Art sales on the Honolulu Zoo fence, festivities surrounding the National Football League's Pro Bowl and some ethnic craft fairs at Kapi'olani Park may have violated city rules, according to a report by the state attorney general's office.

The report stopped short of calling for the halt of all commercial activities at the 190-acre park, but warned that the growth in business functions, even though most are operated by nonprofit organizations, runs counter to the park's purpose.

The 138-page report, which was submitted to the state Probate Court last month, said the commercial activity is eroding the public's recreational access to one the state's largest and oldest parks.

"It may be argued that the commercial activity at Kapi'olani Park appears to be proliferating," wrote Deputy Attorney General Mary Bahng. "It has reached a point where some believe the spirit of commercialism dominates the use of Kapi'olani Park."

The report represents a significant development in the lengthy legal battles between the city, vendors and community activists.

The attorney general's office serves as the legal guardian for the trust that governs Kapi'olani Park and its findings carry weight with the Probate Court, which will hold hearings this year on the issue.

If the attorney general's findings are adopted, events such as the Art at the Zoo Fence could be put out of business.

Margaret Giles, treasurer for the nonprofit Art at the Zoo Fence Inc., disagreed with the attorney general's findings, saying Art on the Zoo Fence is more of a cultural event than a commercial activity.

The organization, which has operated on the Honolulu Zoo side of Monsarrat Avenue for 51 years, is one of the few public showcases for fledgling artists, Giles said.

Over the years, the event has served as a starting point for successful local artists, including Hiroshi Tagami, she said. Giles said the event generates about $4,000 a year in revenue for the nonprofit and half of that is donated to charity.

"We would have to fold up and disband" if the attorney general's findings were adopted, Giles said. "I think this is very unfair."

FOR PUBLIC, NOT PROFIT

Lester Chang, director of the city Department of Parks and Recreation, declined comment, saying his office has not yet completed its review of the attorney general's report.

The city, which likely will file a response to the report, previously has argued that art and craft sales are permissible in the park.

Unlike other major recreational centers on O'ahu, Kapi'olani Park is governed by a trust that was established in 1896 when the public park was created.

The nonprofit Kapi'olani Park Preservation Society, which works to keep the park open to as many users as possible, has argued that the terms of the trust bar most forms of commercial activities.

Buttressing the society's claim is a 1988 state Supreme Court ruling that barred the city from leasing space next to the zoo for a Burger King restaurant.

In 1999, City Council members filed a complaint in state Circuit Court asking for instructions on whether the city can operate art sales and craft fairs at the park. The complaint was refiled in the state Probate Court in 2003, prompting the attorney general's office to file its report last month.

BREAKING OWN RULES

Members of the City Council also serve as trustees of the Kapi'olani Park Trust, which governs the park.

In its filing, the attorney general's office faulted the city for violating its own rules on how it issues permits for art and craft sales.

Bahng, the deputy attorney general, said the city can issue permits to operate craft fairs for Kapi'olani Park only to bona fide nonprofit organizations.

One of the craft fairs — the Pan Pacific Festival — is operated by a for-profit tour company, Kintetsu International Express (USA) Inc. Officials at Kintetsu did not return calls yesterday seeking comment.

Other activities, including Pro Bowl festivities, are sponsored by for-profit companies. The NFL is a nonprofit entity but the Pro Bowl festivities were co-sponsored by Paradise Yellow Pages, a for-profit company.

Marc Witter, managing director for Heinrich Advertising, which represents Paradise Yellow Pages, said Paradise was one of several co-sponsors of Pro Bowl festivities and that the event was handled by the NFL. Witter said Pro Bowl festivities were approved by the city, which issued the necessary permits for the event to the NFL.

LOSS OF PARKING

Events such as the Art on the Fence and the Okinawa Festival are run by nonprofit organizations but some of the goods at those events are sold by individual vendors and artists, who operate on a profit basis and pay a fee to the event organizers, Bahng said.

"A lot of these activities basically are turning the park into an extension of the Waikiki tourist trade for-private profit, which is not what was supposed to happen," said Jack Gillmar, secretary of the Kapiolani Park Preservation Society.

According to Bahng, craft fairs and other events take away much-needed parking from residents.

"Even if the events themselves take place on only a portion of the park, the rest of the park is largely inaccessible and left empty due to the lack of parking," Bahng said.

Kevin Casel, who frequently uses the tennis courts at the park and at the nearby Diamond Head Tennis Center, agrees with that assessment, saying that the commercial events often discourage recreational park users such as himself.

"When there's something going on in that park like a festival or concert," Casel said, "you can just about forget about parking."

Reach Rick Daysog at rdaysog@honoluluadvertiser.com.