By Thomas R. Collins
The town of Gulf Stream can move forward with its efforts to get resident Martin O’Boyle’s murals of protest off his waterfront home, a federal judge has ruled. O’Boyle filed an emergency request to stop the proceedings, saying his free-speech rights were being violated. But U.S. District Judge Donald Middlebrooks said O’Boyle hadn’t shown that he was likely to succeed at trial — one of the criteria required for O’Boyle’s request to be granted.
“At this stage … I don’t think there’s been a likelihood of success on the merits shown,” Middlebrooks said after an hourlong hearing. “Let me encourage you to settle it if you are talking about settling it.”
The ruling doesn’t mean the town wins the case, only that its code-enforcement proceedings can move ahead, and that the court case will go on as it would have without O’Boyle’s emergency request.
O’Boyle has been at odds with the town since town officials turned down his request to remodel his $1.6 million home, a project including a 25-foot entryway. O’Boyle says the decision not to grant him a variance for the project was unjust.
The next thing the town knew, a dazzling display of insulting paintings covered his home.
And the next thing O’Boyle knew, he was being cited for code violations, with the town saying the paintings amount to unauthorized signs, that they include colors not on the town’s approved list, and that they didn’t go through the proper review process.
And the next thing the town knew, it was being sued in federal court.
In testimony at the hearing, O’Boyle said the town’s rejection of his remodeling project has been a hardship. “I hate to use the word ‘horrible,’ but it’s been horrible,” O’Boyle said. “Our house is uninsurable at this point.” He said the windows would have to be boarded up. “They turned down a beautiful retrofit of a home.”
The point of the paintings?
“It’s my opinion that they’re out of control, and what I did was lampoon them,” O’Boyle said from the witness stand. “We ridiculed them, that’s what we did.”
O’Boyle’s attorneys — who included his son, Jonathan, who came down from Philadelphia to make the case — argued that the combination of the town’s ordinances on signage, on the use of paint, and on its review process, unconstitutionally limit speech. Any signs other than real estate signs have to be approved by a review board, according to town ordinances. They said town officials would not be inclined to approve any sign of protest. Joanne O’Connor of West Palm Beach, representing the town, argued that even if the sign ordinance was found to be unconstitutional — which they say it is not — the paint ordinance is constitutional, so O’Boyle’s paintings wouldn’t be allowed under those rules.
Town attorneys also said it was too early for O’Boyle to have a court-worthy grievance because a magistrate has not yet ruled that O’Boyle is, in fact, in violation of town codes.
Middlebrooks said “it looks like the sign ordinance might have some problems, frankly,” in terms of limiting free speech, but in the end it wasn’t enough for him to grant O’Boyle’s request.
Town Attorney Skip Randolph said, “We believe the judge was right in his decision.” And he said he’s “always hopeful” for settlements in court cases.
In the two weeks after the hearing, the town has filed a motion to dismiss the case and no settlement talks have been held.
‘‘There’s nothing scheduled,” Randolph said.
O’Boyle’s attorney, Robert Gersham of Delray Beach, said he’s asked the court for more time to respond to the motion to dismiss, so that the actual code-enforcement hearing can be held. It has not been scheduled yet.
Meanwhile, O’Boyle has erected four signs — not paintings on his house. One says “Mayor Orthwein is a BLONDE ‘‘‘that says it all.’” And another: “Town Mgr. Thrasher is a’”followed by a picture of a juggling clown.
O’Boyle was not optimistic about a settlement possibility.
“From my point of view, it’s something I would love to see settled,” he said. “But if you want to punch me in the face, the chances of you and I settling aren’t very good. The town clearly wants to fight.”
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