Yesterday attorneys for the homeowners embroiled in the “Starry Night” mural dispute filed suit in Federal Court against the City of Mount Dora for allegedly acting unlawfully and violating their clients’ constitutional rights.
Today US District Judge James S. Moody Jr. granted a temporary restraining order against the city to place a hold on fines until a federal judge has an opportunity to resolve the alleged constitutional issues raised by the actions of the city. The fines are now in excess of $10,000 and were increasing by $100 daily.
Jeremy Talcott, an attorney with Pacific Legal Foundation (PLF) which has a winning track record of constitutional cases brought before the U.S. Supreme Court, said the foundation accepted the case pro bono due to the merits and facts of the case. The PLF is arguing that banning the mural is an abusive interpretation of the city’s sign ordinance and violates the U.S. Constitution’s First and Fourteenth Amendments.
The city originally cited the mural as a graffiti, but later changed course and defined it as an illegal sign. Under the code interpretation adopted at a magistrate hearing, anything that attracts attention to itself can be considered a “sign” under Mount Dora’s sign code. That could include yard statuary, holiday decorations and other items.
According to Talcott, the Supreme Court has been skeptical of sign codes that distinguish signs based on content, that prohibit too much speech, or give city officials too much discretion.
In a statement last week, the city did not reference the sign violation, but rather stated the mural is “distraction to safe vehicle operation,” although no related accidents had been reported.
After the original citation, the homeowners incurred the additional expense of extending the mural onto the house after being erroneously informed by the City that the wall was required to match the house.
“Together the residential and commercial areas make up the unique, southern charm that our city council has worked very hard to protect,” read the City’s statement. To date, the Mount Dora City Council has never adopted a code that regulates murals or paint colors in residential neighborhoods.
“Unfortunately, we have been unsuccessful at finding common ground with the homeowners,” wrote the City in an unattributed statement last week. The homeowner in question, Nancy Nemhauser, was astonished by that claim.
"What was the city’s attempt at finding common ground? Was it serving us with a citation, telling us we had to obliterate the painting that is so meaningful to our autistic son, asking for the maximum fine possible, or their asking for a rehearing with ever-growing fines--while other homes with paintings are not cited?" said Nemhauser. “We are not aware of any attempt by the city to find common ground. It's very disappointing to read such fiction from city officials."
Digging in its heels has proven costly to the historic Central Florida city, albeit the biggest losses haven’t been monetary. Mount Dora has endured months of negative press and the federal case could drag that on for a year or more. Meanwhile, the public has expressed overwhelming support on social media for the homeowner’s property rights and the mural. Separately, over 10,000 people have signed an online petition asking the city to keep the mural which was painted by a local artist.
The City was served with the complaint yesterday and has 21 days to respond. The response could either be a motion to dismiss the case or denial of the allegations in the complaint.
The federal case could be resolved by a speedy final judgment from the district court in approximately six months, or it could stretch into a year or more, depending on the various court processes. Talcott has stated PLF is committed to the case all the way to the U.S. Supreme Court if necessary.