Fantasy photo shoot and art sale stymied by reality

When April Metternich decided to plan a photo shoot party and fantasy art sale in Lithia Park on June 24 — International Fairy Day — she requested information from the city of Ashland about its policies.

She didn't like the answer she got.

Metternich learned that the Ashland Parks and Recreation Commission requires an application 90 days in advance, a permit fee and approval by the Parks Commission, which she was told are given only to nonprofit organizations and for special events.

In short, the city doesn't allow people to set up business operations in the parks.

But Metternich, who lives in Medford, says there's more to her work than just business and accuses the city of violating her constitutional rights.

"My artworks are visual expression only and serve no other purpose," said Metternich. "The city of Ashland has never issued a permit to an artist, and the special events license the city offers is an unconstitutional prior restraint on my First Amendment rights."

Metternich, 44, said when she researched on the issue, she found Steve White, an artist advocate from Sparks, Nev., who sued the city of Sparks over the same issue and won.

"In White v. the City of Sparks, 2007, the 9th Circuit Court ruled, and I quote, 'The Supreme Court has been clear that the arts and entertainment constitute protected forms of expression under the First Amendment,' " said Metternich.

She also takes issue with the fact that musicians are allowed to perform in the park and accept payment for their performances, but visual artists can't sell their work.

"The city of Ashland discriminates between visual artists and performing artists, non-profits and political groups, and artists allowed to sell during city-permitted festivals," she said. "The city is violating the 14th Amendment rights of citizens because they do not provide us with equal protection under law."

Metternich addressed the issue on June 5 with the City Council, but said she was not given enough time to fully explain and did not receive a response.

City Attorney David Lohman said the previous court decisions were not as sweeping as Metternich was led to believe.

"I disagree with Mr. White's interpretation," Lohman said. "The cases don't say what he says they say. It doesn't mean they can do whatever they want when they want."

Metternich says she will abide by the law, and plans to walk outside the boundaries of Lithia Park to exchange money if she sells any of her art.

Parks and Recreation Director Don Robertson said Metternich must be careful in how she operates.

"We don't allow sales of anything within Lithia Park without a concessionaire's permit granted by the parks commission," Robertson said. He said when musicians perform in the park, the money they receive is a donation, not a sale.

"If she's selling her things with price tags and negotiating deals she will be cited," said Robertson.

Police could cite her for a Class I violation for non-permitted commercial activity. It carries a maximum fine of $427.

"You can't just set up and conduct a private business in the park," said Ashland Police Chief Terry Holderness. "I understand the reasoning behind that, but it's illegal."

If Metternich doesn't discuss business, and then left the park to sell her art at another location, that would be fine, said Holderness.

"But, clearly, if she's got prices marked, then she's still displaying and running a business for sale," he said.

Lohman said most cities, including Medford and Salem, have rules that ban sales in the park because people come to the park to have an experience that doesn't involve being solicited, among other things.

"It's a public space," he said. "It's not for individuals to go and make money."

Metternich is a lifelong artist who, at 16, was the youngest member of the Watercolor Society of Oregon. During her childhood, her parents owned A Spectrum of Arts Gallery on the plaza in the 1980s.

She intends to continue that commitment to her craft.

"I still have the right to speak publicly through my artwork," she said.

Mandy Valencia is a reporter with the Mail Tribune. Reach her at 541-776-4486 or avalencia@mailtribune.com.

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