Mom and Pop Off the Hook for $500-a-Day Fine ?
Joe Kovacs
March 13, 2009
TAMPA – A Florida couple won the initial round in a free-speech battle today, as a federal magistrate recommended the city of Clearwater not fine a local bait and tackle shop for displaying the First Amendment atop a mural of marine life on its business.
Herb Quintero says a mural of marine life on his store is artwork, not a sign, and he's now suing Clearwater, Fla. He has since posted a banner of the First Amendment over the game fish. (courtesy Tampa Tribune)
U.S. Magistrate Elizabeth Jenkins made the recommendation to a federal judge in the case of Herb and Lori Quintero, who faced fines of $500 per day for posting a giant Constitution as well as designs of game fish on their store, the Complete Angler.
"Neither the painting nor the banner are commercial speech," Jenkins stated, explaining the city would likely lose the full case in court. "Although the painting may occasionally inspire the purchase of bait and tackle from the Angler, the painting is not limited to merely proposing commercial transactions."
Citing a previous ruling by the U.S. Supreme Court, Jenkins also noted, "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
"I am pleased with the judge's recommendation, and want to thank every single individual in the country who has been on our side," said Herb Quintero. "However, I am saddened that we had to take it this far. I hope this sends a clear message to people everywhere that you can fight city hall. I also hope that this sends a message to our elected officials and to the city employees of Clearwater that their abuses will no longer be tolerated. I hope this sets a tone of what is to come."
Dru Jeanis, a local businessman who championed the Quinteros' cause, told WND: "The monetary waste [by the city] is astounding."
"It is extremely telling that we have yet to see a Clearwater employee or elected official acknowledge the First Amendment rights of these fine people. To the contrary, those in power at the city, who should be standing up for a local business, have instead assumed a kind of 'bunker' mentality. It seems they all just want it to go away. No one has called for an investigation of the root cause of such incidents, or spoken up for any change at all in city employee policies or procedures."
It will be up to U.S. District Judge James Whittemore to make a final ruling on the case, after hearing any potential objections from the city and any response from the American Civil Liberties Union, but it's rare for a federal judge to rule against a magistrate's recommendation.
WND first brought the Quintero plight to national attention last month, and the story struck an immediate chord with Americans fed up with what they perceive to be government overstepping its authority. Comments of outrage from across the nation and world flooded in.
"They're very abusive, profane, insulting e-mails," City Manager Bill Horne told the St. Petersburg Times. "I happen to believe we did the right thing."
The tale began in December 2007 when the Quinteros invested their life savings to purchase and renovate a dilapidated building they turned into the Complete Angler, a shop selling fishing accessories such as rods, reels and live and frozen bait.
To help spruce up the building's image, they hired an artist who began a giant mural of marine life featuring a half-dozen game fish such as snook, dolphin, grouper and sailfish. The artwork was halted, though, because the city claims it violates the strict sign code prohibiting murals on businesses that depict a product the company sells. However, the Complete Angler does not sell game fish.
According to the Quinteros' lawsuit against Clearwater, city spokeswoman Joelle Castelli was quoted as saying the artwork "depicts what he's selling and that's considered signage. If it was a mural of kids playing in a park, that would be acceptable."
Clearwater began to fine Quintero, and he initially pleaded no contest, agreeing to pay $690.
But the businessman refused the city's demand to paint over the fish, and in protest, he posted a giant banner with text of the First Amendment in front of the mural.
 A giant banner promoting free speech right is posted in protest on top of Herb Quintero's marine life mural in Clearwater, Fla. |
The large banner is what prompted the city to hook Quintero with fines of $500 a day.
Business owners and citizens in the Clearwater area have created a website called KeeptheFish.com to help Quintero. The site says in the wake of WND's exposure, it has been inundated with "tons of comments from all over the country" that were sent to Jeff Kronschnabl, the director of code enforcement, and other Clearwater officials.
Some online reaction today to the magistrate's recommendation of no fines includes:
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Good for them, I think it sucks how the city pushes people around just because they can. What the hell is wrong with somebody painting fish on their own property? Whoever cited them in the first place was and still probably is an idiot.
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They sell fishing gear. What does the city want them to paint on the building: geraniums? This is a mural themed by the business, not a sign; it depicts marine life, it does not advertise a specific business. Criminy, Clearwater – get a grip. It's even tasteful.
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Goes to prove that Big Brother government is quite often wrong. If you feel that your local government is screwing you, yell, scream and get a lawyer. Sue for bundles. It's the only way to put a stop to this abuse. Every person who has had to remove a sign or pay a fine for a sign in the state of Florida should be calling their attorneys right now. Let's see the cities and counties in court hundreds if not thousands of times over the next few months. They will continue to abuse you if you let them.