Florida Officials Ban Inflatable Mario And Maybe Even Freedom of Speech

I wonder if and when Nintendo will swoop in with a cease and desist order on this guy if he continues using their trademark to "to help increase the stores visibility and bring in more customers".

grabs popcorn

"Let us know if you think the forced removal of inflatable Mario was unconstitutional or if you think this case is full of hot air..."

It's both. And it seems like a typical case of bureaucracy or citizen harassment just for the sake of it, especially since it is clear that other inflatables are allowed, so this is just nitpicking with no grounds based in reality or law.

I'm pretty sure he has a case and will win it, unless the resident government official wants to use this to make some kind of statement/beat his chest...

I hope he doesn't feel too deflated about the whole ordeal. Hope he can find away around this blown up issue.

Honestly though, it sounds like the town just want more money as Mario is hardly offensive or causing anyone any strife

What if that Mario feels like a Santa or Easter Bunny?

I guess people in Orange Park have a lot of time on their hands.

There is a pawn shop with a giant gorrilla, and a car dealership with a godzilla, a western store with a giant horse man, and a seasonal fireworks stand with a dinosaur, in my town. I don't see what the big deal is, but if the city has preexisting zoning ordinances against non-seasonal inflatable lawn ornaments for businesses, he may not have much of a case.

@Inkling64 great idea. Put bunny ears on mario. problem solved!

Cool... In other news?

I hope they win.

If it's on his property what's the problem!

Would he be allowed the Easter Bunny wearing Mario's clothes? Or possibly he could dress Santa as the King of Hyrule, but that might be a bit too niche.

Sounds like someone on the city counsel had buyers remorse over their Wii U.

Mario Bunny ?
Luigi Bunny ?
Link Bunny ?
Tinkle Bunny ?
XD

Freedom of Speech is one thing, but in this case is there not a risk of potential copyright infringement by using a third party's intellectual property to bolster sales (which wouldn't apply to Santa or the Easter bunny)?

Change his colors and they can't do nothing bout it.

What reasoning did the city give, exactly? Either "Florida" is a Belarusian toponym I haven't heard before or I dare assume it is common courtesy to explain such things there.

So Uh...are the city officials racist against Italians, or Sony fanboys?

Seriously though...he owns a gaming store, why is this a problem if it's commercially zoned?

Hope they don't blow it up.......oh, wait.

And this whole situation is blown out of proportion.

..ok im done..

@nhSnork - I assume you aren't from the United States.

Because whenever a story starts with "Today a Florida man/woman..." you know to brace yourself for insanity.

I'd have told him to take it down for being a bad version of Mario!!

@Action51 the more you know. Politicians and officials are really a universally relatable problem.

@StarDust4Ever Even if there is a specific city ordinance it could be found to be unconstitutional, wouldnt be the first time a local council got told one of its by laws was actually an invalid and illegal law.

@Churchy
Be careful what you wish for

https://s-media-cache-ak0.pinimg.com/736x/fb/38/ec/fb38ec6c742a507e11dc5d971420c314.jpg

Someone will have complained, likely a neighbouring business owner with an axe to grind.

I would just whack a sants hat on mario and a couple of elves either side, maybe a baby jesus Goomba for good measure. Can't go wrong then. Luigi could be an easter bunny.

Does erecting a tacky looking inflatable Mario (that barely looks like Mario) really constitute 'free speech'? Not sure this is what people had in mind over the last couple of centuries when fighting for this right.

If a town doesn't want a rubbish looking inflatable doll ruining the asthetic of their town, I'd argue they should be allowed to enforce that. Although the fact they allow Christmas/Easter blow up dolls shows hypocrisy on their part.

This is probably really a thing in this particular city were they would allow you to have something that big on your property for seasonal purposes only. I see inflatable mascots here in Tampa Bay Area all the time. Then again, Florida I notorious for having the vague laws in the country. There are still people out there trying to decipher our knife laws.

Neither Santa nor the Easter Bunny have a documented history of jumping on people's heads or habitual mushroom consumption.

@nhSnork - I don't want to be mean to the nice folks that live way to the South of me here, but yeah...not just politicians, Florida is known for being the state with the most bizarre incidents and baffling news stories.

@Firelork - hey man, sorry if it comes off mean, because I know most Floridians are really nice, but I was explaining to the UK residents here that Florida has a reputation for strange news stories.

The "seasonal" image requirement is nonsense. They may as well told him his store signage can't be in any other color than red and green. They are essentially dictating taste and nothing more. No substance to their demands and harmful to their local economy

They're full of air!

Edit: Damn, the subheading has my line.

It really depends on if it's on city property or not. From the picture it looks like it's on the side walk, which is city owned. In that case, they can require him to take it down and it could be difficult to win a lawsuit. If it's on his premises, then I'd say he has a good case on his hands, bolstered by the fact they said he could put a religious or holiday themed inflatable up instead.

Ultimately city ordinance rules in his area and where he chose to place it will be paramount to his ability to win the case

There really is no reason for him getting fined. If that is a licensed Nintendo Mario inflatable (which I doubt it is but oh well) then he's legally allowed to have that outside his business

Slap some bunny ears on it. Problem solved.

But seriously, why is Mario not allowed? Is it because it is a licensed character? Or are people being weird? I'm not worried about Nintendo since the guy had to buy the inflatable from somewhere so they likely don't have an issue with it. Also can folks stop throwing freedom of speech around in this? That has nothing to do with the issue at hand. Way too many people don't know what freedom of speech actually means.

I live a couple hours south of Orange Park in Florida.

1. There is a giant inflatable gorilla in front of a tire store 3 minutes from my house.
2. Florida is the crazy state, seeing as it hosts most of the U.S.A.'s senior citizens and also plenty of rednecks in the northern part of the state, which is jokingly referred to as L.A. (lower Alabama).
3. Florida is a HUGE tourism state, so the upscale communities pretend they have giant homeowners associations to prevent anything considered "tacky" by residents.

Did they ask him to take it down because it's against a city ordinance, or because it's a giant, suuuuuper creepy version of Mario, and it was scaring children and touching passers by inappropriately every time the wind picked up?

@Action51
You're fine. At this point, I've pretty much accepted that I live in the Twilight Zone.

Well, he has got coverage on international news outlets, so I guess mission accomplished with regards to gaining his shop more notice.

@Captain_Gonru True, it's a bit short on information, but in general I think it's safe to say that the rule is ridiculous, unnecessary and that the man will quite possibly be able to make a good case if this ever needs to go further along the lines of a court appeal or something.

Definitely go to court and fight that. If I got fined a hundred bucks for that, I would pay it in pennies from a wheelbarrow like this guy did.

According to the 1st Amendment, commercial speech (which is the issue in this case) does not have the same protections as religious or political speech, nor the freedom of the press. However, several court cases in the past have gone back and forth on how the 1st Amendment applies to commercial speech, so the issue is still interpreted on a regional basis in many cases. However, it's not a free speech issue. (Unless you use BS like Citizens United v. FEC, which a whole other issue...)

This is the town's code for this particular issue:

https://www.municode.com/library/fl/orange_park/codes/code_of_ordinances?nodeId=PTIIILADERE_ARTVIISIRE

Especially (9) is relevant here:

"Curtail the size and number of signs and sign messages to the minimum reasonably necessary to identify a residential or business location and the nature of any such business..."

So basically, someone in that area probably thought this guy was receiving an unfair advantage by using a 9 foot inflatable Mario to attract business to them, so they complained to the city. Indeed, their business did increase multiple times over. But if you look at how it's set up on the property, there's nothing specific in that ordinance which definitely prohibits the current use of that inflatable Mario.

So yeah, I think someone is just abusing the town code to the fullest extent of the law. This guy should have an advantageous case, since this is a commercial speech issue, not a freedom of religious/political/press speech or freedom of peaceable assembly issue.

And it seems that according to the aforementioned press report from WFOX/CNN:

http://www.k5thehometeam.com/story/35098482/florida-man-sues-city-to-keep-inflatable-mario (Yes, I know it's weird that this is being reported on a Hawaiian local news site. ;p )

"The Institute for Justice is taking the case to a federal court, saying the local government is not allowed to favor some messages over others." In other words, the whole "you can use Santa or an Elf inflatable" directive is probably going to be ruled as BS, null and void. This guy will probably be able to use his inflatable Mario again sooner or later.

However, their attorney, Erica Smith, said in that press report that "the town's sign ordinance violates freedom of speech because it allows inflatables as long as they're not used for a commercial purpose..." Which is the wrong angle to take. Of course it's being used for a commercial purpose. The problem is that if you read the ordinance, it doesn't specifically prohibit how this Mario inflatable is currently being used... So hopefully they don't trip themselves up.

Edits: misread report first time around

@Firelork @Action51 - The Miami Zombie of 2012. Still freaks me out to think about it.

OK it sucks but lets be honest he was using a Nintendo copyrighted character for personal gain without Nintendos permission so Nintendo would have been well within their rights to go after this guy but they didn't

what is strange in this instance is that it was his local city officials who did it and what issue would they have?

Here I thought everyone in the comments would be supporting this dude, but some of you...I wouldn't want to associate with IRL. O_o

@gaga64 That still is none of the city's business.

So they say it's alright for an Easter Bunny or so, but not a Mario? That certainly sounds rather absurd. They got to give a good reason for not allowing the Mario or they shouldn't have been talking at all.

Weird but believe that the store owner will win in the end

@EmmatheBest Seeing anyone here cry "IP/copyright infringement!" gives me a pretty good laugh. There's a store called The Gamefather in Boone, NC, and they use Darth Vader next to their logo in their promotional cards. Disney hasn't gone after them. (Because commercial speech allows people to use characters to attract business as long as they're not claiming their business is directly interrelated with the character or IP, which was the mistake that Pokémon drinks event holder made.)

@Yorumi Since you lived there, I'm curious: why the hell do so many people want to retire to Florida, of all places? You got lots of hurricanes, the health care system sucks, and diseases propogate more easily in a consistently warmer climate. What's the appeal?

As a current-Floridian, I apologize on behalf of this state once again for doing something insane and/or impressively stupid. I strongly recommend checking out the Twitter account Florida Man, for anyone who doubts Florida is where insanity lives, breathes, and breeds.

@Inkling64 I think you're into something! What if that Mario inflatable doll identifies as a Santa or Elf inflatable doll!?

Ravio. Problem solved.

@Ryu_Niiyama I'm guessing the use of "freedom of speech" in these cases comes from the lawyers. Civil suits against government bureaucracies go nowhere as they're judge, jury and executioner, but making it constitutional puts it over their head and makes it trouble for them as then they have to drag it through federal circuit court, federal court of appeals (9th court takes things YEARS to even move the docket through), and can always threaten taking it to scotus. It's cheaper for city hall to back down than to spend that money they could be lining their brother in law's third cousin's best friend's wifes pockets through approving that luxury condo lease at the sewage plant with a little grafting money than spending it all battling some dudes inflatable advertising in DC 5 years from now

@nhSnork I'm firmly convinced our ambitious bureaucrats believed the USSR was a "how-to guide" on governance. The farther your hemisphere claws and scratches away from it, the closer we seem to burrow into it.

@PlywoodStick Disney shut down the "Mickey Mouse Pancakes" that some mom & pop waffle house in the middle of nowhere land was locally known for a few years ago. Unlicensed character use. They were making them for decades. Yeah they were selling them rather than attracting business with it, but still, vaguely mouse logo shaped pancakes was an IP violation worth going after

@Yorumi They might be competing but they're still a long, long, long way away from CA, OR, and WA from claiming the title. They might tie NY soon though if they double down.

@ThanosReXXX Apparently the Department of Inflatable Persons deputy undersecretary of investigations was a Sega fan....

There has to be some reason for this. The video doesn't give any explanation for the city wanting to impose a daily fine, and surely they would have had to give a reason in their communication to him. It's very weird to me that they would have a beef with this given it is game related, his property and not obscene or suggesting violence and/or demeaning.

@NEStalgia Isn't Trump cutting funding for the Department of Inflatable Persons?

@NEStalgia See, that was their mistake. If they called their pancakes "triple trippy happy" or something (just go with it lol), and drew happy faces on it with condiments, and just using a "triple trippy happy circle" logo, it would have been fine. Hell, if they used Mickey Mouse's mug on a signboard or the menu, as long as they don't use his name, it's still fine. But especially, don't tell people you're selling Mickey Mouse pancakes. People will know it when they see it.

My country only has a constitution in theory.

Anyway, he should screw with the city officials and put up a grotesque, bloody Wiccan mythical creature for the summer solstice or something. Not sure those exist, or even then in inflatable form, but you catch my drift.

Just put a Santa hat on it

@MarioPhD Wow, his cabinet must be pretty unhappy about that...

@Haru17 You mean a Green Man festival? We already got those.

@PlywoodStick What ever will they do with all the hot air? Good thing we're cutting environmental regulations, too! Everything must go!

@Yorumi Lol, "a cold Winter day is at low 50's °F"

But interesting info, otherwise...

@NEStalgia Well, he will have a blast processing this case, then...

@MarioPhD You may be onto something. Carbon dioxide is a perfectly natural part of the environment, why wouldn't trees want more food? The real cause of global warming is from politicians steaming and broadcasting vast quantities of hot air directly onto vulnerable impact zones, such as the North Pole. Even Santa is getting laid off!

@MarioPhD No, he's actually their spokesperson...

@MarioPhD Municipalities are out of federal jurisdiction and each needs at least two commissars of inflatable safety if only to justify the pension allocations.

@PlywoodStick Mickey Mouse Pancakes? No, no, we can't sell those anymore. These are Ricky Rat Pancakes. They haven't got that much rat in them.

@ThanosReXXX So punny!

@PlywoodStick Pancakes are not, and have never been, safe in Florida: http://www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2017/3/24/lakeland_man_arreste.html

For those interested: https://www.municode.com/library/fl/orange_park/codes/code_of_ordinances?nodeId=PTIIILADERE_ARTVIISIRE

That is the sign ordiance for the Orange Park, FL.

I would love to see someone actually sign under what part of this ordinance he is being told he can't have the sign.

I did see that the blow-up sign is considered a temporary sign. And I have heard of places banning such signs for safety and aesthetic reasons. The mixed message is in the difference between commercial and non-commercial speech. I found a section of the code that mentioned that, but could not find the distinction that supposedly exists. (If true, it could be key in any litigation).

@ThanosReXXX I KNEW IT!

Now if only this wacky-inflatable-arm-flailing-tube-man were orange and wearing a red cap it could easily be mistaken for footage from a rally.

@NEStalgia Ricky Rat? Hm, maybe that's the loop hole, then. Slight color change, rename inflatable Mario to Pete the Plumber and we're good. He could get away with it too, since it definitely only has a passing resemblance to the real deal...

Orange Park defines inflatables as portable signs (7.03.00) and bans all portable signs (7.05.00(f)).

In general, this restriction is content neutral. So it would probably withstand constitutional scrutiny.

Holiday or seasonal decorations are defined to be tied to specific time of year (7.03.00) and such are allowed in all districts temporarily (7.27.00(q)). (Temporary is defined as not permanent — and less than one year in nature (7.03.00)).

From this, a wooden, 2D Mario sign may be allowed — so long as it meets town requirements. Working with the officials is probably going to be much more successful than challenging this in court (though the PR is going to be good for business).

@martynstuff Oh dear God. I'd almost forgotten about that. It shall haunt my nightmares now.

It Sucks that he was forced to remove Mario . looks like an interesting video game store.
surely hope he wins, or at least let the city make his own (thats not copyright).
@MarioPhD i want keep one of those in my house xD

@ThanosReXXX It could be dueling mascots. Sanic the Hedgehog for when you gotta go fast, and Pete the Plumber for when you gotta go right now. He's-a player three for when-a Mario number-a one!

When my wife and I lived in Florida (about 30 miles from orlando), I was told by authorities that I had to take down my Christmas decorations and not have a tree shown through my window...when I looked into it, thinking it was because of the various religions there, it was because they want to make sure people PAY at theme parks to see lights, rather than houses. Something tells me, that is where this story is coming from with the Mario...Mario is coming to theme parks...in all, Florida is for tourists more or less. It would be like a game store in New York City, having a large Mario statue outside of their business...would not make Nintendo World Store happy on that...but, this guy could win the case, as it is just a way of advertising, but he should have gone with a different approach...just a normal store, or something else, but not licensed characters to show it off. There's some crazy laws out there.

@NEStalgia For when you gotta go? How did we get from pancakes and plumbing to toilet visits?

Oh, wait...

@ThanosReXXX Blame Ricky

Maybe if Pete the Plumber dressed up as a raccoon things would go better?

@NEStalgia Too much toilet humor. Time to hire Princess Bleach for a bit of sanitizing...

"You'd have thought X wouldn't offend anyone".

Oh how naive.

Damn, that sounds like harassment...Mario ain't hurting no one!

And this is how Mario is going to be banned in the USA, everyone.

@Dezzy This isn't a case of someone being offended by Mario. I don't know what it is, but Florida doesn't want it there for unknown and unreasonable motives. The grand majority of censorship has nothing to do with citizens being offended.

I have seen a lot of crazy stuff happen in Florida and this does not surprise me. One would have to look at the district and would realize that it is a red county. I lived in South Florida all my life and I can tell you that some of those people eat squirrel in the northern part. There has to be something wrong with you if you eat a cute fuzzy rodent. We even have Zombies here, but on a good note, the Sun is always shining.Disney world and islands of adventure are only 3 and a half hours away. Are beaches are beautiful and the seafood is yummy. So Florida may have a lot of cuckoo for cocoa puffs stuff, but we are great to visit.

No, I'm sorry, but that's just stupid. If the blowup was in any way offensive, then I could see why. But Mario? A universal gaming icon, beloved by millions?

...I'd come up with a punny paragraph, but I saw this article way too late for that.

He'll lose. This is a signage zoning regulation pure and simple. The town does not want businesses putting up inflatables just towns regulate sign illumination, size, etc. If he doesn't like it, he can seek a variance. And there's a difference between individual free speech and commercial free speech, the latter being subject to greater regulation.

I just hope Big N doesn't see this...that Mario inflatable doesn't looked licensed, lol.

@Captain_Gonru Well, I for one hope that they will leave him be and refrain from penalizing him, or if he does have to go to court, I hope he wins because personally, rules like these are infuriating to me because of their ridiculousness.

@Captain_Gonru Understood. Although caution is not warranted for me: I'm not going to lose any sleep over it, I'm just annoyed by people making such a fuss over such a petty thing when there are FAR more important things to worry about than an inflatable figure that, far as can be seen in the video and photos, is not obstructing anything or anyone, let alone be any cause for imminent danger, other than (apparently) being a thorn in the side of some asinine, overzealous government official...

@Captain_Gonru Yeah, sounds like a plan...
Somewhere, in the back of my mind, I still cherish some delusional hope that some day, before I sign off permanently, I get to see people act a little more normal towards each other again, instead of this one-way negativity train called "progress" that we're currently all are on...

Sometimes, if you look at the news and/or take a dip in the wonderful pool of malice that the internet can sometimes be, you could start to wonder how many years it'll be before we'll either be in world war 3 or simply go extinct because we can't seem to manage ourselves on so many levels, let alone get along with people of other races or beliefs.

Seeing crazy news items like these probably even makes one wonder if we can get along with people of our own race, which would probably be a required first step in order for us to work together in getting along with the other inhabitants of this magical mud ball called Earth...

Sorry for the negativity rant/whine, apparently cases like these get to me a bit more than I'd like to admit...

Shouldv've argued that seasonal inflatables serve the same purpose as his mario, there is a reason why store fronts love seasonal promotions.

@bimmy-lee

That was horrifying.

And how about that frat guy who murdered 2 people in their garage?

Yeah, I hate this state.

If they are just targeting him for an inflatable, then why are other businesses let off the hook? One of two things comes to mind.

1: This was personal because of some misconceived injustice in the past.

2: The one that ordered this is just a game hater with vapor for brains.

It's obviously a city official pressing the matter because they hate video games, and thinks the Mario is tacky.

Why else would they allow Santa and the EB but not Mario?

He does have a case I think.

@ProjectCafe - Another crazy one. I've seen waaay too many zombie movies, so the guy in Miami struck a particularly terrifying chord with me. Not sure if Florida has an abnormal amount of crazy or a normal amount that gets stored up for unusually large displays of crazy that make national headlines. Kind of like the two ways to fire the buster cannon. I only comment because I'm in a Midwest state loathed nationally much more than Florida with no redeeming coastlines.

@bimmy-lee

Or what about that guy who thought his intestines were nunchucks?

Like, bath salts are the devil, man.

That, and flaakaa. Flaakaaa too.

Did I mention how much I hated this damn state? Oh, right. I did.

I don't know the rules in Florida, but here in Holland it is: If you use something to promote your shop (like a puppet or a big sign), you need to pay certain fees. And you can't just use someone else's property. I guess no matter wich country, Nintendo won't allow a shop to promote itself with a Mario doll!

On a sidenote: Props to the shop. Looks cool!