DOWNTOWN — The Ninth Circuit Court of Appeal decided against a man who has been fighting for eight years for the right to sell a board game he invented on the Third Street Promenade.
In an opinion filed Nov. 20, the circuit judges affirmed a magistrate’s ruling against Stewart Lamle, an inventor and game-maker who thwarted two Santa Monica ordinances to sell a strategy game he created to spread the philosophy of Farook, a non-violent social and moral code.
Lamle had filed a complaint against City Hall in the U.S. District Court in 2004 claiming that street performer and vending ordinances used to regulate activity on the promenade violated his First Amendment rights to spread the Farook philosophy.
It didn’t work.
He failed to show how the city laws either restricted his free expression or were unconstitutionally vague or over-broad, the court found.
“He had the games made up elsewhere and sold them on the promenade in violation of the vending laws,” said Deputy City Attorney Anthony Serritella. “The court found he was not entitled to use the First Amendment as a shield to try to avoid the city’s laws.”
Lamle sued after City Hall denied him both a business license and a performer’s permit, either of which would have allowed him to conduct some form of business on the public street.
City Hall denied him a business license because only certain kinds of vendors — including carts, sidewalk cafes and Farmers’ Market retailers — are allowed to operate on the promenade.
As for a performer’s permit, City Hall simply found that he was not a performer, a designation that Lamle did not appeal, Serritella said.
In his suit, Lamle held that the vending law should have included his game, also called Farook, alongside leaflets, bumper stickers, cassette tapes, paintings and other accepted forms of speech, and that the sale of the game was “inextricably intertwined” with his spreading of the Farook philosophy.
The street performer ordinance, he contended, was vague and provided “unbridled discretion” to officials who could determine who was a performer and who was not.
A major issue with Lamle’s argument, according to the magistrate’s finding, was the fact that he was profiting off the games, making up to $500 a day selling the product, according to his own deposition.
Between January 1999 and December 2003, Lamle had sold an average of 11 games per day, netting $351, according to court documents. All the while, he paid no sales tax.
He sold them not only on the promenade, but also in regular stores and through the Internet, Serritella said.
It appeared to the magistrate that “… the evidence establishes that plaintiff’s primary purpose in selling Farook is to make a living,” according to the ruling.
Lamle can still appeal the ruling, which would then go to the U.S. Supreme Court for review. The Supreme Court takes roughly a 10th of the cases referred to it by the Court of Appeal.
He’s not an attorney.
This was Lamle’s second big case, although the first, a multi-million dollar breach of contract claim against toy giant Mattel, was more successful.
The jack-of-all-trades represented himself in that case and walked off with a settlement that he later described as “huge.”