Crunch time

[jim stone]

I've been playing christmas carols on the fife in front of Fry's supermarket in Tucson.
Been at it a couple of weeks. People like it, they put money in my jar, no complaints. On two occasions
security people tried to stop me and we all went in and talked to the management
who told the security people it was OK with them. 'Helps business,' one of them said.

Today a fellow drove up in a little white truck, Progressive Property Management,
and told me I had to leave. I said I had the permission of management and already
been through this several times. He went in and told me management had told
him that they hadn't given permission. I said: 'Let's go in and talk to them'
He said he had to go to 'another emergency.'

He said Progressive Property Management managed the entire property (which includes other stores)
and its rules and decisions trumped those of the merchant. So even if Fry's permitted me to
the PPM could have me arrested for trespassing anyway. They would call the police
who would escort me off the property and then fine me. On the third removal, I would
be arrested.

He said I was panhandling because I was collecting money. I said I wasn't panhandling as
I wasn't asking anybody for anything and didn't even have a sign, just a plastic jar.
He said people couldn't even hand me money.

After I left I went into Fry's and talked to the assistant manager who assured me he had
told this fellow that consent had been given. The head manager had gone home but
the assistant manager assured me the head manager had told him it was OK. So the
fellow had been lying (which explains the 'other emergency.')

The PPM fellow said that if the manager called PPM and said it was OK, maybe PPM would tell
him and his colleagues to let me alone. I'll talk to the manager tomorrow.

The thing truly sucks. The merchant wants it, the other merchants give me money
personally, the customers love it, I'm not bothering anybody, I'm not panhandling,
but I can be arrested (according to these people) because another entity,
the property management company, has the authority to declare me
trespassing.

By the way, I'm a good customer of this supermarket.

Here's the dictionary def of panhandling:

pan·han·dle
2    /ˈpænˌhændl/ Show Spelled [pan-han-dl] Show IPA verb, -dled, -dling. Informal .
–verb (used without object)
1.
to accost passers-by on the street and beg from them.
–verb (used with object)
2.
to accost and beg from.
3.
to obtain by accosting and begging from someone.

Obviously playing christmas carols, with your hat on the sidewalk isn't, if you do nothing else, panhandling.

What do you think I should do?

[Denny]

so an person claiming to be an employee of the property owner asked you to leave
the renter of the property has given permission

'spose I'd have to read the rental agreement....

might be better to go above the claimed employee on the management's food chain
or just wait and see if they actually have you removed

or call the local police office and ask them what they would advise


oh, get id next time someone claims to be an authority figure
it would make it so much easier to find his boss...

[mutepointe]

Next time the man comes by, ask him what his favorite song is, then play it.

My friends and co-workers say that I have a talent to give the appearance of responding to a comment or question without doing any such thing but re-directing the conversation to where I want to go. Good Luck.

[jim stone]

so an person claiming to be an employee of the property owner asked you to leave
the renter of the property has given permission

'spose I'd have to read the rental agreement....

might be better to go above the claimed employee on the management's food chain
or just wait and see if they actually have you removed

or call the local police office and ask them what they would advise


oh, get id next time someone claims to be an authority figure
it would make it so much easier to find his boss...

It isn't the property owner, I think, but the company that manages the property.
The fellow is certainly an employee of the property management co, and was
advised at length by cell phone. Related to me what his superior told him.
(Refused to give me her number.) I think I have to suppose that things are
more or less lined up as he says. Especially the claim that the management
company's decision about me trumps the merchant's. Also I figure it's just prudent
to assume that the management company will indeed call the police if I'm again
told to leave. (I can play, he said, but no jar.)

But the thing is wrong. I'm not panhandling, I'm not bothering anybody
and I have the merchant's consent. So it's tempting to stand my ground.
I really consider this fascism. Also the fact that the guy lied about
the merchant's giving consent (they did, he insisted they told him they
didn't) suggests they may not be so sure of their case. If I can play but no jar,
but a jar wouldn't be panhandling, what business of theirs if there IS a jar?

On the other hand I don't want to be fined or get into a tangle
with the police.

Calling the police may not help, as my experience is that police have little
comprehension of these matters and generally don't like buskers.
But it couldn't hurt.

[Denny]

I'd doubt that the management company would send someone out in response to something they didn't know about.

or someone complained to them, but not to you.

[MTGuru]

Is it a shopping center / strip mall, with a cluster of stores surrounding a large parking lot? If so, the typical arrangement is that the store leases and controls only the floor space within the store. Outside areas, including immediately in front of the store, are the purview of the property owner or manager. And since it's private property, the property owner is within rights to control how it's used, and the stores management may have little say. The police won't intervene except to enforce trespassing charges by the owner, and trespassing is entirely in the eyes of the owner.

I've also run into the opposite to the situation described - in which aggressive or otherwise objectionable solicitors were given permission by the property owner, and there was little the stores could do beyond posting signs to ignore them.

However panhandling is defined, the act of accepting money for any activity, including playing music, might be construed as solicitation and subject to private or municipal restrictions.

I'd say there are a few limited choices.

1. Contact the property management for specific permission to busk.

2. Stores are generally allowed to use the outside space for promotional displays without prior permission. So have the Fry's management declare you to be a store-sponsored promotional display.

3. With the store's permission, move just inside the entrance to the store, where the jurisdiction is solely that of the store management.

4. Find a different store in a more traditional location fronting on a public sidewalk or right-of-way. Then just make sure you're in compliance with public ordinances.

The tendency of these malls to destroy and sterilize communities by, among other things, substituting private property rights for public space and a shared sense of res publica may be loathsome. But that's a much larger issue.

Anyway, good luck.

[jim stone]

Thanks. I've meanwhile talked to a lawyer-musician friend who confirms what you say.
The best/only hope is to ask the store manager to phone the management co
and ask them to leave me alone. May try that tomorrow morning. Too bad.
I really can use the money, I bothered nobody, and I was making
the world a happier place--myself included. Well, I got two weeks or so
in.

PERHAPS I can find another good place. Tucson seems generally set up
this way.

[kkrell]

I'm sure the moderators will have to invoke some sort of policy regarding legal advice, similar to the one for medical advice.

If the facility (parking lot, etc.) is open to the public to park and shop (that is, does not require a gate crossing to enter), it may be considered an area of public access, so being labeled as trespassing isn't a likely scenario. They might get you for "disturbing the peace."

And I'll pass on some info from a California attorney who advises feral cat feeders.

[ Snip, please see next post. - Mod. ]

[MTGuru]

I'm sure the moderators will have to invoke some sort of policy regarding legal advice, similar to the one for medical advice.

Yeah, probably. I'm not completely sure where to draw the line. But probably somewhere between general discussion of public behavior and legal issues, and specific advice on exercising constitutional rights and handling confrontations with law enforcement.

So I'll make a WWDD (What Would Dale Do?) judgment call on the side of caution by clipping part of the above and forwarding it privately to Jim. Thanks, Kevin.

[kkrell]

Thanks, sounds like the right call.

[jim stone]

I have a good deal of experience with the law, both personal and professional, and
Kevin's advice is standard legal advice for dealing with law enforcement. It tells you your
constitutional rights in dealing with law enforcement and how to politely exercise them.
That doesn't mean one MUST follow it,
but you can't harm yourself by following it (and can in many situations harm yourself by not following it).
So I repeat it below, as it's useful. Lots of people don't know their constitutional rights. I think clipping this is drawing the line
in the wrong place (a bit too close to the medical advice 'see a doctor.') The mods can
delete it again, though I hope they won't.

[ Snip. - Mod. ]

[jim stone]

If the facility (parking lot, etc.) is open to the public to park and shop (that is, does not require a gate crossing to enter), it may be considered an area of public access, so being labeled as trespassing isn't a likely scenario. They might get you for "disturbing the peace."

My legal info is that the management co can legally control the sidewalk, which is where I am.
So I believe the trespassing charge would stick (basically not leaving a place where
the entity that has a legal right to control the place has told me to leave). There
is a large sign saying No Loitering, soliciting, etc. Of course I could probably sell girl scout
cookies or collect for a charity (wth the approval of the market and the management co).
But the only charity I'm collecting for is myself. As to what happens if I play in the parking
lot itself, I of course won't try to find out, but I expect the law to err steeply
on the side of allowing control by the management co.

It's obvious by now that I can't fight this. If I do, the best I can do is escape without
a serious penalty, after much legal trouble, not establish a useful precedent. My busker
friends in NO have been arrested on several occasions, but it had more of a point.
Here the law is entirely stacked against me. If these guys tell me to leave because
I'm panhandling, and I'm not panhandling according to the law (I'm not),
I'll still be convicted of trespassing.

My first amendment rights in this venue appear to extend to playing the whistle/flute without
collecting money, if that far. Anyhow that's what the management co guy says.

[Innocent Bystander]

Jim, we've had this argument before about whether busking is begging.

You believe it isn't. Fair enough.

Other people believe it is. You really ought to accept that. No. You really HAVE to accept that. I'm not saying you have to accept that it is begging. You DO have to accept that other people think so. And will continue to think so.

Besides which, no matter how good the music is, it is going to be an annoyance to somebody. It is a consideration, and will affect the property managers' opinion. I'm sorry you've been moved on, but you are up against a Juggernaut, here.

[missy]

Jim - we've had this situation happen to us before.

The "panhandling" vs. "busking" depends on how your local laws are written.

The way around this is to only busk on privately owned property. For instance, we often play at the local farmer's market here in town. But there are several stores that the buildings are NOT owned by the market association, they are privately owned. We always make sure we are set up in front of these stores. When we would play at the "main square" of our city, one of the local banks has property just adjacent. We were given permission to move to their sidewalk if anyone questioned us.

Your best bet is to have the "owner's" permission (in writing if possible) so that you don't have these situations occur. While I totally agree with you that busking is NOT panhandling, again, if your city laws aren't written in such a way to distinguish that, you could be cited.

[mutepointe]

Jimmy's going to the big house.