The Complete Angler and the ACLU recently won an injunction against the city of Clearwater allowing this mural of bait fish to be displayed and prohibiting more fines.
Photo by ALEXANDRA CALDWELL
After receiving fines for a fish mural on their building, the owners of The Complete Angler tackle shop in Clearwater put up a banner of the First Amendment.
CLEARWATER – The owners of The Complete Angler bait and tackle shop in Clearwater won the latest battle against the city of Clearwater regarding their fish mural and the First Amendment banner.
United States District Judge James Whittemore ruled on April 9 to uphold U.S. Magistrate Judge Elizabeth Jenkins’s report and recommendation that the banner ordinances as applied to The Complete Angler are unconstitutional.
Whittemore ruled that the entire report and recommendation “shall be adopted, confirmed and approved in its entirety.” He also ruled that the city may not force the plaintiffs to remove either the banner depicting the text of the First Amendment that they used to cover the mural. “Furthermore, the city may not issue any more violations in connection to either the mural or the banner,” Whittemore ruled.
Herb and Lorraine Quintero, owners of The Complete Angler, commissioned a local artist to paint a mural of local game fish on the side of their bait and tackle shop at 705 Fort Harrison Ave. On March 12, 2008, the city issued a notice of violation to the Angler, saying they had needed to get a proper sign permit for the painting.
The Quinteros paid $690 in fees on Jan. 9, 2009, and on Jan. 12, they covered the mural with the complete text to the First Amendment to the Constitution and the comment that: “The Supreme Court requires the government to provide substantial justification for the interference with the right of fee speech where it attempts to regulate the content of the speech.”
The Quinteros received a second notice of violation on Feb. 12, saying the First Amendment banner also violates the sign ordinances.
The American Civil Liberties Union of Florida filed a motion for a preliminary injunction on Feb. 24 on the Angler’s behalf to prohibit further violation notices. The injunction was granted by Jenkins on March 13, which prohibited the city from issuing additional violations against the bait shop for either the mural or the banner.
Clearwater then filed a four-page objection to the magistrate’s report and recommendation on March 23, and the ACLU filed a 20-page response four days later.
Jenkins’s reasoning was that neither the banner nor the mural are commercial speech, and the city’s application of the sign code in these instances was content-based and did not withstand strict scrutiny.
Jenkins also “correctly determined that notwithstanding the constitutionality of the definition of ‘art work,’ Defendant’s application of that definition in this case impermissibly treated plaintiff’s non-commercial speech as commercial speech,” according to Whittemore’s ruling.
Lastly, Jenkins ruled that the code applied to the mural and banner was not content-neutral, and she gave numerous examples to support this reasoning.
“Based on the foregoing, the magistrate judge correctly determined that defendant’s application of the sign code to plaintiff’s mural and banner does not withstand strict scrutiny,” Whittemore wrote in his ruling.
Maria Kayanan, associate legal director for the ACLU who has handled this case, said she is thrilled by the ruling. She hopes this is the end of the case.
“We hope this will not result in protracted litigation,” Kayanan said. “Both judges made very clear that the ordinances as applied to the Quinteros are unconstitutional. We also believe that the ordinances are facially unconstitutional – that the whole code is unconstitutional. But whether we go down that road or not is ultimately going to be the city’s decision. We hope we can resolve this matter amicably at this point without having the city incur the further use of taxpayer funds.”
The present ruling means the city can not issue any more fines regarding the mural or banner, nor can it force the Quinteros to remove either of them. This decision will remain in place until a judge rules otherwise, Kayanan said, but it only applies to this specific case.
In an ideal world, Kayanan said, the city and the ACLU would work together to tie up loose ends – figuring out lawyers’ fees, agreeing that this injunction be permanent, whether the Quinteros get their fine money back and other matters. However, if the city pushes the case, Kayanan said, it would then go into the discovery phase.
“That’s a long, expensive process of gathering information in a formal context governed by the rules of civil procedure,” Kayanan said. “And once that process is finished, either one or both sides move for summary judgment or it goes to trial. But very few civil cases in federal court ever make it to trial.”
Kayanan said that if it comes to this, the ACLU would argue that the entire ordinance is unconstitutional.
“We have put an enormous amount of time and resources into this case, and we would be very happy if this ended with the Quinteros getting the relief they wanted,” Kayanan said. “But if necessary, we will go further and maintain our facial attack on the development code, and that way, if we prevailed, the entire code would be unconstitutional and the city couldn’t apply it as they were doing to anyone, and they would have to rewrite their code.”
Legally, the present case only applies to the Quinteros, but Kayanan said it could have broader impact if it makes the city less willing to issue similar ordinance violations. Also, if a business sued in a similar instance, this case could hold as precedence, she said.
Herb Quintero said he is pleased with the judge’s ruling and is not sure what will happen next.
“Hopefully this sends a clear message to (the city) that you can’t go around arbitrarily making stuff up just to suit your needs or agenda,” Quintero said. “So hopefully they take that judge’s ruling under consideration and maybe look at the way that they handle things.”
He has not yet removed the First Amendment banner because he said he is not sure if the city will pursue the matter any further. If it does, Quintero said they will keep the banner as evidence, but when he is sure the case is over, he wants to auction it off and give the proceeds to charity.
Quintero said he continues to thank the public for its support throughout this ordeal.
“Everyone has really gotten behind this thing,” Quintero said in an interview April 10. “In fact, I just had a Vietnam vet come in – he doesn’t fish or anything – he just came in here to thank me for doing my part to defend the Constitution because they (military personnel) all take an oath to defend it (the Constitution) against all enemies, domestic and foreign. And you don’t always have the opportunity to defend it against a domestic enemy, which is exactly what we did. And that’s one of many, many veterans who have stopped by to thank us for what we’re doing, and for that we’re very, very grateful.”
The city could not be reached for comment about the ruling.
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