Clearwater Fishing Banner Unfurls First Amendment in Court

Had a Florida bait and tackle shop covered up an offending fish painting with the U.S. flag, it could have avoided additional tickets under the Clearwater municipal sign ordinance, according to an ABA Journal report by columnist Martha Neil, reporting on an update of a new case involving free speech.

But covering the exterior wall mural with the text of the First Amendment of the U.S. Constitution violated Clearwater's sign rules for businesses, a city official told a federal magistrate judge in a hearing today in Tampa, reports the St. Petersburg Times.

During questioning by an American Civil Liberties Union attorney, the city planning director, Michael Delk, said the owner of the Complete Angler shop wouldn't have been ticketed if he had used the flag instead of the First Amendment to cover the fish painting. However, Delk didn't explain the reason for the distinction between the flag and the First Amendment, for ticketing purposes, the newspaper writes.

The ACLU is seeking an injunction on behalf of the shop that would bar Clearwater from citing it again under the sign ordinance until constitutional issues in the case are sorted out.

Magistrate Judge Elizabeth Jenkins, who will make a recommendation at some point to U.S. District Judge James Whittemore about how the injunction request should be handled, expressed frustration to lawyers for both sides about their "level of advocacy," the Times reports. "I just really don't feel that this case has been articulated very well," she told the attorneys.

Owner Herb Quintero and the ACLU contend that the entire sign ordinance should be struck down on constitutional grounds because it is vague and exempts holiday displays, writes the Tampa Tribune.

Attorney Leslie Dougall-Sides, who represented the city at the hearing, conceded that the holiday display exemption might be unconstitutional, the newspaper reports. If so, however, it can be severed so the rest of the sign ordinance remains in effect, she argued.

Earlier coverage:
http://browardlawblog.blogspot.com/search/label/Zoning

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"

Rats! Another Sign Ordinance Bites the Dust

On the heels of our article about Nassau County, NY suing the Platinum Strip Club for too sexy a sign on Rockaway Blvd. In Queens, comes a decision today from the New Jersey Supreme Court. It held that a municipality violated free speech rights by banning temporary signs on public streets, including a 10-foot-high inflatable rat at a labor protest.

The unanimous court, in State v. DeAngelo, A-73-07, called a Lawrence Township ordinance -- which prohibited "banners, pennants, streamers ... portable signs, balloons or other inflated signs (except grand opening signs)" -- unduly restrictive of speech and expression.

The ordinance "is content-based, does not fairly advance any governmental interest, and is not narrowly tailored to prevent no more than the exact source of that evil it seeks to remedy," Justice John Wallace Jr. wrote for the court.

In Thursday's ruling, Wallace said DeAngelo's protest was protected by the state and federal constitutions, as to both content and location. He cited U.S. Supreme Court precedents holding that public streets, parks and sidewalks are traditionally public forums that occupy a "special position in terms of First Amendment protection" and that government cannot restrict expressive activity in such venues without a "compelling reason."

There you have it. His decision is in line with the South Carolina ruling cited in our article, granting a strip club in Columbus an injunction against a city’s would be sign ordinance. It is so important to share this here, because in Broward, with its 26 municipalities, overzealous and inexperienced city commissioners frequently attempt comparable restrictions.

Ultimately, they are proven illegal, and taxpayers wind up underwriting enormous legal bills as a result of foolish and partisan political agendas, which circumvent political realities. Then Bob Norman has to expose them in New Times. So when you vote for city commissioners next week try remembering that you are voting for people whose decisions might wind up taking money out of your pockets. Vote thoughtfully, look at the ties they have, the supporters backing them, and the past they bring to the table. Make sure they come with hands reaching out to your community, instead of ones reaching into your pockets.

Our previous article is here:

http://browardlawblog.blogspot.com/2009/02/signs-signs-everywhere-sign.html