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Stephen H. Baird, Founder and Executive Director

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Saint Augustine Legal Battle


The Saint George Street Artists and Performers have been conducting a legal battle with "The Nation's Oldest City," Saint Augustine, Florida since 1995.

http://artinthemarket.blogspot.com/  This is site of visual artists fight with city to create, display and sell art in Plaza De La Constitucion.  Info: plazanews@mail.com

Update May 2009:

NOTE:  Many of the links below have expired and do not work.  I do keep copies of many of the articles for the historical record which are available upon request.  Stephen Baird

Mayor Gardner recently expressed disappointment that no one but the principals came out to the city's street performer workshop they finally got around to holding. A dozen city commissioners have promised street performer workshops since 1991 but this is the first one ever held.

It was the same old gripe session from before only this time it was former Mayor Len Weeks leading the mayhem instead of sitting in judgment and pretending he's not one of the principals.

It was primarily the commercial property owners beating their chests. The few artist and performers, timid and beaten, were mostly upbeat while the shrill arguments offered by Weeks' faction haven't changed a bit.

A 2nd Circuit Federal Appeals Court listing every single argument offered by Weeks and his Bagel Breakfast Bubba Bunch (BBBB) ruled, "These arguments must fail." The city's insistence they are regulating commerce, not protected expression just won't float, but it's the only argument the BBBB has so they keep repeating it.

After the street performer workshop, the Record reports that Mayor Gardner wondered where the general community was, and why they didn't show up to speak. The general community thinks you already know what they want Mr. Mayor; they elected you with a landslide.

Thousands of residents clearly wanted a big change in the city's direction and all three of the new commissioners they elected offered to be open minded in looking for a way to bring street performers back to the street with reasonable regulation.

George Gardner, a personable, truly decent man defeated the old mayor both for his seat on the commission and his mayor's post, despite having never run for office before. A contemptuous slap in the face for the old guard and Mayor Alexander in particular, it was delivered by the voters as a mandate to the new majority that they elected.

The new majority's election was a strong demonstration of the voter's lack of interest in using taxpayer money to solve the downtown landlord's problem with street performers.

Mr. Mayor, when they elected you, a virtual unknown over a prominent man from a well-known family who had held office nearly a decade they spoke very loudly. They didn't think they had to show up, they thought you already got the message.

Week's downtown business clique is adamant, however. They will not give up the public territory they believe they won fair and square. As their private mall they now control St. George Street thanks to the performer ordinance and a very cozy relationship with the secretive director of the city police, City Manager Bill Harriss.

Today, police still give a great deal of quiet TLC to the St. George Street landlords. If an artist even shows up now that it's legal to paint or draw on that street, several different calls are made, likely to City Hall instead of the recorded 911, and police literally circle the artist to see if he's just painting or selling. They come back several times if he stays. Walking down the street with a painting is all it takes to draw a cop on a bike. But this draw yields intimidations, not a pretty expression.

The residents may not have a street performer problem, but clearly the downtown chamber group does. Their obsession with street performers is fed by their historically proven ability to use the city law enforcement apparatus to run protesters, performers, artists and the homeless out of town or at least away from their mall.

I urge everyone countywide who reads this to e-mail, call and write all five of the city commissioners demanding an end to the Chamber's Dirty Little War. They're a little slow, and they didn't get your message the first time you spoke when you cleaned house and elected them in the first place. They want your input at cosa@aug.com.

The mayor wants you to come on down and tell 'em in person what you want them to do, so I promoted a voter's rally just before the last regular City Commission meeting Monday.

Though it was not intended as a street performer rally, that is who showed up.

I wanted you to go to City Hall afterward to tell Mayor Gardner why we voted for him in the first place. The rally was also to thank the 1,783 residents who voted for me in 2000, and then for Mayor Gardner and a new majority in 2002. Believe me, I'm grateful you picked him, though I am deeply touched that so many of you were willing to invest your vote in me. That responsibility and the debt I feel to each of you will remain with me for the rest of my life.

Residents seek a middle ground for compromise, and the rally was not to be a new battleground for the principals. One candidate advertised his desire to "protect St. Augustine" but only the voters can do that by their vigilance and love for our city. I want to thank each of you for your vote and your active involvement in writing the future of St. Augustine. Don't give up. I haven't.

Jolley is a three time former candidate for St. Augustine City Commission,1996, 2000 and 2002.


Mr. Harris,

After three days of calling you at work I'm beginning to think you might not return my three calls.

I fully recognize the Columbia Restaurant's right to broadcast pirated music on their private property for their clientele enjoying their facilities. Music on their balcony or corner courtyard is reasonable though it stops me from performing on one of the few spots left downtown.

However, they play it so loud, though not nearly as loud as "Far Away Places" was doing a few weeks ago, that even if I move a block or so in either direction it is still so loud as to interfere with my show. I've been prevented from performing now for a week and the financial strain is getting severe.

In addition, they are playing it at night an hour after they close (which was when I finally gave up and left) to prevent me from being heard by people walking by. This purpose was encouraged by your predecessor a week after Judge Watson's ruling in my original case, 1996. Prior to Pomar's public encouragement to downtown merchants to use amplified music to run street performers off, only the Columbia had speakers installed. Now merchants all over the downtown area are blasting loud music onto sidewalks and streets. Mr. Andy Flemming for example, blasts loud music onto the plaza across the street from his toy store.

I would like one of your officers or a city staffer to explain the volume problem to the Columbia's manager, today preferably. I suppose I could bring my battery powered amp. down there and we could play sound war, but my show isn't about warfare. That would prevent me from enjoying my show and I prefer not to do that.

The only other step I can take is to bring pickets to their door way and encourage patrons to avoid the Columbia during lunch and dinner hours (three have offered to picket with me already and I didn't even ask them). I would also have to publicly lament the city police departments inability to protect my rights of access to the public forum as I act lawfully while your department protects these loud downtown merchants lawless acts of defiant interference.

As I do my best to adjust and get along by complying with a law that I believe is a poorly disguised criminal act, the other side keeps acting badly and since nothing ever happens to them when they run myself and the one or two others who still perform down there off, we suffer the loss of our right to free speech where it is allowed by law and they laugh at me, you, the police and everyone else who cannot make them abide by any law.

I remind you that this has been going on with one merchant or the other since August 2001 and I have been very patient. I keep coming to the police with the assumption that they will protect me from lawless and disruptive acts.

I would prefer to do my show without the need for demonstrations and protest. I am willing to perform down the block if the Columbia would be so kind as to turn their music down. Please call me back.

Thank you for your courtesy. -Roger Jolley

cc: City Commissioners, Police Chief David Shoar, the press, and Fla. Attorney General Crist


UPDATE June 19, 2003 -- Received from Roger G. Jolly by email

Brief for new case Filed March 18, 2003

In the Circuit Court,

Seventh Judicial Circuit,

In and for St. johns County, Florida


CASE NO. CA02-754

LT CASE NO.: MM01-2333/ MM01-3124



Roger G. Jolley,



State of Florida




Appeal from the County Court

Seventh Judicial Circuit

St. Johns County,

Honorable Charles Tinlin, Trial Judge


first brief of Appellant, Roger Graham Jolley,

82 Kingsferry Way,

St. Augustine, Florida 32084

(904) 808-7093



Table of Contents and CitationsÖ pg. 2-3


Argument pg. 4

Procedural, due process flaws in police enforcement by the City and prosecution by the State. Pg. 5

Errors in the Trial Courtss ruling on the constitutionality of the ordinance. Pg. 8

Legal Allegations as to all claims pg. 10

Conclusion of Argument pg. 11

The remedy can only be to reverse the entire acts of the lower court because the state had no jurisdiction or authority in the first place, and to grant the appellant in this cause, Roger Graham Jolley the requested injunctive relief.



Horton v. City of St. Augustine 2001 WL 1433477 (11th. Cir. (Fla.) (Nov. 15, 2001) -pg. 1

Celli v. City of St. Augustine (98-253-CV-J-21B) (M. D. Fla. May 15, 1998) -pg. 4, 9

Horton v. City of St. Augustine (3:00-CV-671-J-25A) (M. D. Fla. Oct. 14, 2000) ñpg. 4, 9

Larry Horton v. State Attorney John Tanner et al, (3:01-CV-604-T-25-B) (M. D. Fla. May 24, 2001) ñpg. 6

State v. Thomas 614 So. 2d 468 (Fla. 1993)ópg. 6

State v. Larry Horton MM98- (St. Johnís Co. Court), May 1998- - pg. 9






CASE NO. CA02-754

LT CASE NO.: MM01-2333/ MM01-3124









The lower court erred by allowing procedural flaws in prosecution and law enforcement methods.

The lower court erred when it designated the ordinance as content neutral, and thus failed to find the ordinance unconstitutional on its face.

The lower court erred when it failed to address critical failures within the law enforcement methods, which renders this ordinance unconstitutional as applied.

The lower court erred when it ignored proven pattern and practices of deliberate civil rights violation by the city as found by a Jury in Celli v. City of St. Augustine (98-253-CV-J-21B) (M. D. Fla. May 15, 1998) just prior to creating the ordinance in question. The jury directions and verdict show a proven intent by the city to violate civil rights. The lower court was very familiar with the city's pattern and practices and erred when it took at face value the testimony of police officers representing a department with proven, deliberate violation of civil rights violation. Indeed, the city's decision to enact these tainted ordinances after the Federal Court ruling should have alerted the lower court.

The trial court also ignored the unbridled discretion warned against by the Federal trial court's temporary injunction (Horton v. City of St. Augustine (3:00-CV-671-J-25A) (M. D. Fla. Oct. 14, 2000) later vacated by a Federal Appeals Panel (Horton v. City of St. Augustine 2001 WL 1433477 (11th. Cir. (Fla.) (Nov. 15, 2001)) in which the trial court wrote "may authorize and even encourage arbitrary and discriminatory enforcement."

Finally, the trial court ignored the city commission's pattern and practice of creating a string of ordinances which they acknowledged as flawed, with the stated intent to continue to create more flawed ordinances until those who object were run out of town. In the records presented to the trial court, city commissioners stated their belief in the ordinance, but then indicated that they would try "again and again" when it was overturned as unconstitutional.

By treating this case as isolated from previous misconduct by the city, the trial court erred, even though the same lower court found the city had applied several previous ordinances in an unconstitutional manner. Several of the cases referenced by the trial court in its order answering appellant's motion to dismiss were ruled "unconstitutional as applied" some by the same court. The lower court was well aware of the city's pattern and practices both itís legislative history and police enforcement.

Indeed, the city's commission has an established pattern and practice of simply rewriting struck ordinances and trying again and again to accomplish a goal that is basically unconstitutional on first amendment grounds. The city's stated purpose in establishing a class which would be excluded from enjoying public accommodations is de facto an improper purpose thus ordinance 2000-41 which appellant was convicted in the lower court was improperly enacted and is subsequently unenforceable.

This pattern and practice by both the legislative authority of the city commission, the executive, law enforcement authority of the city and by the State's unlawful prosecution was as familiar to the trial court as it was to the appellant who had several previous cases dismissed by the same lower court over the last few years.

I. Procedural Flaws:

Section ß 27.02, Fla. Sta. (2000) entitled "Duties Before the Court" provides: "The State Attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute and defend on behalf of the State all suits, applications, or motions civil or criminal in which the State is a party."

Section ß 162.22, Fla. Sta. (2000) entitled "Designation of Enforcement Methods and Penalties for violation of Municipal Ordinances" provides: ìThe governing body on municipality may designate the enforcement methods and penalties to be imposed for violation of Ordinances adopted by the municipality. These enforcement methods may include, but are not limited to, the issuance of the citation, summons, or notice to appear in county court or arrest for violation of ordinances as provided in Chapter 901.î

Chapter 901 is entitled "Arrest".

Section ß 901.02, Fla. Sta. (2000) entitled "When Warrant of Arrest to be Issued", provides (1) "a warrant may be issued for the arrest of the person complained against if the magistrate, from an examination of the complainant and other witnesses, reasonably believes that the person complained against has committed an offense within the magistrates jurisdictionî, the warrant is issued at that time and signed by the magistrate. (2) The court may issue a warrant for the defendantís arrest when one of the following circumstances applies: (a) a Complaint has been filed charging the commission of a misdemeanor only, (b) the Summons issued to Defendant has been returned unserved; and (c) the conditions of subsection (1) are met."

The Record on Appeal shows no citation or summons was filed or served, and thus was never returned unserved.

Section ß 901.16, Fla. Sta. (2000) entitled "Method of Arrest by Officers by a Warrantî, provides that: ìa police officer making an arrest by warrant shall inform the person to be arrested of the cause of the arrest and that a warrant has been issued, except when the person flees or forcibly resists before the officer has an opportunity to inform the person, or when giving the information will imperil the arrest. They also need not have the warrant in his or her possession at the time of arrest, but on the request of the person arrested, shall show it to the person as soon as practicable."

Section ß 901.15, Fla. Sta. (2000) entitled ìWhen Arrest by an Officer Without a Warrant is Lawfulî provides: (1) that a law enforcement officer may arrest the person without a warrant when the person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the Officer and (2) an arrest for the commission of a misdemeanor or a violation of a municipal or county ordinance shall be made immediately or in fresh pursuit.î

Section ß 775.08, Fla. Sta. (2000) entitled ìClasses and Definitions of Offensesî defines the following terms when used in the laws of this State: ì(2) ìmisdemeanorî (a) shall mean any criminal offense that is punishable under the laws of this State or that would be punishable if committed in this State by a term of imprisonment in a county correctional facility, except an extended term not in excess of a one-year period. (b) ìmisdemeanorî shall not mean a conviction for any non-criminal traffic violation of any provision of Chapter 316 or any municipal or county ordinance. (c) ìNon-criminalî shall mean any offense that is punishable under the laws of this State, or that would be punishable if committed in this State by no other than a fine, forfeiture, or other civil penalty. A non-criminal violation does not constitute a crime, and conviction for a non-criminal violation shall not give rise to any legal disability based on a criminal offense; ìNon-criminal violationî shall not mean any conviction for any violation of any municipal or county ordinance. Nothing contained in this Code shall repeal or change the penalty for violation of a municipal or county ordinance; (d) ìCrimeî shall mean a felony or a misdemeanor.î Thus, under Florida Law the violation of a municipal ordinance is not a ìcrimeî, nor is it a ìmisdemeanorî and the warrants issued pursuant to Section 901.02 is invalid since said procedure may only be invoked for a complaint filed charging the commission of a ëmisdemeanorî.

Section 1-8 (c) of the City of St. Augustine Code provides: "except as otherwise provided, a person convicted of a violation of this Code shall be punished by a fine not exceeding $500.00 or by imprisonment for a term not to exceed sixty (60) days or any combination thereof."

Section ß 901.15 Fla. Sta. (2000) provides for an arrest for the commission of a misdemeanor or violation of a municipal or county ordinance in the presence of the officer. However, the term "arrest" as utilized in said section has been interpreted by the Florida Supreme Court to mean detention for the limited period of time in which to issue a citation for conduct that is essentially decriminalized. See State v. Thomas 614 So. 2d 468 (Fla. 1993)..

Over the last several years, numerous individuals residing in the City of St. Augustine, including Appellant as treated in the reference lower court cases, have been subjected to full custodial arrests for violation of a municipal ordinance and prosecuted by the State Attorney for violating a municipal ordinance in which the State is not a party.

The above nine (9) items above were taken nearly verbatim from a "Complaint for Declaratory and Injunctive Relief and Civil Rights Damages and Demand for Jury Trial", a Class Action lawsuit filed in the District Court, Middle District of Florida, Jacksonville Division on behalf of Larry Horton. Horton v. Florida State Attorney John Tanner, et al (Case No. 3:01-CV-604-T-25-B) (M. D. Fla. May 24, 2001). This document, never served on defandants was tendered to the lower court and is mentioned on page 14 of the transcript of the oral arguments on Appellantís motion to dismiss/suppress information (page92 of RECORD on Appeal). The RECORD indicates that the copy of Mr. Horton's federal complaint was received and was included in the case Record for the above listed sections (1-9). That document was not included in the Record on Appeal and indeed, upon inquiry of the Clerk of the Court, the lower court admits it was taken from the Clerk of the Court's folder and held by the lower court. The reason for altering this public record was not given.

As indicated in several motions and letters to this court, the Record on Appeal has also been found to be incomplete due to the removal of information presumably filed by an Asst. State Attorney requesting the invalid warrants issued in the lower court case. Though the elected Clerk of the Court indicated to appellant in a return phone call that a substitution of a Charging Affidavit for "information" presented to a magistrate for issuance of a warrant is within normal guidelines, the name of the Asst. State Attorney requesting the warrant and designating the case as a misdemeanor with a MM code was absent as a result of the altered procedure. The returns of service warrants included in the Record on Appeal by this courtís own motion and subsequent order was blank in the original package appellant received from the Clerk and was blank in it's inclusion into the Record. The information listed on the form but left blank did not include the name of the Asst. State Attorney requesting and processing the warrant.

The Asst. State Attorney handling the lower court case was Amy Oysteryoung. All of the appellant's lower court filings were served to her directly.

According to public information, the State Attorney's contract with the City of St. Augustine to prosecute city cases had lapsed and was no longer valid when the State Attorney prosecuted the appellant in the lower court on behalf of the State of Florida.

Within 30 days of the trial courts' acceptance of a previously undisclosed class action lawsuit (ref. item 10 above), the State Attorney sent a letter to the city advising them that due to budgetary constraints, his office could no longer prosecute the city's cases. He continues on to say he would swear in a city paid prosecutor as an Asst. State Attorney to assist the city's prosecution of ordinance violations.

If it's a criminal or civil trial and the state is involved as plaintiff or defense, the State Attorney is directed by statute to appear for the State. The city need not pay the State Attorney for his services if it's a state criminal offense. What was the city paying for when the State Attorneyís office prosecuted clearly marked ordinance (civil) infractions as criminal misdemeanors?.

The State's prosecutor in this Appeal is the same one appointed and paid by the city but sworn as an Assistant State Attorney. This appointment allows the practice of using state criminal procedures for non-criminal ordinance violations to continue. If Mr. Whitehouse were to prosecute in the name of the city as statute provides, he would not need to be sworn in as an Assistant State Attorney. As an Assistant State Attorney he can continue the city and state policies to prosecute civil infractions as state crimes. His handling of this appeal clearly indicates the cityís interest in this case, but fails to convince that the state has a stake in city ordinance prosecution. The State is not a party to these proceedings, neither in the lower court nor before this court. For this reason alone, this court should reverse the lower court and dismiss the case.

The conditions under which the State had previously prosecuted on behalf of the City of St. Augustine never required that the State prosecute city ordinances, but that the State Attorney would prosecute for the City, in addition to his or her responsibilities under Section ß 27.02, Fla. Sta. (2000).

The Charging Affidavitís were clearly marked and checked by the charging Officers as Ord., or Ordinance (ROA). The Clerk of the Court's form "Charging Affidavit" is clearly marked as a "Criminal Form" but the hand written designation "cord" for city ordinance is a non-criminal, non-misdemeanor offense. Nonetheless, the magistrates Charles Tinlin and John Alexander overlooked that marking in favor of the State's designation of criminal charges under the misdemeanor procedures.

The lower court compounded error within the oral arguments for the motion to dismiss. On page 90 of the Record on Appeal (page 12 of the transcript), the trial court states, "But the ordinance says that a violation of this particular statute constitutes a misdemeanor of the second degree punishable by up to 160 days in jail."

The municipal ordinance is not a state statute, nor does the municipality have the authority to usurp the State Legislative authority and designate a violation of its municipal ordinances as a State criminal offense. The cityís use of the misdemeanor punishment within itís ordinance, coupled with the Stateís unlawful prosecution and the Clerkís designation of the civil ordinance violation with a misdemeanor code misled the trial court and magistrates, and explains how judicial error was introduced into these proceedings.

The lower court erred by failing to dismiss the charges and suppress the information on the basis that the warrant was falsely obtained, invalid, and contrary to procedure, an obvious violation of appellants rights to due process of law and equal protection/enforcement of law as provided by the United States Constitution, Amendment XIV, section 1, which states, ì No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor deny to any person the equal protection of the laws.î

Appellant provided evidence during the oral argument that material information was kept from the magistrate issuing the warrants that might have dissuaded said magistrate from signing those warrants. Explicitly, appellant was engaged in political speech with his music, protesting criminal misconduct by the same SAPD Officers bringing the charges. The officers knew of the political nature of the alleged infraction but kept that information from the magistrate prior to the issuance of the warrants, and that dismissing or suppressing the information supplied by the State was reasonable for their lie by omission.

Further, since the trial court hearing the case participated inadvertently in the use of the color of state law which violated Appellantís rights for Due Process of law by issuing one of the invalid warrants, the Trial court should have recused itself and turned the case over to another court or jurisdiction.


II. Errors in ruling on the constitutionality of the ordinance.

The trial court further erred in its order qualifying the designated city ordinance as ëcontent neutral.í Testimony given by the two arresting officers showed that Jugglers, costumed ghost tour operators and indeed, some musicians were allowed to operate and perform without police intervention, that the enforcement of the ordinance was selectively done on the basis of content and prior political offense taken for protest activity.

In addition, though the appellant was charged with violating the ëstreet performerí ordinance, that ordinance defined an artist creating and selling his wares as a "performer." The ordinance states that any performer may perform anywhere in the city other than the designated four blocks, or fifty feet away from the prohibited area.

The city commission, in an attempt to use clever law enforcement strategies to avoid judicial censor and constitutional constraints, wrote a second ordinance and passed it the same day they passed the street performer ordinance. The vendor ordinance defines an artist creating and selling his wares as a ìvendorî and prohibits said vending anywhere in the Historic District except for the plaza, requiring an expensive permit and regulations subject to arbitrary changes at the discretion of the city manager. In one legislative session, the same artist selling his art prints became both a "performer" and a "Vender," at the discretion of a police officer already burdened with interpreting confusing language on exactly who and what a "performer" is.

According to testimony during the trial by SAPD Officer Barry Fox, an artist performer could not "perform" fifty feet from the prohibited area because of the conjoined enforcement of the vendor ordinance. He testified that his discretion allows him to arrest an offender artist in an area allowed to a musical performer, because of this second ordinance.

Thus, according to the RECORD ON APPEAL the city is regulating content, allowing Jugglers and costumed, theatrical ghost tours to perform; allowing costumed city employees to pose for pictures and perform within the prohibited area; and finally allowing one class of performer (musicians) to perform fifty feet away from the prohibited area, but not allowing an artist creating and selling his wares (performer as defined by the same street performer ordinance) to perform in the same place as other performers as defined by ordinance.

Currently, under a change in the performance ordinance passed recently by the city commission, an artist is prevented from painting a portrait or characiture, but is allowed to paint street-scapes and such. Clearly, the city commission is regulating content and the cityís police through itís enforcement is regulating content.

All visual artists are currently prevented from selling/distributing their art or prints anywhere without a restrictive licensing scheme. The city treats them as simple retailers ignoring their right to distribute their protected expression free of unwarranted governmental interference.

The city enforces both the vender ordinance (artist selling as vender) passed at the same time as the street performer ordinance (artist selling as performer) in combination. The cityís intention as the Record on Appeal (ROA) shows in the officers testimony is to prevent the lawful distribution (sale) of the individual artists protected expression not just on those four blocks but indeed within the entire Historic District, for one class of ìperformerî and prevent all street art sales by artists ruled lawful previously by the same trial court (State v. Larry Horton (Fla. Co. Court), May 1998) and under Celli v. City of St. Augustine, (98-253-CV-J-21B) (M. D. Fla. May 15, 1998) and under (Horton v. City of St. Augustine (3:00-CV-671-J-25A) (M. D. Fla. Oct. 14, 2000)).

It seems to Appellant that the trial court might have found the cityís enforcement of the vender ordinance 2000-09 unconstitutional as applied, as the city applied two conflicting definitions of an artistís activity at the same time to suppress the distribution of their protected work, confuse the courts administration of justice, circumvent constitutional constraints and regulate content.

Since the city is regulating content in the above manner, both with the ordinances themselves and with their enforcement, the lower court erred in its finding the street performer ordinance (2000-41) content neutral and should have ruled both the performer and vender ordinances (2000-09)unconstitutional on their face, and as applied.

III. Legal Allegations as to all claims and arguments contained in this brief.

All actions referenced above and taken by City and State were under the color of state law.

Both the artistic and political expression engaged in by Appellant Jolley is constitutionally protected by the First and Fourteenth Amendments to the United States Constitution.

The action of the city as argued by appellant in enacting and the city and stateís enforcing ordinance 2000-41 have intentionally caused or permitted the appellant, a citizen of the United States, to be deprived of his rights, privileges and immunities secured by the First and Fourteenth Amendments to the United States Constitution as protected by Congress under 42 U.S.C.ß1983.

Ordinance No. 2000-41 on it's face and/or as applied violates the First and Fourteenth Amendments to the United States Constitution, in that: it is unconstitutionally vague in that it allows unbridled discretion in every instance;

It is not content neutral, it is a content-based prohibition on constitutionally protected speech and expression, which contains no appropriate constitutional safeguards to guide its enforcement thereby allowing a complete though selectively enforced prohibition on protected speech and activities;

It is a content-based prohibition on constitutionally protected speech and expression, which contains inadequate standards for the exercise of discretion in its enforcement and allows the complete prohibition of protected activity for one class of performer while allowing another class of performer free reign in the same ëprohibitedí area;

It is unconstitutionally overbroad in that it encompasses within its scope activity such as political expression which is clearly protected by the guarantees of free speech and assembly and freedom of religion protected by the First and Fourteenth Amendments to the Constitution of the United states;

It is constitutionally vague in that it fails to establish any ascertainable standard of guilt;

It is unconstitutionally overbroad in violation of the First and Fourteenth Amendments to the United States Constitution in that it is susceptible of sweeping and improper application and it is not narrowly tailored to support any substantial governmental interest;

To the extent that it incorporates statutes or ordinances that are unconstitutional it is pro tonto unconstitutional;

Ordinance 2000-41 was adopted with a predominately censorial purpose making it an unconstitutional restraint on protected activity. The ordinance was enforced and prosecuted against musician/politician appellant without a legitimate constitutional purpose in an attempt to chase street performers away from the St. George Street Historical Area.

Conclusion of Argument

The enforcement of the ordinance against protesters, musicians and visual artists has had and will continue to have a chilling effect on the constitutionally protected activities of the Appellant, both as a performer and more significantly as a protester and as a candidate for office. It is fair to say SAPD and the local State Attorneys Office effectively crushed the political protest effort. Nearly all the protesters left town within days after the Appellant was arrested after midnight five weeks after being secretly charged.

The Record on Appeal (ROA) shows the trial courts awareness of the political nature of the activity that drew the city's charge. The intention of the city was clear through the testimony of it's officers, to arrest the Appellant if he used his street performance activities on St. George Street to raise money in his then current campaign for Mayor and City Commission. The threat was sufficient for Appellant to get the message.

St. John's County Clerk has many records of those who have been jailed previous to trial in the same way the Appellant was, improperly charged with a misdemeanor using the same tainted procedures. The city's desire to suppress the political protest couldn't be resisted. Charging ordinance infractions as misdemeanors appears to be widely employed by the city. The city paying the prosecutor doesn't make a charge a state criminal offense.

Ordinance 2000-41 violates the First and Fourteenth Amendments to the United States Constitution on its face because it is not content neutral; and is not narrowly tailored. Further, the records show it is based on falsified findings determined by the city to justify prior restraint with dated anecdotal "evidence," the claims not supported by public safety records. Moreover the commissionersí and proponents' stated and implied intent was to chill speech to reduce the number or artists and performers from this prime commercial ally, to keep writing new ordinances until one was found that passed the constitutionality test, and to force artists and performers to move where the city (and the merchants lobby) wanted them to go.

Enforcement by the city and prosecution by the state of Ordinance 2000-41 violates 42 U.S.C.ß1982 allowing discriminatory access to public accommodations forbidden and criminalized in the Civil Rights Act of 1964 and codified in 42 U.S.C. The State's unwarranted prosecution violates the Appellant's rights to the due process and procedures of law, equal protection and equal enforcement of the law under the United States Bill of Rights. The city and the stateís censorial purpose and effect are clear. The street protest ended.

Therefore, Appellant request of the court that the lower court be reversed in its findings on the constitutionality of the ordinance, both on its face and as applied; and that the guilty verdict be reversed and vacated for any of several reasons. The State had no authority to charge Appellant with a misdemeanor for a civil infraction and so the entire act and consequence of the trial court is tainted down to the Magistrate's level.

Appellant request a permanent injunctive relief against the city's enforcing either itís street performer ordinance 2000-41 or itís vender ordinance 2000-09 to interfere without cause with the distribution of a visual or performance artists protected expressive works, including sales or free-will offerings.

Finally, Appellant seeks permanent injunctive relief to prevent both the State from routinely prosecuting city or county ordinances as criminal offenses, and the city from conducting systematic custodial arrests for city ordinance infractions. State procedure provides adequate arrest remedy if someone summoned for a civil infraction doesnít appear in court.

Non-criminal infractions are cruelly punished outside the control of the courts by pre-emptive custodial arrest for civil infractions, and then you add in the difficulty and financial burden to an individual that ensues regardless of what happens in court. The Appellant received cruel and unusual punishment by the magistrate, by the city, by SAPD and the State Attorneyís office prior to even being told what he was being arrested for. Two weeks after being summarily jailed after midnight under suspicious police procedures; Appellant was finally given a copy of the charges brought against him in the courtroom by the trial Judge. (ROA)

The procedural flaws described amounts to a gross failure of the due process of law for the defendant and others and fail to serve Justice. The remedy can only be to reverse the entire acts of the lower court because the state had no jurisdiction or authority in the first place, and to grant the appellant in this cause, Roger Graham Jolley the requested injunctive relief.



By: ____________________________ 


I hereby certify that a true and correct copy of the foregoing has been furnished to the ASSISTANT STATE ATTORNEY JAMES WHITEHOUSE, OFFICE OF THE STATE ATTORNEY, St. Johns County Courthouse, 4010 Lewis Speedway, St. Augustine, Florida, 32095, via hand-delivery this __________________, 2003.



By: _____________________________

82 Kingsferry Way

St. Augustine, Florida 32084

(904) 808-7093 Fax- call first



Street Arts and Buskers Advocates

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