UPDATE: David Abraham, the man who used spray chalk to advertise his business on the sidewalks of Olde Towne earlier this month, will have his day in court this morning.
At 8:30 Abraham will go before a District Court judge in Rockville to argue his case.
He has hired a lawyer to help him, he said.
Abraham faces a $500 fine—or possibly up to 60 days in jail—after City police wrote him a citation for willfully defacing city property on June 12.
He says he is fighting the charge on principal, and in the hopes that even if he loses, the city will clarify its code to make it clear that kids writing in chalk on the sidewalk won't get written $500 citations.
Stay tuned to Patch for an update on the hearing.
ORIGINAL STORY: If you had seen 31-year-old David Abraham around 3 a.m. Sunday, spray can in hand, walking the sidewalks in Olde Towne, you might have thought he was up to no good.
But several city and county police officers drove leisurely by as the entrepreneur used spray chalk and a stencil to advertise his new business.
The next day, however, city police tracked him down and told him he had to erase all the markings or pay a $500 fine—and possibly spend time in jail.
Abraham said the same law would put any kid drawing with sidewalk chalk in jeopardy of getting an expensive citation.
"It's the principle," he said. "That's what I'm fighting, really, it's the principle."
The markings were advertising a daily deal website, OfertasLocal.com, similar to Groupon or Living Social, but aimed at the local Latino community.
But City Police spokesman Officer Dan Lane said there is a difference, and it's called "malicious destruction of property."
"It's not the same," he said. "It's against the law, and this guy's an adult."
On Monday morning, officers saw the markings and tracked Abraham down. They left a message at his house saying he had to erase the markings or face a citation.
When he got home and saw the message, he went to the police station to talk about the issue, he said. But when he tried to explain that his ads were only chalk and would wash off, he said the officer insisted on writing him a citation.
He says he will fight the citation, and has a court date set for June 30 at the District Courthouse in Rockville.
He has now started an online petition called "Chalk on a sidewalk should not be a crime."
As of 8:15 p.m. on June 16, the petition had 55 signatures.
"[I]f the city find me guilty they are basically saying that any person child or adult can be charged for using chalk on the sidewalk. [T]hey are saying it is graffiti and vandalism," he says in the introduction of the petition.
"Please sign the petition so that [I] can show the judge that if chalk is not allowed they must be clear of the city code and not find me guilty because [I'm] not a child yet the use of chalk on sidewalks is a common everyday activity."
Councilman Ryan Speigel, a practicing attorney, said he has had some experience with First Amendment cases. And even though he tends to lean toward freedom of expression, he thinks Abraham has clearly gone too far.
"There are reasonable limits, and the law is pretty clear," he said. "You can't claim graffiti is freedom of expression."
The difference between a child writing on a public sidewalk with chalk and what Abraham is "nothing, essentially."
But, he's "never seen a kid writing on a public sidewalk."
There is no problem if a kid writes on a private driveway or sidewalk, he added.
"Obviously code enforcement officers have a lot of discretion," he said, adding they likely wouldn't go around citing kids anyway.
"I just think there need to be reasonable limits."
Using spray chalk for advertising is becoming a fairly common practice in some larger municipal areas, including New York.
American University allows the use of sidewalk chalk by student organizations to advertise on campus, but not spray chalk.
Street Advertising Services, which is based in the United Kingdom, offers sidewalk chalk advertising custom tailored to each client, and Massive Media in New York has a flashing banner on their chalk advertising page that says "Chalking is NOT a Crime."
And in 2006, Verizon was fined more than $1,000 by the District of Columbia for using chalked-on stencils to advertise their Yellow Pages.
Even if the police had not charged Abraham with malicious destruction of property, he still may have gotten in trouble.
Kevin Roman, the city's director of neighborhood services, said Abraham could have been cited under the city's sign ordinance.
"That said, it is currently not an acceptable form of advertising per the city code," he added in an email.