As Mayor Bob Filner grapples with the First Amendment issue that led him to grant a local artist personal permission to sell jewelry in Ocean Beach, there’s at least one place he can turn for guidance: the Unified Port of San Diego.

Last month, Chula Vista artist David Millette waited in line at City Hall to tell Mayor Bob Filner he believed the city’s policy for permitting local artists to perform or sell their products was unconstitutional.

Filner agreed, and told the Park and Recreation director that Millette had permission to sell his handmade jewelry in parks and beaches. Now Millette carries a copy of the letter around to let officers know he’s covered.

But the city’s municipal code, which forced Millette to seek special permission, hasn’t been changed. It still includes the same regulations that Filner seems persuaded to see as a violation of the First Amendment. (Filner’s office hasn’t responded to requests for comment).

Last year, the port district reacted to the same issue by rewriting its restrictions.

Port attorney Ellen Gross said the district exhaustively rewrote its ordinance outlining activities protected by the First Amendment, partially in response to recent court cases, such as a 9th Circuit Court of Appeals ruling in 2009.

Gross said the port modeled its ordinance after Los Angeles’ rewritten code, which withstood a court challenge.

“I can’t speak for the city of San Diego and how they want to permit, but for the port and our resource management, we found that the scheme we came up with works very well,” she said.

As the mayor’s next monthly meet-and-greet session approaching, he can expect to greeted by one artist who received a permission slip of his own to sell his art at the harbor.

William J. Dorsett, a 35-year-old artist who also calls himself the San Diego Roseman, normally weaves roses and palm fronds for patrons in front of Anthony’s Fish Grotto.

He said plans to approach Filner at the next meet and greet event so he can start selling his art at the city’s beaches without getting hassled by police anymore. He and Millette said they know other artists who plan to do the same.

Dorsett said he’s ready to make his First Amendment case as soon as possible.

“Whenever anybody else is ready to go, I’m ready to go,” he said. “I’ve got all my information memorized. Most people, police included, don’t realize that all forms of art are protected.”

Currently, the city’s municipal code bars sales in parks and beaches except for activities protected by the First Amendment. Those that are protected by the First Amendment are subject to further regulation.

For instance, Balboa Park street artists need to enter a monthly lottery for a finite number of permits allowing them to perform in the park.

That lottery, and other restrictions on where artists can perform, were the basis of Millette’s argument that the city’s policy is a First Amendment violation.

“I want him to consider writing new code that will guarantee protection for all other artists,” Dorsett said. “I hear too many people who try to do their performance, and it’s ruined. And we want a diverse city to draw in tourists.”

Gross said it’s difficult to draw the distinction between which artwork falls under a constitutional protection, but one of the defining issues the port’s ordinance isolates is whether the work has a functional utility, or if it’s art for its own sake.

“It might be handmade jewelry, or blown glass, but something that has a functional utility, such as a bowl or kitchen utensil, that’s a handcraft, and you need a commercial permit (to sell it),” she said. “So someone with a guitar can play the guitar, and they can sell a DVD of them playing the guitar, without a permit, but they need to be in allotted spaces.”

Because the Embarcadero is a small space with limited walking area, the port’s ordinance, in the interest of public safety, outlines allotted spaces for artists to sell their work or perform without securing a commercial permit.

After the port rewrote its ordinance, Dorsett still had to seek special permission to sell his art because the district’s lawyers weren’t convinced his work carried an “expressive message” that fit into the First Amendment exemption.

The port’s distinction between art and simple commercial activity would disqualify Millette from the First Amendment exemption, if the city of San Diego adopted a similar standard.

“We met with (Dorsett) and what we found was, because these rose palm fronds, he can craft elaborate figures that could tell a story individually, so it was considered expressive activity,” Gross said. “It went past a hand craft.”

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

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