Clearwater bait shop in court over mural listen03/04/09 Seán Kinane and Melody Dietsch
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A bait and tackle shop in Clearwater has been cited for violating the city’s sign ordinance because of a mural on an outside wall that depicts game fish. The owners of the Complete Angler say the mural is art and is exempted from the city’s sign ordinance, and they say it is protected under the First Amendment to the U.S. Constitution.
With legal representation from the American Civil Liberties Union (ACLU), the bait shop has filed a complaint against Clearwater, which was heard today in federal court in Tampa.
Heriberto Quintero owns the Complete Angler along with his wife Lorraine. “Well, we presented a good argument. Our lawyers did a fine job and we believe that the judge will see things in our favor.”
After the Complete Angler was cited for a code violation for the fish mural in 2008, Quintero covered it with a banner containing the words from the Constitution’s First Amendment. Then they received a second code violation.
In court on Wednesday, Clearwater Planning Director Michael Delk said had it been covered by an American flag instead of the First Amendment, the city would not have issued the second citation.
Becky Steele is regional director of the ACLU of Florida.
“We have the law on our side. We have the law and the facts on our side. If you look at what was argued today, the City really conceded that -- if this banner of the First Amendment – they’ve conceded that is a symbol of the United States government. And then they were saying, ‘Well, if it was a flag we would let it go. But because it’s having the text of the First Amendment we’re going to shut it down.’ That just doesn’t make any sense. If you’re going to restrict speech, you’ve got to have a good reason why. And I don’t think they showed that here in court.”
The attorney for the city, Leslie Dougall-Sides, and Delk told U.S. Magistrate Judge Elizabeth Jenkins that the art exemption to the city’s sign ordinance does not apply. That’s because the shop sells bait and tackle to anglers who will catch the depicted fish in the Gulf of Mexico.
But ACLU attorneys Maria Kayanan and James Green called Clearwater’s code on signage “vague” and “overbroad.” The ACLU’s Steele says that for that reason the city code should be struck down by the court.
“One of the issues is who gets to decide what is art, who gets to say if you want to convey a message about the environment, or you want to convey a message about the First Amendment, who gets to say whether that is commercial speech or not? And then, who gets to say if you get to do it or not?”
Attorneys for Complete Angler introduced into evidence photos of other buildings in Clearwater that have outside murals depicting images similar to the type of business occurring there. That’s one issue the city said was wrong with the fish mural and Steele says the rules should be applied evenly.
“It’s not just the Quinteros -- you have the day care center, also Frenchy’s restaurant with the picture of the grouper outside. And it really undermines the city’s argument that it’s so important that they regulate the speech if it’s been allowed to take place in other parts of the city.”
Complete Angler is asking for an emergency injunction from the court to stop the city from citing or fining the owners, and for the city to pay for legal fees and fines that have already been paid by the Quinteros. But there was no decision on Wednesday.
Heriberto Quintero testified that one reason for the artwork on his building was to call attention to endangered species.
“It’s enabled us to educate the public. For instance, a father and child were there before we had to cover it up and he was showing him the types of fish that they would be able to catch when they went out fishing that day. …. So, we’ve been able to educate them on the positive conservation that’s been done.”
Dougall-Sides and planning director Michael Delk declined to be interviewed for this story.
Quintero thinks that the city should stop citing him for sign violations.
“Anytime that government oversteps its bounds and violates the Constitution, they need to be brought back to justice and been told, you know, not to do that again. So, it’s absolutely not a waste of time. Even though it’s started off as just a picture of fish, it’s become much more than that now and people are starting to realize that. That’s why public opinion has been so strong on this.”
Magistrate Judge Jenkins will report her findings to U.S. District Judge James Whittemore who will decide the case.