Video game store owner sues Florida town over ‘illegal' inflatable Mario display

Claims city's sign code is unconstitutional
Posted at 9:41 AM, Apr 07, 2017
and last updated 2017-04-07 14:29:46-04

A video game store owner is suing a Florida town over his inflatable 9-foot-tall Mario display officials deemed illegal.

Gone Broke Gaming owner Scott Fisher put the inflatable in front of his store last July after getting approval from his landlord and neighboring businesses.

"Because our store is so hard to see we thought a giant inflatable Mario would help attract attention to our store front," said Fisher. "We put the Mario up and it was literally in no time that the foot traffic tripled."

In a video posted on his company's Facebook page, Fisher said all the new customers loved the Mario.

"We had people coming out with their children and taking pictures in front of it and I got a lot of positive feedback from the community," said Fisher.

Orange Park town officials found a lot about the inflatable display to hate. A few weeks later a Code Enforcement officer issued Fisher a code violation for Mario, claiming it was an illegal portable sign.

"The Mario is not obnoxious. It's not harming anybody. It's not causing any sort of public nuisance whatsoever so I don't understand what I can't have it," said Fisher.

The town believes otherwise. Its sign code ordinance does allow creative inflatable displays as long as they lack a "commercial message."

"I could have a Santa Claus, an elf or some other seasonal inflatable but because Mario pertains to my business, I can't have him," said Fisher.

So the Mario was taken down. If Fisher had left the inflatable up, the city could have fined him up to $250 a day.

The monetary impact to the now Mario-less Gone Broke Gaming turned out to be rather severe.

"When we had to take it down I could tell there was a decrease in the foot traffic and the amount of phone calls started coming in ask where our location was increased substantially," said Fisher.

Fisher decided to fight back against Orange Park.

He teamed up Institute for Justice to file a federal lawsuit against the city. The lawsuit claims the sign ordinance violates the First Amendment to the U.S. Constitution because the city government is discriminating against what type of speech it allows.

The case may have merit.

In Reed v. Town of Gilbert, the U.S. Supreme Court ruled in 2015 cities may not impose stricter limitations on signs advertising a religious service than those that display a "political" or "ideological" message.

In his majority opinion, Justice Clarence Thomas wrote a "law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech.'"

Fisher's lawsuit is seeking a federal court to declare Orange Park's sign code unconstitutional. He is asking for a permanent injunction to prohibit the town from fining him for putting the Mario inflatable in front of his story. He also wants the town to pay his attorney's fee and one dollar for violating his constitutional rights.

Orange Park officials have yet to issue a statement responding to Fisher's lawsuit.

Note: The article has been edited to fix an error that accidently listed Port Orange as the town where the gaming store is located. The store is in Orange Park in Clay County, Florida..