TheAgitator.com
He Tried Using the Fourth, But It Was Full of Holes
Wednesday, January 14th, 2009Clearwater, Florida businessman Herb Quintero spent $500,000 renovating his bait and tackle shop and the property it’s on, including commissioning a fish mural on the side of the building. Though the mural contains no text, the city of Clearwater determined he needed a billboard permit, because the subject matter is related to his business. They began fining him $130 for each day he left the mural uncovered.
So Quintero responded (rather awesomely) by covering the mural with a banner depicting the First Amendment. All of which sets up this beautiful line from a local news report of the dustup:
Meanwhile, the city’s legal department is looking to see what, if anything, it can do about the First Amendment banner.
Thanks to Dick Nimmons for the link.
Classic
No pics?
“Meanwhile, the city’s legal department is looking to see what, if anything, it can do about the First Amendment banner”
Damn 1st Amendment! It’s always in the way. Summon SWAT immediately. We’ll show him who’s boss.
he forgot to get his freedom permit. with late fees, it’ll only be $463.00…
Another write-up (with a picture) notes
This is where we end up when people try to draw arbitrary distinctions between the liberty to express “art”, “political speech”, “commercial speech”, “obscenity”, and so on. In my view, Quintero (the bait shop owner) does have “a right to do that”. And, the city clearly is “trying to dictate the content of murals”. How can fining someone based on having fish in his mural not be dictating content?
And, even if one were suppose it’s okay for the government to restrict commercial speech, the city’s description sounds like this is far from clear cut. “Code enforcement officials say that, because the shop sells bait fish as well as tackle for fishing, its fish mural is essentially a large roadside advertisement.” But, Quintero’s mural doesn’t depict bait fish, it depicts game fish, which he does not sell. The city’s position is a little like saying a fruit stand can’t have a mural depicting flowers.
I forgot to mention the first question that popped into my head when I read that quote
So, if a business did not sell “adult entertainment” products, it could depict them on its murals???
The guy spent 500 grand renovating and can’t be bothered to get a permit for a sign that is most obviously an advertisement?
He sells… bait! Bait catches… Game fish! Do the math.
Perhaps if it was a nice rendition of deer frolicking he would have a case.
And… I would point out…
They’re not telling him he CAN’T display the mural, they’re telling him since it’s an advertisement, he needs a permit as such.
Bob:
Check your facts. They are telling him he can’t display the mural because of their strict rules on billboards.
Bob, if you want to cut to the chase and examine the owner’s insincerity, lets do it for both parties. I can understand restrictions on billboards and protruding signage, they can obstruct the views/sunlight/airflow of others their property. I can understand restrictions on certain kinds of signage that might make noises, have bright lights, or would otherwise cause some kind of material disruption to the right my neighbors have to quiet enjoyment of their property, I could understand that.
But neither of those things are what we’re talking about in this case. What we’re talking about is a guy who painted a fish on the side of his building while at the same time running a business that was related to fish. The city decided that it ought to get another cut of his business in the form of a fee and so fined him until he complied. They backed up that fine with the implicit threats of both physical coercion on the part of the police and financial coercion on the part of the courts. Thats a mugging, plain and simple. It doesn’t matter if he spent five dollars, fifty dollars, or five hundred thousand dollars renovating his property because the city does not have an intrinsic right to extort him. He painted his property in a way he saw fit and the city fined him because it either a) disliked the content of his speech or, b) believes that it has a right to enforce payment in exchange for the right to engage in certain kinds of speech conducted purely on public property.
The problem with the city’s line of reasoning is that, either way, it is essentially arguing that it has a compelling interest in regulating what forms of speech will be tolerated on private property. Now, your objection is likely to go along the lines of “but clearly this man’s speech is commercial speech.” That objection is both 100% accurate and completely irrelevant to the discussion. The first amendment does not make a distinction between kinds of speech, and restrictions upon speech traditionally require some situation of competing rights. I cannot slander you because in doing so I violate your rights, thus the government may restrict slander. In some cases there might be an issue of competing rights in regards to commercial speech, but that doesn’t seem to be the case here. Even the thin argument that someone might not want to be subjected to advertising would seem to fail the standard set in Cohen v. California. In this case an individual created an image on the side of his property. The city contends that the problem with the image, and the reason he needs to either obtain (and pay for) a permit or remove it, is that it is related to his business and thus an advertisement. That is a content restriction. If he put an image of a bear, an airplane, or an ice cream sunday on the side of the building the city, by it’s own logic, wouldn’t be calling the image a billboard. The city’s argument is that it has to enforce codes universally, but I doubt they would prohibit a church from displaying a cross or a mural of cats on the side of a home owned by someone who likes cats. This means that the city’s essential argument is that citizens must obtain permission to exercise their right to free speech in furtherance of their livelihood because earning money is somehow less protected (and thus vulnerable to arbitrary government intrusion) than advocating a cause or proselytizing. The city is making an independent value judgment regarding certain kinds of speech and restricting those forms which it has deemed less desirable.
Now despite all this the business owner decided to comply with the city ordinance, but in doing so he decided that he was going to make a political statement (something which I doubt many people would argue was excluded from the 1st amendment). He felt his first amendment rights had been violated and so replaced the offending image with an image of the first amendment. The city is now paying lawyers, with taxpayer dollars, to figure out if it can compel him to obey quietly and without complaint. In effect the city is investigating whether or not it can remove certain kinds of speech from the public sphere because they disagree with the message of that speech, in this case the implication that the city has overstepped it’s authority. Such an action clearly implies that they either believe they have a right to limit political speech, believe they ought to have a right to limit political speech, or realize that they likely do not have a right to limit political speech but are trying to find a way to argue that they’re actually doing something different. No matter what their line of reasoning is, the city again finds itself in the position of considering restrictions on speech based purely on content.
Also: (pre)clearly this man’s willful disobedience stems from thetans.
/snark
Here’s an article with a picture of the original mural. Based on the photo I’d be hard-pressed (even if I was an asshole bureaucrat) to call it “signage” or a “billboard.” It’s a few fish painted on a wall, set back from the street, under an awning.
Also, that article confirms that jackass #7 is wrong: there is no permit that Herb can get to make the mural legal without painting over at least part of it.
Ahhh the sleight of hand implicit in the argument. Somehow it always ends up being “It’s for the children.”
And I bet a lot of people (not all of course) that are so gung ho to stick up for Quintero wouldn’t be so quick to stand up for an adult themed store. It’s the trick all busybodies and morally uptight people know they can use as a club. “but what if an adult store did this? you’d be mad then and telling us to control their speech so we have no choice. we have to get him to have a permit. luckily we just so happen to get some money for our coffers doing it”.
I wish this country would grow up, and learn to deal with its aversion to “adult” material.
So, if a business sells siding, they can’t have any siding on the side of their business, because that would be a mural of what they sell?
I’ll be happy to take a road trip down there an paint an adult-themed mural in place of the fish to help Mr. Quintero comply with the ordinance.
Kieffer, you’re thinking about this all wrong. See, Mr. Quintero sells bait fish that are used to catch game fish. If you really want to get under the city’s skin you ought to help him paint an adult-themed mural which involves fish that are neither sold by his store nor commonly fished in his area. That and Xenu, cause its Clearwater.
Awesome. This guy makes me proud.
http://www.rightklik.net/
“If not, he said, then something like an adult entertainment business could display a large mural depicting its products.”
Id love to see the arguments regarding a fish mural painted on the side of a strip club.
Maybe Quintero can contract with the Adult business down the street to paint a fish mural and he could paint the Adult mural on his building.
I wonder if that would satiate the it’s directly tied to your business aspect?
“Also, that article confirms that jackass #7 is wrong: there is no permit that Herb can get to make the mural legal without painting over at least part of it.”
Uh. No. Sorry. And I’m not a jackass.
Sure, their rules are strict, but that’s apparently because of some problems they had in the past.
You guys act like GOVERNMENT AGENTS run the town. No, it’s people that live there. If the people there don’t like the rules, they can work to change them… which is how these strict rules got there in the first place.
True, there is no permit that Herb can get for the MURAL clearly showing a theme related to his business, but there is a permit he can get for painting a SIGN on his wall that looks exactly the same.
He just can’t call it a Mural to get around the signage laws, which is exactly what he’s doing.
Um, I normally don’t troll in with random assertions, but in this case, jeez Bob, yr a jackass.
I am personally disappointed in the story’s author. The last sentence would be so much better (and more accurate) if they had excluded the word “banner.”
You can see a picture of the store here:
http://www2.tbo.com/content/2009/jan/06/clearwater-code-enforcers-find-something-fishy-abo/
“You guys act like GOVERNMENT AGENTS run the town. No, it’s people that live there. If the people there don’t like the rules, they can work to change them… which is how these strict rules got there in the first place.”
Actually, if you did just a little bit of research, you’d know that Clearwater has some problems when it comes to representation because the city is essentially run by a highly influential business which decided to use it’s employees to hijack the city years ago.
“True, there is no permit that Herb can get for the MURAL clearly showing a theme related to his business, but there is a permit he can get for painting a SIGN on his wall that looks exactly the same.”
Its still a content restriction and still a blatant violation of his rights. The city’s reasoning doesn’t really matter because they have proved, by their “investigation” of what they can do about his banner, that the problem they have has nothing to do with commerce and everything to do with content.
I hate to be so obvious, but the mural on the adult building should definitely be of TUNA! Lots and lots of pink TUNAS!
#21: “I am personally disappointed in the story’s author. The last sentence would be so much better (and more accurate) if they had excluded the word “banner.””
I thought the double meaning of the word “banner” was clever.
#19: “You guys act like GOVERNMENT AGENTS run the town. No, it’s people that live there. If the people there don’t like the rules, they can work to change them… which is how these strict rules got there in the first place.”
The whole point of having constitutional rights is so that popularly elected officials and their underlings cannot take away basic rights. Should we put the Bill of Rights on every local ballot to decide when and where it applies?
BTW, I looked up the city code, and §3-1805(B) has an exception for “art work and architectural detail.”
The issue seems to be the total square footage limit in §31806(B)(3).
From a 1A standpoint, if the city maintains that it is enforcing the size limit, it probably wins a court case. The city’s problem is that it’s code inspectors have decided that something can’t be “art work” if it’s connected with the person’s business. That requires them to make a judgment as to what is “art,” which makes their application somewhat arbitrary.
Query: If a business is an art gallery and has someone paint a mural on the side of the building, is it “art” or sign? If you answered “both,” you’re probably right. Since “art” and “sign” are not mutually exclusive, we have here a case of bad (statute) drafting.
It is uncanny how it all comes back to Mencken:
“And I bet a lot of people (not all of course) that are so gung ho to stick up for Quintero wouldn’t be so quick to stand up for an adult themed store. It’s the trick all busybodies and morally uptight people know they can use as a club.” — Edmund Dantes
“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.” — H.L. Mencken
Would love to see a pic.
What if the owner painted a naked mermaid from outer space, covered only by body thetans? Billboard, mural, art, commercial, political statement, religious speech…?
@ Andrew Williams
Freedom Fan at #5, Matt Moore at #11 ad John Jenkins at #21 all had links to a picture.
Mr. Balko: speaking of the Fourth, you should blog the SCOTUS Herring decish over at the HnR.
I don’t fish, but if this guy had an online store, I’d buy something.
http://www.thecompleteanglerstore.com/Home_Page.html
Sounds to me like it is simply a matter of the city trying to gouge some more money out of someone.