Licensed To Perform

Permits No Longer Required to Sing and Play in TC

July 9, 2015

Maayingan and Kewayden Brauker’s grandmother had enough one day last June. She told the teenagers to get out of the house and do something. The brothers took acoustic guitars to the Jay Smith Walkway on Front Street in Traverse City. Maayingan played while Kewayden listened. They didn’t have a guitar case open on the ground to collect money; they were just hanging out.

Even though they were not soliciting donations, the boys caught the attention of another performer, someone known as "balloon man." He made balloon animals, hawked them to children and asked parents for donations. He demanded to see the brothers’ street performance permits. They didn’t have them. Balloon man called the police.

BLEW UP SUDDENLY

The dispute led to a court case that ultimately ended Traverse City’s requirement, instituted in 2003, that street performers pay $40 for an annual permit.

The Braukers challenged the $200 tickets they were issued and wound up in court before a magistrate. Grand Traverse County Magistrate Tammy Rogers said she had never seen a street performer permit violation case before.

"The ticket is the reason why I read the ordinance," Rogers said. "It read to me as though any person could not sing on the sidewalks in Traverse City."

On the spot, Rogers ruled that the city code was unconstitutional, a rare kind of ruling in a magistrate court. She said the police officer who issued the ticket was urged to appeal at the request of the city attorney, but the city withdrew its case before District Court Judge Thomas Phillips could rule on the appeal.

Rogers said she isn’t surprised it took 11 years for a street performer ordinance violation to be issued because the ordinance had never been enforced. It took a complaint to a police officer for something to happen.

"Nobody disagrees that we need some kind of rules," Rogers said, "but they need to be within the constitution and they need to be well defined."

THE RIGHT OF FREE EXPRESSION

Attorney Mark Risk represented the Braukers pro bono in the district court appeal. Risk said the more he researched street performers’ rights under the First Amendment, the clearer it became that Traverse City’s law was unconstitutional.

"When they drafted that ordinance, I don’t think they really looked closely at the law," Risk said. "Quite frankly, I learned a lot in that as well. Attorneys don’t often get into the nuts and bolts of constitutional law."

The problem with requiring a permit was that it amounted to prior restraint of free expression, he said. Risk said the city dropped its case once officials realized the city’s street performance ordinance would have to be rewritten.

"I don’t have any criticism of the city or the city attorney," Risk said. "When they saw there were some real problems with it, they just withdrew it."

Risk said the question becomes murkier once street performers solicit money.

"The clear distinction is if you’re not accepting money and you’re just performing down there; you’re in the broadest area of protected speech," Risk said.

ONE SMALL PROBLEM REMAINS

Risk said he was asked to help rewrite the ordinance and he was pleased with 95 percent of the result. However, he does not like the portion that prohibits street performers from busking in the downtown core. Performers are not allowed on sidewalks in the 100, 200 and 300 blocks of Front Street. He believes that part remains unconstitutional and is vulnerable to legal challenge.

"To do that, they have to show a compelling governmental interest," he said.

"There has to be something really at stake there, and all they have said is that it’s a public safety issue."

Proof that buskers, and the crowds they gather, are not a safety threat can be seen during the Traverse City Film Festival, when thousands of people line Front Street and TCFF-sanctioned street performers entertain them, he said.

Michael Sullivan, a member of Song of the Lakes and the TCFF entertainment manager, agrees that performers should not be barred from Front Street.

"I guess that’s the question: will it be enforced or not?" he said.

Sullivan believes some people want to regulate street performers because they want to maintain a certain image of Traverse City.

"It’s an interesting question because there’s concern over how does this affect the "˜Traverse City brand,’" Sullivan said. "Well, Traverse City really is all the people that populate it. Everybody should have a voice."

NOT ALLOWED IN PETOSKEY

Street performers are barred completely in Petoskey, although by a different rationale. They are not allowed to collect money, according to Sarah Bek, assistant to the city manager.

"If they’re accepting donations, that’s considered commercial activity and that’s not allowed," Bek said.

Petoskey Department of Public Safety Director John Calabrese said he cannot recall an instance when someone was cited for violating the city ordinance for street performance.

"Typically, we don’t interfere with things like that unless someone complains about it," Calabrese said. "As long as they’re not causing a disturbance or impeding pedestrian traffic, usually we don’t do anything. We just ignore it."

In 2013, a federal appeals court struck down laws across Michigan that prohibited begging. It’s unclear whether that could serve as a defense for busking and it’s also unclear when street performance transforms from free expression into commercial activity, Risk said. "If somebody fought that and said "˜No, I’m not going to move. I have a right to be here,’ I think you’d have an interesting court case," he said.

Jesse Straight, a 22-year-old guitar player, and Dawn Konieczny, a 21-year-old ukulele player, said they’ve never had trouble in Petoskey, where they play about once a week. That’s not the case in their hometown of Mackinac Island, where they get shut down by police as soon as they start to strum, they said.

Straight and Konieczny said they don’t solicit money, though they leave a guitar case open at their feet and don’t protest when someone throws in a dollar. They said they play for the love of music.

They recalled a recent instance when a storeowner in Petoskey came outside to see them play.

"She didn’t ask us to leave," Konieczny said. "She came out to talk to us because she liked our music."

HOW GENEROUS PEOPLE CAN BE

While Traverse City has seen steady growth in street performers in recent years, the absence of the permit requirement in the last year has not had an effect on the number, or nature, of performers.

At age 15, Aili Simpson is a veteran Traverse City street performer. She’s been playing violin on the streets since age 10, when she started busking for money to attend music camp. It’s been a success; she’s attended camp four times at Interlochen and Blue Lake.

She said busking in Traverse City has caught on, especially among young people.

"There are definitely more people," she said. "When I was 10, there was basically just me and only a few others."

Simpson feared that this year, because the permit and fee were waived, the streets would fill up with competition and it would be hard to find a spot, but that hasn’t happened.

"It’s been really good," Simpson said. "People have been really supportive and I really appreciate how generous people can be."

NO CHAINSAW JUGGLING ALLOWED

The absence of the street performer permit has not caused any problems, at least not any of which Traverse City Clerk Benjamin Marentette is aware.

"We haven’t had any issues really – nothing that’s come to my attention that has really been of any concern," he said.

Although folks no longer need a permit, Marentette said performers still come to the clerk’s office to learn about the rules.

"The idea now is that the city really regulates the times, places and manner for street performers, but we don’t require that they get a permit," he said.

He recalls only one instance in the licensing program’s history when there was ever a question about whether a permit would be issued. Several years ago, there was a street performer who wanted to use a snake in his act.

"He wanted people to be able to pet his snake and so forth, and we had concerns about safety," Marentette said.

The ordinance then and now does not allow performances that might be dangerous to performers or bystanders. This means the ordinance prohibits activities like sword swallowing, fire breathing or chainsaw juggling.

A GOOD PROBLEM TO HAVE

Colleen Paveglio, Downtown Development Authority marketing director, said debate over how to regulate street performers is a good problem for a city to have.

"We say the same thing about parking. It’s a good problem and it’s the truth," Paveglio said. "We’re happy that we’re a vibrant downtown and it’s attractive to street performers."

Paveglio said she believes performers can enrich the city’s culture, but in some cases, they can be disruptive to other things going on. For example, during Friday Night Live events, sanctioned performers are carefully spread across Front Street so that audiences can hear one performer at a time.

Paveglio said she’s had problems over the years when non-sanctioned performers crash the party. The ordinance says they need to stay a block away from special events.

"We’re finding some issues where maybe the street performers aren’t reading the ordinance and aren’t abiding with the ordinance," she said.

GREAT WAY TO MAKE MONEY

While street performances present a chance for people to hear different kinds of music and enjoy all types of entertainment as they wander city streets, busking also provides great opportunities for performers to make cash.

Twelve-year-old Dorran Godfrey played his saxophone and made $64 on a recent Friday afternoon. He’s been playing since the weather warmed up this spring. On slow days, he’s made as little as $25. On one good day, he made $186. Once, someone tipped him $100.

"That was crazy," Godfrey said. "We’ve encouraged him," said Amy Spitzley, Godfrey’s mother. "My husband is big on it, too. He’s been a really big supporter."

Performers under a certain age are required to have a parent or guardian with them on the street. Godfrey is raising money so that he can attend Archipelago summer music camp. He’d also like to get some private lessons.

He’s proven he’s good enough to play on the street, but he wants to get even better.

"I was nervous at first, but since I was constantly making money, then I got really confident," Godfrey said.