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Business Observer Friday, Apr. 15, 2005 14 years ago

Government's Inane Rules

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Editor's note: The following is a letter sent by Clearwater attorney Robert G. Walker, owner of a new pet shop, Fluffy Puppies, to Clearwater City Planner John Schodtler on April 7. It's available free of charge.
by: Adam Hughes Staff Writer

Government's Inane Rules

John, we at Fluffy Puppies enjoyed an unexpected (based upon newspaper articles and some word of mouth anecdotal history) and pleasurable experience with your department in the early stages of our new venture. The ease of use and the cooperation that we received from the city was not what we had been led to expect.

Our business has been a hit from the start and we are getting all kinds of referrals from the Belleview Biltmore, businesses on the beach, friends and other sources. It's location at the southern gateway to the city and at the primary northern exit from Belleair is perfect. The narrowing of Fort Harrison from its former four lanes to two lanes enhances the effect because virtually everyone who travels that roadway is stopped by the traffic light at Belleview Avenue on a regular basis, and there is really not much else to look at in proximity to that intersection but our storefront.

We have attempted to build on the history of the building as a one-time Clearwater fire station (circa 1946), and its best known local reputation for about 20 as "A Place for Cooks." Our idea to call it "A Place for Dogs" has most local citizens with any sense of history chuckling at the play on words. It's funny what ideas pop into your head at 2 a.m. That one, however, was a no-brainer.

It has been my intention from the start to preserve and build on a quaint and rustic architectural style, decor, design and appearance of this copper-clad, art deco building. I have been alert to decorative art that will fit that theme. We've added flowers, potted plants, decorative lighting and we've attempted to change our display window in the same way that florists do - responding to holidays, seasons and other notable events and occasions with an appropriate display.

Thus, when I happened across a wind vane in an antique store up in Lake City a few months ago I instantly saw the potential to add this bit of country charm to the store as a useful and attractive decoration and ornament. I was going to put it on the roof, but decided that it would be more visible at a lower level. Our store sign out front is mounted on a heavy steel frame and where the two sides meet appeared to be the perfect place for a location. It was also more accessible than the roof.

Here's the rub. Mary Jo Fox sent us (and our landlord) a "Courtesy Notice" requiring that we remove the wind vane as well as a plastic fire hydrant and a large stuffed dog that we had placed next to it by Friday, April 8. I have no problem with the dog and hydrant (though we've gotten rave reviews about them). The hydrant is unique and a decoration but we do sell the stuffed dogs, so if there is a prohibition about the display of goods on the exterior of a building, I can understand the need to keep aesthetic regulation uniform and consistent. I guess a real dog and a real fire hydrant would be permissible.

The wind vane has me perplexed, however. Mary Jo sent me the sign ordinance and its prohibition is clear: Among the signs prohibited by Section 3-1803 is (V), which includes "Three-dimensional objects that are used as signs." Now I am not really sure what that means because anything that isn't flat is three-dimensional in my view) and the phrase "used as signs" to me suggests advertising or communication of a commercial message. I asked Mary Jo if I could place a wind vane with anything but a dog (e.g., a bass, a rooster, an eagle, essentially anything but a dog-related object) displayed, and she said yes. Therefore, I take it that it is the "message" that is prohibited, and not the object conveying it. Otherwise, I can think of no rational basis for such a regulation.

Certainly, a storm-proof wind vane cannot be outlawed, so it is not the message conveying the direction of north, south, east and west. Therefore, as Mary Jo summarized, it must be the presence of the pointer (in this case, pointing into the wind) that is objectionable. I find it rather unusual to have a wind vane regarded as a sign touting a product or service and that such an interpretation seems overbroad. In that it interferes with an otherwise legitimate and legal use of the property, it seems that the definition of "sign" should be narrowly construed and read with regard to the code's overall purpose and objective. How this particular interpretation advances any legitimate purpose in sign regulation escapes me.

I've been known to have an energetic imagination so I have theorized that assuming "three-dimensional" is elsewhere defined or given its everyday, ordinary meaning as pertaining to the property or characteristic of having dimensions of height, width and length (e.g., not flat or two-dimensional), I could replace the slightly rounded (e.g., three-dimensional) dog with a flat, metal dog (thereby rendering the objectionable three-dimensional aspect two-dimensional, and thus not prohibited), or I could replace the three-dimensional dog with any other object d'art, to include a political or religious or icon, or any other object that is not dog-related, and thus not interpreted as a "sign."

I think the City has better things to do than this. We have achieved something that seems rare in the near-downtown - a fashionable store that people like, that they visit, that they patronize, and that they consistently comment about favorably. And the wind vane contributes to that as a symbol of the pleasant winds that have favored us. But the wind emanating from City Hall seems more consistent with those stories we heard from others who have pursued various plans, dreams and new ideas. It seems very sclerotic to me. I understand the need for regulation and direction in sign regulation. I am simply hard pressed to understand how this current effort with regard to a wind vane does anything positive in that regard.

Our wind vane is a decoration, an ornament, a functional piece of art, and reading the city sign ordinance in the light of its intended purpose and scope, the wind vane is not a sign by any recognized definition of the word. Any message it conveys (e.g., a wind and compass point indicator) is primary and any secondary message (we are a dog store, and thus the choice of a dog pointing its nose into the wind as our choice of wind direction indicator seems appropriate) is just that - secondary and incidental. It seems to me that any commercial message is extremely tenuous at best. The antique patina finish of the wind vane matches that of the two similarly finished metal awnings out front, as the attached photos reveal. We did not erect it as a sign, we did not intend it as a sign, and nobody that we know regards it as a sign.

My initial impulse was to contest the initial finding, but Mary Jo was kind enough to inform me that (1) she thinks the wind vane is very attractive and a fine piece, and (2) the Planning Department has significant input in making a determination that the device is either not a sign (which seems rather obvious to me because its primary purpose is unrelated to the selling of any product, and we don't sell wind vanes), or that it is either exempt or allowable for some other reason. She suggested attaching photos and I am doing that. The wind vane, by the way, was erected in its present location during your prior visit to inspect the property, but it is so subtle and blends in so well with the structure and background as to be one with it.

I've shared some of my theories and our position. In light of Mary Jo's position that any other symbol but a dog (and I will extend that to any dog-related product, such as a bone, but in light of the building's original purpose and history as a fire station, I don't think it would include a fire hydrant or fire truck) would be allowed, I am definitely going to keep the wind vane and if I do make a change, it will be to replace the dog motif with something else. However, all that may be unnecessary if you and your team at the city can agree that any denomination of this decorative and ornamental object as a "sign" (e.g., commercial speech that advances commercial product or service) is unwarranted, and that any remote message is secondary, incidental and legally inconsequential.

I would prefer to be a partner in advancing the interests of the City of Clearwater in the beneficial and attractive potential of the downtown area. If aesthetics is the primary goal, we win. Mary Jo agrees the wind vane is beautiful. If the regulation of commercial speech is the goal, we win. One needs to stretch to find any commercial message at all in a wind vane - although they do tend to contain some symbolic message that reflects the taste, viewpoint or interests of the owner. We like dogs. That is our only message. If I was a fisherman, it would have been a fish. There are endless possibilities, and if necessary I will explore them further. It is a stationary device and it is not any more distracting than our flagpole, flowers or display window. But it is not a sign, as I hope you will agree.

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