April 21, 2017

Cities must not compel “gifts” to artists

By Anthony L. Francois Senior Attorney

Rancho Cucamonga may be the latest California city to proceed down the ill-advised path of withholding building permits from housing providers unless they agree to some old-fashioned payola: make a compelled “gift” of cash to favored special interests, or no city permit to build the houses. Likewise, the “gift” is mandatory if you are building or even remodeling apartments, factories, warehouses or strip malls.

(With this Rancho Art Tax I smell a RAT.)

Who is the favored special interest getting the payola? Garbage haulers? Longshoremen? Corrupt public servants?

No. It’s artists. The city of Rancho Cucamonga is considering a law that will require almost anyone who needs a permit to build new homes or apartments or other projects to hire an artist and pay for public art, or make a compelled gift for the same to the city, or no permit.

Painters and sculptors don’t sound like the stuff of gangster movies, but being forced to hire one before City Hall will let you build half a dozen houses is no different from the government graft that provides the narrative subtext to “Chinatown,” “Boardwalk Empire” and “The Wire.” The Supreme Court of the United States has aptly described this kind of permit shakedown as “out and out extortion” by government officials.

Why is City Hall forcing people to give up their constitutional rights to free speech and expression? Creating and displaying art, like engaging in political speech, is protected by the First Amendment. Rancho Cucamonga cannot prohibit you from displaying a campaign sign in your yard. For the same reasons, city bureaucrats also cannot require you to put up a candidate’s sign on your property.

“Good afternoon, ma’am, I am Mr. Smith with the Rancho Cucamonga political sign enforcement team. We notice that you don’t have any candidate signs in your lawn or window this election season. We sent you two notices reminding you of the city’s mandatory political sign ordinance, and had not heard back from you, so we thought we would stop by and see if you had any questions. We would hate to have to start a penalty hearing, so maybe you would like to use one of the pre-approved political campaign signs that we brought with us.” How First Amendment-y … not.

Art is no different. Would you look forward to city code enforcers driving up to your house and demanding that you remove the decorative fountain in your front yard? Tear down the wind chimes on your porch? Paint over the mural on the wall of your shop? Would you feel any better if they drove up in a large van with an inventory of city-approved fountains, sculptures and decorative banners, and insist that you buy one of them (at prices they already fixed, by the way) and put it up in your front yard or on your porch?

This sort of nonsense is obviously prohibited by the First Amendment.

But city politicians would argue that their art shakedown would only apply to new houses, not homes that are already there. What of it? The Supreme Court has repeatedly reminded local governments that if the Constitution prohibits them from doing something to you directly (like forcing you to install city-approved public art in your lawn), it may not coerce you into agreeing to it as a condition of getting a building permit.

This kind of thuggery has already landed the city of Oakland in federal court for First Amendment violations. Faced with a lawsuit filed by the property rights watchdog Pacific Legal Foundation, Oakland is in the process of rescinding its ordinance rather than defending it. Rancho Cucamonga should learn the obvious lesson, and abandon its “compulsory art” bureaucracy.

Published by Daily Bulletin

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