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Super Mario takes on the Town of Orange Park

Jesse Hollett
Posted 4/12/17

ORANGE PARK – A videogame shop owner is on a mission to save an iconic Italian plumber.

Scott Fisher, the owner of the retro and contemporary videogame store Gone Broke Gaming, has taken the …

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Super Mario takes on the Town of Orange Park


Posted

ORANGE PARK – A videogame shop owner is on a mission to save an iconic Italian plumber.

Scott Fisher, the owner of the retro and contemporary videogame store Gone Broke Gaming, has taken the fight for his 9-foot Super Mario inflatable to the U.S. district court’s Middle District of Florida.

The inflatable stood in front of Fisher’s business on Kingsley Avenue as a friendly marker to find his shop, which is sandwiched in a hard-to-spot strip mall.

Fisher, along with pro-bono help from the Virginia-based nonprofit law firm Institute for Justice, have started a ‘new game’ to revive the famous videogame hero. Town officials last summer informed Fisher his inflatable did not meet the town’s sign ordinance codes and he would be fined $100 for every day he left it up if he did not deflate it.

The town considers inflatables as portable signs and prohibits certain kinds of inflatables. The town allows holiday inflatables, however. The town bans displaying any inflatable that relates specifically to a business.

The lawsuit alleges that by allowing some kinds of inflatables, but not others, and controlling certain kinds of speech, but not all, the town has committed both “content” and “speaker” based discrimination. The suit alleges the town’s sign ordinance infringes on Fisher’s rights under the First Amendment.

“A business could display the same exact inflatable Mario that Gone Broke Gaming was displaying, so long as the business was not selling Mario-related products,” according to the lawsuit filed April 6.

Fisher said he has seen a downturn in traffic since the town forced him to take down his inflatable Mario.

The lawsuit seeks to prove the sign ordinance is unconstitutional on its face and makes Fisher immune to its effects. The lawsuit also seeks $1 in monetary relief and attorney fees for Fisher’s damages. Fisher said he’s not looking for money out of the lawsuit, he just wants to breathe life into Mario again.

“We want to keep it with the task on hand,” Fisher said. “We don’t want a settlement. We just want our rights to be what they’re supposed to be. I just want to be able to put Mario back out front”

“The First Amendment does not play favorites. It protects everyone’s right to speak out, including small businesses,” said Robert Frommer, an Institute for Justice senior attorney, in a press release. “We are confident that the courts will reaffirm Scott’s right to power up his business with Mario.”

However, there’s an issue with the lawsuit.

The town’s land development regulations, which control zoning and, more importantly, sign regulations, were more than 10 years old when attorney’s began the process of filing the lawsuit. The town had already been begun a complete rewrite of the land development regulations rules for months prior to the suit filing. The town finalized those rules in October, but the lawsuit no longer reflects the current laws surrounding the inflatable ban.

The town still bans the same kinds of inflatables on the same kinds of properties it has just been rewritten.

Because of this, Fisher’s attorneys must amend the lawsuit. While IJ did not respond for comment before press time, Fisher said his attorneys are aware of the technicality.

“Their lawsuit seeks to have a law declared unconstitutional that’s no longer a law,” said Town of Orange Park Attorney Sam Garrison. “Without addressing that issue, it’s hard for me to respond to issues they may or may not have. These are good folks and we want all our businesses in the town to succeed and thrive, and this doesn’t change that.”

Fisher took the fight to the town’s special magistrate in September, but the magistrate ruled against him.

Because the Mario did not display text, Fisher thought he could fight the town because the sign did not specifically advertise his business. The magistrate argued the inflatable used shape and form to attract business, however, and his complaint was dismissed.

“I basically just don’t like my rights violated,” Fisher said. “I’m kind of a constitutionalist when it comes to being an American, and being censored by my local government, especially on something they’re not supposed to censor, rubbed me the wrong way."