Jon Reber, standing along U.S. Highway 192 Wednesday, is one of 25 Liberty Tax Service "wavers" who could be without a job per a city of Kissimmee ordinance.

By Juliana A. Torres
Staff Writer

Two people dressed in green robes as Lady Liberty stood at the corner of Michigan and Vine streets Wednesday morning, protesting the Kissimmee commissioners’ split vote the night before that specifically bars businesses from using "human signs."

She held a sign that said “City of Kissimmee – Job Loss” toward drivers on Michigan, some of whom honked as they passed. Ruben De Jesus said Liberty Tax Service, which opened this month, would have to fire 25 “wavers” the business had hired to attract customers during tax season. De Jesus said he would argue for his freedom of speech against the city in court, if need be.

“This is about simply keeping employees I have employed,” he said. "We will take legal action. They think this is something temporary ... for tax season. I'm fighting for my business for the next five years."

The fine for a first time violation of the city’s sign ordinance could be as much as $250, and up to $500 for a second offense.

At issue is the city’s sign ordinance, which specifically outlines which signs are permitted and which are prohibited.

“You have permission to put signs up under our code if it’s a permitted sign,” City Attorney Don Smallwood said, explaining the established ordinance. “We do not provide for human signs.”

Ruben De Jesus petitioned the commissioners Tuesday to consider modifying the ordinance to permit his costumed wavers, at least temporarily. Though two commissioners voted for the modification as a way to help business, the motion to allow human signs for three months failed without the support of the other commissioners.

The city’s sign ordinance was first established as a way to rein in what was seen as tacky or overkill advertisement of some businesses, especially along U.S. Highway 192.

“Being in the city for a while, I’ve seen some changes. We used to have clowns on the street and gorillas,” Commissioner Jerry Gemskie said. “It took a while to clean up what we had going on.”

Gemskie said to accept De Jesus’ suggestion for a temporary exception to the city’s sign ordinance would be unfair to others who were denied similar requests since the ordinance went into effect.

“We support businesses, we really do, but we’re restricted sometimes on what we should be doing to protect our citizens and other businesses that are out there,” he said.

Both Commissioners Carlos Irizarry and Art Otero argued that the wavers should be allowed.

“We’ve given the opportunity to other businesses to advertise (in ways that) for many years had not been acceptable,” Otero said, mentioning the city’s recent support of extending the period businesses are allowed to display temporary signs, banners, cold air balloons and window signs. “If we can help our small business in the area, I don’t see why we can’t do it.”

Mayor Jim Swan said he believed the issue to be about more than boosting business.

“I recognize full well the challenge the business community is facing right now. When things are difficult, we have to make a decision on whether or not we’re going to lower our community standards,” he said.

De Jesus brought up the commissioners’ decision in August to allow stores with smaller square footage to become liquor stores, at which point the mayor said he supported flexibility in an attempt to fill empty retail lots. De Jesus said he would pay a permit fee and go through an approval process with city staff, explaining that he only wanted “flexibility with regulation.”

“What I’m requesting is something temporarily regulated, not where people can drive down (U.S. Highway) 192 and feel like they’re going through the Macy’s parade,” De Jesus said. “I live in the city. I don’t want that.”

Even if the city were to allow the costumed advertising, De Jesus would have to keep his wavers on his business’ private property, namely the parking lot, and off the sidewalks and right of way of the road.

Smallwood told the News-Gazette that De Jesus’ freedom of speech wasn’t at issue.

“The issue before the City Commission is commercial speech, which is completely different. I feel comfortable with the City Commission’s decision,” Smallwood said.

Per a U.S. Supreme Court decision in 1980, government can only regulate “commercial speech” if it can establish substantial interest. Smallwood said the city had a right to regulate signs on its rights of way because sidewalks and roads are designed to move traffic, vehicular and otherwise. While the city can’t prohibit demonstrations, they can require residents to apply for a parade permit and regulate how and where such demonstrations can take place.

De Jesus also argued that the city shouldn’t be able to regulate the uniform of his employees who stand outside his business and wave at passing traffic. The city couldn’t stop a resident from wearing a T-shirt with “Budweiser” sprawled across the front and walking down the sidewalk, he said.

Smallwood said the city’s sign ordinance still applied to the Lady Liberty costumes.

“Anything that’s used to attract people to their business is a sign. You don’t have to hold a sign up,” he said.

De Jesus said Friday while he has received several warnings in writing, the city hasn't fined him yet.

"We're going to be out there today, every day," he said. "This thing is snowballing."