Fox 13 Tampa - City loses legal battle over mural -
Read on MyFoxTampaBay.com
07/29/09 St. Petersburg Times
Clearwater pays to settle fish mural case - Read Times Article
07/24/09 Bay News 9
Clearwater, bait shop owner to settle
fish mural case - Read Article
07/23/09 Tampa Tribune
Mural to remain on Clearwater
bait shop Tampa Tribune Article
Photo courtesy of St. Petersburg Times, Douglas R. Clifford, from HERE
Here is the story:
Herb Quintero, a Clearwater, Florida resident and construction company owner, along with his wife Lori, decided to open a bait and tackle store. They bought a building in a commercial area widely considered to be “blighted” on North Fort Harrison Avenue in the city of Clearwater. They spent hundreds of thousands of dollars fixing the place up and making it nice. It opened for business on February 1st, 2008 as The Complete Angler and they hired an artist to paint a mural which included some pictures of fish on the side of the building.
Upon noticing the pictures of fish, certain Clearwater city employees decided that their interpretation of the rules meant that the illustrations were in violation of city codes regarding such things. On behalf of the City of Clearwater, they cited the Quinteros for violations of city sign ordinances. Work ceased on the mural, which remains unfinished to this day.
According to articles published in the local press, the concerns of city management were that sign codes had to be enforced “consistently” toward business owners. They worried that if they did not penalize Mr. Quintero, other businesses – such as lingerie shops, might then be able to legally get away with painting pictures of women in lingerie, or whatever, on the sides of their buildings. In essence, the city hierarchy felt that the fish paintings amounted to being a “sign” advertisement of the products/services offered by the business owner.
Section 3-1805 of Clearwater’s Community Development Code specifically exempts “art work and/or architectural detail” from needing permits. The Complete Angler sells rods, reels, bait, and other accessories and equipment used in the activity of fishing, but does not sell anything that even remotely resembles the illustrations on the side of the building. (The pictures are of grouper, tarpon and other large game and sport fish.)
The legal standard developed through federal cases for what constitutes commercial speech which may be regulated without infringing upon First Amendment rights is “speech that does no more than propose a commercial transaction.”
Even though the city of Clearwater had lost a similar court case involving Egyptian-themed designs on the side of an Egyptian restaurant less than a year earlier, the city persisted in penalizing the Quinteros and their business.
At county court in December of 2008, the Quinteros pleaded “no contest” and paid the fines for the “violation” of city sign codes.
However, rather than paint over the fish pictures or otherwise capitulate to the desires of the city employees involved, on January 11, 2009 – just before the date when they were supposed to destroy the paintings, the Quinteros covered the unfinished mural with a large banner containing the text of the First Amendment to the Constitution of the United States of America.
The city of Clearwater responded to this obvious act of political protest by sending the Quinteros a second Notice of Violation on February 12th – this time threatening fines for the display of the First Amendment, as if it was common commercial signage.
On February 23rd the ACLU filed suit in federal court against the city of Clearwater for the violation of the First Amendment rights of the Quinteros and their business.
A preliminary hearing was held in federal court on March 4th. Based upon the evidence and testimony which took place, federal Magistrate Judge Elizabeth Jenkins issued her Report and Recommendations on March 13th. In the report, she recommended that the city of Clearwater be compelled to cease any further punitive measures against the Quinteros and allow them to leave the both the banner and paintings unharmed, pending the results of the full trial.
On March 23rd the city of Clearwater responded to the Magistrate Judge’s recommendations by filing a four-page Objections of Defendant, continuing to assert the city’s rights, per its municipal codes, to have the fish paintings destroyed and cause the removal of the banner with the text of the First Amendment.
On March 27th the ACLU filed its Response to Clearwater’s Objections with a twenty-page document citing numerous federal legal precedents and case law in support of the Magistrate Judge’s recommendations.
As of April 1st 2009, not one Clearwater city employee, executive or elected official has come forth publicly on the record in support of the Quinteros’ First Amendment rights or spoken out against the violation of those rights by the city government.
What we want:
1. The City of Clearwater to abandon its policy of allowing code enforcement officers to investigate potential code violations solely on the basis of anonymous phone calls, letters, emails or messages. The current policy is ripe for abuse, allowing personal vendettas to be waged by city employees unknowingly acting as proxies for hidden antagonists.
2. The City of Clearwater to pass a resolution or otherwise adopt policy that, wherever there exists a "seeming" conflict between art and signage, only direct visual promotion of products/services offered by businesses shall be considered actionable for citations and other such penalties. The practice of attacking businesses for "indirect" visual "promotions" shall be abandoned.
3. The City of Clearwater to institute some type of objective methodology for determining the difference between "art work and/or architectural detail" and advertising/promotional "signage" as set forth in City codes. The current system, with attorneys making such calls, is unworkable and unfair to businesses. Citizens, artists and marketing professionals are better suited for such determinations and should be consulted to ensure an objective and consistent result.
4. The city of Clearwater to initiate a complete and comprehensive investigation, to be conducted by an impartial body, with the purpose of determining the true cause of the events leading up to and culminating in the Complete Angler federal lawsuit. Find out who initially complained and/or acted on the complaint; find out the motivation for their actions, if there was a personal vendetta involved; find out why no one in any position of authority had enough common sense or training to resolve the matter before it became a federal case. And, find out what procedural changes can be made to ensure that such a fiasco never again happens in this city and fully implement such changes as are impartially determined.
5. The city of Clearwater to begin the process of healing this open wound – the continuing nationwide outpouring of disdain heaped upon us due to our own municipal, managerial, political and public relations incompetence. All cities, in fact all governments have waste, fraud and abuse. Let Clearwater be the first to openly acknowledge it, and the first to put a system into place to eradicate such things – especially when they adversely affect our business owners and job creators – the source of our greatest tax revenues. That, to accomplish this, the city of Clearwater forms a new public department to act as an official Concierge Service for business owners who run into difficulty with other parts of city government. We ask that the city create a department that works for business owners, not against them – a department with the authority to bypass red-tape and bring the enforcement of codes and regulations, in fact their very wording, into line with 21st century technology and efficiencies. And then, once such a new department is fully formed and operational, for the city to promote the heck out of the fact that Clearwater strives to be the most business-friendly city in the country.
If you feel like we do, that the City of Clearwater has been unfairly penalizing the Quinteros and The Complete Angler, please let the city officials know.