Ami Hill, owner of mobile art gallery #Bus252 and Muse Markets, filed a lawsuit against the city of Kill Devil Hills on June 7 after the city denied Hill’s request to set up his gallery every Monday at the Outer Banks Brewing Station from 5 p.m. to 9 p.m. from June 6 to September 6.
Hill owned the Muse Originals OBX art consignment shop in Kitty Hawk until she closed it due to the pandemic. She then renovated an old school bus with the desire to take her works on the road.
According to his attorney’s website, “His plan was to park #Bus252 throughout the Outer Banks region – different locations on different days – to maximize exposure to new and accomplished local artists and artisans and deepen appreciation of the community for the talent abundant among them, she also invited other local artists to set up their own tables in a bazaar-like setting she called Muse Market.
Hill is represented pro bono by the Pacific Legal Foundation, which says Hill’s lawsuit challenges a city ordinance that requires traveling vendors who wish to sell during peak season (May 1 to September 30) to donate 100% of their profits to charities.
“The city cannot condition an itinerant vendor’s right to earn a living on the assignment of profits or the request for permission from the Board of Commissioners each time he wishes to sell,” the attorney for the city said. Pacific Legal Foundation, Donna Matias, in a press release. “Ami and business owners like her are entitled to the fruits of their labor under the North Carolina Constitution.”
The municipal ordinances in question, § 111.05 and 111.06, deal with the regulation of special charitable events. The city code reads: “Charity events with traveling vendors not making donations to charity or for-profit traveling vendors are permitted between September 30 and May 1 and subject to requirements. from § 111.05 and street vendors are permitted in connection with the event subject to the following provisions. . . The permittee is required to donate 100% of profits made, after expenses, to a recognized tax-exempt, non-profit charity. . .”
At the May 26 Kill Devil Hills commissioners’ meeting, City Manager Debbie Diaz, Planning Director Meredith Guns and Deputy Planning Director Cameron Ray recommended Hill’s request be denied, citing the Code of the city § 111.03, which lists traveling salespeople as a prohibited activity unless they are part of an approved special event.
In other words, for-profit traveling vendors are not allowed in Kill Devil Hills unless they are part of a special event.
If, however, the street vendor is part of a charity event, there are regulations for such events, namely that the charity event must be an “event” (rather than continuous) and that they donate all profits to a charity.
During the off-season (September 30-May 1), charity events with for-profit vendors are permitted if vendors agree to donate 100% of profits after expenses—not to be confused with proceeds—to an organization registered charity.
Hill was requesting a special exception from the Board of Commissioners, which is permitted under City Code § 111.03.
During the meeting, Guns said: “The other concern that staff have that we want to bring to the board is that due to the fact that this app is really more of a traveling provider than an event, additional apps will come probably to advice similar to this – for simply a traveling salesman they are their own event. Essentially, what we took away from our correspondence with her is that she is the event, and that raises some concerns, particularly for our physical businesses. The summer months are when they need to thrive and if they have competitors who don’t have overhead, who don’t need employees, who don’t pay any part of our tax base, that can be a conflict.
Mayor Ben Sproul replied to Guns and the other commissioners: “If I understand the story correctly, we had a problem with all kinds of people trying to sell in the neighborhoods and the beach accesses and in all the parking lots from the beach, selling hot dogs and everything [sorts of other things]. It’s about trying to balance the nature of the community that we have against the kind of freewheeling past that can’t really exist anymore.
A mediating factor in the situation could have been the First Flight Market, a weekly market launched by the city last year that features local farmers and artisans.
According to the Pacific Legal Foundation’s press release, #Bus252’s application to participate in the market was rejected. The statement also states that the market is “in direct competition with Hill’s Muse Market”.
Commissioners and staff indirectly discussed the market and #Bus252’s participation during the May 26 Commissioners’ meeting when they cited the size requirements for each provider of the First Flight market, which is a 10× space 10 “to keep it fair,” according to Guns.
KDH City Attorney Casey Varnell delayed his response to Coast time about the trial until he has had time to consider the case.
The case is Ami Hill and Muse Originals LLC v. Town of Kill Devil Hills et al.filed in the General Court of Justice, Superior Court Division of Dare County, North Carolina.
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