist is charged any type of business license fee to display or sell any works of original fine art in a public place.

"I have sent all my documents to my attorneys," Mr. White said, who says it’s unfair for the city to tax artists, while allowing others to be exempted from paying taxes on their sales.

He claims the city is selectively exempting people from taxpaying requirements. Nonprofit organizations are Mr. White’s prime example of "selective tax exemption" by the city.

"We are challenging business tax and privilege tax licensing by the city," Mr. White explained. "What is going on here is this city government is out of control."

Mr. White says he has tried to "educate" elected leaders, officials and staff about the specific exemptions the Constitution grants artisans.

"They have denied me the right to sell my artwork in my own hometown," he claims. "I tried to do positive things and have bent over backwards to educate these people."

Apache Junction resident and artist Ernest Imbeault says he is asking the city to adopt the Arizona League of Cities Model City Tax Code Tax Exemption Option (x).

Since 1987, seven cities in Arizona have abided by the tax-exemption option, which frees artists from paying taxes when selling their original works of fine art.

Apache Junction has not adopted the option, but city council did discuss the matter during executive session earlier this week, according to official meeting agendas faxed to the Independent Wednesday, April 30.

Mr. Imbeault says he expects a public apology from city leaders.

"I want them to publicly apologize and they won’t be sued," he added. "We don’t want to be criminals."

Mr. Imbeault and Mr. White claim the city has infringed upon their First Amendment rights by imposing taxes and license requirements on the sale of original works of art.

"City hall belongs to us ... the people are the city." Mr. Imbeault said. "We are not asking for any money at all, we just want our rights guaranteed by the Constitution."

City of Apache Junction City Attorney Joel Stern says Mr. White has no legitimate claim against the city.

"I don’t know what he would be suing us for," he pointed out. "We don’t make artists get a permit or license to display or sell artwork in a public place, just like Scottsdale."

Mr. Stern says no city code or policy violates Mr. White’s, nor any other local artist’s, First Amendment rights.

"We haven’t done anything. There is no liability," he said. "Any filing at this point would be frivolous and we will seek legal fees for the city’s defense for an action brought in bad faith."

Mr. Imbeault claims city staff is trying to brand Apache Junction artists as "criminals" and "tax dodgers" because of their stance on tax exemptions, which they feel they are entitled.

"How can they do that to citizens that pay their salaries," he pointed out. "They are going to have to answer for this."

As of press time, no lawsuit had been filed against the city of Apache Junction.

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