ABOVE: Lubomir (Lubek) Jastrzebski (left) and his wife Nancy Nemhauser (right) with their son. Photo courtesy of Pacific Legal Foundation.
It was the obvious next step. With no code on the books for murals or home-painting and a ruling their wordless mural was an “illegal sign,” it was easy to forecast the homeowners’ appeal. Given the constitutional issues at stake, it was only a matter of time before the legal cavalry would come. Now they have arrived.
Homeowners, Nancy Nemhauser and Lubomir Jastrzebski, are bringing a court challenge to these alleged violations of their constitutional rights of due process and freedom of expression. The couple is now represented by Pacific Legal Foundation, a national non-profit with a record of winning constitutional cases brought before the Supreme Court and the fortitude to see the case through the legal system. Due to the merits of the case, the homeowners are being represented free of charge.
It all started when the drab, white concrete wall outside their home was peeling. The couple responded enthusiastically when an artist offered to adorn it with a mural based on a famous Van Gogh masterpiece.
After city officials told Nemhauser no permit was required for a painting on a wall, they eagerly gave the go-ahead to the artist, and he began work on his vibrant depiction of “Starry Night.”
ABOVE: Rear of home backing up to Old Highway 441
“We have been preparing this house as a home for our adult autistic son. The murals are bright and cheerful. They lift his spirits – and ours,” said a humble Nemhauser, who along with the rest of her family is typically very private. “In the event our son wandered and became disoriented or frightened, we hoped he could articulate that he belongs at the Van Gogh house so responders could help him find his way home.”
A 2012 study funded by Autism Speaks found that nearly half of all children with autism wander. The behavior increases with the disorder's severity, and researchers say the reasons for this behavior include the child's love to explore and run or his need to escape uncomfortable sensory stimuli or anxious situations, or a desire to pursue something of interest. Half of the study’s parents said that to them, wandering is the most stressful behavior of their autistic child, due to the inherent dangers attached.
ABOVE: Front of home that is visible to neighbors is not painted with a mural.
When the mural's paint was dry, the family couldn’t have been happier with the result. The same wasn’t true for the City’s code enforcement. Although Mount Dora touts itself as a town that supports the arts, local officials ostensibly turned into art critics upon seeing the painting. They decided the mural wasn’t permissible after all, although there is no ordinance governing aesthetic standards for painting homes, walls, or other structures. Instead the City provided a shifting cluster of reasons to order the mural removed.
First, the City’s code enforcement officer labeled it “graffiti” and directed that the wall must match the house. The family responded by adding a mural in the same style to the sides of the house behind the wall. However, during a September 14 magistrate hearing, it was revealed the City has no such code, despite widely disseminating information to the contrary.
Undeterred, officials branded both murals as prohibited “signs” – giving the broadest possible interpretation to the city’s vague sign code. Even though the regulators’ open-ended reading of the law could effectively label any form of outdoor décor a “sign,” a city magistrate, contracted by the city, sided with the enforcement officers. The magistrate ordered that the murals be painted over – and hit the family with a $3,100 fine.
PLF attorney Jeremy Talcott, who is representing the family, believes the homeowners are victims of a local regulatory process without clarity or predictability.
“The city’s vague sign law gives code enforcement unbridled discretion, and with Nancy and Lubomir the enforcement officers chose to interpret it in the most sweeping way conceivable. A law so ill-defined that no one can say for sure what it does or doesn’t allow is no law at all,” said Talcott.
Public information requested from the City for this article was not made available. The City’s attorney declined to comment citing the pending litigation.
“Pacific Legal Foundation fights for individual liberty, including constitutional guarantees of due process and freedom of expression,” said PLF President and CEO Steven D. Anderson. “This mission requires challenging arbitrary abuses by unelected bureaucrats. We look forward to vindicating these vital principles.”
ABOVE: The west-facing side of the mural
The saga continuesFebruary 1 after the City’s attorney requested a rehearing for additional fines, according to Talcott. The public hearing begins Thursday at 9 a.m. at Mount Dora City Hall.
“By seeking large fines the City is trying to force Nancy and Lubek to destroy the mural before a judge has had a chance to rule on whether or not the sign code can be lawfully applied to it," said Talcott. "The homeowners have a right to judicial review of the alleged violation, especially considering the fact that the city relied on a new and novel interpretation of their sign code at the code enforcement hearing."
“The bureaucrats used this vague ordinance as license to behave like art censors, imposing their aesthetic likes and dislikes on Nancy and Lubomir,” he said. “If government is going to restrict people’s expressive rights, there must be a powerful, predictable, clearly articulated justification, not simply the whims of regulators.”
As a result of the public outcry over the city’s stance on the issue, an online petition garnered over 5400 signatures in support of the homeowners. Meanwhile, other Lake County cities and businesses have jumped on the chance to show their support of art and public murals. Downtown Eustis now has two murals by the same artist and Leesburg just approved hiring the artist to do a mural in their downtown.
“The whole experience with these bureaucrats is a literal nightmare. In fact, it brings back haunting memories of my life under communism in my native Poland,” said Jastrzebski. “ I immigrated to America 45 years ago to escape communist oppression in Poland. I have been a proud American citizen for decades, and the reason I came here is the rule of law.
“In America, bureaucrats are supposed to follow clear legal rules, not make the rules up as they go along. And America is supposed to stand for freedom of expression, not arbitrary censorship by bureaucrats," said Jastrzebski. "Reasonable regulations are necessary and fine, but there must be due process – and that’s the principle we’re fighting for, on everyone’s behalf.”