Waikiki sidewalk shows can go on, judge rules

By David Waite
Advertiser Staff Writer

Musicians, mimes, singers and magicians and other street entertainers will be allowed to continue performing on Kalakaua and other Waikiki sidewalks following a judge's ruling yesterday.

"Silvermen" C.J., left, and Tron Nobles are regulars who perform on Kalakaua Avenue in Waikiki. The city lost an attempt to regulate performers. Eugene Tanner • The Honolulu Advertiser

The City Council passed the ordinance in 2000 as part of what city officials said was an attempt to avoid congested sidewalks and preserve the appeal of the resort area.

Yesterday, Crandall declared that law unconstitutional, saying the city failed to establish that the ordinance "would have more than a negligible impact on the aesthetic ambiance in Waikiki."

The city earlier agreed to hold off enforcing the ordinance until Crandall's ruling.

A lawyer for street performers said street performer appearances in Waikiki dropped in the wake of the Sept. 11 terrorist attacks and the subsequent decline in tourism. Attorney Earle Partington said he doesn't expect a sudden surge in performers.

Partington, however, said with Crandall's ruling in his clients' favor, he will seek legal fees from the city, which will likely exceed $100,000, for his work on the case.

The ordinance, which was to take effect on July 1, 2000, would have restricted street performances to between 10 a.m. to 10 p.m. daily at five Waikiki locations away from Kalakaua Avenue and at King Kalakaua Park at the 'ewa end of Waikiki

Violations would have carried fines of up to $200.

Crandall found the attempt to regulate street performers was overly broad because it addressed types of expression that did not contribute to the problems the ordinance attempted to address; banned performances at locations that would not have posed significant aesthetic or safety problems; banned performances at times when the city admitted the ban was not needed; and ignored "many obvious less restrictive alternatives."

Crandall said the city could have passed an ordinance that would have limited performers to one at a time or one per block at popular locations such as International Market Place, or limited performances along Kalakaua Avenue to locations where there are buffers, such as planter boxes, that prevent pedestrians from stepping out into the street.

'Harmless expression'

The alternatives, Crandall ruled, would have been preferable to banning "harmless expression such as singing, reciting and playing music."

In general, Crandall found the city ordinance "burdens substantially more speech than necessary."

City Deputy Corporation Counsel Greg Swartz, who worked on the case, said city officials are disappointed with Crandall's ruling.

"The presence of street performers on Kalakaua Avenue and other sidewalks in Waikiki presents significant safety problems and detracts from the ambiance in Waikiki," Swartz said.

Although city attorneys had not had a chance to review Crandall's ruling, Swartz said the city will either appeal the ruling to the Hawai'i Supreme Court "or revise the ordinance as necessary to overcome Judge Crandall's concerns."

Rick Egged, president of the Waikiki Improvement Association, said that although he had not seen the judge's ruling, he suspected it would not end efforts to find a legal way of regulating street performers while respecting their constitutional rights.

"We're not trying to get rid of these guys," Egged said. "We just want the sidewalks to be navigable."

Safety concerns

When tourism is up, crowds surrounding performers sometimes block the entire width of the sidewalk along Kalakaua Avenue, Egged said. The situation creates a safety hazard.

But the problem has not been as marked in recent months, he said. Tourism is down 20 to 30 percent in Waikiki. There aren't as many visitors, and, because the hard times have hit them, too, there aren't as many performers.

"But they'll be back," Egged said. "We still need to address the situation."

Honolulu City Councilman Duke Bainum, who crafted the ordinance, was traveling yesterday on the Mainland but released a statement through his office after hearing about the ruling.

"It's unfortunate that the judge did not agree with our efforts to make Waikiki safe," he said. "This law was drafted specifically because of concerns raised by the police, residents and others. We'll need to carefully review the judge's ruling before deciding our next step."

Looking for compromise

Partington, a private attorney who was co-counsel in the case with Brent White of the American Civil Liberties Union, said that even before the matter went to trial, city attorneys were willing to work with the three street performers who filed the lawsuit and their lawyers to try to come up with regulations that were acceptable to both sides.

"The council doesn't care how much of the public's money it spends as long as they can get some political mileage out of it," Partington said. "Their attitude seems to be, 'Blame the courts,' for decisions that are not politically popular."

He said the city officials never really intended to regulate street performances, but wanted to make the rules so restrictive as to essentially ban them because street performers are unpopular with Waikiki business owners and tourism officials.

One of the street performers who challenged the city law, saxophone player Steve Sunn, called yesterday's decision "great news." He said he has performed on Waikiki sidewalks for almost 30 years and planned to celebrate Crandall's ruling by performing last night in front of the International Marketplace.

Advertiser staff writer Karen Blakeman contributed to this report.