A lot has changed since the city of Sedona first considered passing an ordinance regulating street performers in the Uptown area. First off, because of court rulings, the city quickly shifted gears from an ordinance to a program to avoid infringing upon First Amendment rights when it comes to busking or performing for tips. The original idea was to give artists and performers a place to share their craft, entertain visitors and make a few bucks in the process. 

But now, four years later, many have said the line between performing and panhandling — which is also covered by the First Amendment — has been blurred. 
The Sedona City Council spent two hours on Tuesday, Sept. 10, discussing the program and giving staff direction on how to move forward based on the feedback council and staff has received. 
Assistant City Attorney Shelley Cutts, who led the discussion, said it’s important to get that feedback before they can fashion a solution to address the issues while at the same time not infringing on any individual’s rights. 

“Once we know what the specific problems are or specific issues that people are encountering, then the analysis goes in a couple of directions,” she said. “The first is, what existing authorities does the city currently have in its code to address these issues? Secondly, whether there are any other additional regulations that the city would need to consider in terms of changes or additions to the code for problems that cannot be addressed through existing authority.”

City Manager Justin Clifton said the original intent of having an ordinance leaned more toward prohibition except in limited circumstances. But it was then, during the process, he said they became aware of the rights of those choosing to take part in the program. So, airing on the side of caution, the policy shifted from one that was more restrictive to one that simply had guidelines.

“Over time I think we’ve realized that the biggest thing we didn’t anticipate is the lack of interest from the original intended participants — meaning artists from the community,” Clifton said. “That’s not to say that we don’t have some, but I think we envisioned more robust participation from musicians and poets and others who would take advantage of some of these guidelines and put on what we felt in the beginning would be bona fide street performances.”

But over the course of the last four years, he said the focus has often shifted from performers to vendors who exchange goods for tips. Clifton said this was not the original intent of the program. This is when the city began receiving complaints from Uptown merchants. The most prominent element of the program was the designation of street performance sites in Uptown. Within Uptown solely, a city report states it was felt that it was necessary to designate performance sites with the goal of ensuring safety by maintaining clearance for pedestrian walkways, building entries and exits, and crosswalks.

One of the issues that council focused on was the difference between a street performer and a street vendor. According to the city, street performances constitute speech, whereas accepting money in exchange for tangible goods is generally considered conduct. 

“Speech in a public forum is afforded more constitutional protection from regulation than conduct,” the report states. “The city cannot regulate speech based on its content; therefore, the city cannot prohibit or restrict street performers or vendors whose messages it deems distasteful. The city can, however, promulgate neutral time, place and manner restrictions that apply equally to all street performers and vendors — including vendors who sell merchandise with political, religious or philosophical messages — to ensure safe pedestrian and vehicular traffic flow, protect city aesthetics and prevent public nuisances.”

During public comment, eight people spoke with all but three expressing their concerns about the program and sharing some of the incidents and confrontations they have experienced with some of the performers/vendors. Erroll Foldes, an Uptown business owner, said he understands the original intent of the street performer program but feels that in time, it’s turned into something else. 

“In my opinion, these are not performers, they’re basically panhandlers with guitars,” he said. “Guitars are used as props so they fall under the performer guise, but they’re really not. What they’ve done is discourage the real performers, who have left. Many of these performers are aggressive. They harass our tourists. They hurt us as business owners because eventually the tourists will avoid the area altogether.”

One of the more recognizable buskers for the last few years has been John Duff, who has reptiles and other wildlife animals, which he said are used to educate passers by. While not mentioned by name, members of council did question whether or not he was in violation by having certain reptiles and animals. Duff said he’s already been vetted by Arizona Game and Fish in terms of possessing the wildlife under his care.

“I’m not an entertainer, I’m not a performer, I’m an educator — that’s my primary objective,” he said. “For me the most important thing is to get out there and educate people about wildlife.”

Duff later added, “We can self regulate and we do self regulate our space. The most important thing for me in the space I’m allowed to operate in, is what’s safe for my animals. And, I know how to regulate crowds. In terms of first come, first serve, that’s easy. We all regulate that. Real buskers and entertainers know how to regulate that and we do that.”

Councilman Bill Chisholm said that while he respects someone’s First Amendment rights, he wants to see a larger police presence in Uptown to deal with those causing problems or breaking the law.

“Probably half of the complaints that I have received concern someone not liking someone’s right to free speech,” he said. “That’s just too bad. We’re in America, that’s the way it is. But the other half are more of the nuisance, disorderly conduct and that kind of stuff. We can’t drop the ball where it’s our responsibility.”

Ron Eland can be reached at 282-7795 ext 122 or by email at reland@larsonnewspapers.com