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Judge puts Clearwater bait shop mural arguments to the test

Herb Quintero, owner of the Complete Angler, a Clearwater tackle shop, says his fish mural is art and he’s fighting City Hall.

JIM DAMASKE | Times

Herb Quintero, owner of the Complete Angler, a Clearwater tackle shop, says his fish mural is art and he’s fighting City Hall.

TAMPA — Regardless of whether it's art or advertising, a federal magistrate on Wednesday set a high legal standard for granting federal protection for the mural on a Clearwater bait shop's wall.

U.S. Magistrate Judge Elizabeth Jenkins was asked to recommend an injunction protecting the mural. City officials say the painting is an illegal sign.

The American Civil Liberties Union wants Jenkins to recommend an injunction against the city of Clearwater while the ACLU fights for the First Amendment rights of the Complete Angler to preserve a fish mural on the side of its building.

The shop owner considers it art. The city calls it a code violation.

"I'm somewhat disappointed in both sides by your arguments. I expected more," Jenkins said.

ACLU attorneys James Green and Maria Kayanan railed against Clearwater's sign ordinance, calling it vague and saying that city planning officials have too much discretion. They noted several exemptions to the ordinance, such as holiday signs, and questioned the city's judgment on content.

But Jenkins wanted to hear more legal arguments from the ACLU attorneys and Leslie Dougall-Sides, an assistant city attorney for Clearwater.

The judge took a 10-minute recess and asked the lawyers to come back with "a higher level of advocacy" for their individual stance.

"I just really don't feel that this case has been articulated very well," Jenkins told them.

The two sides came back, pressed their cases more fully, and Jenkins adjourned to mull it over.

The magistrate judge will issue a recommendation on the injunction to U.S. District Judge James Whittemore. Jenkins didn't say when she would have a decision.

City officials say the mural at the Complete Angler, which depicts a half-dozen game fish such as grouper and snook, is an unauthorized sign under Clearwater law. They already have imposed a fine of nearly $700 and threatened business owner Herb Quintero with steeper fines if he doesn't paint over the mural.

Instead, Quintero covered the mural with a banner displaying the text of the First Amendment. That earned him another citation from the city.

Under questioning by Green, Clearwater planning director Michael Delk said that if the banner had been of the American flag, Quintero wouldn't have been cited for an additional violation.

Delk agreed with Green that both the American flag and the First Amendment symbolize the United States of America. But Delk didn't elaborate on why an American flag banner might be exempt.

Meanwhile, Clearwater's City Hall has been bombarded with e-mails from around the country criticizing the city's stance. They say things like "Shame on the city of Clearwater," and "Clearly this is government tyranny," and "You sound like Gestapo."

And those are the printable ones.

"They're very abusive, profane, insulting e-mails," said City Manager Bill Horne. "People are passionate about the First Amendment, and rightfully so. I happen to believe we did the right thing."

Staff writer Mike Brassfield contributed to this report. Kevin Graham can be reached at kgraham@sptimes.com or (813) 226-3433.

Judge puts Clearwater bait shop mural arguments to the test 03/04/09 [Last modified: Wednesday, March 4, 2009 9:24pm]
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