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May 26, 2015

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Las Vegas council puts restrictions on Fremont Street performers

Mayor, other council members say new ordinance doesn’t go far enough

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Las Vegas News Bureau File

The 1,500-foot-long canopy over downtown’s Fremont Street Experience is shown in downtown Las Vegas in this file photo.

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Fremont Street Experience performers will be regulated on where they can stand and how much equipment they can bring in.

But restrictions can't be made under the First Amendment to keep out those handing out leaflets — including those who hand out small cards with near-naked women on them advertising escort services.

Those were the main components of an ordinance the Las Vegas City Council unanimously approved today, although several city council members voted for the measure reluctantly.

"I'm not mad, I'm angry," Mayor Oscar Goodman told City Councilman Ricki Barlow, who also said he was reluctantly voting in favor of it.

"The fight is not over," Barlow said during the meeting. "This is something I'm going to push to make right."

The ordinance was hammered out over the last year in hopes of balancing the free speech rights of solicitors and the street performers who seek donations with the rights of those who have commercial business licenses.

Mayor Pro Tem Gary Reese thanked the American Civil Liberties Union's Allen Lichtenstein for working with the city attorney on the ordinance.

"I just hope this is a huge start for us," Reese said.

Goodman has vented his frustration that the ordinance would allow the escort service handbillers to leaflet the Fremont Street Experience the same way they do on the Las Vegas Strip.

"I don't like it," Goodman said during discussion on the bill. But he said he supported it because Mayor Pro Tem Gary Reese has said it needs to be in place to protect the city from litigation.

Goodman said he has great respect for U.S. District Judge David Ezra, of Hawaii, who presided over a lawsuit challenging the city's last attempt at restricting activities in the pedestrian mall.

"With all due respect, I think Judge Ezra was wrong," Goodman said. "I think the Fremont Street Experience is not a public street. I think it's a private enterprise. I don't see any reason he can find that Wakiki Beach in Hawaii, a seven-mile stretch of it, is protected from this kind of activity, but our Fremont Street isn't."

Goodman said he questioned whether, based on some of the language in Ezra's decision, whether Ezra had even visited Fremont Street because he referred to the Las Vegas Strip in some of his comments.

Goodman said that in his nearly 12 years as mayor, the main complaint he hears from visitors is about being "accosted, for lack of a better word, by people out on the Strip who are handing out sexually explicit material which they do not want to receive."

He had asked if the city could keep out those handbillers so women and children wouldn't be subject to viewing them.

"I hope we don't have a situation down on Fremont Street that exists on the Strip because I think we will lose a family venue that is so important to the success of our downtown redevelopment projects," he said.

He said he hoped that if it ever goes to court again, that it can be litigated in front of a different judge.

Barlow commended the ACLU, the city's attorneys and the Fremont Street Experience attorneys for working together on the ordinance.

"This is a very tough tightrope that everyone had to scale," Barlow said. Unfortunately, tourists and local residents who come downtown will have to put up with a "nuisance," of street entertainers or the handbillers, he said.

"This is something I would like to see go away," he said. He said it was "outright wrong" for those businesses who have played by the rules, gotten a business license and pay taxes to have their customers be run off.

Barlow said he felt like the ordinance shows there has been some progress made in making restrictions.

The original ordinance proposed last year would have created "free expression zones" that would have told performers and solicitors where they could or couldn't be. It also specifically prohibited certain activities at the Fremont Street Experience: those included using megaphones, throwing objects into the air and using Hula-Hoops.

The new ordinance would not limit such activities, but would put some restrictions on how much room they can take up.

City Attorney Brad Jerbic said the city has been litigating such an ordinance for 15 years, but it's the first one that has support of both the ACLU and the city in terms of the language.

He said the ordinance finally has a definition of solicitation that complies with previous court orders. It has a new definition of street performers who don't charge money, but ask for donations.

The ordinance also limits any tables brought to Fremont Street to be only 3-feet by 3-feet. Tables can only be present for something done at the table — someone can't just stack literature on the table, he said.

Performers, solicitors and tables have to be at least 20 feet from an ATM, 10 feet from a retail kiosk, 10 feet from the the perimeter of an outdoor dining area, and 20 feet from a fire lane or crosswalk.

Street performers also have to stay at least 200 feet away from a stage performance taking place. They also can't perform during the light show or during special events on the mall, including New Year's Eve activities.

Entertainers also can't reserve space in the pedestrian mall by placing cones where they want to perform. He said they are restricted to a 2-foot circle around their feet. And they can't bring anything with them bigger than a backpack, unless there are certain items integral to the performance, such as Hula-Hoops or items to juggle.

Amplified sound can only be used if it is part of a performance and only then if the noise level is set at a decibel level that is equal to 70 decibels at the nearest kiosk.

There's also a prohibition against coolers, structures, racks and booths, he said.

Todd Bice, legal counsel for the Fremont Street Experience, said he was appreciative of the city's attorney, Brad Jerbic, and of the American Civil Liberties Union's Allen Lichtenstein for working together on the ordinance.

"We hammered out an ordinance that none of us, I think, are overly thrilled with," Bice said. "But we view this as a step in the right direction."

"We will likely have to be back to fine tune this," he said. "... We are willing to work with the ACLU, give it a shot and see what happens as a consequence."

Councilman Steve Ross said "this is the start of the path in the right direction" and predicted the council will need to revisit the matter.

"It's that fine balance of how we balance those First Amendment rights as well as allow businesses to continue to be successful," he said.

Ross said there should be some kind of license or regulation of those performing for tips.

But Jerbic said unless the performers demanded money, rather than asked for donations, they were protected by free speech rights.

Councilman Steve Wolfson said he was concerned that a lot of the performers on Fremont wear masks, so the city doesn't have any way of knowing who they are.

He said he was worried that tourists who bring children to the pedestrian mall might think the city is sponsoring the masked performers.

"The next thing we know these young children are being touched, in a nice way, quote unquote, by the street performers, but we have no idea who these folks are," Wolfson said.

Wolfson said the ordinance goes in the right direction but doesn't cover all of the possibilities.

However, Jerbic said if a mask is part of the performance, nothing could be done to prohibit it.

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