TRI In The News

Flag Has Businessman, City at Odds

By Susan Latham Carr
From Ocala.com

In videos he has posted online, Keith Greenberg, the owner of Gear Barrel, has said the city of Ocala is treading on his rights because the city has asked him to remove a Gadsden flag he had flying outside his store off Northeast Third Street because it is in violation of the sign ordinance.

The Gadsden flag is yellow and features the words, "Dont (sic) tread on me," under a drawing of a coiled snake.

"The issue for me is a First Amendment issue," Greenberg said Wednesday. "It's freedom of speech, freedom of expression."

He said he wants to fly the flag that, he said, has been flying on every U.S. Navy ship since the beginning of the nation. He said the flag represents freedom to him.

On its website, the city has posted a response to citizens who have concerns regarding the flag, which states that the city currently has 33 other business owners who have received notices of violation for the same infraction and those that continue to be in violation are subject to fines. It states further that the definition of "flag" the code allows to be displayed on commercial property are the official flags of the United States and the state of Florida.

Greenberg said the Rutherford Institute, a civil liberties organization in Charlottesville, Virginia, is representing him. He said the city has "double talked" him. He said he was told last week that the content of the flag was the issue, but he said the city told his lawyer Wednesday that that was not the case.

A news release from the institute on Wednesday stated that its attorneys are calling for the city to withdraw its threat to prosecute Keith and Hannah Greenberg and that the city's ordinance that allows "only governmental and religious flags is patently in violation of the First Amendment because speech is permitted on the basis of the content of the speech."

In the news release, John W. Whitehead, the institute's founder and president, cited a 1993 decision of the U.S. Court of Appeals for the Eleventh Circuit ruling an ordinance of the city of Clearwater was unconstitutional for restricting all flags except governmental flags.

Whitehead also wrote a letter to the city's code enforcement officer Jason Kilcrease asking that the violation be "renounced" and that assurances be given the Greenbergs will not be cited again for displaying their flag.

The Ocala Council heard the details of the violation at a workshop meeting Tuesday and directed city staff to review the ordinance and bring back an expanded definition of the American flag for it to consider.

City Attorney Patrick Gilligan said he is amending the ordinance.

Gilligan said the city is allowed to regulate commercial speech as long as it is not oppressive.

"Our ability is not unlimited," he said.

Marc Mondell, assistant city manager of community development services, told the council Tuesday that code officers are attempting to enforce the sign ordinance consistently. He said they are not looking at the content of the banner, but rather that it is illegal signage.

Mondell said that during the code enforcement rounds, it was noticed there were violations by three stores in the shopping plaza off Northeast Third Street. Mondell said two of the stores had illegal banners, which they took down. Greenberg had a barrel out by the street with advertising on the barrel.

When it was brought to his attention, Greenberg removed the advertising from the barrel and placed it in front of his shop as a planter, which ended the violation and brought him into compliance with the code. It also was noticed, however, that he was flying the Gadsden flag, which is a violation of code.

The city's code regarding signage on commercial property only allows "governmental or religious flags or insignia and holiday decorations incidental to the business and customarily associated with any national, religious or local holiday."

Other flags are allowed to be flown temporarily by obtaining a temporary sign permit. The permits, which costs $39, can be obtained for a two-week period four times a year. The flags are considered temporary signs, like pennants, banners, balloons and streamers and, with a permit, may be displayed for events such as grand openings and special sales.

Flags also are allowed to be displayed in shop windows without a permit, and Greenberg was told that.

Mondell said the city sent a "nice" letter to Greenberg advising him he is in violation and added that rather than "begin a formal process" involving a violation notice, the city asked that the violation be corrected voluntarily.

"He elected not to do that," Mondell told council members.

A notice of violation was sent to him, advising him he could be fined up to $250 a day for the first violation and up to $500 a day for repeat violations.

The letter and notice also were sent to the property owner, PCU Properties 1 LLC, in care of Jon M. Kurtz as registered agent.

"There's an important reason we have signage control in the city," Mondell said.

He said the ordinance helps control clutter and gave the instance of an artificial gorilla that had been displayed at a car wash as an example.

Mayor Kent Guinn said the Gadsden flag was an American flag flown in 1775 during the American Revolution.

Councilman Jay Musleh said the Gadsden flag is not the American flag, but rather an old flag.

Charles Rich, the city's code enforcement division manager, said the Gadsden flag is historical.

"It's not the stars and stripes," Council President John McLeod said, referring to the United States' official flag.

McLeod asked if the Florida state flag could be flown and was told that it is a permissible flag.

The city's code section 110-6(7) outlines the types of flags that are exempt from the permit.

Guinn asked about the flags of the various military branches. He said Mexican and Irish flags have been flown at other businesses.

Rich said those flags, like the Gadsden flag, could be flown after obtaining permits.

Musleh said the ordinance needed to be tweaked to better define American flag.

Councilman Jim Hilty agreed.

"I think that's the whole problem is the definition of the flag, the ambiguity of it," Hilty said about the ordinance.

Councilwoman Mary Rich, no relation to Charles Rich, said she did not think the ordinance needed to be amended.

"It's a good code," she said. "And they told the man he could fly it inside his window. So I don't know why we need to change the whole ordinance because one man doesn't want to put his flag in the window."

McLeod suggested the staff bring back some expanded definition of American flag.

On Wednesday morning, the Gadsden flag was being displayed in Greenberg's shop window and the American flag was displayed outside.

Greenberg said he took the Gadsden flag down and put it in the window because he could not afford the fines that were threatened. He said his business has only been open since May.

The city has not levied any fines against Greenberg.

Upon learning of the council's request to amend the ordinance, Greenberg said, "That's outstanding. I am glad to hear that."