BOB Doesn't Get With This Program

Economic development. Downtown revitalization. A big league city.
The Bank One Ballpark was rammed down the public's gagging throats with the promise of this and much more.

Everyone would benefit from the rain of dollars created by the $356 million stadium, from the sole proprietor to the corporate titans, promoters told the public as they justified the $243 million in sales taxes collected to help fund the ballpark.

Valley businessman Scott Fader believed the pitch. Fader saw an opportunity and combined his years of media experience, love for baseball and life's savings into a new business.

Fader created a slick, 10-page program featuring lineups, baseball news, schedules, scorecards and commentary about the Arizona Diamondbacks. His plan was simple. Sell the Beat on Baseball for $1 to fans walking into the stadium before the game.

Fader fanned his 35 vendors up and down city sidewalks leading into the ballpark and scattered others across the expansive plaza in front of the stadium for the Diamondbacks' March 29 exhibition game.

It was an exciting time for his new business. The Beat on Baseball offered fans a lower-cost alternative to the Diamondbacks' $5 program sold inside the stadium.

While the Diamondbacks have yet to be competitive on the field, the team wasn't about to let a small businessman cut into its revenue. Diamondbacks' security forces swooped down on Fader's plaza vendors and ordered them to stop selling the programs, Fader says.

Leading the charge was Diamondbacks security director George Bevins. Fader says Bevins directed the Phoenix police to confiscate some programs and that Bevins' gruff attitude made several vendors--some of whom were Little League players and parents raising money for their team--cry.

"He was telling them they would be arrested for trespassing," Fader says.
After a protracted conference between the Diamondbacks security forces, Phoenix police and Phoenix neighborhood inspectors, Fader was issued a ticket. His crime: vending a nonfood item in the downtown business district.

The citation shut down Fader's business for the night and forced him to delay publication of his second edition that was scheduled to be ready for the Diamondbacks' opening series against the Colorado Rockies.

Instead of printing programs, Fader was calling his lawyer, Joseph Kreamer.
Kreamer called the Phoenix City Attorney's Office and almost immediately cooler heads took control of the situation. Assistant city attorney Marvin Sondag told Fader that the city would not stop him from selling the program as long as he remained on city sidewalks. The city also declined to prosecute.

"He's free to vend or hawk or sell his [publication] from our right-of-way," Sondag says.

Finding the city right-of-way is easy, where there is a sidewalk. But the task is much trickier on the ballpark plaza where the city's sidewalk has been ripped out and replaced with bricks, trees and traffic barricades.

Phoenix police and city officials have provided Fader with a map where they believe the city's old sidewalk existed on the south side of Jefferson Street and the east side of Fourth Street. The publication can be sold in these areas, police say.

"You can't go wrong if you stay close to the curb," says Phoenix police Lieutenant Terry McDonald.

Selling the magazine near a curb poses additional problems. Fader can't block the flow of pedestrians, and being limited to a narrow corridor on the perimeter of the plaza increases the likelihood of his vendors creating obstructions.

Fader says the problems would be solved if he could simply sell the program on the main plaza.

"We are not going to be happy until we are on the plaza," Fader says.
The plaza, like the ballpark, is publicly owned by the Maricopa County Stadium District. The district has leased operations of the plaza and the stadium to the Diamondbacks.

Phoenix police say that while the plaza may be publicly funded, it is leased to a private party and therefore considered private property.

"We have explained this to Scott [Fader]," says McDonald. "Stay on the public right-of-way. If you get on private property and told to leave and you don't, you would be subject to arrest."

By all appearances, the Diamondbacks seem determined to assert complete control over the public plaza and prevent the sale of any unauthorized publication. The team allows the Arizona Republic to be sold on the plaza and inside the stadium. The Republic, however, is an investor in the Diamondbacks. Radio stations also have set up remote broadcasting facilities on the plaza.

Diamondbacks spokesman Bob Crawford says the team considers the plaza to be private property and that only team products and sanctioned sponsors can sell products on the plaza.

Crawford says the team will allow Fader to sell the Beat on Baseball on the city right-of-way on the plaza.

"Whatever the city says is fine," Crawford says.
Stadium district officials are deferring any decisions on the operation of the plaza to the Diamondbacks. Stadium district attorney Paul Golab acknowledges that the plaza is public property, but the district wants to avoid becoming involved in daily operations. Golab says the Diamondbacks are required to manage the property according to all city, state and federal laws.

Golab says the team is supposed to establish rules and regulations for use of the ballpark and plaza, including vending. Golab, however, says the team has not provided the rules and regulations to the stadium district.

All of which leaves Diamondbacks managing partner Jerry Colangelo and his investors in complete control of the publicly financed stadium and its immediate surroundings--unless Fader and his attorney, Kreamer, decide to challenge the restrictions in court.

Kreamer is encouraged by a 1997 Colorado Supreme Court decision in a case nearly identical to his client's. The Colorado high court ruled that the publishers of a baseball program had the right to sell the scorecards outside Coors Field, the stadium for the Colorado Rockies.

The Rockies had repeatedly arrested the publisher for trespass for selling the programs on public property that was leased to the team. Like the Bank One Ballpark, Coors Field was primarily financed with public money and is owned by a stadium district.

Arizona constitutional law expert and Arizona State University law professor Paul Bender says Fader would have at least an even chance of winning a suit brought in Arizona. But such cases are notoriously difficult, and the Diamondbacks can present a strong argument by saying they are exercising crowd control by limiting all commercial activity on the plaza.

But Fader also has some strong points, including the public financing of the stadium, the public nature of the plaza and that Fader's publication is much cheaper than the Diamondbacks'.

"The Diamondbacks look pretty bad in trying to get rid of these people," Bender says.

And the Diamondbacks aren't done asserting control over the plaza.
The team, through the stadium district, expects soon to assume control over the city's right-of-way around the plaza's perimeter, says stadium district attorney Tom Irvine.

"The stadium site will go to the back of the curb," Irvine says.
Once the district acquires the city right-of-way through ongoing condemnation litigation, the team will be able to force Fader, or anyone else selling unauthorized publications, completely off the public plaza.

Fader never expected to be faced with a constitutional crisis when he started his publication. He's asking Colangelo to stop the bullying and expensive legal tactics and simply compete.

"We offer the fans an alternative choice," Fader says. "Let's compete, Jerry. You've got your $5 program and I've got my $1 program. Let's see what the fans like."

Contact John Dougherty at his online address: [email protected]

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John Dougherty
Contact: John Dougherty