Jeremiah's appeals decision on merchandise display

Judge rules First Amendment rights not violated
Jeremiah's Beach Party owner Jason Frutchman has appealed a ruling by U.S. District Chief Judge Leonard P. Stark against his civil lawsuit that claims Dewey Beach has violated his free speech rights by imposing restrictions on the size of his displays on the front of the store. BY CHRIS FLOOD
August 26, 2014

Dewey Beach Mayor Diane Hanson just wants the town's case against Jeremiah's Beach Party owner Jason Frutchman to be over with.

But Frutchman's appeal of a July 24 ruling by U.S. District Chief Judge Leonard P. Stark against his civil lawsuit means the 4-year-old case will probably go on at least until the end of this year.

Frutchman appealed the ruling Aug. 18 to the Third Circuit Court of Appeals in Philadelphia.

Frutchman attorney Edward C. Gill said they are appealing for two reasons: the town was not willing to come to an amicable resolution and legal issues still surround Frutchman's First Amendment right to use his whole property as he wishes.

Gill said there are people in the town – including Town Manager Marc Appelbaum and town attorney Fred Townsend – who are willing to come up with reasonable resolutions. But then, he said, there are other powers in town who are are more litigation-oriented and don't wish to resolve the situation amicably.

When reached by phone at the store, Frutchman confirmed the appeal, but declined to comment any further.

Hanson has been mayor since Frutchman first filed a lawsuit in December 2010 seeking damages for violation of his free speech rights.

“Although it's his right to appeal, it's extremely unfortunate,” Hanson said. “It's a drain on town resources, when it could be used for something more productive.”

Frutchman argued that town ordinances involving displays should be void of 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.

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.

The town has not enforced the ordinance in years because of the lawsuit.

In response to concerns voiced by other businesses, Gill said, the town created code that disproportionately affected Frutchman.

“Jason's competitors feel because of the size and location of his business, it gives him an unfair advantage,” Gill said. The three-story tall building is located on the corner of Coastal Highway and Dagsworthy Street.

Gill said the briefing schedule for the appeal has not been set up, but once it is set he will have 40 days to file an opening brief. He said he hopes to have things settled by the end of the year.

“Maybe before next season, we'll have this thing taken care of,” he said.

Hanson hopes that's the case and is confident the town will prevail again.

“I don't believe he has a case at all,” she said. “The judge said there's a very high level needed to prove that there's a violation of freedom of speech, and I believe that's correct.”

The town has filed a counter motion to Frutchman's lawsuit in the amount of $30,000, said Megan Mantzavinos, the attorney who represents the town's insurance company.

As part of the statute under which Frutchman filed his lawsuit against the town, Mantzavinos said, the prevailing party is allowed to petition the court to recover its costs and fees.

Appelbaum said Frutchman's appeal will have no affect on the town's decision to examine the ordinance following the judge's favorable ruling. He said commissioners will continue to look it over, and then after Labor Day, he will distribute the ordinance to businesses, and then schedule a meeting so everyone understands.