The federal case of The Complete Angler versus the City of Clearwater is now a matter of public record. The City of Clearwater lost the legal fight, miserably. It was a battle which should never have been fought.
Clearwater has many, many positive things going for it. We have an interested and involved community, outstanding police and fire services, beautiful beaches, parks, libraries and scenery, and on and on.
However, Clearwater’s reputation for the way it treats businesses needs to improve. The first step in overcoming a problem is to acknowledge that it exists; only then can one begin to address causes and develop solutions. The dispute between The Complete Angler and the City of Clearwater provides an excellent case-study for those with a priority of making the city more business and commerce friendly.
Herb Quintero, a Clearwater resident and construction company owner, along with his wife Lori, decided to open a bait and tackle store. They bought a building in a commercial area widely considered to be “blighted” on North Fort Harrison Avenue in the city of Clearwater. They spent hundreds of thousands of dollars fixing the place up. It opened for business on February 1st, 2008 as The Complete Angler and they hired an artist to paint a mural on the side of the building which included some pictures of fish.
Upon noticing the pictures of fish, certain Clearwater city employees, for whatever reasons or motives, decided that the illustrations could be treated as violations of city codes—regardless of the fact that Section 3-1805 of Clearwater’s Community Development Code specifically exempts “art work and/or architectural detail” from the need of government approval or regulation.
Despite the fact that Clearwater’s legal department had lost a similar court case involving Egyptian-themed designs on the side of an Egyptian restaurant less than one year earlier, certain employees felt that violating the Quinteros’ First Amendment rights was the proper course of action. They fined the Quinteros, immediately and irreparably damaging them. For the first time in their lives, the Quinteros had to appear in a county criminal court, where they pleaded “no contest” and paid the fines for the “violation” of city codes.
However, rather than paint over the fish pictures or otherwise capitulate to the desires of the specific city employees involved, on January 11, 2009—just before the date when they were supposed to destroy the artwork—the Quinteros covered the unfinished mural with a large banner containing the text of the First Amendment to the Constitution of the United States of America.
Clearwater’s code enforcers and legal department responded to this obvious act of political protest by sending the Quinteros a second Notice of Violation on February 12th—this time threatening fines of $500 per day for the display of the First Amendment. The actions of those specific employees caused Clearwater to become the only city in the history of the United States of America to ever try to ban the display of the First Amendment.
The legal standard developed through federal cases for what constitutes the type of commercial speech that may be regulated without infringing upon First Amendment rights is “speech that does no more than propose a commercial transaction” (United States versus United Foods, Inc.). Neither the fish mural nor the posting of the First Amendment came even close to anything which could be categorized as “commercial” speech. Clearwater has no legal right to regulate any images or displays of art or political speech under the pretense of commercial signage laws.
Thousands of outraged Americans protested the actions of the Clearwater city employees responsible for this atrocity—as well as the inaction of Clearwater’s mayor and city council— with phone calls, emails, and on-line form comments. Newspaper websites and blogs around the country were inundated with commentary from average citizens speaking out on behalf of the Quinteros’ civil rights.
What was the response of the city manager, mayor and city council? It was to blatantly scorn those who objected to the violation of the Quinteros’ civil rights. The city manager characterized the input from citizens as “abusive, profane, insulting.”
When I brought this to the attention of the city council at a meeting, not one council member would speak in defense of the content of the input coming from around the world in support of the Quinteros. The response from the entire city council dealt solely with the demeanor of the irate American citizenry.
The American Civil Liberties Union (ACLU) filed suit in federal court against the City of Clearwater for the violation of the First Amendment rights of the Quinteros and their business. A preliminary hearing was held in federal court on March 4th, 2009. Based upon the evidence and testimony which took place, Federal Magistrate Judge Elizabeth Jenkins issued her Report and Recommendations on March 13th. In the report, she recommended that the City of Clearwater be compelled to cease any further punitive measures against the Quinteros and allow them to leave both the banner and paintings unharmed. Federal Judge Whittemore concurred with Jenkins on all the legal points and precedents in their entirety.
If the legal case had been scored like a football game, the final tally would have been 103 to 0 against the city. Clearwater’s legal team failed to make even one single valid claim, and could show no legal precedent whatsoever, to justify the actions of city staff against Herb and Lori Quintero and their business. I invite anyone to read the text of the federal hearing, the federal magistrate’s report, Clearwater’s legal department’s response, the ACLU’s rebuttal and Judge Whittemore’s ruling. I believe an objective opinion of such a reading would be that Clearwater city attorneys were woefully unprepared to be dealing with issues related to the Constitution of the United States.
Two earlier cases the city had lost were used as precedents in The Complete Angler versus City of Clearwater federal hearing. These were Dimmitt versus City of Clearwater (where certain individuals in the Clearwater legal department sought to limit the number of American flags a business can display) and Duati versus City of Clearwater (where certain individuals in the Clearwater legal department sought to treat Egyptian hieroglyphic decorations on the side of an Egyptian-themed restaurant as commercial signage).
Thus, after wasting the City of Clearwater’s money trying to defend the indefensible, to avoid a costly court fight they were destined to lose, Clearwater’s legal department convinced the city council to settle the ACLU’s lawsuit on behalf of the Quinteros out of court for around $55,000. The Quinteros were repaid the $690 they had paid in criminal court fines and their attorneys got the rest. The Quinteros, to this day, have never been compensated ten cents for the gas money they had to shell out driving to court, and have never been compensated at all for the violation of their First Amendment rights. The City of Clearwater is downright lucky the Quinteros did not push for a jury trial. A jury (as one did a few years back in California) might have given the Quinteros millions as compensation for the violation of their First Amendment rights.
To my knowledge, no employee of the City of Clearwater—neither any city council member nor the mayor—has ever apologized to the Quinteros for the violation of their civil rights or called for an investigation to determine the initial causes of the harassment of the Quinteros by certain city staff.
So far as I know, no employee of the City of Clearwater has been censured, demoted or fired as a direct result of the violations of the Quintoros’ civil rights and the ensuing public relations disaster.
There has been no public disclosure that any employee or official of the city has received any training in how to avoid any future legal fiascos of this nature—by learning more about the constitutional rights of business owners. (When a businessperson has been found to have violated the rights of an employee it is quite common that they are required to undergo “sensitivity training,” or some such, as proof that they are willing to change their ways.)
In short, nothing has changed, nothing has been learned and no one has been held accountable.
And that, I believe, is the biggest problem Clearwater has: a lack of individual accountability.
I myself spent almost two months going to city offices under the Florida Public Records Act in search of accountability, and being stonewalled by city staff. I finally was able to discover the first person anyone can identify as being involved in the City’s violation of the constitutional rights of the Quinteros. It turned out to be their direct neighbor at their home on Island Estates, an employee of Clearwater’s city planning department named Scott Kurleman.
Almost immediately after I finally uncovered this information, Kurleman sent an email to the Quinteros, on the one hand denying his involvement in the attack against their company, while on the other hand admitting to communicating with Michael Delk (Clearwater’s planning and development director) to keep his involvement in the Quinteros’ case a secret from me.
I spoke at the very next council meeting with this information. Mr. Delk appeared after I spoke at that meeting to contradict me. He said, “And, just for the record, I don’t allow our employees to review permitting applications for their neighbors.”
Yet, internal city emails and communications I was finally able to access show that not only were the Quinteros “instructed” to address Kurleman for guidance in their dispute with the city, but that Kurleman had provided “extensive counseling” to the Quinteros regarding the signage issues at The Complete Angler.
There is a string to be pulled and accountability to be had. Clearwater’s elected officials have, to me, thus far shown no interest in such an investigation. But there is code which allows it.
Article I, In General,Section 2.004 states:
“The city commission and any committee thereof, the city manager, and any advisory board appointed by the city commission for such purpose shall have the power at any time to cause the affairs of any department or the conduct of any officer or employee of the city to be investigated.”
Article II, Legislative Power, Section 2.06 of Clearwater’s code states:
“(b) Dealing through the city manager. Except during an investigation, the council members shall deal with city officers and employees who are subject to the direction and supervision of the city manager solely through the city manager.”
The city council has the right to call for an investigation into the underlying causes of The Complete Angler case and to bypass the city manager while conducting it. Thus far, they have shown no interest in determining any individual accountability for the violation of the Quinteros’ constitutional rights.
I am asking the mayor and council members to please seek an investigation into this travesty. Find out how it started, find out how it was allowed to continue and come up with a solution so that nothing like it is ever allowed to happen in Clearwater again. Call for an investigation and ensure that those specific individuals who caused the violation of the Quinteros’ civil rights are correctly brought to justice. Censure someone or some group of people. Demote someone or some group of people. Give someone or some group of people time off without pay. Fire someone or some group of people. Do something, anything which will show that you believe in the concept of individual accountability. Or step aside and allow people who believe in individual accountability to take your place.
Herb Quintero is now running for city council, so we may some day have an elected official who is interested in finding out the full story behind the only American city to ever attempt a ban on the display of the First Amendment.
A very positive step Clearwater could take after cleaning house through an investigation would be to appoint a business “concierge,” a pro-business advocate on the city payroll who would help businesspeople who are having difficulty with city staff. Such an action would allow the city to begin an honest public relations campaign to change the public’s perception of the city. “Clearwater—Open for Business,” could be the new attitude and slogan.
Dru Jeanis is a businessman and writer who, along with his wife, Irma, owns one of the largest postcard marketing firms in the country: Pure Postcards, Inc., located in Clearwater. Their website can be found at: www.purepostcards.com. He is also the editor of www.keepthefish.com, a website devoted to chronicling the story of The Complete Angler versus the City of Clearwater.