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DARK BUSINESS


WAIKIKI SIDEWALKS DARK BUSINESS
BACKDOOR CORPORATE GRAB OF PUBLIC LAND
DEVELOPERS DEFY NINTH CIRCUIT COURT RULINGS and
CITY’S CONSTITUTIONAL LAW ADVISER
pfd version combine Part 1+2


March 03,2011
PART 2

WAIKIKI SIDEWALK UPHEAVEL
LEGAL INFORMATION FOR BUSKERS, STREET ARTISTS AND STREET USERS

When the sidewalks are pushed onto private property because of the new streetscape project down Kalakaua Avenue you can be sure of massive public confusion and congestion. Phase One of the project is underway on the mauka side between Tony Roma’s and the Hyatt. For street artists and performers and groups in the way of the bulldozers, the prospect of upheaval and harassment by police maybe a part of the plan by the developers and the city. Buskers need to be aware and avoid trouble by understanding their rights.
1) The public is allowed to assemble and do all the activities currently done on the Kalakaua Avenue strip as part of the Public Forum (constitutional free speech)

2) The party/s responsible for taking away the Public Forum are obliged to provide sidewalk “Replacement”, sidewalk space of equal free speech value. In 2001 the Venetian Casino in Las Vegas was held responsible for taking away the sidewalk and were held liable for “Replacement”

3) Since “Replacement” has apparently not been planned for along Kalakaua Avenue, any damages, such as loss of livelihood, income, loss of freedom and free speech opportunity, harassment or injury by police or private security must be documented for the benefit of legal action.

The metal strip that runs down Kalakaua is arbitrary and NOT LEGAL according to the city legal consultant Jon Van Dyke. The city must survey each block and mark off the newly ruled Pedestrian Use Zone which targets homeless from setting up camp and furniture on the sidewalk.

The city PUZ laws accommodate First Amendment rights; for instance people can rally or set up a small table and chair in the zone for free speech activities. That private property easement along the side of the buildings -the space that private property owners so eagerly protect beyond their property line as somehow being their own and therefore right to manage- is apparently also protected for groups and individuals to use for expressive activities – no different to the rest of the sidewalk! Private security guards are implementing the notions of the building owners and act on conjured up information along the coconut wireless – but they have never seen the law – or the survey line!

According to union leadership in Honolulu this easement is Public Forum! Unions often are forced to test sidewalk laws and are well experienced with the law.

If correct, private security guards, shop employees and HPD are acting with discrimination and harassment to approach sidewalk users with orders to move. They must treat all users of the sidewalk with respect whether the user is a pedestrian or engaging in free speech activities such as art, craft, voice, protest and so on. Most people in security are employees and support unions and public interest. But if police, security guards, business employees threaten you get their name, badge number (for police), who they work for and note the time and date. Work together with other street users: take pictures, videos and get witnesses, full names and clear contact info!

KEEP ALL RECORDS and DOCUMENTATION FOR LEGAL REFERENCE!

Remind them of the current news in Wisconsin. Make it known to police that their counterpart union is using the sidewalk in Wisconsin to protest the corporate/Republican attack on Collective Bargaining. Show them the cover sheet of the Venetian Casino case. This one sheet from the United States Court of Appeals, Ninth Circuit, clearly shows in the title that city and local unions, including Clark County, the District Attorney, Las Vegas Metropolitan Police Department and ACLU sued a private resort corporation Venetian Casino Resort for taking away the sidewalk. The ruling states: “..judgment in favor of county and unions, and owner appealed. The Court of Appeals, Hug, Circuit Judge, held that replacement sidewalk was “public forum” subject to protection of First Amendment”.

Tell troublemakers (people who approach buskers to leave, uniformed or otherwise) to contact Corporate Counsel at Honolulu Hale (city hall) to find out where they stand before they bring legal trouble on themselves. Any line must be surveyed and posted and in any case is irrelevant on two counts:
1) it is public forum and
2) maybe considered “replacement”

The property owners being party to the streetscape project that impairs the Public Forum are liable for sidewalk “Replacement”. Go to the front of the Hilton Hawaiian hotel by the pond corner area on Ala Moana Blvd. and all along the makai side of their property (Kalia Road) you will see the sidewalk green stripe which is the new replacement sidewalk most likely legal except the city NEVER SURVEYED THIS LINE. SURVEYING MUST BE DONE. IT SHOULD BE DONE AT THE SAME TIME ON BOTH SIDES OF THE STREET - NO FOOT DRAGGING TO PROTECT THE ROYAL HAWAIIAN SHOPPING CENTER, BEACHWALK, LUXURY ROW and KING KALAKAUA PLAZA (NIKE-TOWN).

Waikiki Improvement Association and City and County of Honolulu, the engineers of this apparent illegal expenditure of public funds must repair the damage they are causing. The project is an attempt to get rid of certain citizens, street performers, bands, churches and so on.

The building owners want to make the sidewalk part of their control of everything. They don’t like individuality, free speech or public democracy. They want new tiles on the pavement to match their shopping mall businesses -They want everyone to work for low wages for them - Or else they want you shut away, criminalized or derelict as being homeless, isolated, antisocial and a visible example.

WE HAVE TO GET CLARITY OF THE LAW REGARDING THE EGRESS OR EASEMENT ZONE, BUT AS HAS BEEN ASSERTED AT CITY HALL REGARDING THE NEW PREDESTRIAN USE ZONE, THE COURT WILL THROW OUT ANY TICKET OR CHARGE WHERE SIDEWALK MARKINGS ARE NOT SURVEYED. POLICE MUST PROVE CITY LINES IN COURT. THE CITY IS GRAPPLING WITH HOW TO MARK EACH CITY BLOCK FOR THE “PUZ” WITH CONTRACT COSTS RUNNING $10K PER BLOCK AND TOLALLING $250K. YET THEY ANNOUNCED $14 MILLION (NOW THEY SAY IT’s LESS THAN THAT) FOR PHASE ONE OF THE STREETSCAPE PROJECT - FOR PLANTS TILES AND LIES!


SNAPSHOT BY RESIDENT
In an ongoing scenario HPD has never asked a group of young church evangelists who hold signs with their pictures on them to leave when they come to Kalakaua Avenue (beach side Diamond Head of the Police Substation). They come in a bus sometimes at nights and stand, not just on the sidewalk (which is their right) but on the beach and beach park! Their is video of police talking to these people and doing nothing. On the other side of the avenue, many street artists, acting within the law have, in the past, been shut down, arrested, fingerprinted, strip searched or cited. This is unequal application of the law, or moreover unequal application of harassment.


EMAIL FROM JON VAN DYKE
From: Jon Van Dyke
Subject: Re: Venetian Case
Date: Fri, 3 Sep 2010 15:14:34 -0400
Yes, this ruling does mean that the same right to engage in expressive activities exists on the "replacement sidewalks" that would have existed on the public sidewalks had access to these sidewalks not been blocked.  However, Honolulu does have a Peddling Ordinance that prohibits the sale of goods and services in the sidewalks of Waikiki, so any sales by "vendors (crafts sellers)" in the Waikiki Special District [regular sidewalks or replacement sidewalks] is now prohibited.  The Ninth Circuit has also told us in the Berger case (involving Seattle) that it would be constitutional to prohibit the actual physical transfer of money on public sidewalks, so we could pass an ordinance that would prohibit donations to sidewalk performers.  Hope this is helpful.  I am in Washington DC now for a few days, but can be reached by email or cell phone () if you want to talk about any of this in more detail. 
Aloha, Jon


This is an email to a resident from Jon Van Dyke in his roll as legal counsel to the City. Here Van Dyke’s assertion of “replacement sidewalks” is clear, although his comments on vendor sales is in conflict with the Ninth Circuit ruling “Jingles” case: No. 96-55545
NMI PERRY v. LOS ANGELES POLICE DEPARTMENT
where the judge ruled that Jingles had the right to name a price and sell goods on the sidewalk.

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