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STREET ARTISTS COMMITTEE
Wednesday, October 10, 2007
25 Van Ness Avenue, Suite 70
Members present: Commissioners Jose Cuellar and Sherene Melania
Members absent: Commissioner Alexander Lloyd
Staff present: Street Artists Program Director Howard Lazar
Commissioner Cuellar, acting as Chair, called the meeting to order at 3:14 p.m.
- Hearing and possible motion to approve proposal to eliminate 10-day renewal policy to allow for renewal of more than 10 working days after a certificate’s expiration date.
Street Artists Program Director Howard Lazar explained that on May 3, 1982, the Arts Commission adopted a policy to allow street artists to renew their certificates within ten working days prior to or after the date of the certificate’s expiration. Then, on September 6, 1994, the Commission adopted a policy whereby the validity of a renewed certificate would commence on the day of its payment within the ten-day grace period. Mr. Lazar clarified that the grace period was not an extension of time in which to sell; it was only a period of time to allow an artist to renew, rather than lose, his/her certificate.
Street Artist William Clark stated that the ten-day renewal policy has a long history in the Street Artists Program. From the beginning of the Program in 1972 to 1976 a street artist could renew his/her certificate at any time after the certificate’s expiration date as long as the artist continued to sell the same items for which he or she had received previous certification. At one point in time, Mr. Clark said, the City Attorney gave a ruling that the Arts Commission was not allowed to renew a certificate after it had expired—not even to renew it a day afterward. The ruling, he said, was later proven to be inaccurate and was replaced with the Commission’s adoption of the current ten-day policy.
Mr. Clark proposed that the ten-day policy be eliminated altogether for the following reasons: (1) At the present time, the amount of money collected by the Program is dropping and the Commission may be increasing the artist’s fees; (2) over the years, Mr. Clark has felt that street artists need more than ten days to renew their certificates, and this is shown by the staff’s renewing some certificates beyond the ten-day period; (3) the Commission already votes monthly to approve priority issuance of certificates, with waiver of the re-screening requirement, for artists whose certificates have expired, and, in the process, the Program and the Commissioners are forced to do more work while the Program loses interim revenue.
Mr. Clark submitted copies of a November 3, 1977 City Attorney opinion regarding “Penalties for untimely renewal of Street Artist Certificates.” Mr. Clark called the Commissioners’ attention to the following statements in the opinion: “The Arts Commission does not have the authority to affirmatively punish street artists who fail to renew their certificates by preventing them from seeking reinstatement or new certificates for a specified period of time. …However, the Commission does have the authority to prescribe reasonable rules and regulations for the conduct of its affairs and performance of its business according to Charter provision 3.500. Thus, a regulation setting the forth the manner in which a street artist may either reinstate his old certificate or secure a new certificate subsequent to the time period for renewal would be well within the scope of the Commission’s power to establish rules for the conduct of its business.” Mr. Clark pointed to this as legal authorization for the Commission to now dispense with its ten-day renewal policy and to automatically renew a certificate henceforth at any time, so long as the certificate holder continues to sell the same item(s) for which he/she had previously been screened and approved.
Mr. Clark went on to say that, at the present time, if an artist comes to the office a day or two beyond the ten-day grace period, it would be very difficult for staff to refuse to renew the certificate and make the artist wait a month for a new one. Why couldn’t the Commission now establish a friendlier process at this point in time, when certificates are being dropped, which would not hinder people from re-entering the Program? Mr. Clark reiterated his proposal to rescind the ten-day policy to allow an artist to renew at any time henceforth so long as his/her file is still on record with the Program office and the artist intends to sell the item(s) for which he/she has been previously screened and approved.
Commissioner Cuellar called for public comment.
Street Artist Edward Steneck stated that he was not a hundred percent against Mr. Clark’s proposal; however, he was concerned about the cash flow for the Program. While it was likely that some artists, including his wife and him, might drop out of the Program during the rainy season of January and February, the Program would lose fee revenue—for example, roughly $140 of Mr. and Mrs. Steinbeck’s money. If the ten-day grace period were dropped altogether, he suspected that a higher number of artists would take advantage of the situation, thereby adversely affecting the Program’s revenue.
Mr. Steneck went on to state that the artists were already facing a potential fee increase of possibly $40 to $50 for the next year; if Mr. Clark’s proposal were adopted, the fee might possibly increase by as much as $100 a year. Mr. Steneck suggested that, before any vote is taken, an expert cost-benefit analysis be made.
Street Artist Michael Adarrio submitted a chart he had composed which compared revenue from an artist who pays for annual certification, an artist who pays for quarterly certification, and a “delinquent” payer who renews within the grace period but not on the date of the certificate’s expiration. The charts also gave relative Program costs of licensing for the three payers. Mr. Adarrio explained how the charts demonstrate that (1) the annual payer pays $419.20 and receives a certificate for 365 days, the quarterly payer pays a total of $419.20 for 365 days, and the “delinquent” payer pays a total of $419.20 but enjoys certification for 30 days more than the other two payers; (2) the annual payer receives two certificates, two laminations of certificate, and may renew once during the year, while both the quarterly payer and the “delinquent” receive a total of eight certificates, eight certificate laminations, and may have four renewals by mails during the year; (3) the annual payer involves administrative time once during a year, while both the quarterly payer and the “delinquent” payer involve administrative time four times a year; and, most significantly, (4) the “delinquent” payer “defrauds the Program of approximately $34.50 per year in revenue” due to the “delinquent” payer’s allowance to renew his/her certificate within the ten-day grace period but not on the date of the certificate’s expiration.
Mr. Adarrio submitted a second chart he had composed which showed street artist population numbers ranging from 275 to 400 yielding revenues, budget deficits, and projected fees required to balance the upcoming fiscal year 2007-08 budget. The chart concluded that if only 275 artists were in the Program, the fee to balance next year’s budget would be $674.55, a 61% increase over the present $419.20 fee; whereas if the present 400 artists remained in the Program, the fee would be $463.75, an 11% increase.
Mr. Adarrio opposed Mr. Clark’s proposal and urged that the Commission retain the ten-day grace period but rescind the policy which commences the validity of a renewed certificate on the day of its payment within the grace period—in other words, if an artist, within the ten-day period, fails to pay for the renewal of the date of the certificate’s expiration, the renewal should be backdated (commence from) the expiration date. Mr. Addario said that this is the way most licenses, as well as insurance policies, work.
Mr. Addario took issue with Mr. Clark’s contention that causing a former certificate-holder to wait a month or so for a new certificate does not significantly adversely affect the Program’s revenue.
Street Artist Robert Clark stated that Mr. Addario’s “payer” chart was “totally wrong” because it was impossible for a person to sell (and thereby gain certification time) during the grace period time when the artist does not renew. He said that this was because his brother and he had succeeded in getting the Arts Commission to change a rule to make it necessary for every artist to show their certificate when signing in for a selling space at the lottery; an artist who shows an expired certificate is told that it is expired and is prevented from signing in for a space.
Commissioner Cuellar observed that the Commission had sat in hearings on cases of artists who had been caught selling with expired certificates or with no certificates at all. He asked Mr. Clark how, under the circumstances, they were able to get spaces.
Mr. Clark responded that, in the past, the lotteries were allowing artists to sign their own lottery slips, and artists whose certificates had expired were able to sign their own lottery slips and then sign up for spaces.
Mr. Clark responded to Mr. Steneck’s contention that the Clarks’ proposal would cause the Program to lose revenue; under the present policy, Mr. Clark stated, artists are currently able to leave the Program and can readily return via priority issuance of certificate. Therefore, there would be no potential revenue loss resulting from the proposal.
Mr. Clark went on to say that Proposition “L” (the present street artists ordinance adopted by the voters in 1975), states specifically that the certificate shall be issued, and nothing in the proposition states or implies a cutoff date for issuance or renewal. The first ten-day policy rule, he said, was adopted in August, 1976, and he himself was “caught by it.” He went on to say that the reason for the policy’s creation was that, at the time, there was an abundance of artists in the Program, and a group of artists wanted to “knock people out of the Program.” When he was not permitted to renew his certificate (due to the 1976 ten-day policy) he went to “state court,” he said, “in order to get back into the Program.”
At the close of public comment, Commissioner Cuellar stated that he was not ready to make a motion on the item because the proposal had serious fiscal impact and policy consequences. More clarification was warranted with regard to the information that had been presented, the accuracy of the information, and a statement from the Program Director regarding projected fiscal impact on the Program, as well as impact on staff. The Commissioner wanted to be sure that a decision for or against the proposal would be in the best interest of the Program.
Responding to questions from both Commissioners, Program Director Lazar stated that the issuance of two certificates and their resultant additional staff time in production was provided for by a policy voted on by the Commission to enable an artist to maintain one copy of the certificate on his/her display and carry the other copy on his/her person to show at the lotteries. Due to cost and staff time restrictions, the Program office has never been able to send out renewal notices to the artists. And the ordinance does not allow for a limitation on the number of certificates the Commission can issue.
Commissioner Cuellar commented on the struggle his Committee has in considering the best interest of the Program in relation to the best interest of an individual artist; he wanted to see the decision to be a balance of the two.
Commissioner Melania asked that the Committee consider a distinction in policy between a time allotment for renewing a certificate as opposed to issuing a new certificate to a former certificate-holder.
- Hearing on request for Advisory Committee of Street Artists and Craftsmen Examiners enforcement on Beach Street.
Street Artist William Clark stated that it appeared that the number of job functions of the Advisory Committee had been reduced from thirty-five to seventeen for the present fiscal year, and this would have relevance to his request for the Committee’s enforcement on Beach Street. He requested verification of the job functions reduction.
Program Director Lazar, requesting permission to respond, stated that Mr. Clark’s perception was accurate, that the ordinance providing compensation for the Advisory Committee allows each member of the Committee to receive compensation for no more than thirty-five job functions or assignments (that is, screenings, studio visits, street monitoring, or other jobs assigned by the Arts Commission) per year, and that he, the Program Director, drafted the current year’s budget to reflect a reduction of eighteen assignments per member in order to avoid raising the street artists’ certificate fee for a third consecutive year. In so doing, the Program Director also felt confident that, given the Advisory Committee’s previous accomplishment of a more than satisfactory performance in seventeen to twenty-one assignments per member, each Committee member could serve the Program very well within the current budget of seventeen assignments.
Mr. Clark stated that the Advisory Committee members typically hold twelve screenings a year (once a month), which leaves only five other assignments per member. He went on to say that he was requesting the Committee’s presence on Beach Street to enforce the beadstringing criteria on street artist violators. (Mr. Clark submitted copies of the criteria as well as copies of two pages from a Rio Grande catalogue which shows commercially manufactured pendants, many of which have surfaced on artists’ displays. He wanted to see the Advisory Committee stop the artists from selling such pendants on the earrings they offer for sale. But, he said, if the members have a limit of only five assignments of street monitoring, their ability to enforce the criteria on Beach Street is seriously impacted.
Street Artist Robert Clark stated that one of the responsibilities of the artists as required by law is to display their certificates, but one of the main problems on Beach Street is that many artists are not displaying their certificates. He said that someone is clearly needed to come down to the street and enforce this.
Street Artist Edward Steneck stated that the law requires that the artists also display their California Seller’s (Resale) Permits in their place of business, but most artists do not display them.
Program Director Lazar clarified that, in limiting the Advisory Committee assignments to seventeen, he was not imposing the limit on the Committee as a whole but on the separate members. For example, one member could attend all twelve screenings and have only five assignments left for street monitoring duty; while another member could attend, say, seven screenings and thereby be able to spend more time—ten assignments—in street monitoring, including Beach Street.
The Program Director went on to say that various members of the Committee have spoken to alleged violators, as well as artists of borderline violations, and have faithfully sent their reports to the Program Director who, in turn, has taken action in the way of either issuing written warnings or, as in the recent case of Manuel Loli, written notices to appear for hearing to suspend, revoke, or deny issuance of the artist’s certificate.
The Program Director further related that, for many years, it has been the practice of the Program office to write the State Seller’s Permit number on the back of the artist’s certificate, and that the personnel at the State Board of Equalization had told him that this would be acceptable in lieu of the artists’ having to display the document itself. He went on to say that he has traditionally requested the Advisory Committee members to concentrate their expertise on examining and evaluating the arts and crafts being presented for sale, and to not focus on other issues such as size regulations, State Seller’s Permits, etc.
In response to a question by Commissioner Melania, Mr. Lazar stated that over the past summer he had requested teams of two Advisory Committee members each to spend one day of each weekend concentrating on the artists’ wares primarily at Justin Herman Plaza, and then spot-check the wares on Beach Street or the Downtown area. The reason for concentrating on the Plaza was because that was the location for which he was receiving most complaints—not just during summer but all year round— about the work being sold.
The Commissioners requested that Mr. Lazar continue to direct the Committee members to the various locations generating complaint.
Street Artist Michael Addario stated that he agreed that while there should be some enforcement on Beach Street, the Program office should issue a warning notice regarding the enforcement of the display of certificate and Seller’s Permit numbers and other requirements; otherwise, the Commissioners might be inundated with violation cases. He pointed out that the costs of trying to suspend or revoke “an incorrigible,” as recently demonstrated, is thousands of dollars for the Program.
Mr. Addario raised what he described as “a security issue” regarding the Program office’s disclosures of the artists’ State Sellers Permit numbers. Because the website of the California Board of Equalization not only verifies whether a Seller’s Permit is valid but also discloses the address (even if it is a residence address) given by the permit holder to the Board, Mr. Addario stated that he would be inquiring whether the Arts Commission’s address of 25 Van Ness Avenue would be acceptable by the Board for street artists to give.
Street Artist William Clark made two suggestions for the Program: (1) Stringent enforcement—i.e., suspensions, instead of warnings—of artists who refuse to display their street artist certificates; and (2) put the State Seller’s Permit number on the front, rather than the back, of the artists’ certificate. Mr. Clark stated that the street artist ordinance prohibits an artist from entering the lottery for spaces if the artist does not possess a valid Seller’s Permit. If the Seller’s Permit number were listed on the front of the certificate, he, Mr. Clark, would be able to see it and go to the Board of Equalization’s website to verify the Permit’s validity. He went on to say that some artists have lied to the Program office by giving the office fraudulent Seller’s Permit numbers. If the numbers, again, were listed on the front of the certificates, “for our protection we’ll do our job,” he said, “and not bother the Commission with this; we’ll take care of it from our end, and if we find somebody whose—”
Commissioner Cuellar stated that he would rather have the subject be a policy issue taken up with the Commission, that he would prefer it be brought up when Commissioner Lloyd, the Committee’s chairman, is present.
- Hearing and possible motion to approve honorarium payment of $300 plus cost of paint to Mario Hernandez for assisting Program Director in painting permanent spaces and temporary winter holiday spaces in the Downtown area.
Program Director Lazar explained that the street artists ordinance provides that the Department of Public Works is the agency to paint the street artist spaces on the sidewalks; but because Public Works personnel had been uncertain of the exact space locations, the Program Director for many years had worked with the DPW personnel in locating, measuring, and painting the spaces. The day came when DPW announced that it wanted the Street Artists Program to pay $2,500 for painting the spaces. Since the Program did not have the funds for this, it was decided—under the guidance of the City Attorney—that DPW would, in essence, “deputize” Mr. Lazar to carry out the responsibility of painting the spaces. Thereafter, a number of years passed with the Program Director painting the spaces—not just the Downtown and winter holiday spaces but the Wharf spaces as well. Sometimes, a few street artists would voluntarily help him with the measuring of the spaces; one of the artists who volunteered consistently was Mario Hernandez. When it became evident that the time involved in painting the spaces interfered with other, more crucial, duties of the Program Director, Mr. Lazar sought Arts Commission authorization to pay an honorarium fee to Mr. Hernandez who had more than qualified himself to do the job. This was unanimously approved by the Commission for each of the past several years. While Mr. Lazar would meet with Mr. Hernandez at certain critical sidewalks to measure and mark spaces, Mr. Hernandez assumed the majority of the work in measuring, marking, and painting all spaces. Upon completion of the assignment, the Program Director would check on Mr. Hernandez’s work; if there was a mistake (and this was seldom), he would call him to return to the site and correct it.
Street Artist Edward Steneck asked if the Department of Public Works had a legal right to charge the Street Artists Program for painting the spaces.
Mr. Lazar responded that, at the time, he had received confirmation that it was indeed DPW’s right, and that it was consistent with many departments who were charging other departments for their services. Mr. Lazar further stated that, on several occasions, Mr. Steneck himself had helped the Program Director in measuring and marking spaces and that, at the time, Mr. Steneck had commented that the Program Director shouldn’t be the one to have to paint the spaces.
Mr. Steneck affirmed this and said that he did not feel the Program Director “should be out there on his hands and knees doing this; I think it’s demeaning.” He proposed that, for next year, the honorarium be announced over the internet so that someone else be given the opportunity to earn $300.
Street Artist William Clark stated that street artists pay sales tax, part of which goes to the City and County fund. Therefore, it was “outrageous” for the Department of Public Works to charge the street artists for doing a not-too-difficult job. He wanted to see something from the City saying that the Department of Public Works has the legal authority to charge the Street Artists Program, while the street artists ordinance mandates DPW to paint the spaces.
Street Artist Robert Clark stated that the law is explicit: it mandates that the Department of Public Works do the job; it does not mandate that it charge for it. With regard to the honorarium issue, he stated that his brother and he were under the assumption that the Department of Public Works was painting the spaces, but only now he found out that the Program was hiring a street artist to do this job and earn $300. In the past, Mr. Clark said, his brother and he had been able to obtain over $100,000 for the Street Artists Program but never received an honorarium or “never even received a thank you from anybody for doing it, but the least the Art Commission could have done” was “to ask my brother and me if we want to do” the job “because I’ve spent thousands of dollars of my own money to help this program over the years; it would be a way for me personally to get some of my money back.”
Mr. Clark went on to say that he sent an e-mail to the Arts Commission stating that he was willing to do the job “cheaper” for $200 plus cost. He added that if the artists have to paint the spaces themselves, a notice should be sent to everyone in the Program inviting artists to sign up for a lottery to select the one person to do the job.
Commissioner Cuellar confirmed with Mr. Clark that he was speaking against the motion.
Upon closure of public comment, Commissioner Melania moved approval of an honorarium payment of $300 plus cost of paint to Mario Hernandez for assisting Program Director in painting permanent spaces and temporary winter holiday spaces in the Downtown area; the motion was seconded by Commissioner Cuellar and unanimously approved.
- Street Artists Program Director’s Report.
Winter Holiday Spaces in the Downtown Area and Harvey Milk Plaza. Program Director Lazar reported that he had drafted and submitted legislation to the Board of Supervisors for additional, temporary winter holiday spaces; it will be assigned to the Land Use Committee for hearing. He contacted the office of the chair of the Committee, Supervisor Sophie Maxwell, to request that the legislation be heard as soon as possible, as the spaces would be scheduled to commence November 15, 2007. The Supervisor’s staff agreed to calendar the item for October 22, 2007. At the same time, the Program Director informed the representatives of the Merchants of Upper Market and Castro about the proposed temporary spaces at Harvey Milk Plaza. The organization endorsed the proposal, and the Program Director forwarded its e-mailed endorsement to Supervisor Bevan Dufty, who then expressed that he wished to sponsor the legislation.
The Program Director went on to report that on October 15, 2007, he will be attending a meeting of the Department of Parking and Traffic, the Police Department, the Union Square Association, the Union Square Business Improvement District, and other merchant representatives to discuss preparations for traffic, public safety, security, publicity, and events during the holiday season in the Union Square/Yerba Buena area.
Filing of Appeal. Manuel Loli, whose certificate was revoked last August, has filed an appeal with the Board of Appeals to overrule the revocation. Mr. Loli’s certificate expired in September; he submitted a fee for its renewal, whereupon the Program Director mailed the fee back to Mr. Loli with a statement refusing to renew his certificate.
Board of Equalization Seller’s (Resale) Permits. The Program Director reported on the current controversy among the artists over the Board of Equalization’s website disclosing the artists’ addresses. Mr. Lazar wrote to the City Attorney requesting guidance in the matter. The City Attorney’s office affirmed the Program Director’s understanding that Seller’s Permit numbers were public information which the Program office, if requested, is obliged to disclose, regardless of whether the Board of Equalization publishes the artists’ addresses. With regard to this issue, Mr. Lazar now stated his own personal recommendation: that the artists telephone or write to the Board of Equalization to express their concerns and request that the publishing of addresses cease.
Under public comment, Street Artist Michael Addario stated that the disclosure of the artists’ Seller’s Permit numbers was defeating the Program’s policy of not disclosing the artists’ addresses.
Street Artist William Clark stated that he wanted to make it clear that the state law requires businesses to list their addresses and that the public, when entering a business’s premises, is entitled to see the business’s Board of Equalization number. Mr. Clark went on to say that at the present time, some street artists were entering the lotteries for spaces without possessing valid Seller’s Permits, and that he has requested the Program Director to notify those persons that they cannot participate in the lottery until they obtain valid Seller’s Permits.
In response to a question by Commissioner Cuellar, Program Director Lazar stated that, while the Program office initially verifies that an artist has a valid Seller’s Permit upon the Program’s issuance of a street artist certificate to the artist, the Program office does not have time to re-verify the Permit’s validity each time the artist renews his/her certificate.
Commissioner Cuellar stated that he would like to see the Program staff verify with the Board of Equalization’s website the validity of each artist’s Seller’s Permit upon renewal of the artist’s certificate. Mr. Lazar responded that, if that would be the wish of the Commissioners, he would be glad to direct staff to perform this additional step.
Commissioner Cuellar stated that he felt it would be an important step because it would keep the Program in compliance with state law and the street artists ordinance’s lottery provision.
Commissioner Melania asked if it were possible to have an electronic form of the Program’s bluebook available to applicants, as well as a procedure requiring new licensees to sign a statement that they have read the bluebook in order to avoid the possibility of an artist claiming ignorance of a rule or procedure. This could possibly, she said, save time in discussions in future violation hearings.
Program Director Lazar responded that, when it was published, the bluebook was given to every artist in the Program, and each artist signed a statement acknowledging receipt of the book. With regard to an electronic version, Mr. Lazar was taking steps to have it on the Program’s website (which was, at the present time, being upgraded) by the end of next January. Because of the multitude of resolutions, ordinances, and procedural changes that have been adopted since the book’s publication in 1998, Mr. Lazar stated that he would have to take a week off from the normal running of the Program to edit the bluebook to reflect these amendments. Rather than do that, he said, he will seek the assistance of an intern to work on the project under his direction at the office.
Commissioner Cuellar stated that he would also like to see the bluebook printed in hardcopy. Mr. Lazar responded that he would be glad to look into its cost and “add it onto the bill” of all the Program’s costs he will present at next month’s hearing on the budget and possible fee increase.
Commissioner Cuellar stated also that he would like to see some way in which the Program could notify each artist of his or her renewal date.
Street Artist Robert Clark responded that that was the reason for the Commission’s adoption of a procedure for the office to issue not one but two certificates to each artist, so that one of the certificates would have to be shown at the lottery.
Mr. Lazar commented that another procedure his office was working on now was soliciting bids on computer programs that would eliminate the issuance of handwritten and hand-laminated certificates by printing out coated certificates bearing the artists’ updated renewal, photograph, and certified products. Current figures indicate a price tag of approximately $4,000–$5,000.
Commissioner Cuellar asked about “in-kind contributions”: perhaps it would be possible to find a businessperson or company who would donate the publishing and computer program services.
Mr. Addario stated that frequently artists will leave the Program and return with new Seller’s Permit numbers without informing the Program office of this. When “some people take it upon themselves” to look up the previous numbers on the Board of Equalization’s website, they find that the numbers are invalid and request the Program to not let these artists participate in the lotteries. Furthermore, there was a security issue involved in the Program’s disclosure of Seller’s Permit numbers.
Commissioner Cuellar responded that he did not see any way for the Arts Commission to change state policy. As for the “security issue” of disclosing Seller’s Permit numbers, that was an issue for the state to take up.
Street Artist William Clark stated that he was “the person who was going to the state, doing this” and that he discovered that there was one artist, Manuel Loli, among several others. who opened an account with the state, showed his Seller’s Permit to the Program office, and then deliberately closed the account on the same day.
Commissioner Cuellar responded that “it really saddened” him that the Program “had to deal with a group of … people of obviously nefarious intent” and that the artists were policing one another; but the Commission had to follow its policies.
- New business.
Street Artist Michael Addario requested that the Street Artists Committee’s agendas publish the names of street artists or others whose proposals are calendared. Secondly, he asked that a proposal’s proponent and opponent be allotted the same amount of time in presenting their views.
Commissioner Cuellar stated that the Committee would take Mr. Addario’s requests under advisement.
There being neither further new business nor public comment, Commissioner Cuellar adjourned the meeting at 4:40 p.m.
Street Artists Program Director
November 6, 2007