Bait shop wins temporary injunction
The city of Clearwater may not issue any more violation notices for fish mural or banner
By ALEXANDRA CALDWELL
| Article published on Wednesday, March 25, 2009 |
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| Photo courtesy of THE COMPLETE ANGLER |
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| The Complete Angler was fined by the city of Clearwater for this mural of local gamefish. The company and the ACLU recently won a temporary injunction against the city to prohibit more fines. |
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CLEARWATER – The Complete Angler bait and tackle shop and the ACLU won a recommendation for a temporary injunction against Clearwater March 13 that would prohibit the city from issuing additional violations against the bait shop for its fish mural and banner of the text of the First Amendment. The injunction would also prohibit the city from ordering the removal of either the banner or the mural.
The city was given 10 days to file an objection.
Heriberto and Lorraine Quintero purchased and renovated The Complete Angler at 705 Fort Harrison Ave., Clearwater, in December 2007, and commissioned local artist Matt Evanson to create a mural on an exterior wall to educate the public about the endangerment of game fish found in the local habitat, according to the recommendation report from U.S. Magistrate Judge Elizabeth Jenkins. The painting does not have any text, and the Angler does not sell any kind of game fish.
On March 12, 2008, the city of Clearwater issued a notice of violation to the Angler, “citing its failure to obtain a sign permit for the painting as required by (Clearwater’s) Community Development Code,” the report said.
On Jan. 9, 2009, the Angler paid fines and court costs of $690, and on Jan. 12, the Quinteros covered the mural with a tarp and banner that displays the complete text of 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.”
Then, on Feb. 12, 2009, the city issued a second notice of violation regarding both the painting and the banner, the report said. The ACLU then filed a motion for a preliminary injunction on Feb. 24 on the Angler’s behalf to prohibit further violation notices.
Judge Jenkins wrote that while the city prohibits certain types of signs, there are also 26 categories of signs that do not require a permit or development review, including: “‘Art work and/or architectural detail,’ ... defined as ‘drawings, pictures, symbols, paintings or sculpture which do not identify a product or business and which are not displayed in conjunction with a commercial, for profit or nonprofit enterprise.’ Another exemption is provided for holiday decorations, defined as ‘any display during a holiday season which shall be removed within 10 days of the conclusion of the holiday.’ ”
The Angler and the ACLU also contend that parts of the code are unconstitutional “because the Code’s definition of art work is overbroad, vague, and vests unbridled discretion in Defendant to determine whether art work is commercial or not,” the judge’s report said.
The Angler also believes that those parts of the code “ ‘vest unfettered discretion upon the City to restrict constitutionally expressive activities,’ ” the report said. And finally, the report said, the plaintiffs said the code is unconstitutional because it “sets a presumptive size limitation for banners but does not apply to banners displaying holiday-related messages.”
Jenkins wrote that even though the Angler is a commercial business, all of its speech and expression is not necessarily deemed commercial, and neither the painting nor the banner are commercial speech. Furthermore, she wrote, Heriberto Quintero had testified that the mural would “alert viewers to the threats posed to certain fish species it depicts.”
After Jenkins determined that the city’s code enforcement was a restriction on noncommercial speech, she wrote that she then had to determine whether the notices were based on the content of the painting or banner. This is because regulations “ ‘justified without reference to the content of the regulated speech’ are content-neutral,” the report said. Therefore, those types of regulations must stand up to the intermediate scrutiny test “which requires they: 1) be narrowly tailored to serve a significant government interest; and 2) leave open ample alternative channels of communication. If, however, a regulation grants certain types of speech favorable treatment due to the content of the message, the regulation is content-based and subject to strict scrutiny,” the report said.
According to the report, the city itself said that it would have tolerated the painting and/or banner if it had different content. Furthermore, there are other business and governmental entities in Clearwater that have their own murals, the report said.
“A mural completely covering one wall of a daycare center depicts children running through a green field surrounded by animals,” the report said. “The walls of a seafood restaurant are painted with various images of marine life. A building related to the administration of the fire department is covered on one side by a mural depicting first responders beneath the statement ‘United We Stand.’ A county building displays painted dolphins swimming near a ring of fire and various species of fish. Finally, the outer wall of Defendant’s parking garage is lined with paintings of different species of birds. Defendant’s condoning of these murals, coupled with statements by its own representatives and its content-based categorization of Plaintiffs’ signs, indicates that Defendant’s application of the Code to the Angler was not content-neutral.”
Finally, because the judge deemed the city applied the code to the painting and banner based on content, it must stand up to strict constitutionality to be constitutional, the report read. Jenkins determined that the city’s code application did not stand up to such scrutiny and therefore recommended that pending final resolution of this action, plaintiffs’ motion for preliminary injunction be granted to the extent that the City is enjoined from compelling plaintiffs to remove either the painting or the banner.
The city of Clearwater said it could not speak to the case due to its current status.
Heriberto, “Herb,” Quintero said he is happy with Jenkins’ recommendation.
“We’re pleased, obviously, that the judge saw that our rights have been violated, what we’ve been saying all along, and we’re really happy for her opinion,” Quintero said.
Quintero said he is also impressed with all the public support he and his wife have received about this issue, including numerous e-mails and letters from around the world. There has also been heavy traffic and worldwide response to www.keepthefish.com, which was set up by Dru Jeanis, a Dunedin resident who owns a business in Clearwater.
“I’m really pleased with the way the public has been beside us, and all their support has been overwhelming,” Quintero said. “I really want to thank every single person who has sent letters of support. They have been fantastic.”
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Article published on Wednesday, March 25, 2009
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