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Sign Law May Affect The Holidays

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By ELAINE SILVESTRINI

esilvestrini@tampatrib.com

Published: March 5, 2009

TAMPA - The city of Clearwater might 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 Herb Quintero, who the city fined for having a mural of game fish on his shop. Quintero and the American Civil Liberties Union say the sign ordinance is illegal because its definition of art is vague and it exempts holiday displays.

They were in court Wednesday seeking an injunction.

The 11th U.S. Circuit Court of Appeals in 2005 struck down the sign ordinance of Neptune Beach, citing an exemption for holiday displays as one of several unconstitutional provisions. The court said officials there were regulating displays based on content instead of 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.

Leslie Dougall-Sides, a lawyer representing Clearwater, conceded that the holiday display exemption in Clearwater's ordinance might likewise be unconstitutional. But she argued that the provision could be severed, leaving the rest of the sign ordinance intact.

Quintero's attorney, James 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.

"No public official in his right mind would vote to ban holiday displays," Green said.

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.

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 (813) 259-7837.

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