Complete Angler, LLC v. City of Clearwater, Fla.

Page 1326

607 F.Supp.2d 1326

The COMPLETE ANGLER, LLC, et al., Plaintiffs, v. The CITY OF CLEARWATER, FLORIDA, Defendant.

Case No. 8:09-cv-346-T-27EAJ.

United States District Court, M.D. Florida, Tampa Division.

April 9, 2009.

Bruce G. Howie, Bruce Howie, PA, Clearwater, FL, James K. Green, Law Office of James K. Green, PA, West Palm Beach, FL, Maria Kayanan, Randall C. Marshall, ACLU Foundation of Florida, Inc., Miami, FL, for Plaintiffs.

Leslie Kathleen Dougall-Sides, City of Clearwater-Attorney's Office, Clearwater, FL, for Defendant.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT is the Report and Recommendation of the Magistrate Judge recommending that Plaintiffs' Motion for Preliminary Injunction be granted as to Plaintiffs' "as-applied" First Amendment claim (Dkt. 19). Defendant filed objections to the Report and Recommendation and Plaintiffs have responded (Dkts. 25, 27). This Court has conducted a de novo review of those portions of the Report and Recommendation objected to. 28 U.S.C. § 636(b)(1).

Plaintiffs allege that Defendant's sign and banner ordinances are unconstitutional on their face and "as-applied" to a marine themed mural on an outside wall of The Complete Angler, Plaintiffs' bait and tackle shop, and as to Plaintiffs' First Amendment "protest" banner. (Dkt. 1, ¶¶ 1, 53-55). On January 9, 2009, Plaintiffs pled nolo contendere to a March 10, 2008 Notice of Violation pertaining to the mural and paid fines and court costs totaling $690.00. (Dkt. 1, ¶¶ 27, 34). On January 12, 2009, Plaintiffs covered the mural with a banner displaying the text of the First Amendment. (Dkt. 1, ¶ 35). On February 14, 2009, Plaintiffs received a Notice of Violation, which required that Plaintiffs correct alleged violations by February 27, 2009 and remove the mural and First Amendment banner. (Dkt. 1, ¶¶ 37-38).

Plaintiffs' Motion for Preliminary Injunction was referred to the Magistrate Judge. (Dkt. 5). In a thorough and well-reasoned Report and Recommendation, the Magistrate Judge concluded that "both the Painting and the Banner are non-commercial speech protected by the First Amendment." (Dkt. 19 at 7). The Magistrate Judge found that the application of Defendant's sign code to Plaintiffs' non-commercial speech was content-based and did not withstand strict scrutiny. (Dkt. 19 at 10). Defendant first objects to the Magistrate Judge's determination that neither the mural nor banner are commercial speech. Upon de novo review, this Court concludes that the Magistrate Judge correctly determined that the mural is non-commercial speech, as the evidence demonstrates that it reflects a local artist's impression of the natural habitat and waterways surrounding The Complete Angler, and also alerts viewers to threatened species of fish. (Dkt. 22 at 68-69). Accordingly, the mural does more than "propose a commercial transaction" and is properly considered non-commercial speech. United States v. United Foods, Inc., 533 U.S. 405, 409, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001). Likewise, the banner does not propose a commercial transaction and is properly considered non-commercial speech.

Defendant also argues that the Magistrate Judge failed to recognize that Defendant properly excluded the mural from the exempt category of "art work" in the sign code, as it was placed "in conjunction with" a commercial enterprise. The Magistrate Judge correctly determined that notwithstanding the constitutionality of the definition of "art work," Defendant's application of that definition in this case impermissibly treated Plaintiffs non-commercial speech as commercial speech, for the reasons set forth. As the Magistrate Judge noted, "[Defendant] may not skirt First Amendment protections by applying a definition of commercial speech that better suits its tastes." (Dkt. 19 at 7).

Third, Defendant objects to the Magistrate Judge's determination that the code, "as-applied" to the mural and banner, was not content-neutral. There is, however, ample evidence in the record, as discussed by the Magistrate Judge, that Defendant did consider the content of the mural and banner in applying the sign code, including the published statements of a City employee, the testimony of the City's Planning Director, the presence of other non-permitted murals in the City, and the exemptions in the sign code for art work and holiday decorations.

Based on the foregoing, the Magistrate Judge correctly determined that Defendant's application of the sign code to Plaintiffs' mural and banner does not withstand strict scrutiny. After careful consideration of the Report and Recommendation, Defendant's objections and Plaintiffs' response, and in conjunction with an independent examination of the record, this Court is of the opinion that the Report and Recommendation should be adopted, confirmed, and approved in all respects. Accordingly, it is ORDERED AND ADJUDGED:

1) The Report and Recommendation (Dkt. 19) is adopted, confirmed, and approved in all respects and is made a part of this order.

2) Plaintiffs' Motion for Preliminary Injunction (Dkt. 3) is GRANTED to the extent that Defendant is enjoined from: (1) compelling Plaintiffs to remove either the mural or the banner; and (2) prosecuting violations of §§ 3-1806.B.3.A., 3-1804.D., or 4-1002 in connection with the mural or banner. The security requirement in Rule 65(c) is waived.

REPORT AND RECOMMENDATION

ELIZABETH A. JENKINS, United States Magistrate Judge.

Before the court is Plaintiffs' Motion for Preliminary Injunction (Dkt. 3), filed February 24, 2009, and Defendant's Response (Dkt. 17), filed March 9, 2009. On February 25, 2009, Plaintiffs' motion was referred to the undersigned for a report and recommendation. On March 4, 2009, the court held a hearing on Plaintiffs' motion at which both sides presented evidence and legal argument.¹ As stated hereafter, Plaintiffs' motion should be granted in part as to their "as-applied" First Amendment claim.

Findings of Fact

1. In December 2007, Heriberto and Lorraine Quintero ("the Quinteros") purchased and renovated the building at 705 Ft. Harrison Avenue in Clearwater, Florida.

2. They opened a bait and tackle shop called The Complete Angler, L.L.C. ("the Angler"), which is a duly registered Florida corporation owned by the Quinteros.

3. The property is zoned commercial.

4. The Angler provides drive-through access to the Seminole Street boat ramp and sells live and frozen bait, snacks and drinks, boat accessories, and custom rods and reels.

5. The Angler does not sell game fish, local or otherwise.

6. The Quinteros commissioned Matt Evanson, a local artist, to create a painting ("the Painting") on the exterior wall of the Angler that would educate the public about the endangerment of game fish found in the local habitat.

7. The Painting contains no text and depicts a snook, a redfish, a tarpon, a dolphin (mahi-mahi), a Nassau grouper, and a sailfish (Plaintiffs' Ex. 1).

8. The Painting spans most of the Angler's western wall.

9. On March 12, 2008, Defendant City of Clearwater ("the City") issued the Angler a Notice of Violation citing its failure to obtain a sign permit for the Painting as required by Defendant's Community Development Code ("the Code") (Plaintiffs' Ex. 2).

10. The Angler pled nolo contendere and on January 9, 2009, paid fines and court costs in the amount of $690.00.

11. On January 12, 2009, Heriberto Quintero covered the Painting with a tarp and a banner ("the Banner").

12. The Banner contains the complete text of the First Amendment and the comment that: "THE SUPREME COURT REQUIRES THE GOVERNMENT TO PROVIDE SUBSTANTIAL JUSTIFICATION FOR THE INTERFERENCE WITH THE RIGHT OF FREE SPEECH WHERE IT ATTEMPTS TO REGULATE THE CONTENT OF THE SPEECH" (Plaintiffs' Ex. 6).

13. The Painting remains on the wall behind the tarp and the Banner (Plaintiffs' Ex. 6).

14. On February 12, 2009, Defendant issued the Angler a second Notice of Violation ("the Notice") regarding both the Painting and the Banner (Plaintiffs' Ex. 7).²

15. At the March 4, 2009 hearing, Heriberto Quintero testified that the Painting will alert viewers to the threat of extinction posed to the species of fish depicted therein.

Standard of Review

When seeking a preliminary injunction, a plaintiff must establish "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, Inc., ___ U.S. ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). Given the "extraordinary and drastic" nature of preliminary injunctions, they may be granted only where the plaintiff clearly satisfies the burden of persuasion as to each of these requirements. All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989). To meet its burden the plaintiff may rely on affidavits and hearsay materials that would not be admissible as evidence for the entry of a permanent injunction. Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).

Conclusions of Law

Plaintiffs challenge the constitutionality of a comprehensive scheme of sign regulations intended by the City to "promote the public health, safety and general welfare." § 3-1802. Underlying these sign regulations are the following general principles:

The city is a resort community on the west coast of the state with more than five miles of beaches on the Gulf of Mexico. This city has an economic base which relies heavily on tourism. In order to preserve the city as a desirable community in which to live, vacation and do business, a pleasing, visually attractive urban environment is of foremost importance. The regulation of signs within the city is a highly contributive means by which to achieve this desired end. These sign regulations are prepared with the intent of enhancing the urban environment and...