Recent Broward Law Blog Features

Tuesday, February 24, 2009

Clearwater Sinks First Amendment Banner

Not So Clear Waters

by Norm Kent

Clearwater, on Florida's west coast, a pleasant little town with a seductive name, and a place where the First Amendment is literally up against a wall.

As reported first in the St. Pete Times, and then in the ABA Journal, the 'Complete Angler' thought they could draw some business by displaying a painting of game fish on the exterior wall of their bait and tackle shop. You would think like some of the Whelan paintings of whales, populating walls from Key West to Honolulu, a city might fight it aesthetically appealing and attractive.

Of course, this is Florida. The rules are different here. It seems that the fish painting violates a ban on a business 'displaying a depiction of the product it sells.' This is beyond me. I own a newstand and soft ice cream shop on East Las Olas, next to the Floridian. Should I like go put pictures of naked women on it instead of ice cream cones? Well, it's Las Olas. Maybe naked men instead. Seriously though, can you me imagine advising the owner of the Floridian that he can't paint a picture of a hamburger on his window?

Anyway, I want to meet the owner of the Complete Angler, because when the city compelled him to paint over the fish, he responded with the ultimate act of defiance. He refused to take down the painting. Instead, his shop covered it with a banner providing the text of the First Amendment of the U.S. Constitution.

"As passionate as they are that it's a sign, I'm more passionate that it’s not a sign,'' Quintero said today. Coincidentally, I am dealing with this identical issue right now from a client who has a bar on Andrews Avenue. He had a legal sign, but to market his new eats, he wrapped a canvas around it.
"Down it must come," says code enforcement. It is an illegal banner sign." Sadly, I checked. They are technically correct. I sympathize with Quintero, but he may be on soft legal grounds. Banner signs also need permits, so content notwithstanding the banner has to meet code specs. The St. Petersburg Times wrote about it.

Happily, Quintero has some strong legal company. The American Civil Liberties Union has joined the fray, suing the city in federal court over the alleged First Amendment violations. Howard Simon, their director, comments:

“Only in Florida could a business owner be targeted and fined for displaying artwork; and then in protest of the fine, display the First Amendment to the U.S. Constitution–and then be ticketed for that,”

The city says it is simply enforcing strict rules in a uniform manner regardless of the content of the sign. My prediction is they very well might win, because zoning matters are within their control and rationally based ordinances which protect the public safety are routinely enforceable. But that is to the banner only.
As for restricting the content of the sign, or deeming it illegal for a business to promote its products by restricting what is displayed within the constructs of an otherwise legal sign, well, on that issue, the city goes down. Forget that it is seemingly impermisible content-based regulation for a moment. It is just plain ordinary stupid with a capital S.

The residents of Clearwater need to ask their city commissioners to alter the illogical ordinance which has no reasonable basis for governmental regulation on the one hand, and are counterproductive to the business community on the other.

Earlier coverage:
St. Petersburg Times: "Clearwater tackle shop covers forbidden fish mural with First Amendment"

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