Las Vegas Sun

September 17, 2019

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Drawing battle lines on private sidewalks

In Las Vegas, sidewalks are what tourists stand on to marvel at multimillion-dollar dancing fountains and dueling life-sized battleships. Rarely do their eyes stray to the ground.

But the pavement that guides visitors from one Las Vegas Boulevard megaresort to the next generates more contentious debates than the casinos' excessive use of water or electricity.

And soon, sidewalks on the Strip might lead Clark County into a national lawsuit.

In recent years, hotel-casino owners on the Strip have been permitted to take ownership of sidewalks in front of their properties. Consequently, some have demanded that pro-union picketers and peddlers on their sidewalks be arrested, triggering arguments about First Amendment rights.

The sidewalk debate is expected to unfold in April when the nonunion Venetian hotel-casino opens. The Southern Nevada culinary union is already planning protests targeted at Venetian owner Sheldon Adelson.

Megaresort owners who cherish coverage of their attractions aren't as eager to take on the ticklish issue of private sidewalks. Adelson, however, has been the exception. Adelson, who spent $2 million last year in an attempt to defeat three pro-union county commissioners, has publicly stated that he has the authority to keep protesters off his property.

"We own the sidewalks," Adelson said during a recent tour of his new casino. "We've given the county the right to allow people to walk our sidewalks, but not to demonstrate."

Culinary Union political action director Glen Arnodo holds a different opinion. He said the union already has demonstrated once on the property and probably will be back in the spring.

"If it's treated like a public sidewalk, the assumption we make is we have the right to be there," Arnodo said.

MGM Grand executives refused to comment on the sidewalk debate, and phone calls to the Venetian and Mirage Resorts Inc. last week were not returned. Clark County attorneys also declined to return phone calls.

Officials, in short, are playing hopscotch with the issue.

"It does not surprise me to learn that government officials and businesses seeking to lay claim to public sidewalks are uneasy talking to the press about these matters," Gary Peck, executive director of the Southern Nevada American Civil Liberties Union, said.

"I think they understand full well how precarious a position they're in legally."

Years of contention

Sidewalks along the Strip have been a battleground for Southern Nevada labor unions and anti-union property owners for years. They also have been a popular locale for smut peddlers.

Despite a 1993 District Court ruling that allowed protesters to demonstrate on sidewalks owned by the MGM Grand, state and county officials are still unclear on the laws regarding private sidewalks.

"I don't know," said Brian Hutchins, chief legal counsel for the Nevada Department of Transportation (NDOT), which has jurisdiction over the Las Vegas Strip. "There are two constitutional rights that come into effect: First Amendment rights and landowners' rights to private property."

Private sidewalks are unique to Las Vegas and will become only more commonplace as one hotel-casino tries to out-glitz the next.

With each new Strip resort, Las Vegas Boulevard and adjacent streets must be widened to accommodate traffic generated by the attraction. When lanes are added, sidewalks are pushed onto private property.

Property owners benefit because they gain some control over activities on the sidewalks. Metro police, for example, say hotel-casinos with private sidewalks are more successful in keeping handbill peddlers off their property.

The megaresorts also can entwine the walkways into the hotel-casino's theme, such as the wooden planks leading to Treasure Island.

The state and Clark County -- both of which regulate Strip sidewalks -- don't oppose privatizing sidewalks because they shed some of the financial burdens that accompany walkways.

"It helps the state because of liability responsibilities and the casinos have to maintain the sidewalks," NDOT spokesman Scott Magruder said. "Besides, we're not going to give you ropes and nice wooden planks; we're just going to give you a basic sidewalk."

MGM led the way

The MGM Grand was the first casino to take advantage of privatized sidewalks in the early 1990s, when Tropicana Avenue was widened.

MGM was named, along with Clark County, in a lawsuit filed by Culinary Union members after protesters were arrested in 1993 for picketing on the hotel-casino's sidewalks.

The county has taken steps to avoid similar lawsuits by wording development agreements with hotel-casinos more carefully. Along with guaranteeing pedestrians uninterrupted access to the sidewalks, the documents ensure that First Amendment rights are not violated.

The development agreement for the Venetian hotel-casino, which was approved in 1997, was more restrictive than past contracts with other Strip properties.

"The language talks about making it fully accessible to the public and being in accordance with all state and federal law," Clark County Commissioner Bruce Woodbury said during the 1997 meeting about the Venetian's agreement.

"I think our legal advisors are telling us ... all of these activities that people are concerned about are fully protected."

Woodbury said last week that the county's primary concern is to make sure protesters are not blocking sidewalks. Whether people can be legally tossed off private property is up to attorneys and Metro police, he said.

Metro spokesman Steve Meriwether said police may get involved if it is a large protest, but the department also recognizes the public's First Amendment right to assemble.

He also acknowledged that dealing with smut peddlers is a "gray area." Last year, the U.S. 9th District Court of Appeals ruled that Clark County's ordinance prohibiting peddlers from distributing pamphlets on Las Vegas Boulevard was unconstitutional.

State and county officials who say they will handle protests on private sidewalks on a "case-by-case basis" are sure to be tested when the Venetian hotel-casino opens.

Government officials who regulate activities on the Strip may not be confident in their knowledge about what is and is not permitted on private sidewalks. The ACLU, however, is certain.

"In the 2 1/2 years I have been in Las Vegas, I have been struck by the extent to which public officials and private businesspeople attempt to control public space as if the Constitution is an afterthought," Peck said.

Building a lawsuit

Peck has been meeting with the ACLU's New York attorneys, who have researched the law and investigated the history of Las Vegas Boulevard's sidewalks. He promised that a lawsuit is forthcoming, but he said the ACLU has yet to identify the defendants.

"We have no doubt we will be filing a lawsuit on this issue," Peck said. "Virtually everyone who has looked at what is going on here in Las Vegas is utterly astounded at the extent to which the public's First Amendment rights have been violated."