CAPE ELIZABETH – A Cape Elizabeth couple is vowing to carry on in court if need be to retain prime retail space in Fort Williams Park, after the Town Council voted unanimously Monday to restrict where so-called “street artists” can hock their wares on the historic site.

In early May, Alewife Cove residents Kris and Marilyn Kristiansen raised hackles when they set up a table beside Portland Head Light and began to sell originals and prints of their coastal-themed artwork. Bolstered by a two-year fight staged by artists in Portland, the Kristiansens claimed a right to sell their work in the 10-acre park free from permit fees and most regulations, based on rights to self-expression guaranteed by the First Amendment to the U.S. Constitution.

The new park rules adopted by the council Monday in a 6-0 vote, with Councilor Caitlin Jordan absent, compel the Kristiansens to set up away from the iconic lighthouse, on a strip of grass beside the park’s main parking lot. Fines for violating that requirement rack up at $250 per day, starting Aug. 19, when the regulation goes into effect.

“That was a railroad job,” said Kris Kristiansen, immediately after the vote.

“We believe these rules are unconstitutional,” said Marilyn Kristiansen. “We’ll comply. We can’t risk being fined. But our next course of action will be to ask the [American] Civil Liberties Union to assist us.”

Still, Kristiansen said she is somewhat disappointed that no one from the ACLU was at Monday’s meeting.

“We hoped someone would show up,” she said, adding that she is equally mystified by the lack of public outcry. “No one is really interested, I guess. We’ve been the only ones at every meeting.”

One person who has spoken out about the Kristiansens is Ocean House Road resident Carl Dittrich. He is one of four approved food vendors in the park and pays an annual $4,000 permit fee for his small hot dog cart. Dittrich wondered aloud at a July 8 council meeting if he’d be better off to give up on his cart, with all its accompanying product and insurance costs, and instead place a table next to the Kristiansens to sell the birdhouses he makes out of lobster buoys.

“I love art, but this is totally a commercial venture,” he said of the Kristiansens’ effort to market their work. “That’s the only reason they’re there. It just doesn’t seem fair. I have nothing against artists selling things but it’s going to become a circus if it’s allowed.”

Cape Elizabeth still refers to Dittrich and his fellow food vendors, first allowed in the park in 2011, as participants in a “pilot program.” On Monday, Town Manager Michael McGovern indicated the new rules may also be viewed as a work in progress.

“You can give it a try for a year and, if need be, return to the process to address any issues that need addressing,” he told the council.

First strokes

In March, when Kris Kristiansen first wrote the town to signal his intent to set up shop in the park, McGovern rebuffed the idea, writing back on April 8, “You have no constitutional right to establish your own business on municipal property without first obtaining a license from the town.”

But McGovern soon relented on advice from Town Attorney Tom Leahy, who cited both the success of the Portland artists, who were backed by the threat of a lawsuit from the American Civil Liberties Union of Maine, and case law stemming from similar legal fights in New York City.

On July 8, following a first reading and public hearing, the Town Council gave itself the power to adopt rules and regulations for the park that, per the ordinance update, “include, but are not limited to, vending.” By that time, the Fort Williams Advisory Commission had approved a Leahy-authored list of regulations, designed to “preserve the safety and scenic character of the park.”

Among the restrictions: Permit-free sales are limited to eight vendors on a first-come, first-serve basis. Those artists, who can include musicians and performance artists, as well as painters and other purveyors of “expressive matter,” are required to set up on a parallel line alongside the park’s main parking lot, away from the lighthouse. Artists also are banned from calling out to entice park visitors over to their vending sites, and from using any form of sound amplification.

Originally slated to vote in the new regulations at its July 8 meeting, the council voted 4-2 to table any decision until after a July 30 site walk. That visit to the park was immediately followed by a 40-minute meeting with Leahy, conducted behind closed doors.

“We asked very specific questions on points of law, but they never answered any of them,” said Marilyn Kristiansen. “They went into executive session with their lawyer and then never responded to anything we asked.”

At Monday’s meeting, Councilor Jamie Wagner spent nearly 10 minutes quibbling with precise wording in the proposed regulation, saying, “When you have language that’s not as clear as it could be, you encourage litigation.” However, Wagner, an attorney in his own right, could not find a second for any of his suggested edits. The only change to the document, which was actually done by Leahy following the July 30 executive session, was to “make clearer” the section on fines.

“Given all the factors, including the needs of the park and the needs of the artist, I think this is reasonable,” said Councilor Jessica Sullivan of the new rules.

“This is a reasonable balance that has been struck by the council,” agreed Councilor David Sherman. “I don’t want to inhibit anybody’s First Amendment rights, or their ability to sell their art, but the overarching goal here is to preserve the aesthetics of the fort.”

“I’m comfortable, having reviewed the case law, that this does not prejudice any particular group of their First Amendment rights,” said Wagner.

Final product

The Kristiansens left Monday’s meeting with a different view, saying the rules place them in an area where they are subject to exhaust fumes and “clouds of dust” coming off of tour buses that circle the parking lot.

“Another thing, and this may not matter to them, is that I cannot face the sun with my work,” said Kris Kristiansen. “It’ll destroy it. That’s why I picked the spot I’m in, so I’m facing the other way.”

“We told them all that, but they found it irrelevant, I guess,” said Marilyn Kristiansen. “If we have to stand there in the dust and face the sun, it might become totally impossible for us.

“One thing I think that is unconstitutional is that they can make rules if there is a problem, but the problem has to be quite severe,” she said. “Under the First Amendment, this is a freedom of speech issue. What we do is not a commercial activity. They can’t just take away rights as quickly as that, when one artist turns up, to make them go where they say, when they say.”

The Kristiansens claim they do pay taxes on the income from their art sales. They also carry an insurance policy, Kris Kristiansen added.

McGovern had urged councilors to pass regulations on vending activity quickly, for fear other artists would overrun the park. However, to date, the Kristiansens are the only artists to squat on a park site claiming First Amendment rights. Two other artists, including Bill Thompson, have longstanding agreements to sell their artwork at Portland Head Light under the auspices of the museum gift shop. Both donate half of their income to the museum.

Kris Kristiansen says he initially offered to make a donation out of his proceeds, but will now reassess how his work sells at the new mandated location, before making good.

“This is my only income, and I might not make any money at all. We’ll have to see,” he said, adding that his only other source of money is “a very, very small pension” from his native Scotland.

“I guess the other [art] vendors can afford to be charitable,” said Marilyn Kristiansen. “The town makes more than they do after their expenses. We can’t really afford to give away half of our income.”

“I get lots of positive comments from people visiting the park, people wanting to have their pictures taken with me and everything,” said Kris Kristiansen. “So far, the only negative part of this whole business has come from the town.”

Artists selling their wares must move away from the lighthouse at Fort Williams onto a strip of grass beside the park’s main parking lot, according to new rules adopted this week by the Cape Elizabeth Town Council.

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