SAN FRANCISCO ARTS COMMISSION
STREET ARTISTS COMMITTEE

Wednesday, September 19, 2018
2:00 p.m.

401 Van Ness Avenue, Suite 125
San Francisco, CA 94102

Regular Meeting

Minutes

Commissioner Frankel called the meeting to order at 2:15 p.m.

1. Roll Call

Commissioners Present:
Simon Frankel, Chair
Mary Jung
Marcus Shelby
Janine Shiota

Commissioners Absent:
Barbara Sklar

Staff present: Director of Cultural Affairs Tom DeCaigny, Director of Community Investments Barbara Mumby, Program Officer Anne Trickey
 

2.   General Public Comment.
Tad Sky commented on his wish list from the last meeting, noting that number two was the pending Market Manager at the plaza. He brought up the recent passing of two individuals from the community, a daughter of one of the artists and Linda Pederson, a long time artist and print maker.

Kirk McCarthy from the ACCI Gallery spoke in support of Lucinda Page. He mentioned the jury process for their gallery and that they would never allow intentional replication.

Kern Toy spoke on behalf of Lucinda Page. He discussed his experience as a professor of graphic design with plagiarism. He advocated that the artist community not allow plagiarism.

There was no further public comment.

3.   Hearing and possible motion to approve revocation of certificate (also known as a permit or license) for street artist Jeff Potter #7568 for harassment, assault, and intimidation of multiple artists in the program and targeted harassment of Lucinda Page including intentional replication of her designs.

Mx. Trickey explained the process for the item and called for public comment.

Debra King gave background regarding Jeff Potter’s history in the program. She mentioned it was only after he started selling coper jewelry that there was an issue between himself and Lucinda Page. She stated that Mr. Potter is a veteran and senior citizen.

Pat Kelley stated he has observed Jeff Potter bullying Lucinda Page. Mr. Kelley mentioned he is more vocal standing up for himself than others. He said her display is correct and that she sells around it to interact with her customers and that she is really good at what she does.

Tanya Key spoke to her concerns regarding safety in her workplace at the Embarcadero market. She spoke in support of removing Jeff Potter from the program based on intimidation and harassment she has personally experienced.

Michael Addario commented on an incident with another female artist involving Jeff Potter where Mr. Potter was belligerent towards both the artist and Mr. Potter. The incident ended with a threat to call the police.

Steve Seltzer with United Public Workers for Action stated that it is critical that there be support for cultural workers and artists in San Francisco. He was concerned on the length of time the harassment had been going on as it is a health issue. He supported revoking Mr. Potter’s license.

There was no further public comment.

Mx. Trickey read the following statement.

“Hello Commissioners, staff, artists and members of the public. The first item before the committee today is regarding Jeff Potter, license number 7568. Mr. Potter is charged with two related violations of the program guidelines and policies. The first one is the allegation of ongoing harassment, assault, and intimidation of multiple artists in the program. The second is his alleged targeted harassment of Lucinda Page; license number 7436, including intentional replications of her designs.

During his tenure in the program, Potter’s harassment, assault, and intimidation of other artists has been the subject of two separate Program Director hearings. The first hearing occurred in 2015, a summary is included in the packet. The events leading up to the hearing were recorded by former Program Director, Howard Lazar. He noted that Page was engaged with a customer when Potter used a mirror to shine a light in her eyes. An additional incident alleges Potter used his car to block Page’s ability to unload her trunk as well as other verbal abuse regarding her appearance. Page states in her August 22 letter included in the packet, that this was an escalation of three years of ongoing harassment which occurred after Potter started selling similar jewelry items to hers. She reports that after a conversation where she asked him about the similar items and requested he not replicate her work, his subsequent actions made her feel unsafe at the market.

The 2015 Program Director’s meeting included Jeff Potter and Lucinda Page as well as eight other artists. According to staff member Alyssa Ventre, who was present, the meeting became a contentious “he said, she said” back and forth with little resolution. In the end, all parties agreed to adhere to program policies and not interfere with each other’s business. Ventre’s written statement as well as the official write up of the meeting are included in today’s packet.

In 2017, Potter assaulted Jessica Harrigfeld, license number 8883, by hitting her on the rear. This happened on a Saturday while I was at the plaza monitoring the market. Harrigfeld reported the incident to Katie Carrin, license number 5840, who then informed me of the incident. I immediately interviewed Harrigfeld who was visibly upset. I asked her if she wanted me to speak with Potter about it, and she said yes. When I spoke to Potter, he confirmed that he had hit Harrigfeld on the buttocks, explaining that it was a joke.  I informed him that touching a person without consent was assault and a serious violation of program policy. He requested to apologize to Harrigfeld, but I advised him against it. I explained that to approach Harrigfeld after being assaulted, even if it was to apologize, could further traumatize her. Potter then became verbally aggressive towards me, raising his voice and using expletives, telling me to get away from his booth. I immediately left, while informing him that he would receive follow up notice from the program.

The memo I wrote in response to this incident is included in the packet. As stated in the memo, my recommendation at that time was to proceed with disciplinary action for a serious violation as Potter had willingly admitted to assaulting another artist. Potter requested and was granted a Program Director’s hearing with then Director Howard Lazar, which took place in June of last year. The audio from the hearing was posted online as part of the supplementary documents for today’s meeting.

While investigating the assault leading up to the hearing, I interviewed three additional female artists who described their personal experiences with Potter. They each alleged that Potter had made comments or gestures that were sexual in nature, making them feel uncomfortable. Due to a fear of retaliation, they refused to speak on the record at the hearing and requested that their names remain confidential. Additionally, when reviewing Mr. Potter’s file, I found another complaint from an artist that wishes to remain off record. Their statement recorded an incident where Mr. Potter got aggressively close to them “only five (“threatening)” inches” from their face, disrupted business at their booth, and yelled at them until they threatened to call the police. Since posting the agenda for this meeting, I have had yet another female artist come forward, asking to remain anonymous while also recounting verbal intimidation, sexualized interactions, as well as speaking to Potter’s continued video and photo surveillance of Page in an effort to taunt her. That account, redacted in part on the basis of personal privacy, is included in the packet. Cal. Govt. Code Secs. 6254(c), 6254(k); California Constitution, Art. I, Sec. 1.

During the 2017 Program Director’s hearing, Harrigfeld’s statement about the assault was read, which stated that Potter hit her hard enough to leave a red welt. Potter admitted to hitting Harrigfeld and then apologized, saying he should not have done it and that it was “uncharacteristic” of him. Director Howard Lazar stated that the Arts Commission wants to ensure that the market is a safe environment for all artists. Lucinda Page spoke on the record during this hearing, describing what she felt to be the ongoing and targeted harassment of her since the 2015 hearing, which included multiple photographs Potter had taken of her; many of them specifically of her “backside.” She stated she felt unsafe at the market and that this was an ongoing issue.

Potter read his statement, which confirmed that he “swatted” Harrigfeld on the backside. He shared that his intent was not to inflict pain or sexually assault her. He also stated that my recommendation he not speak to Harrigfeld after the assault “did not demonstrate tools to diffuse the situation.” In this instance, I following promising practice, which, in incidents of sexual assault is to separate the victim from the abuser, especially when the victim may be in a state of shock. I stated on the record at the 2017 hearing that it is the duty of employees of the City and County to act on issues of workplace harassment. I also made a statement at this hearing regarding the future Code of Conduct, which the Commission has approved and the office is in the process of implementing. A copy of the code is included in the packet.

The result of the 2017 Program Director’s hearing was a signed document stating Potter understood the rules of the program and agreed to follow them. That signed statement is included in the packet.

In June of this year, Lucinda Page filed a complaint that Potter was trying to sell jewelry items at the market that are identical to Page’s designs, which she has been making since 1991. Page felt this was not only an intentional replication of her designs, but also a move meant to impact her business at the market. She also alleged that he was using other intimidation tactics, such as mouthing derogatory words to her while she was selling. Page’s full letter is included in the packet.

Potter was sent Notice on June 11 that the office intended to recommend denial of his permit at a Program Committee hearing. In response to this letter, Potter left a voicemail for another staff member not related to the program, requesting that she renew his license. The language and tone of Potter’s voicemail was similar in intensity and volume to the way he spoke to me after his assault of Harrigfeld. It also confirmed the reports from other female identified artists about his verbal aggressiveness. In response to the notice sent to Potter, he filed a counter complaint that alleged Page was interfering with his business. He requested that I look at her file and review her history with the program and stated that he has “over 100 photos showing her illegal sales tactics.” He sent me five of these photos, which on advice of the City Attorney I have withheld on the basis of personal privacy.  Cal. Govt. Code Secs. 6254(c), 6254(k); California Constitution, Art. I, Sec. 1.

I reviewed Page’s file and there have been no warnings for interfering with other artists’ business or conducting business inappropriately for her entire tenure in the program.

Page’s June complaint cites common law unfair competition as advised by her attorney. This is a broader claim than trademark or trade dress infringement. A claim of common law unfair competition is an allegation that a competitor’s product will mislead the public into believing that the product was actually designed by the original producer. “In creating confusion, the competitor is reaping the benefits of the original producer’s hard work through misappropriation of its good name and established reputation.”

Page has sent multiple emails to the office from her reoccurring customers, recounting their experience seeing and interacting with Potter’s work. According to these statements, the customers allege that Potter and Page’s items are identical. Page has filed a copyright for her designs and sent a Cease and Desist order to Potter. That document is included in the packet, and I would suggest you view the images included which shows Page and Potter’s work side-by-side. Based upon the documentation I have received, Page is the only artist that holds a copyright for her specific designs. The policies of the program, now more recently clarified in the Code of Conduct, state that, “artists shall not replicate another artist’s work.”

The Code of Conduct, reviewed by the City Attorney and approved by the Arts Commission, clarifies the rules of the program to allow for more direct enforcement. These allegations here outlined against Potter, would indicate that he has violated a number of these rules, including: verbally assaulting and intimidating other artists, interfering with other artists’ business while they have customers, and intentionally copying another artist’s work. He has himself admitted to physically assaulting an artist. Furthermore, Arts Commission staff have directly experienced his verbal intimidation.

It is imperative that the Arts Commission foster a program that is safe and viable for ALL artists.

Therefore, due to the ongoing complaints regarding Potter’s history, I felt it was necessary to bring this to the program Committee’s attention to make a determination about Potter’s continuation within the program.”

Barbara Mumby made a recommendation for the Commission to pass the motion as written, to approve revocation of certificate (also known as a permit or license) for street artist Jeff Potter #7568 for harassment, assault, and intimidation of multiple artists in the program and targeted harassment of Lucinda Page including intentional replication of her designs.

Lucinda Page spoke to her experience in the program. She alleged that Jeff Potter had previously been removed from Pike Place market for plagiarism as well as copied another of other artists’ work. She mentioned his assault of Jessica Harrigfeld and his aggressiveness towards Arts Commission staff. Ms. Page recalled his interference with her ability to do business and his intimidation tactics against her. She recounted his history of selling designs similar to others including herself, and his recent pieces which appear identical to hers. She stated his actions have created an unsafe work environment and noted that this is the third disciplinary action of the program against Mr. Potter. She supports the program recommendation as written and states that being a veteran or a senior citizen does not give a person the right to behave in an abusive manor.

Jeff Potter stated that only Ms. Page has complained about him. He claimed Lucinda Page is threatening his livelihood and that some members of the Commission have already decided against him. He read the following quote from Mx. Trickey’s 2018 memo.

“Mr. Potter’s behavior is emblematic of long standing sexual harassment in the workplace against women. Mr. Potter has been given multiple chances to modify his behavior. Failing to address this issue would send a signal to the artists in the program that the Arts Commission does not care about their safety and well-being at the market.

I recommend that we move forward with the procedure for a “Serious Violation of the Street Artist Ordinance.” I am recommending this course of action since Mr. Potter’s behavior is ongoing and continuous. It is imperative that we maintain a safe space for artists at our market place. One that is free of sexual assault and targeted harassment.”

Mr. Potter stated that he has not engaged in sexual harassment and that he has already been cleared of the previous sexual harassment case by the Commission. He recounted the 2015 Program Director meeting where he stated he brought photos of Ms. Page selling in front of her booth. He stated that this is his only issue with Ms. Page and that she only brought charges against him because of her jealousy of his success.

Lucinda Page stated she has not spoken to Jeff Potter since 2015 since she has felt threatened by him. She referred to the submitted photos of her jewelry and Mr. Potter’s jewelry side by side and the letters from customers confirming the similarity of the items. She reiterated she fears his intimidation and character and brought up an outside mediation earlier in September where she felt she incurred more abuse from Mr. Potter.

Mr. Potter read a submitted letter to the Commission regarding the 2015 Program Director Hearing:

“At the request of Mr. Potter, I reviewed some of the relevant documents that were attached to the agenda.

I’d like to speak directly to the attachment titled, “Program Director Hearing Summary_Potter_2015.pdf”

I was present at this meeting and have never received a copy of this summary. If I had, I would have gone back to Mr. Lazar and asked for a more accurate summary of this meeting. As it is, this is a gross inaccuracy.

In fact, the meeting quickly headed into a discussion of how Ms. Page on a daily basis breaks one of the most important rules in the interest of market fairness—stay within the margins of your assigned space. I am very sorry to see that this discussion was later remembered as “discussion of unofficial rules and regulations at JHP,” as it is taken straight from the Street Artist Blue Book.

We discussed how Ms. Page designed her own display for her booth, but has not figured out how to restock items or practice her hawking techniques without being in the aisle, and redirecting the traffic of the marketplace. This has been addressed in hearings before, but with no change on her part. No one is trying to hurt her business, they are trying to make her stop hurting theirs. She does not change. Therefore, the discussion at the meeting turned explaining again to Ms. Page how trying to be fair at the market, while complying with ADA and Fire Department regulations in our aisles was in all of our better interests. The meeting concluded with Ms. Page being presented with the choice of staying in her booth to make sales, or other vendors at the market would also sell outside their booths, knowing we would be in violation and probably eventually lose our selling space. That was her choice and that’s how the meeting concluded. After about two weeks of good behavior, she went back to selling outside of her booth and being in the aisle.

That is why Mr. Potter is so frustrated and keeps taking pictures of Ms. Page outsider her booth, nothing more serious.

Jo Anne Fitzsimmons

Former SF Street Artist #9174”

He mentioned other additional letters sent in support of him.

Mx. Trickey invited the Commissioners to deliberate the issue.

Commissioner Shelby asked if Lucina Page is the only artist to make a complaint. Mx. Trickey reiterated the other reports mentioned in the program’s statement. Commissioner Jung asked about the outside mediation. Commissioner Frankel stated it would be unusual to ask a mediator to take a position. Commissioner Shelby asked and Mx. Trickey clarified the previous the impetus and results of the two previous Program Director hearings. Commissioner Frankel stated his understanding that the result of the 2017 meetings was an agreement to abide by the rules. Commissioner Shelby asked for further clarification regarding the term, “cleared.” Mx. Trickey stated that Jessica Harrigfeld at the meeting felt Mr. Potter was sufficiently sorry and did not ask for further steps to be taken at that time.

Commissioner Frankel clarified that the committee does not enforce copyright, trademark, or common law unfair competition, but that the Code of Conduct on not replicating another artist’s work applies. He asked Mr. Potter specifically about replication of Ms. Page’s designs. Mr. Potter referenced a screening in September 2017 where he asked if he could access pieces online for his jewelry making. Commission Frankel asked Mr. Potter if he knew the designs he found online were the same as the ones Ms. Page was using. Mr. Potter confirmed he did.

Gabrielle was recognized by the chair and brought up workplace bullying. Commissioner Frankel responded that the committee was aware that the attempted mediation did not work.

Director DeCaigny clarified the jurisdictional authorities of the Arts Commission. He called out item 2, respecting courtesy, 3, verbal threats and assault, 19, respecting the business of other artists, and 22 replication of another’s work from the Code of Conduct.

Mx. Trickey spoke to the screening referenced by Mr. Potter. They clarified what a screening is, how artists apply and are screened into the program by the Advisory Committee of Street Artists and Crafts Examiners. They mentioned that the September 2017 screening was after the committee had been refocused from approving specific designs program to the artistic process itself and that this was the conversation had with Mr. Potter at the time.

Commissioner Frankel asked about the status of Mr. Potter’s license. Mx. Trickey referenced the form letter sent to artists which states the artist’s license will not be renewed until the committee is able to meet and make a determination. When the Street Artists program committee was unable to meet in July, Mr. Potter contacted the program and had his license reinstated.

Commissioner Jung asked Mx. Trickey to speak to the Peddlers permit. Mx. Trickey and the Commissioners discussed the particulars and how it differs from the art vendor license.

Commissioner Shelby asked what the standard disciplinary action would be for copying. Mx. Trickey clarified that historically the program has recommended a three month suspension for non-violent offenses. Commissioner Shelby and Director DeCaigny discussed the copying using the analogy of music Director DeCaigny again clarified that the committee’s determination should be kept to the Code of Conduct, even if another body could determine a separate legal claim with the charges involved.

Commissioner Shiota and Commissioner Frankel discussed the evidence of violation. Commissioner Jung said these types of decisions are really hard and the possibility of a timed suspension and a delay of implementation. Commissioner Shiota stated that if people willfully break the code of conduct, than they have chosen not to be a part of this system. That as Commissioners and a body, they need to honor that code of conduct or its meaningless.

Director DeCaigny clarified that the motion could be modified for a specific term. He concurred that if there is a Code of Conduct and we don’t enforce them, that undermines the committee’s authority. Commissioner Shiota suggested that the committee take the motion as written. Michael Addario asked for a point of order. The Commissioners confirmed that there are violations from what they’ve heard. Director Mumby asked the committee to consider both the impact on the livelihood of artists as what the impact of further participation would mean in the program for the victims of the abuse. Director DeCaigny asked Commissioner Shiota to clarify if that was a motion.

Commissioner Shiota moved to take the action as written. Commission Jung seconded it.

Motion to motion to approve revocation of certificate (also known as a permit or license) for street artist Jeff Potter #7568 for harassment, assault, and intimidation of multiple artists in the program and targeted harassment of Lucinda Page including intentional replication of her designs.

The motion was unanimously approved.
 

4.   Hearing and possible motion to approve suspension of certificate (also known as a permit or license) for street artist Natalia McGee #9234 of up to one quarter (three months) for using discriminatory language to refer to another artist and interfering with another artist’s business.

Public Comment:

Tad Sky stated this was also a Code of Conduct issue. The program is about diversity and inclusiveness. Natalia has ranted against a number of artists in the program whom she assumes are ruining the program. He stated that the behavior of the artists is what should be considered, not about their business.

Michael Addario noted that Natalia McGee was previously in the program and had been caught counterfeiting her license which effectively takes revenue from other artists.

Maria Sky mentioned that she was one of the artists that had an incident with Natalia McGee and that the remarks were very hurtful.

Mx. Trickey described the two complaints and that the office sent two warnings, the second one included notice regarding the hearing. They mentioned that Natalia has not responded to any notice and is not here today so the recommendation for three month suspension for a nonviolent offense stands.

Commissioner Jung moved to take the motion as written. Commissioner Frankel seconded and asked for discussion.

The Commissioners discussed Natalia McGee’s history of the program, the state of her license and the recommended action. Mx. Trickey noted that Ms. McGee had not responded to any communications about the charges or the hearing. Commissioner Frankel asked if it made it administratively easier to align the suspension with the quarter and Mx. Trickey confirmed. Director Mumby asked if they are amending the motion to start October 1. Commissioner Frankel confirmed. Director Mumby stated that we would send a certified letter regarding the determination.

Commissioner Jung withdrew her motion.

Commission Frankel moved to take the motion as amended to start October 1. Commissioner Jung seconded.

Motion to approve suspension of certificate (also known as a permit or license) for street artist Natalia McGee #9234 for one quarter (three months) starting October 1 for using discriminatory language to refer to another artist and interfering with another artist’s business.

The motion was unanimously approved.

5. New Business and Announcements.

Mx. Trickey invited artists and Commissioners to the grants convening on Thursday, September 20. Director Mumby mentioned this is the 25^th Anniversary of the Cultural Equity Endowment and the second annual Artistic Legacy award which is going to Patrick Makuakāne of Nā Lei Hulu I Ka Wēkiu. The first annual Ebony McKinney Arts Leadership Award will be awarded to two individuals and a panel of artists will speak about the impact of the Arts Commission’s grantmaking on their practice.

Public Comment:

Michael Addario mentioned that they have digitized the Street Art News from the 1970s. He discussed the loss of Linda Pedersen and how the artists honored her passing. He mentioned there should be a diagram on how the violations go into affect. He mentioned the Board of Appeals process.

Tad Sky said it’s not the committee’s job to figure out what artists will do without the license, but that there should be a separate body of street artists who discuss the disciplinary issues. He said being nice about someone’s income is not as important as protecting artists.

There was no further public comment.

6.  Adjournment.
There being no further business, the meeting was adjourned at 4:01 p.m.

9/27/18, 2:31 p.m. AT

Approved 10/1/18
 

Respectfully submitted by:
Anne Trickey, Program Officer

An audio recording of this meeting is available online at the following address: http://www.sfgov3.org/index.aspx?page=4151

The schedule of the Street Artists Program Committee is available here: http://sfgov.org/arts/street-artists-committee/meetings

Translated written materials and interpretation services are available to you at no cost. For assistance, please notify Anne Trickey, 415-252-2213, anne.trickey@sfgov.org.

我們將為閣下提供免費的書面翻譯資料和口譯服務。
如需協助，Anne Trickey, 415-252-2213, anne.trickey@sfgov.org.

Materiales traducidos y servicios de interpretación están disponibles para usted de manera gratuita. Para asistencia, notifique a Anne Trickey, 415-252-2213, anne.trickey@sfgov.org.

Ang mga materyales na nakasalin sa ibang wika at ang mga serbisyong tagapagsalin sa wika ay walang bayad. Para sa tulong, maaring i-contact si Anne Trickey, 415-252-2213, anne.trickey@sfgov.org.