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Las Vegas busker lottery plan still controversial after 2 years

Updated September 3, 2017 - 12:12 am

They number only three dozen among thousands in the technicolor landscape, but they’re easy to spot, perched on poker chip decals and encircled by onlookers.

Their talents vary: A double-jointed dancer writhes and twists, a man uses his lips to summon a cigarette that appears to float in midair, and men and women clad in bawdy garb beckon passers-by.

This isn’t a fun house or a fever dream. It’s the scene after dark under Fremont Street’s canopy, where buskers captivate crowds in downtown Las Vegas for tips.

Complaints about racy attire and vulgar signs once flooded City Hall. City officials for years tried to alleviate congestion and enhance safety with regulations for Fremont’s casino-lined, oft-rowdy public pedestrian mall, but they faced legal challenges arguing the efforts infringed upon performers’ First Amendment rights.

The most recent try, a performer lottery system that the Las Vegas City Council passed in September 2015, has largely stuck.

But the rules have met with mixed reviews, and some of the lines that were drawn over the issue remain. City and Fremont Street Experience officials insist the atmosphere is better for visitors, while some buskers say the rules are inconsistently and arbitrarily enforced.

“From the city’s point of view, it’s doing what we hoped it would do. It spreads people out. It moves people around,” City Attorney Brad Jerbic said. “For safety, congestion — by spreading people out and saying you can perform and enjoy all the First Amendment rights you want, you just can’t do it on top of one another.”

Performers tussling over turf was one reason city officials gave for assigning spaces, leading to the six-foot poker chip circles that dot the five-block Fremont pedestrian mall, from Main Street to Las Vegas Boulevard.

“People are vying for these places like they’re real estate,” said busker Jared Carle, who performs as a satyr, the mythical man-goat.

2:53 p.m. Friday, Aug. 18, Fremont Street Experience

A man scrapes pieces of palm off the poker chip decal. He’s been weaving palm fronds into small flowers, but he needs to be gone before the performer assigned to that space for the 3 p.m. time slot arrives.

The hallmark of the city’s 2015 rule is a lottery system that randomly assigns the 38 poker chip performance spaces every night. The lottery is computer-generated, assigning performers to poker chip spaces for two-hour windows between 3 p.m. and 1 a.m., the busiest times under the Fremont canopy. A judge threw out the city’s requirement that all performers participate in the lottery after busker Bruce Peck challenged that part of the ordinance.

Peck argued the city’s ordinance laying out the lottery system was unconstitutional in a lawsuit he filed in October 2015, days before the lottery ordinance took effect. Peck, who represented himself in the suit, took issue with a number of features in the ordinance. U.S. District Court Judge Jennifer Dorsey largely upheld the city’s rules, finding they do not aim to regulate the content of performances and are “narrowly tailored to serve a government interest.”

Dorsey did, however, rule the city can’t mandate all performers participate in the lottery, so if a poker chip is free after 3 p.m., any performer can use it.

The free speech fight was set up by the city’s previous attempts to regulate buskers along the public pedestrian mall that’s managed by the private Fremont Street Experience.

Performers were cited or arrested for “expressing their rights,” said Tod Story, executive director of the American Civil Liberties Union of Nevada.

In 2011, the city and the ACLU settled a long-standing lawsuit over “expressive activities” on Fremont. The ACLU then helped craft the 2015 regulations.

If the city wants to make changes to the ordinance, it will be with the ACLU’s input, Jerbic said.

“We learned our lesson the first time,” he said.

10:30 p.m. Saturday, Aug. 12, Fremont Street Experience

They blend in more than the buskers, but they are another common sight in the entertainment area. On this crowded summer night, four of the uniformed Fremont Street Experience security officers split a line of customers waiting at an outdoor bar to lead a man toward a side street.

The private security officers cannot arrest or cite people — that authority is for Las Vegas city marshals or the Metropolitan Police Department. But buskers say the officers hassle them because management at the casinos along Fremont don’t want the buskers there.

Carle said he has been detained and intimidated by officers, and what’s considered entertainment or a performance is subjective.

“It depends on which security guard rolls up,” he said. “They’re going to make a determination of whether it’s entertainment or not, and whether they belong in a circle.”

Balloon artist Heather Baressi said she has been attacked multiple times, and she doesn’t think the performers’ safety is valued.

“There’s nobody making sure our rights are protected,” Baressi said.

A team within the security force, dubbed the “blue shirts,” works with the buskers and educates people on the ordinance, Fremont Street Experience President and CEO Patrick Hughes said.

“We don’t work for the casinos. We don’t work for the performers,” Jerbic said, responding to allegations of unfairness. “We work for the public. We are here to strike that balance.”

Hughes has helmed the nonprofit Fremont Street Experience for a year and a half, stepping in several months after the City Council approved the lottery ordinance.

“The environment has improved from what it was,” Hughes said. “Now you have 38 performance zones versus a free-for-all.”

11:15 a.m. Friday, Aug. 4, Las Vegas City Hall

Multiple lottery registrations for a Batman character with the same email address, the same physical address used twice — these are signs to the city that some people submit multiple registrations to boost their chances of getting a performance space, Jerbic said.

A solution that’s been floated is requiring identification in order to register.

“Do we have dual, triple registrants, people trying to game the system? Yes,” Jerbic said. “We preferred not to require ID, but if we can’t get the system so it’s fair enough without that, we may change our minds.”

Any changes to the ordinance would need City Council approval, but requiring identification would be a no-go for the ACLU, Story said.

“I understand what they’re talking about, and the concern,” Story said. “We would maintain there’s got to be a different solution than requiring ID.”

10:59 p.m. Saturday, Aug. 12, Fremont Street Experience

The miniature Michael Jackson impersonator is finishing his set. The young boy sweeps past the semicircle-shaped audience that’s formed around his chip, fedora overturned in his hand. He kisses the hand of a woman in her 20s, but no one offers tips. Then he’s on his way, making room for the performers with the spot’s last lottery time slot of the night.

Some chips may be unavailable during “special events” like the one this night, when Rick Springfield plays a free concert under the canopy. Pieces of paper taped to nearby poker chips said they were out of the lottery.

Some buskers contend there have been times when far fewer than 38 poker chips have been available, but the computer-generated lottery has assigned the spaces, leading to chaos when performers reach an assigned-but-unavailable chip.

Jerbic acknowledged there have been glitches, but he said unavailable chips are supposed to be removed from the lottery. Overflow performance space is always available just outside the Fremont Street Experience canopy on Third Street, where there are fewer restrictions and no poker chip decals.

2:59 p.m. Friday, Aug. 18, Fremont Street Experience

The turquoise one-piece straps over his shoulders and culminates in a thong and a piece of fabric covering his genitals. A young woman walking by asks if the get-up gives him odd tan lines. He shifts a strap to show her his skin underneath, but she balks and keeps walking.

“I’ve gotten the complaints and the letters, with ‘How can you allow this to happen?’” Mayor Carolyn Goodman said.

There also have been complaints in the past about some buskers’ aggressive behavior soliciting tips.

Goodman said complaints have decreased significantly since the ordinance was enacted.

Some buskers see it differently.

“Some of the dirty costumes are gone, but not all,” Carle said. “They got rid of a percentage of what they wanted.”

Instead, Carle says some talent has been driven off Fremont Street, leaving more people panhandling. Unlike performers, panhandlers on Fremont are not required to stand on the poker chips. Meanwhile, buskers, many of whom make their living performing on Fremont, can accept tips but are not allowed to charge a fee for a performance.

The enormous screen, zip line and terrestrial features have made the Fremont Street Experience into a major tourist attraction, and maintaining a good environment is Hughes’ top priority.

One of the biggest complaints tourists levy is about the people Hughes calls the “F-U sign holders,” people who use expletive-riddled signs rather than outright asking for money. Since they’re not performing, they’re usually not in the poker chip spaces.

“To be perfectly honest, we would love for our customers to not see content like that. But that’s not in our purview,” Hughes said. “Our job is to do whatever is possible to ensure there are great experiences. They’ll walk away with those stories, and that affects whether people come back to our city or not.”

Contact Jamie Munks at jmunks@reviewjournal.com or 702-383-0340. Follow @JamieMunksRJ on Twitter.

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