Dear Source:
I am a licensed vendor currently located at Drake's Seat. As you know, the vendors at Drake's Seat have recently come under fire. The so-called owners of the property have claimed that the easement granting the government rights to that location excluded the right of the government to use it for commercial purposes.
The government has permitted me to sell my wares at that location since 1981. The owners argue that this constitutes a commercial purpose in violation of the terms and conditions of the easement. The owners have demanded that the government cease to allow vendors to sell at that location. The government issued a 30-day notice to vacate to me effective last June 9. That date has been extended by the governor on two occasions. On Aug. 9, the extension was extended sine die [until further notice]. The owners have revoked the easement as a result of the government's failure to meet their demands.
This is not the first time that the government has attempted to remove me. The first attempt was enjoined by District Court Judge David O'Brien on July 25, 1985. Said injunction remains in full force and effect.
It appears that in an opinion letter to Housing, Parks and Recreation Commissioner Ira Hobson, dated April 10, 2000, Attorney General Iver Stridiron opined "that the itinerant vendors have usurped the parking area and private property without permission or legal authority." Further, that "all the vendors claim to be operating their businesses by virtue of business licenses issued by the Department of Licensing and Consumer Affairs."
The opinion is fatally flawed. On Oct.1, 1937, Arthur S. Fairchild, as owner of the property described as Louisenhoj and Magens Bay Estate, licensed and authorized the Municipality of St. Thomas and St. John and its duly authorized agents and representatives to enter and go upon the said property at all times during the construction of road and highway improvements, and further, released and forever discharged the municipality of and from all and all manner of actions, causes of actions, suits, damages, claims and demands in law or equity which against the said municipality that he had or may have, or which his heirs, executors or administrators can have or may have, or by reason of any matter, cause or thing whatsoever relating to the construction of road and highway improvements as outlined above. He clearly stated his intention in an addendum annexed thereto addressed to the superintendent of Public Works by stating, "I am granting this license with the definite understanding that the term ‘duly authorized agents and representatives' refers to the Public Works Department in St. Thomas and that all roads and highway improvements to be effected under this license will be carried out under the general supervision of that Department."
The license does not prohibit the commercial use of the location. It does authorize the agents of Public works to make highway improvements without restriction.
In reliance of these representations, Public Works developed the road, parking area and lookout now known as Drake's Seat, and its duly authorized agents granted me the right to sell my wares from that location.
This right was initially granted to me in 1981 by then-Chief of Police David Contant as apparent agent of Public Works. This right continued to be granted and recognized by subsequent police chiefs until 1985. On Feb. 16, 1985, the Department of Public Safety, as successor in interest to, and apparent authorized agent of, the Department of Public Works, granted me a Vendors Location Permit to sell "jewelry, T- shirts, music boxes and hand-made items." The location contained in that permit specified "across from Drake's Seat, on the Outlook, over the wall, on dirt and next to T. Polack, in middle area (selling from table)" [sic].
On Feb. 16, 1993, the Department of Housing, Parks and Recreation, via a memorandum of agreement, acting on behalf of the government, and as apparent agent of Public Works, permitted me to sell clothing in the area indicated on the site plan of Drake's Seat in consideration of $900 per year. In reliance upon the apparent authority of the government to enter into this agreement, I have paid the sums as agreed upon and sold my wares across from Drake's Seat, on the outlook, over the wall, on the dirt and next to T. Polack in the middle area, selling from a table.
I have fully complied with all terms and conditions imposed by the apparent agents of the Department of Public Works. Now, in spite of my compliance, the government states that I am trespassing.
It is obvious that the controversy has been initiated by the heirs of Mr. Fairchild in furtherance of their personal agenda. The controversy has been aggravated by the failure of the government to protect its interests in Drake's Seat. The government has not taken action to prohibit the heirs of Mr. Fairchild to alter the license as granted by him, the original licensor. Nor has the government sought to protect those individuals authorized by it to be at that location, pursuant to its understanding as to what it was authorized to do, in good faith. I am one of those individuals. I stand to lose my livelihood.
It appears that big business has once again raised its ugly head at the expense of the little man. The current owners have stated that the value of the land is depressed because of the diminution of the beauty of the view from Drake's Seat. The decreased value can be directly attributed to the vendors' presence. In an effort to increase the value of the land, they now, after 19 years, claim that the government is in violation of the license. The governor in response formulated a task force and directed his appointees to do their research.
I understand that the task force is composed of various cabinet members. The credibility of their findings is suspect. It is made up of those individuals that sleep with the interests of big business. One member, License and Consumer Affairs Commissioner Andrew Rutnik, has emerged as its spokesperson. Drake's Seat is not and has never been under the jurisdiction of the Department of Licensing and Consumer affairs. However, Commissioner Rutnik has offered a solution. His solution amounts to an ultimatum.
He has stated that the vendors at Drake's Seat must move by Nov. 30. In its benevolence, the task force has found an alternative location after due deliberation and an extensive search. The government will allocate the area opposite the Lucinda Millin Home in Long Bay as a relocation site. After Nov. 30, the government will no longer protect the Drake's Seat vendors from the efforts of the owners to remove them, thereby subjecting the vendors to arrest for trespassing.
Relocate or be subject to arrest. In arriving at this decision, the task force never consulted with the Drake's Seat Vendors Association or our attorney.
Mr. Rutnik stated that the Long Bay area will be as economically beneficial to the vendors as Drake's Seat because of the high volume of tourists that pass the area en route to downtown, as well as those returning to their respective ships. The volume of tourists in this category is vapid compared to the volume of people that visit Drake's Seat. Tourists visit Drake's Seat who have paid for tours. Tourists walk to and from town for one of two reasons. Either they want the exercise or they are spendthrifts. The ultimatum given by the task force is unacceptable.
The attorney general's opinion letter of April 10 does not mention the license granted to the Department of Public Works by Mr. Fairchild. It was drafted intending to achieve and justify a predetermined result. The letter does not acknowledge the injunction of Judge O'Brien. Any attempt by the government to remove the vendors without due process will be an act in flagrant violation of the court's order and subject the government to contempt proceedings. The failure of the opin
ion letter to address this issue is further proof of the determination of the members of the task force to advance the interests of big business at the expense of the little man.
I am writing this letter to inform the public of the issues surrounding Drake's Seat. My solution is to keep the status quo. Toward that end, my government should fight to retain the rights given to it by Mr. Fairchild and in the process protect me and my right to sell my wares at Drake's Seat. I must believe that my government would not exercise rights that it did not possess.
Specifically, if the government did not have the right to allow vendors to sell at Drake's Seat, why did it allow me to sell my wares at that location for 19 years? I am the victim. I have done no wrong. I should not be forced to move.
Evaristo Rios Jr.
St. Thomas