“The guard told her she can beg if she wanted ….”

by Walter Olson on December 4, 2013

“…but she can’t sell the mistletoe.” “No selling in the park” undoubtedly makes sense as a rule, but here, as in so many legal situations, an understood *de minimis* exception would help a lot. [Portland, Ore.; ABC News, Institute for Justice] But note (as reader James points out) that the setting was an established open-air bazaar with vendor waiting lists and fees, not a conventional open grassy park. That makes a pretty big difference, no?

{ 8 comments }

1 James 12.04.13 at 3:08 am

Some context here helps. She was not trying to sell mistletoe in a grassy park with lots of visitors taking in the scenery. She was trying to sell mistletoe in the middle of a very large open air market with an extensive waiting list for vendors. While a de minimis exception might make sense in some contexts, here, there is little to distinguish between her and any other person wanting to sell a small amount of some good or another. If they allow her, on what principled basis can they stop others from selling without approval?

2 wfjag 12.04.13 at 11:59 am

Unfortunate that the girl’s name wasn’t Julia. It would make a fitting beginning to the Life of Julia: “While in elementary school, Julia tried to raise money to pay for her braces by selling mistletoe during the holiday season, which she had gathered, at a market. She did not have the proper permits and licenses and was forbidden from earning money by the police. However, one helpful policeman told Julia that she could sit in the same place and panhandle. This was her first lesson in how the government helps people support themselves.”

3 D 12.04.13 at 4:31 pm

There is usually a win-win solution if the parties activate a couple of brain cells. For example, one of the authorized vendors at the park could have taken her under wing.
Why won’t the voices of power (political, social, etc.) encourage maturity like Madison showed (and the guard did not)? Leaving decisions to statute (as in this case) is useful in only a limited set of cases (not this one).
Now, in possible defense of the security guard (not a city policeman BTW), he may well have recognized the irony of the situation but had no contractual authority to change it (and no desire to override it then face whatever consequences). We don’t know.
As for consequences, Madison’s story has gone viral and justice has been served by the good people of America. Thanks to Madison, her parents, and whoever pushed this into national awareness.
And one last ideological, rhetorical question – What gives the city the moral authority to require business permits for even minimal commerce? Madison has the right to pursuit of property if the various governments give their (paid) blessing?

4 John Fembup 12.04.13 at 11:59 pm

“If they allow her, on what principled basis can they stop others from selling without approval?”

Indeed, why stop any of them?

Is the issue whether vendors should have less right than beggars to use the public parks?

Or is the issue the city’s fee revenue collected from approved vendors?

5 james 12.05.13 at 10:30 am

The issue is rationing the scarce resource of space at a market. If everyone were free to sell wherever they wanted, the aisles would become clogged with merchants.

6 John Fembup 12.05.13 at 10:57 am

James, I would expect that is the excuse the city gives, too. Yet it does not seem concerned to limit the number of beggars in the city parks.

Do you (or does anyone) know if the city gives out vendor approvals for free?

7 James 12.05.13 at 11:12 pm

I’m sure they would limit the number of beggars if they could, but Oregon’s free speech clause (actually “free expression”) has been interpreted so broadly, the city cannot regulate beggars in any meaningful way.

The vendor license does cost money ($25 application fee, plus an amount per day of sales), though I believe that goes to the entity that runs the market, not the city. The entity uses that money to pay the city for its use of the park.

8 John Fembup 12.06.13 at 8:42 am

“. . . interpreted so broadly, the city cannot regulate beggars in any meaningful way.”

So we seem to be back to the original sad irony that a little girl points out to the nations. Namely, that (at least in this city’s parks, at this time) begging is unrestricted while working is restricted.

Thanks James.

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