A few weeks ago, a San Diego police officer approached a man selling hemp necklaces without a vendor permit on the Ocean Beach seawall.

The officer had chased off the vendor in the past, but this time the scene played out differently.

That’s because David Millette, who sells jewelry he makes by hand, had something even better than a permit: a personal letter from Mayor Bob Filner granting permission to sell his wares in any public park or beach in the city.

Millette approached Filner at the mayor’s April 4 public meet-and-greet event at City Hall.

He brought up a 2010 ruling by a district court judge finding Los Angeles’ ordinance regulating performers and vendors in Venice Beach violated the First Amendment, along with two other similar rulings in Nevada and Washington.

Millette gave Filner the rulings and told him San Diego’s municipal code governing the same issue was also a First Amendment violation.

“He looked at them and he says, ‘Well, looks like you may be right about this,’ and he offered to write me a letter allowing me to sell at the beach,” he said.

Filner’s office ignored requests for comment.

The city’s municipal code does bar residents from selling merchandise in public parks and beaches, unless sales are protected by the First Amendment. Sales protected by the First Amendment are nonetheless regulated by the city manager.

The Venice Beach ruling said vendors selling handmade art were essentially exercising free speech. That created a distinction between a performer or vendor selling something that carried a message, and someone simply attempting to turn a profit.

Millette argued, and Filner seems to agree, that the city manager regulations are in violation of the First Amendment.

On April 29, Filner sent a letter to Stacey LoMedico, director of Park and Recreation with the city, informing her that he had given Millette permission to sell his jewelry at parks and beaches.

It’s the latest example of Filner making a quick decision when approached by an individual or group in conflict with city bureaucracy.

Millette laminated the letter, then brandished it in his defense when the SDPD officer came to write him up for illegal vending. He says he hasn’t had any problems since he began carrying the letter.

“I went to Pacific Beach and I offered to give the lifeguards a copy of the letter and they said, ‘Oh we don’t need it, it’s been sent to everybody.’ They all have a copy of it now,” he said.

Millette’s argument, extending from the judge’s ruling on the Venice Beach case, is that his jewelry is a work of art because he makes it himself. And since it’s a work of art, it’s protected by the First Amendment.

“Art is First Amendment speech,” he said. “Just because you sell your art, that doesn’t diminish your First Amendment rights.”

But the issue isn’t so clear to the Ocean Beach Mainstreet Association, which discussed the issue at its May 9 board meeting.

Denny Knox, the organization’s executive director, said she will urge the mayor to rethink the decision. As it stands, Millette’s get-out-jail-free card is directly at odds with the Ocean Beach group’s coordinated plan involving police, lifeguard and Park and Recreation to try to clear the area of vendors.

“There will be repercussions from this, believe me,” she said. “This gives the idea that people can just do it, and they’ll just do it as long as they can before getting busted.”

The Mainstreet Association vets vendors to make sure they’re licensed and insured, Knox said, and uses the fees for community benefits, like putting on major annual events.

“When you have people selling and there’s no relationship to the community, there’s nothing. It’s just a takeaway, and in the long run it really hurts the community,” she said.

But Millette said he’s also trying to foster community. He recently created a Facebook group, San Diego Buskers, to help initiate the charge.

He wants all the artists who pay to participate in the weekly farmers market to be allowed to set up for free down by the pier.

He’s even written his own draft ordinance to replace the current language in the municipal code, based on the current law in San Francisco. He said he’s been working with LoMedico’s assistant on the ordinance.

“If it’s good enough for San Francisco, it’s good enough for us,” he said.

Photo by Sam Hodgson
Local artisan David Millette displays the letter Mayor Bob Filner wrote granting him permission to sell jewelry at the Ocean Beach boardwalk.

After the court’s Venice Beach ruling, Los Angeles instituted a new ordinance that distinguished between vendors and artists exercising their First Amendment rights.

One primary change was removing the need for a permit to operate in the area, and changing to a first-come, first-serve basis. The court said demanding a permit was essentially an instance of prior restraint on speech.

And creating a distinction between business-oriented vendors and free speech-exercising artists has meant asking those responsible for enforcement to make a subjective determination.

An officer looking to shut down someone making a sale needs to decide whether the individual is conveying a message, or simply selling a product.

Filner’s office would not say whether he’s considering a new ordinance.

I’m Andrew Keatts, a reporter for Voice of San Diego. Please contact me if you’d like at andrew.keatts@voiceofsandiego.org or 619.325.0529 and follow me on Twitter:

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Andrew Keatts is a former managing editor for projects and investigations at Voice of San Diego.

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