Monday, August 4, 2003

'For sale' sign on car sparks lawsuit

Lawyer takes on village law

By Janice Morse
The Cincinnati Enquirer

GLENDALE - Christopher Pagan just wants to sell his 1970 Mercury Cougar XR7. So he parked the showy electric-blue car in front of his Sharon Road home with a "for sale" sign in its window - but police say that was illegal. Pagan thinks not.

A Middletown attorney, Pagan has filed a federal lawsuit against the village of Glendale and its police department, asserting that a local ordinance interferes with his constitutional right of free speech - and that police enforcement of the regulation is selective at best.

"I don't begrudge them enforcing the law, but the laws that they enforce have to be constitutional ones," Pagan, 35, said.

Pagan says that several businesses, all located within a quarter-mile of his home, display advertisements on the sides of their vehicles.

"And they should be able to," he said. "But the police can't exempt them, and single me out ... I'm fighting a battle for me - and for them."

Pagan said law partner Noah E. Powers filed the suit on his behalf only after unsuccessful attempts to compromise with village officials.

Neither the police chief nor village solicitor could be reached for comment. However, Pagan and Police Chief Matt Fruchey had several written exchanges, which Pagan shared with The Enquirer.

It all began July 19.

That morning, an officer knocked on Pagan's door. The officer handed Pagan his just-delivered copy of the New York Times, "and very politely told me I had to take the sign off the car," Pagan said. "I told him, 'Thanks for the paper.'"

On July 22, Fruchey left a copy of the traffic code at Pagan's house and added a handwritten notation: "Under the above ordinance, your vehicle is in violation. . . . The section dealing with parking vehicles for sale along roadways dates back to 1956."

That portion of the traffic code forbids washing, maintaining or repairing vehicles parked in public areas or unimproved private areas, except in emergencies. The code also prohibits advertising on vehicles or offering vehicles for sale.

However, it does allow vehicles to be displayed for sale "only when parked upon an improved driveway or apron upon the owner's private property."

But Pagan says his driveway is behind his home - and if he parked the Cougar there, no one would see it.

Pagan e-mailed Fruchey on July 23, saying the department had treated him professionally and, "I do not want to be cited. I do not want to be a problem to the village."

Pagan told the chief he had found a Los Angeles court case upholding a citizen's right to "commercial speech," as in offering a vehicle for sale with a sign.

Pagan then suggested that the chief allow the vehicle to remain in place for three weeks.

But the next day, Fruchey sent a reply: "The alternative you presented is not acceptable."

He referred Pagan's legal arguments to the village solicitor, who was going to be out of town for a week or so. The chief also said he was instructing an officer to cite Pagan if he had not removed the vehicle by July 24.

"I fully respect your right to take issue with the ordinance. However, I also have a job to do," the chief wrote. "I hope you understand my position."

Pagan removed the sign.

And, somewhat reluctantly, he said, he filed suit July 30.

"I don't want to make problems with the place where I live," said Pagan, whose home sits a half-block away from the village police station. "But this isn't right."

"If the rule of law is to matter at all, the people who enforce the law have to obey it," he said. "If not, we have a nation of men - not laws - and their individual whims."


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