April 17, 2001 – The most recent action to remove vendors from the Drake's Seat overlook comes with the backing of a District Court order.
In an April 12 ruling, a copy of which was obtained Tuesday, Judge Thomas K. Moore upheld the government in its efforts to remove the vendors.
And in an interesting twist, the ruling makes reference to notification that the attorney representing the vendors has had his own license revoked.
Licensing and Consumer Affairs Commissioner Andrew Rutnik notified the vendors last week that they had to fold up their T-shirts and other tourist-related wares and be out of Drake's Seat by Monday.
"Many of the Drake's Seat vendors seem adamantly convinced that they have an absolute right to sell their goods from the Drake's Seat site forever," Moore wrote in his memorandum. "There simply is no basis in law or equity for the belief, nor did the court's preliminary injunction guarantee their right to vend from that specific place."
Vendors received a preliminary injunction in 1985 when the government tried to evict them from the site. Moore said that injunction, granted by the late Chief District Court Judge David O'Brien, was based on the fact that vendors operating there at the time held valid placement permits issued by Public Safety (now the Police Department). Only a vendor with a valid placement permit could get the necessary business license. The preliminary injunction said the permits could not be revoked without due process of law, including notice and a hearing.
"The preliminary injunction was never made permanent nor was there any further activity in this case until recently," Moore wrote.
Meanwhile, Public Safety stopped issuing placement permits to the vendors in 1993. Instead, each of the approximately 15 vendors who regularly work at Drake's Seat obtained a Memorandum of Agreement from the Department of Housing, Parks and Recreation. The memorandums were issued on a month-to-month basis for $75 a month.
The government stopped issuing even the memorandums in June 2000, kicking off the latest round of tug-of-war over the Drake's Seat scenic overlook.
Although Licensing had accepted memorandums as a substitute for placement permits, Moore has now ruled they are not valid. The law does not authorize Housing to issue memorandums nor does it authorize Licensing to accept them.
Placement permits grant the vendors a "legitimate property interest to which the 1985 preliminary injunction would apply," Moore said. But without placement permits, the vendors lack that legitimate property interest.
Moore had already signaled his ruling in January but he gave the vendors time to file another brief to try to establish some other authority under which their claim could be upheld. His order last week says they failed to do so.
In a footnote, Moore said the memorandum will be served on "the proposed intervenor-plaintiffs who were previously represented by Mr. Kenth Rogers." That's because Licensing revoked Rogers' license on March 13.
Contacted late Tuesday, Rutnik said the action against Rogers was unrelated to his work representing the vendors.
"He was in the process way before the Drake's Seat issue," Rutnik said. "He hasn't had a license since 1992."
Rutnik said Licensing held an administrative hearing on the matter but Rogers failed to bring his license current or to produce the requisite tax-clearance letter.
Rogers was quoted in another publication Tuesday, speaking on behalf of the vendors.
He could not be reached immediately for comment Tuesday.
