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Judge Says Shop Has Edge In Suit

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By ELAINE SILVESTRINI

esilvestrini@tampatrib.com

Published: March 14, 2009

TAMPA - The Complete Angler won a partial victory Friday when a federal magistrate recommended that the city of Clearwater be ordered not to punish the bait and tackle shop for its mural of sea life.

U.S. Magistrate Elizabeth Jenkins recommended that a federal judge grant the temporary injunction against the city, finding that the shop is likely to prevail in its lawsuit against the city.

After being cited for the painting, shop owner Herb Quintero covered it with a banner of the First Amendment. The city warned him the banner violated city code.

But Jenkins wrote in her 13-page report that the banner and painting are protected under the First Amendment. The city "has failed to demonstrate that its interests are compelling in these circumstances."

Jenkins didn't say whether the city's sign ordinance should be found unconstitutional.

The American Civil Liberties Union of Florida sued the city on the shop's behalf.

"We're thrilled for Herb and Lori Quintero and their Mom and Pop business," the group's associate legal director Maria Kayanan wrote in an e-mail.

"The magistrate judge recognized that the fish mural and the First Amendment banner were unlawfully banned by the City based on their content," wrote Kayanan, who was co-counsel for the shop and its owners.
City spokeswoman Joelle Castelli said, "We're in receipt of the recommendation, and the city will abide by the judge's order whatever that ultimately will be."

The city has 10 days to submit objections and the ACLU would have 10 days to respond. U.S. District Judge James D. Whittemore can issue his ruling after that.

Reporter Elaine Silvestrini can be reached at (813) 259-7837.

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