A recent court ruling paves the way for Dewey officials to crack down on commercial displays, but town officials say they will take a measured approach to the problem.
Rather than get into trouble with a fire-ready-aim approach, said Town Manager Marc Appelbaum, the town will make sure the code is understood. He said questions surrounding the code remain, which could lead to town officials and businesses interpreting it differently.
“I want us to all get on the same page,” Appelbaum said.
U.S. District Chief Judge Leonard P. Stark ruled July 24 in favor of the town in a 4-year-old civil lawsuit brought by Jeremiah’s Beach Party owner Jason Frutchman.
Seeking damages for violation of his free speech rights, Frutchman filed the lawsuit in December 2010, against former Town Manager Diana Smith, Building Inspector Bill Mears and the town of Dewey Beach.
Frutchman argued that town ordinances involving displays should be void for vagueness. The suit also says Jeremiah’s is protected under the town’s Grandfather Clause because the business existed before the display ordinance was established.
Beginning in 2006, the business, a beach variety store on the bayside corner of Route 1 and Dagsworthy Avenue, was ticketed multiple times for merchandise displays that violated town code.
Town officials amended the building code regarding how much seasonal merchandise a commercial building could display in 2008. The amendment specifies that displays be no taller than 12 feet or higher than the first floor of a building, and that the displays cover no more than 30 percent of the outside of the frontage of the building on Route 1 or 500 square feet, whichever is less.
Before the amendment, businesses weren’t allowed anything, said Mayor Diane Hanson.
“The code was changed in an effort to work with the business community,” she said. “This is a classic case of give an inch and take a mile.”
In his ruling, Stark wrote that Dewey Beach "targeted plaintiff for enforcement because he was the most prominent violator of the code, and his noncompliance incited other business owners to violate the law as well."
Stark also wrote, “The court concludes that there is no genuine issue of material fact as to whether defendants' regulation of displays violates plaintiffs commercial free speech rights, as the code provisions at issue advance substantial and legitimate government interests, are content-neutral, and are narrowly drawn.”
Appelbaum, who was hired after the the lawsuit began, said he's aware this is the middle of the summer; instead of creating a firestorm with businesses at the height of their busy season, the best approach is to make sure everyone is on the same page.
Getting on the same page began July 30, when Appelbaum, Hanson, Mears, assistant to the town manager Mary Dunmyer, and town clerk Ashleigh Hudson walked Route 1, code in hand, to look at signs and displays. Before beginning any sort of enforcement, the officials in charge of enforcing the code wanted to make sure they agreed on what the code requires.
The next step, said Appelbaum, will be setting up a meeting with the business community to let them know where the town stands. He hoped this could be accomplished in the next couple of weeks.
Appelbaum said he's inclined to begin enforcing the code after questions are answered and the summer season is done, but, he said, it could be sooner if residents and elected officials direct him to do so.
Case not completely over
Frutchman said July 29 that he had no comment on the judge's ruling and on whether or not he was going to appeal.
Frutchman's attorney Edward C. Gill said there's a 30-day window to appeal to the Third Circuit Court of Appeals in Philadelphia.
Gill said an appeal is the last thing on his client's mind. “We're hopeful we can set up a meeting with the town and avoid moving forward,” he said. “The goal is to avoid additional litigation.”
Gill said as long as the town agrees to reasonable restrictions on Frutchman's right to free speech, additional litigation can be avoided. That's the goal, he said.
Hanson laughed when she was asked if the town was willing to work with Frutchman, noting he's had a chance to do that at least three times.
“It's their option to appeal, of course, but I don't know on what basis they would,” she said.