A lawsuit that could go to trial early next year could cast a shadow over Key West's Sunset Celebration, a city staple attracting thousands of tourists to Mallory Square each year. The Pagan-like viewing of the golden orb as it seems to take its daily dip into the Gulf of Mexico off the island's western shore and turns the picturesque horizon into cloudly hues of pink, red and blue reportedly had its origins back in the 1940s, when a few locals would get together for a beer on the wooden docks.
By the 1960s, artists, performers and those who would become known as "Hippies," started showing up and playing drums while people were fishing. By the 1980s, an organization would eventually emerge after objections were raised about the city's habit of arresting performers for trespassing on city property. Some of those people would go on to become part of the Cultural Preservation Society (CPS).
The city then agreed to lease part of the Mallory Square area to the CPS. And the rest is history. But the legacy of that history may not be all its plumped up to be. Somewhere beneath the glitter and hype, the costume jewelry and juggling tight-rope walkers, lies what some are suggesting may be a seedy, unsavory underside.
Accusations, never proven, have been flying since 1996, of instances of drug peddling, sexual harassment and sometimes violent squabbles between competing vendors— all vehemently denied by CPS.
But for those who ply their beads, baubles and other ware, it's all about position, position, position. Where one sets up his or her stand on the pier can make the difference in hundreds of dollars earned a night. One vendor said she was nearly run down by her competition's truck as he tried to usurp her space.
Jeweler Emily Favreau was removed from the pier in 1997, over disagreements that she may have violated CPS' "guidelines." Two years later, the harried vendor filed suit for reinstatement and loss of income.
CPS "Society" officials admit they have a tough job coordinating people who range the temperamental spectrum from "Ma and Pa" craft-sellers to seasoned carney-types to "artistes."
"It's a lot of work," said Don Sullivan, who was the major sparkplug for the organization in the early 90s. "We work with no pay and these are artists, not professional politicians. The city pays us nothing and we get no money from outside sources."
Meanwhile, since her expulsion from the pier, Favreau has had a tough time. Sullivan says hers is the first and only lawsuit against CPS that's gone to court. She said that over the years, she and her family have been subject to harassment and crank calls from people she believes are vendors upset with her lawsuit.
And that lawsuit almost never happened. "No attorney in town would touch it," said Favreau's mother, Marge Bassi. The late attorney Mark Simms started it. And attorney Ted Herzog has continued it, with some success, claiming "it's a simple First Amendment issue and Emily Favreau's free-speech rights were clearly violated."
CPS contends that the Favreau family was expelled for "violating miscellaneous guidelines" regarding their behavior and properly voted out by the general membership.
However, questions have been raised by the Favreaus' attorney over the guidelines— such as whether they existed and were in force at the time as well as the arbitrariness of subsequent guidelines that were made available to Herzog later.
Favreau see the action as a heavy-handed effort by a group of people who kicked out a strong competitor because they could and because the Favreaus could be sometimes outspoken.
One supporter said the action "appears particularly heinous by CPS because Emily Favreau is now poor, unemployed, partially blind and needed the work as she tries to raise two daughters as a single parent, with a little help from her mother and friends."
In an earlier complaint filed with the court, Favreau claimed that she was expelled "because I exercised my right of free speech in a disagreement with CPS regarding the apparent understating (by others) of Florida Department of Revenue sales taxes, along with her having discussions with Key West city officials."
She was also in a dispute with Sullivan. He claims a majority of the membership, 40-7, supported her dismissal. He also disputes her court claim that she saw him "discard and destroy a significant part of the membership vote which opposed my being expelled."
CPS does have a quick hook when it comes to controlling and censuring sunset acts or vendors against which a majority of the membership have complaints. A past CPS newsletter includes a motion that was made "to have (a vendor) refrain from saying `My show is for smart people only' or similar negative phraseology in his act."
Another person was suspended for two days for setting up his act in the plaza. A steel drum band was admonished for playing too loudly and told to tone it down.
The organization comprises between 34 to 50 members, with complaints that might range from the sublime to the mundane.
Marjorie Bassi claimed much of their problems stem from an incident in 1996, when some members of the CPS board of directors complained that the Favreaus were not participating in the organization's picnic that year. "It was raining and I couldn't eat much of the food because I'm allergic to oranges," Bassi said.
As for the legal effort, there have been about 20 docket soundings and court actions since May 27, 1999. County judge Richard Payne has heard most of the motions.
CPS has been coming up short in its recent legal battles. Two of its attorneys left and CPS had no legal representation for awhile. Now, Andrea Margalli has been hired, but received a setback in June after Payne denied her motion for a summary judgment.
Margalli was incensed at the time, sternly arguing with the judge. A month later, she went back to Payne seeking a rehearing. That too, was denied.
A trial date has been set for Jan. 14, 2002. But on Aug. 23, Payne issued an order directing both sides to mediate their differences, which they have until Dec. 31, 2001, to accomplish.
Some settlement talks have begun. Calls on Wednesday to Herzog were not returned.
Margalli provided this staement to KWTN:
"I am disappointed that our motion for summary judgment was denied because I am loath to see a non-profit organization be unjustly subjected to costly litigation, especially where CPS' mission is to promote the presentation of art to the public and where its members and board have done nothing unlawful.
"On the other hand, I am looking forward to exposing Ms. Favreau to the Court and a jury. She subjected her fellow artists and colleagues to abuse, and now parades behind the First Amendment to sue the CPS for her alleged lost earnings.
"The First Amendment was not created for this purpose. We will seek to have her reimburse CPS for attorney's fees as a sanction, if we prevail at trial," Margalli said.
For now, the public can still enjoy the sunset activities, which on any given night might include such eccentric and diverse offerings as cats performing as lions, palm readings, fire swallowing and jewelry for sale, along with cookies and other assorted food to eat.