Lawsuit filed over city's demand businesses donate all profits

A lawsuit has been filed on behalf of itinerant artists who wish to do business in Kill Devil Hills, North Carolina, over an ordinance that orders them to donate all their profits to charities.

The fight has been taken on by the Pacific Legal Foundation, which filed a lawsuit in the General Court of Justice Superior Court Division.

Ami Hill is the owner of #Bus252, a mobile art gallery, and the Muse Markets, where local artists and artisans sell their wares.

But the city has adopted a requirement that “itinerant vendors” donate 100% of their profits to charity in exchange for the right to sell during the high tourism season, which runs May 1 to Sept. 30.

“The town cannot condition an itinerant vendor’s right to earn a living on surrendering profits or going to the Board of Commissioners for permission each time they want to sell,” explained Donna Matias, the PLF lawyer on the case.

“Ami and business owners like her have a right to the fruits of their labor under the North Carolina Constitution.”

The legal team explained that the city’s demands are that the artists donate profits, or “request a permit to operate” from the commissioners.

“To add insult to injury, the town has created a First Flight Market, which features local artists—itinerant vendors—in direct competition with Hill’s Muse Market. The only difference is that the town-sponsored vendors can sell year-round and keep their profits. The town also rejected #Bus252’s application to participate in First Flight Market,” the legal team explained.

The case in Dare County also names as defendants Donna Elliott, the zoning administrator, Meredith Guns, the planning director, and the commissioners.

The court filing points out the mobile art gallery is welcome in most Outer Banks cities.

It explains Hill had run a commercial location in Kitty Hawk in 2017, then opened Muse Originals OBX, featuring the work of about 70 artists, in 2018.

That brick-and-mortar store operated until March 2020 when the COVID pandemic forced a closure.

“With no end to the shutdowns in sight and no source of income to pay her lease, AMI closed Muse Originals OBX at the end of May 2020. She then hit on the idea of starting a mobile art gallery. She purchased an old school bus and remodeled it from the inside out,” the filing explains.

She started in Kitty Hawk, and was in the process of getting approval from other locations when she “discovered that Kill Devil Hills” ordinance is an outlier, “denying her the fruits of her labor…”

But the state constitution, in fact, provides that residents have a right to earn a living, in the Fruits of Their Own Labor provision.

That states, “We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”

The action seeks a judgment that the city’s ordinance is in violation of the constitution.

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