CLEARWATER — A local bait and tackle shop and the American Civil Liberties Union won an initial victory Friday in their federal lawsuit against the city of Clearwater over the shop's fish mural. But there's still a lot of litigation to go.
After hearing arguments from the opposing sides last week, U.S. Magistrate Judge Elizabeth Jenkins on Friday recommended an injunction preventing the city of Clearwater from levying any more fines on the Complete Angler for its mural while the case is in litigation.
She issued the recommendation to U.S. District Judge James Whittemore, who will make the final ruling on the injunction.
"The city will abide by the judge's order, whatever that ultimately is," city spokeswoman Joelle Castelli said Friday.
The Complete Angler's owners, Herb and Lori Quintero, have already paid nearly $700 in fines and said the city threatened steeper fines if they didn't remove the mural or a First Amendment banner that now covers the mural.
"We're very grateful that Magistrate Judge Jenkins protected both art and the First Amendment in the city of Clearwater," said Maria Kayanan, associate legal director of the ACLU of Florida.
The Quinteros say the fish mural is art. The city says it's an unauthorized sign and a code violation.
In Friday's ruling, the magistrate judge expressed doubts about the legal validity of the city's arguments in the case.
Jenkins wrote that she was recommending the injunction against the city because the Complete Angler has established that its challenge to the city's sign code is "likely to succeed."
"Neither the painting nor the banner are commercial speech," she wrote. "Plaintiffs' assertion that the painting reflects a local artist's impression of the 'natural habitat and waterways' surrounding the Angler is supported by a preponderance of the credible evidence.
"Nonetheless, the city would classify the painting as commercial speech. … The city may not skirt First Amendment protections by applying a definition of commercial speech that better suits its tastes."
Mike Brassfield can be reached at email@example.com or (727) 445-4160.