Burke v. City of Charleston

• Decision Date: 23 June 1995
• Docket Number: Civ. A. No. 2:93-3001-22.
• Citation: 893 F. Supp. 589
• Parties: Robert BURKE, Plaintiff, v. CITY OF CHARLESTON, Defendant.
• Court: U.S. District Court — District of South Carolina

893 F. Supp. 589

Robert BURKE, Plaintiff, v. CITY OF CHARLESTON, Defendant.

Civ. A. No. 2:93-3001-22.

United States District Court, D. South Carolina, Charleston Division.

June 23, 1995.

COPYRIGHT MATERIAL OMITTED

Gregory S. Forman, William J. Hamilton, III, Charleston, SC, for plaintiff.

John Hamilton Smith, William B. Regan, Charleston, SC, for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

CURRIE, District Judge.

This unusual case examines the constitutionality of a content-neutral place and manner regulation affecting pure speech in a historic preservation district.¹ In this civil rights action brought pursuant to 42 U.S.C. § 1983 Plaintiff, an artist, challenges historic preservation ordinances enacted by Defendant City of Charleston (hereinafter "the City"). Jurisdiction is based on federal question, pursuant to 28 U.S.C. § 1331.

Plaintiff's Complaint alleges that the City wrongfully denied a permit for the display of a large mural painted by Plaintiff on the exterior wall of a restaurant located in the Old and Historic District of Charleston at 348 King Street. Although the mural was located on private property, it was publicly visible from the street. Plaintiff mounts a facial challenge to the ordinances, claiming they are vague and overbroad. In addition, Plaintiff claims the City's application of the ordinances to his mural abridged his First Amendment right to free speech, as well as his rights to due process and equal protection, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Plaintiff seeks injunctive relief restraining the City from enforcing the ordinances, compensatory damages, and attorneys' fees. The City admits that the Board of Architectural Review (hereinafter "the BAR"), an administrative agency of the City, denied a permit for the display of Plaintiff's work, but denies that its actions were wrongful.²

The matter came on for nonjury trial March 22, 1995, through March 24, 1995. Following the presentation of evidence the court conducted its view of thirteen sites specified by counsel for the parties. The court's view spanned several hours, and included an extensive walk through the King Street area.

Pursuant to Rule 52(a), Fed.R.Civ.P., the court makes the following Findings of Fact and Conclusions of Law. To the extent that any Findings of Fact constitute Conclusions of Law, or vice-versa, they are to be so regarded.

FINDINGS OF FACT

1. In July 1993, Ron Klenk, the owner of the premises located at 348 King Street, decided to open a bar and grill, to be known as the "Treehouse Grill," on the first floor of the building. The building already housed a nightclub, known as the "Treehouse Night Club," on the second floor. The upstairs nightclub displayed several paintings by Plaintiff on its interior walls.

2. The premises known as 348 King Street are located within the Old and Historic District of the City of Charleston. The Old and Historic District comprises 2.7 square miles or 4% of the City and contains 2800 historically significant buildings, the largest collection in the United States. See testimony of Charles Chase, Preservation Officer. The Old and Historic District is the heart of the tourist attraction to Charleston.

3. The immediate area around 348 King Street is a commercial area which draws a large number of college students, and is conveniently located to the University of Charleston. Young persons live in apartments on the second and third floors of buildings along that block. The block contains numerous bars, shops, bookstores and fast food restaurants. The block is aesthetically diverse, and has significant tourist traffic. Several of the buildings in the block of 348 King Street are dilapidated, and a few, such as the subject site, are vacant.

4. As is clearly illustrated by Plaintiff's Exhibits 19-21, the building at 348 King Street contains a fully recessed storefront that abuts, but does not include, the public sidewalk. The recessed area, which is private storefront, is of roughly triangular shape and was last renovated in the 1970s. Plate glass windows look out on the recessed area, and adjacent to the entrance there is a flat masonry wall about nine by fifteen feet in length. This wall, clearly visible from the street, is the wall upon which Plaintiff painted the mural in 1993.

5. Plaintiff is a painter with a style that generally can be described as pop art. His work is influenced by pop and folk art, and surrealism. His work has a cartoon quality with bold lines, and graphic, arresting displays. Plaintiff received an Associate Degree from the Art Institute in Fort Lauderdale, Florida. After working in a band and for Greenpeace, Plaintiff decided to move to Charleston in November 1990. After struggling to establish himself in the artistic community, and taking lessons from local artists, Plaintiff, by 1993, had attracted modest local recognition. Three to four months before Plaintiff painted the mural at issue in this case, he had done a painting of similar style, about 3' × 4', which had sold for $500. Plaintiff also sells traditional Charleston watercolors at a booth located in Artisans Alley in the market area of the Old and Historic District.

6. In July 1993 Klenk engaged Plaintiff to paint a mural on the flat masonry wall at 348 King Street. Plaintiff had painted one mural earlier on a restaurant door. Klenk gave no directions to Plaintiff as to the mural desired. Klenk, however, did specify that a small blank space was to be left in the middle of the mural for a sign advertising the Treehouse Grill. Plaintiff substantially finished the mural, which was 8' × 15', in three days. He painted in a "stream of consciousness" method without a plan. Plaintiff attempted to incorporate into the work the influences of that area of King Street at that time. For example, Plaintiff testified the mural reflects the influence of young persons dancing and enjoying a party atmosphere on King Street while the mural was being painted.

7. Plaintiff has painted approximately 16-20 works similar to the subject mural. Many of these were displayed at trial, see Plaintiff's Exh. 28. In these works Plaintiff has created a world of new creatures, about 28 in number in the first generation. Plaintiff seeks to illustrate a happy universe where diverse creatures coexist peacefully. The subject mural, depicted in Plaintiff's Exhibit 5, bears this style and was described in Plaintiff's Complaint as "a colorful cartoon of imaginary characters, including smiling mountains, flying creatures with impractically small wings and tiny yellow bipeds." Plaintiff testified that he needs a multitude of colors in order to paint in this style, although he can adjust to size limitations.

8. Plaintiff's work carries some artistic message emphasizing the importance of diversity and tolerance in society. This message may, however, not be readily discernible by all persons.

9. Klenk paid Plaintiff $500 to paint the mural. Plaintiff hoped the mural would be displayed for an indefinite period of time along the heavily traveled King Street. Plaintiff wished to expose his work to a broader audience than his prior paintings, prints and T-shirt designs had drawn. He thus agreed to execute the mural for the sum of $500, which was less than the cost of one of his smaller paintings in similar style. The cost of renting comparably sized gallery space in the Old and Historic District was approximately $1,000 per month.

10. The size of the space reserved for the Treehouse Grill sign in the middle of the mural was quite small in proportion to the entire expanse of the mural, and probably did not approach 1/25th the size of the mural.

11. As a result of Plaintiff's execution of the mural at 348 King Street, and the subsequent public controversy and extensive media attention surrounding the mural's display, Plaintiff secured a commission to create two murals at a McDonalds restaurant on Savannah Highway, outside the Old and Historic District. The murals contain many of the same creatures and colors contained in the mural at 348 King Street. Plaintiff was paid $11,600 for the work.

12. Another restaurant owner approached Plaintiff about painting a mural on King Street. The Horse & Cart Restaurant is located at 347 King Street. It is therefore subject to the same ordinances that precluded display of Plaintiff's mural at 348 King Street. Plaintiff testified he has therefore been prevented from painting another mural in that style at a similar location.

13. The mural combined pure speech and commercial speech. It can be considered a sign that contained artwork. It had no obscene content, nor was it false or misleading.

14. Two prior murals had been painted on the same wall upon which Plaintiff painted his mural. The first mural, "The Willow Tree" mural, promoted a vegetarian restaurant. It is depicted in a photograph included in Defendant's Exhibit 1, the BAR file on 348 King Street. The Willow Tree mural was a pastel mural on a white background, and occupied approximately one third of the wall expanse. The Willow Tree mural remained for several months, and although application was made to the BAR for a permit, the closing of the restaurant mooted the application on March 11, 1992.

15. The second mural was a Cajun-style mural, which is also depicted in Defendant's Exhibit 1, on the back of the Sign Permit Application filed May 24, 1993, for Tee Pauly's Restaurant. Although application for permit was made for this mural, it was disapproved by the BAR on June 28, 1993, "because it exceeds the size allowed on the facade." The mural had been in place for several months prior to the time the BAR ordered it painted over. The Tee Pauly's mural that was rejected by the BAR was a scene of a Cajun restaurant on stilts in a swamp, and included some bright colors and fluorescent paint.

16. The BAR was established in 1931 by ordinance 54-26 of the City of...