Legal wrangling intensifies over Venetian sidewalks

John Wilen

Friday, April 9, 1999 | 11:06 a.m.

The Venetian hotel-casino has asked a federal judge for a temporary restraining order and preliminary injunction barring union protests from sidewalks adjoining the resort.

The Venetian also wants Clark County and the Las Vegas Metropolitan Police Department barred from issuing permits authorizing protests or rallies on the sidewalks.

U.S. District Court Judge Philip Pro set an April 19 hearing to consider the request.

The Venetian made its request as part of a lawsuit it filed last month against the Culinary and Bartenders Unions, Clark County, District Attorney Stewart Bell and Metro.

Venetian owner Sheldon Adelson contends the resort owns its sidewalks, and grants pedestrians the right to use them as a walkway. The Venetian's private sidewalks cannot be used as a public forum for protests, argues Adelson.

But Bell issued a contrary opinion before a union protest early last month, ruling that even though the Venetian's sidewalks are private, he believed the union had a right to rally there. Relying on Bell's opinion, Metro officers refused Venetian requests to arrest 1,300 picketers who rallied there on March 1.

The Venetian sued, seeking a ruling that the sidewalks are its private property and cannot be used for protests.

According to papers the Venetian filed in support of its request for a restraining order, resort officials came to an agreement with the Nevada Department of Transportation in January to "construct and maintain on its property ... a private sidewalk connecting to public sidewalks on either side of the property."

"The 1999 agreement provides for a limited right of pedestrian passage by the public on such private walkway, but makes expressly clear that such walkway remains Venetian's private property in all other respects," states the restraining order request.

Because construction of an additional traffic lane on the Strip extended the street through NDOT's right-of-way and up to the edge of the Venetian's property line, the resort agreed to "allow pedestrians to cross a limited portion of its property on a privately owned and maintained walkway," states the request.

NDOT has not taken a public position in the case, and could not immediately be reached for comment. The Venetian has not named NDOT as a defendant.

The Venetian is responsible for maintaining the sidewalk, pays taxes on the property it occupies, and will design it with "distinctive patterns, features, and colors meant to replicate plazas in Venice, Italy," states the request.

Despite all these facts, states the request, Clark County and Metro issued permits allowing the March 1 protest.

"Venetian met at the site with the District Attorney and Metro the morning of the demonstration to confirm that the District Attorney and Metro understood the boundaries of Venetian's property," states the Venetian request. "Although the property is located completely within Venetian's property lines, the permit specifically authorized the Unions to demonstrate on such walkway."

The Venetian is also upset it had no time to challenge the permits.

"Venetian was not aware that the permit had been issued until just prior to the time of the demonstration, and was not afforded any opportunity to challenge, prior to issuance, the approval or terms of the permit application," states the filing.

The actions of the unions, Clark County and Metro constitute a "taking of Venetian's property rights in violation of the Fifth and Fourteenth Amendments," and "deprive Venetian of its property rights without due process of law in violation of the Fourteenth Amendment," alleges the filing.

Allowing protests to occur "will cause Venetian irreparable harm," states the filing.

Deputy Clark County District Attorney Mitchell Cohen thinks the Venetian misunderstands the county's position in the dispute.

"We're not really taking a position," said Cohen. "We're not saying it's a public forum or it's not a public forum. We think it's an issue that should be determined by the court."

Separately, the American Civil Liberties Union plans to file a motion Monday to intervene in the case and oppose the Venetian restraining order request.

"We want to be sure that our voice is heard at that April 19 hearing," said Gary Peck, director of the ACLU of Nevada.

Allen Lichtenstein, an attorney for the ACLU, said the organization is more concerned about the fundamental First Amendment right of the public to protest on public rights of way than with the specific dispute between the unions and the Venetian.

The unions are protesting the Venetian over Adelson's refusal to allow a neutral card-check union enrollment process. In a card check, a company remains neutral to union organization activities. If a majority of employees sign union cards, they are deemed organized and the union is free to negotiate a contract with the firm.

Contending such an approach favors the unions, Adelson wants a National Labor Relations Board-supervised election, a method that would allow the company to campaign against union representation. Union officials believe such a method would allow the Venetian to tie a pro-union vote up in appeals for years, and thus avoid true union representation.

If they do not get their way, the unions clearly plan to make life difficult for the Venetian.

"We'll call upon the full range of activities we've used historically, and probably some new ones," said Culinary Union organizer Tom Snyder in a recent interview. "We'll be there as long as it takes."

Pro's April 19 hearing will determine whether union protests should be temporarily barred from sidewalks bordering the resort until the Venetian's lawsuit goes to trial.

But the ACLU is concerned that a premature settlement of the lawsuit or of the Venetian-union dispute might leave the case's broader First Amendment issues unresolved.

The ACLU will argue that the Venetian agreed to create a public sidewalk as a condition of its development permits. Because the sidewalk is a public throughway, members of the public have all the same rights to traverse it and rally on it that they would have on a sidewalk owned by the public, said the ACLU officials.

If Adelson had not agreed to build and maintain a public sidewalk, he would not have been allowed to build the Venetian, argues the ACLU.

If there has been an illegal taking, as the Venetian alleges, the Venetian can seek a financial remedy from the county, said Lichtenstein. But that is not grounds for a restraining order against public protests, he said.

"The public's right for First Amendment activity on the sidewalks in front of the Venetian is an important concern," said Lichtenstein. "The government does not have the right to take public rights of way."

Construction on the Venetian is "scheduled to be completed on or about April 21, 1999, and the hotel is to open soon thereafter," states the Venetian request. The resort said this week it expects to open no later than May 2.