District Court Judge Thomas K. Moore on Friday suspended a 1985 preliminary injunction by the court that barred the V.I. government from evicting vendors from Drake's Seat. Moore said that unless attorneys for two vendors present additional compelling arguments in the next two weeks, he will then dismiss their motions to make the preliminary injunction permanent and to hold the V.I. government in contempt for violating it.
Vendors had filed suit earlier this month, naming as defendants Licensing and Consumer Affairs Commissioner Andrew Rutnik, Police Commissioner Franz Christian, Housing Parks and Recreation Commissioner Ira Hobson, the U.S. government, and Gov. Charles W. Turnbull. Friday's hearing picked up where a Jan. 12 hearing left off, when it was revealed that the location permits issued in 1985 by the V.I. Police Department were superseded in 1992 by month-to-month memoranda of agreement from the Department of Housing, Parks and Recreation that stipulated the agreement could be canceled at any time.
The change came about following a series of letters between government officials, including former Housing Commissioner Jennifer Hill and former Police Chief Raymond Hyndman, regarding "longstanding problems" with the vendors, including complaints by residents and issues of public safety.
Rutnik testified on Jan. 12 that in order for vendors to acquire a valid business permit, they must first have a valid location permit.
What became clear in court Friday is that the Department of Housing, Parks and Recreation has had no legal authority to issue location permits in the first place; that function still belongs to the Police Department, according to court testimony.
Moore suggested to Clive Rivers, attorney for vendor Evaristo Rios, that vendors were relying on the "apparent authority" of Parks and Recreation when they paid the department $75 a month in accordance with the memorandum of agreement; but that does not make the action or the memorandum valid and binding, or give vendors a legitimate "property interest" in the Drake's Seat location, Moore said.
"I sympathize with them," Moore said. "How would they know? But that doesn't change the fact that they have had no legal right after '92 to be there.
"It's not fair, it's not equitable. And if it's a question of who has clean hands in this matter, it is the government's hands that are dirty."
Nonetheless, he said, according to the V.I. Code, "Housing, Parks and Recreation has absolutely nothing to do with the vendors at Drake's Seat. They lost their property interest there when they lost their valid VIPD placement permits."
Without a legitimate property interest, Moore said, the question of whether vendors' rights of due process were violated was moot.
Assistant Attorney General Denise George-Counts offered numerous precedents in case law on behalf of the government's case, and Moore gave Rivers and Kenth Rogers, representing vendor Terri Pollak, two weeks to respond. But it appeared doubtful, based on the day's testimony and Moore's statements, that he would change his mind.
Moore also granted a motion by the trustees of the Drake's Seat property to intervene on behalf of the government. Trustees' attorney Chad Messier pointed out that "it is the position of the trust that this lot was never intended for any commercial use" but instead was intended as a quiet, "meditative" spot for residents and visitors "to enjoy without generators, safari buses or donkey excrement."
Rutnik said outside the courthouse that spaces at Vendors Plaza downtown would be ready on Saturday for those who had been selling at Drake's Seat. He said he hoped that, after conferring with their attorneys, the vendors would not try to set up at the overlook instead.
