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Clearwater's Ban Of Mural Could Affect Holiday Displays

Tribune photo by CHRIS URSO

A vehicle drives past Complete Angler in Clearwater in January.

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By ELAINE SILVESTRINI | The Tampa Tribune

Published: March 4, 2009

TAMPA - The city of Clearwater may have backed itself into a legal corner in its efforts to regulate a painting of fish.

If the city's legal arguments prevail in court, it could wind up with a law that requires residents and business owners to obtain permits for holiday displays.

Clearwater is being sued by the owner of a bait and tackle shop, who was cited for a mural depicting different kinds of fish on the shop's façade.

"No public official in his right mind would vote to ban holiday displays," said James Green, an attorney
representing tackle shop owner Herb Quintero, who sued the city after it fined him for having a mural of game fish on his shop. "We're not advocating for a ban on holiday displays in the city of Clearwater."

Quintero and the American Civil Liberties Union are attacking the entire sign ordinance, saying it must be invalidated because its definition of art is vague and because it exempts holiday displays. They were in court today seeking an injunction.

The 11th Circuit Court of Appeals in 2005 struck down the sign ordinance of Neptune Beach, Fl., citing an exemption for holiday displays as one of several provisions that were unconstitutional.

The federal appeals court said the holiday display exemption in Neptune Beach meant officials there were regulating displays based on their content, which is unconstitutional, as opposed to other non-content factors, such as size and placement.

"Thus, a homeowner could plant a giant illuminated Santa Claus or a jack-o-lantern in his front yard, but not a figure of, say, the president or the mayor," the court wrote. "An illuminated reindeer would be permissible, whereas a less festive animal such as a dog would not."

Leslie Dougall-Sides, an attorney representing Clearwater, conceded that the holiday display exemption in Clearwater's ordinance may likewise be unconstitutional. But she argued that the provision could be severed, leaving the rest of the sign ordinance intact. Moreover, she contended, if the court were to determine the definition of art is also unconstitutional, that part of the ordinance could be taken out as well.

Green argued that severing unconstitutional portions of the ordinance would lead to a law that made no sense, requiring permits for or banning holiday displays. Green maintained that the court should strike down the entire sign ordinance.

Contacted after the court hearing, city spokeswoman Joelle Castelli would not directly say how the city would react if its ordinance banned or required permits for holiday displays.

"We're currently awaiting the judge's decision," she said, "and when we get that, we will see what action we need to take, if any."

After being cited for the mural, Quintero covered it with a banner containing the words of the First Amendment. He was then given a warning that the banner was a violation of the sign ordinance.

Quintero testified at the court hearing, saying he commissioned the mural, showing fish he said were mostly endangered species, because he wanted to call the public's attention to them.

Quintero said the neighborhood around his store is "pretty dilapidated," and the store, a former fruit market, was in "pretty poor" condition when he bought it. He said he fixed it up by installing a new floor and ceiling and updated its appearance.

He said that because of his fights with the city, the mural was never completed. He intended for it to also include other endangered species, including manatees.

Quintero and his lawyers presented the court with photographs of other murals, including sea life depictions on city ad county buildings. They also described public support Quintero has received, including a letter from a soldier in Iraq, who they said wrote the city saying Quintero's free-speech battle was the kind of thing he was fighting for.

Dougall-Sides challenged Quintero's argument that the mural was artistic, rather than commercial speech. Quintero pointed out that he doesn't sell any of the fish depicted on the mural. But the city's attorney elicited from him that the equipment and bait Quintero sells are used to catch fish like those on the mural.

Courts have given government entities greater leeway in controlling commercial speech.
U.S. Magistrate Elizabeth Jenkins said she will issue a recommendation soon to U.S. District Judge James D. Whittemore about whether he should issue an injunction preventing the city from enforcing the sign ordinance.

Reporter Elaine Silvestrini can be reached at esilvestrini@tampatrib.com and (813) 259-7837.

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