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A decorated car planter outside a headshop on the interstate is at the center of a city effort to enforce an ordinance prohibiting junk cars.

From staff and submitted reports

A federal judge has granted a motion by the City of San Marcos to dismiss the appeal of a store owner trying to save a junk vehicle that had been converted into a planter at the Planet K headshop on the interstate in San Marcos.

On Friday, U.S. District Judge Sam Sparks said he would grant the city’s motion to dismiss the claim by Michael Kleinman that his vehicle planter is a form of artistic expression protected by the First Amendment. City officials received the official decision today.

“Though a junked vehicle may be a particularly effective mode of expressing concern over pollution caused by automobiles, the use of an automobile as an artistic medium is still part of the manner in which Plaintiff’s statement is expressed, not the statement itself,” Judge Sparks wrote. “The automobile is not the message.”

“It is clear the City’s ordinance is not aimed at restricting speech about automobile pollution, and Plaintiff is free to express his concern over automobile pollution in a host of other ways that do not violate city ordinances,” Sparks wrote. “The ordinance is reasonably tailored to protect the public’s interest in removing the ‘urban blight’ caused by junked vehicles in public places.”

The court case began January 10 when Municipal Court Judge John Burke held a hearing and ruled that the vehicle planter violates city ordinance that outlaws junked or nuisance vehicles in public places.

Kleinman filed a second lawsuit in State District Court arguing that the Municipal Court’s decision should not be enforced because the ordinance is unconstitutional. After Burke’s ruling in January, Kleinman said, “We’re going to take it as far as they want to take it. It’s not a junk vehicle. It no longer moves, never will move, and on top of that, it’s got art on it. And it’s a planter on top of that. And it’s got freedom of speech on top of that.”

Because of the constitutional issue involved, Assistant City Attorney Andy Quittner represented the city in moving the case to federal district court.

“Two courts have ruled that the constitution does not protect the use of a junked vehicle, visible from a public street, as a sign board to display a message. The case is over and it is my hope that Planet K will demonstrate its respect for the law and the rulings of these courts by voluntarily removing the junked vehicle.” Quittner said.


» Hearing on injunction set in state court but city will move for federal venue 01/14/08

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27 thoughts on “Federal judge says car planter not protected by First Amendment

  1. Pingback: Newstreamz

  2. I like the car. It is clearly not a junker on someone’s driveway, but I understand that you have to draw the line somewhere. I am just not sure removing this piece of art is where that line should be.

    Kudos to Mr. Kleinman for not caving and taking the issue to federal court… that is how our system is supposed to work. It will be sad to see the car go, but I am sure Planet K will come up with something even better as a replacement.

  3. I won’t be sad. I think it looks cruddy. Painting a junk car with art is like putting lipstick on a pig. One thing is for sure, there are a lot more people who know where Planet K is, not because of the car but because of the controversy. So how about Kleinman pays the city for all that publicity? I wonder how much the city spent and if we can get any back from Kleinman.

  4. I think a compromise should have been worked out between the owner and the city. Clearly there are numerous precedents of cars being used as signs, many automotive repair places use these gimicks. On the other hand, its also clear in the photos that the engine is still in the car, as well as other components which make it more “car” than “sign”.

    I think the city should allow the car to be used as a sign if the owner were to completely gut the vehicle, remove everything but the outer frame.

  5. How much of our money did the city waste on this pyrrhic victory is a more important question? I could care less about whether it’s there or not. Eyesore? Give me a break. It next to a freaking freeway, lined with gas stations. It fits right in. It sounds like someone at the city wanted to avoid doing real work. Seriously, there are are more important issues that this city need to address. Drunk drivers. People speeding by schools. Traffic and roads. Long term planing. Attracting employers in something other than national chain service industries. Get your priorities straight. Yeah, Planet K got some attention (I would argue that the advertising was far from free), but the city wasted money on fighting something that should have been a non-issue.

  6. I suspect things are more complicated than everyone is making them out.

    I imagine that if the city did not fight this, it would weaken our zoning regulations and make it more difficult to go after similar violations elsewhere in the future.

    Also, it is difficult to say whether this should have been a “non-issue” without talking to all of the property and business owners around Planet-K (at a minimum).

    I will agree that there are a lot of other issues that need attention, like attracting employers, traffic problems, neighborhood issues, drunk driving etc. All of these are intertwined and there needs to be a comprehensive plan to deal with them.

    Did anyone see that we had another vehicle vs. house accident the other day? Where’s the coverage for that?

    When are we going to get serious about this stuff?

  7. What good publicity this event might have been for Planet K is bad publicity for San Marcos. Out unwillingness to accept legitimate differences in culture and diversity (including art) will continue to keep us the same. Just when I thought we were finally moving forward, we regress. Interesting though, if Mr. Kleinman had mounted the car on a pole, it would be considered an on premise sign, which is legal in our city.

  8. I tend to agree that this is more about a code enforcement office with a HUGE chip on its shoulder, out to show everyone that they rule supreme. Once it got underway, the outcome of this case did have larger consequences than the car sculpture itself. The question is whether it should have been undertaken in the first place, whether this is really worth the time and resources in light of so many real issues here. Not trying to be preachy here because I contend with a pretty healthy one, too, but egos are the root of all evil. (By the way, I think Planet K’s late-hour argument that the car is a statement on pollution is pretty incredibly stupid and kind of undermines the value of their argument in my mind. At one point, one of the managers argued that it was commercial speech which clearly can be regulated. Then they switched to arguing that it is art which I did not realize had to be motivated by some “cause” contrived after the fact to meet some legal definition of free speech.)

  9. I don’t see how this has anything to do with accepting diversity and I am not sure that it is about code enforcement trying to “rule supreme”.

    There is diversity all over this town and the car-art at Planet-K is far from the most unusual thing I have seen.

    There’s the chicken house on Hopkins, a house and driveway covered with murals on LBJ, another house on LBJ with refrigerator parts nailed all over a tree out front (not sure if it is still there, because I stopped noticing it), a house on bluebonnet with a tree covered with shoes and on and on.

    Planet K is almost certainly no more “controversial” than Talk of the Town next door, or the hemp store on the square.

    Honestly. I know it is very exciting to rail against the man, but let’s keep this in perspective.

    Out of curiosity, is there a process for requesting some sort of zoning variance BEFORE planting car-art in the front yard? Did Planet-K go down that path first?

  10. The P&Z went through the process a couple years ago of drafting a junk-car ordinance. Wording was carefully chosen to make it enforcable. All that work gets undermined if you start selectively enforcing it. My opinion is junk cars bring down the value of a neighborhood. In the words of the immortal Barney Fife “You’ve got to nip these things in the bud!”

  11. When I went out to see the car, there was one part of Wade’s mural that I thought might have been interpreted as a slur against law enforcement. I thought that might explain why this particular car had fallen under the authorities’ scrutiny and was being taken as far as federal court. Then I realized that it was Ralph the Swimming Pig from the old Aquarena Springs amusement park.

  12. Since the car has “PLANET K” painted on the side door, it clearly was meant to be a sign, regardless of its stated use after the fact, and should fall under that aspect of the zoning code. This is not a “free speech” issue about pollution and I agree with Brad that Planet K was clearly grasping at straws in trying to re-direct their arguement in that direction. Its a SIGN. If it meets the basic requirements for signs in the city, then it should have been allowed, or at least the owners should have been able to apply for a conditional/specific use permit, or a variance to the sign ordinance if it did not meet those requirements.

    As I said before, the SIGN still had an engine in it, so I can see why code enforcement might try and argue that, but any good city planning dept should work with businesses and try and find compromise. I can not wait until some auto repair business tries to use a car frame for a sign in San Marcos, because I can assure you the Planet K boys will be ALL over that permit…..and probably with good reason.

  13. They behaved like twits on both sides, and it is a stupid argument. What I am mad about is the city spending OUR money on this when there are far more important issues. Letting the car stay wouldn’t have undermined P&Z authority. Try working with the business owner to make it acceptable. There is no reason it had to go this far. Personally I think it’s ugly, but no uglier than the rest of the frontage road, and it reeks of some good old boy being mad that it was a head shop.

  14. I’m not sure on what you base your assertion that it would not undermine P&Z. Do you have some legal expertise in this area?

  15. Ted, I think he means something along the line that you don’t lose battles that you don’t fight. It wouldn’t have damaged the p&z’s authority or weakened the land development code had nothing ever been said. I guess this is something along the lines of selective enforcement but to me selective enforcement has more to do with enforcing laws, or not enforcing them, for certain groups or certain individuals. Not saying, ‘You know what, this is a gray area and I’m not going to make a federal case out of some old hippies’ bad taste.’

  16. I don’t know. I know that if I don’t protect my trademarks, then they lose their teeth and it makes it much harder to protect them later.

    This is true in other legal areas as well. I’m no zoning expert, but you most certainly can lose battles that you don’t fight.

  17. Also, the neighborly thing to do would have been to apply for a variance and get let the neighbors have a voice.

    I ask agan, was this done? Do the people who were already there deserve no consideration?

  18. After the junk car ordinance was adopted I noticed junkers disappearing. Not sure if they were related, if neighbors complained or if Code Enforcement got proactive. It’s a little tool the city can use and hopefully forestall the heinous “Rental Property Permit” ordinance. By that I mean treating actual “bad neighbor” violators instead of penalizing all those who MIGHT violate. Planet K has multiple locations and I’m sure is aware of development codes, sign ordinances, variances etc. They probably had a suspicion that the car could stir things up. Now, the county has a rusting piece of a tanker truck at the south end of San Antonio street that needs to go away.

  19. Ted, it is my understanding that sign permits do not require variances(and subsequent notification of every land owner within 200ft) unless they do not meet the existing code. And even then, a variance requires the person to prove why everyone else should follow the zoning code, and they shouldn’t…..and it cannot be about cost/money. So why do it?….to be neighborly?….would you or any other sane businessperson incur extra costs to your bottom line if don’t have to? It would be idiotic and a further waste of time & money to require notification for every sign permit that crosses the city planner’s desk. Now whether or not PK applied for any variances, I have no idea. But I can assure you that businesses RARELY if ever apply for variances & notices if they are not necessary.

    So….do PK’s neighbors deserve any consideration?…..not unless PK has to file for a variance, no. Sound harsh?….well the sign ordinance portion of the zoning code sets the parameters for signage, which should be written in such a way as to disallow, or require variances for, signs which may or may not negatively affect a neighbor’s property values.

    So basically if the vehicle met the sign ordinance, it should have been allowed without any fuss, or notification to surrounding property owners.


  20. Apparently it was necessary to apply for a variance, because the car is going away.

    If it is a sign and complies with the sign ordinance, then they have some piss-poor management/attorneys, I’d say.

  21. This is really spinning out of control and getting far more attention here than it deserves.

    Thanks for your counterpoint to your misinterpretation of my statement, though.

    I’m sure it came as no surprise that the car-art raised eyebrows and got some negative attention. They could have gone about things differently and likely gotten different results and cost everyone less money.

    Instead, they did what every “sane” business person would do and avoided any “idiotic” conversations before the courts got involved.

    Now, they have no car-art sign.

    If it were my business, I bet I’d have a sign and some art.

  22. Also, obviously one would only ask for a variance in the event that one was not going to comply with an ordinance as it is written.

    If they are in compliance, they need better attorneys.

    Otherwise, they should have applied for a variance and gotten some support beforehand. Plenty of sane business people do that every day. Your efforts to apply some slippery slope logic to imply that I meant that every sign needs special approval and that every business needs to get the support of the neighbors for whatever they do is ridiculous.

  23. If you would take the time to actually read what I wrote, you’ll notice I said it was idiotic to make the city send out notices to appease adjacent property owners for every sign permit, not that garnering support from them is idiotic. And I certainly apologize if I mis-read your statement, but it sure appeared to ask for “neighborly” notification to surrounding businesses thru the variance process.

    “Also, the neighborly thing to do would have been to apply for a variance and get let the neighbors have a voice.”

    This sure sounds like you are asking them to apply for a variance…..

  24. If you read what I wrote, you would see that I never advocated the city sending out notices for every sign.

    I said, based on the premise that they were not in compliance with local ordinances, which was the tone of this thread and proved out by the courts, that they should have applied for a variance for their non-compliant car-art-sign.

    So, yes, if they were not compliant, they should have asked for a variance and if they wanted it to go through without issue, they should have been neighborly and spoken to those around them.

    It is done every day.

    If you still don’t know what I am saying, I can’t help you.

  25. BTW, you also said “or at least the owners should have been able to apply for a conditional/specific use permit, or a variance”

    I contend they almost certainly *were* allowed to apply for a variance and question whether or not they did. I *suspect* that they did not and that if they had done so *before* planting their car-art-sign and if they had gotten the support of those around them, they would probably still have the thing.

  26. Umm, I just drove by the car-art-planter-statement-sign on the way home and I didn’t see “Planet K” written on it anywhere.

    Not that it matters, as the only points I have tried to make are that this is not prima facie evidence of San Marcos being intolerant nor of a code enforcement department run amuck and that the art-car would probably have stayed without much fanfare if things had been handled differently.

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