WFTV in Sarasota reports that “a disgruntled business man is displaying naked mannequins in his storefront window to protest against his city.” David Douthitt has been trying to open a hair salon where the staff wears bikinis. Neighbors object and the city has declined to issue the necessary permits.
“One day, he’ll put the tops on the mannequins. The next day, he’ll just take them down,” said neighbor Arnold Herbst.
Herbst lives in the neighborhood and said the women are often placed in different sexual positions. He said it’s always a steamy scene that’s getting him and other neighbors very heated.
“Pornographic, there is no need for it,” he said…
Douthitt said he feels railroaded by both the city and his neighborhood. He said he was trying to open a legitimate business and he wasn’t allowed. He said the displays are his way of protesting.
Potential Nuisance Claims Against Capital Video
Many courts have upheld nuisance claims against outdoor advertisements and commercial displays. “The courts have generally recognized a rule that billboards and other outdoor advertising signs erected on private property are not nuisances per se, but may become nuisances in fact where so located and maintained as to injure the business or property rights of an adjoining landowner.” (J.W. Thomey, “Billboards and other outdoor advertising signs as civil nuisance,” 38 ALR 3d 647, §2[a])
While most cases concern physical interference with land, as from a sign that blocks the visibility of or access to plaintiff’s business, the tort is not thus limited. For instance, in Frandsen v. Mayer, 155 N.W.2d 294 (N.D. 1967), the court opined that large advertising signs did not constitute a nuisance per se if safely constructed, maintained in a clean and sightly manner, and bearing no objectionable advertisements. The offensiveness of a particular display is a legitimate consideration in a nuisance claim. “[I]n the appropriate case recovery will be permitted under the law of nuisance for an interference with visual aesthetic sensibilities,” where the offending object or display is such as would inconvenience or annoy the average person, not just a particularly sensitive neighbor. Hay v. Stevens, 271 Or. 16, 20 (1975) (finding a wire boundary fence between the parties’ property not a nuisance because it served a useful purpose). [emphasis added]
In Bloss v. Paris Township, 380 Mich. 466 (1968), the town enjoined as a public nuisance defendant’s operation of an outdoor drive-in theater in such a manner that pictures which related to sex and human anatomy and were not appropriate for minors were viewable by children on public streets, on residential properties, and in private homes without the consent of property owners and parents. The Supreme Court of Michigan rejected defendant’s freedom of speech and press claims under the First and Fourteenth Amendments, saying that the constitutional right to free expression does not encompass forcing one’s speech on an unwilling audience, in violation of their property rights. Bloss, p. 471. [emphasis added]…
Courts are especially sympathetic to a nuisance claim when it appears that defendant deliberately designed the advertising display in a way that would annoy plaintiff, beyond what is necessary for defendant’s business purposes. For example, in Hutcherson v. Alexander, 264 Cal. App. 2d 126 (1968), plaintiff and defendant operated adjoining drive-in restaurants. As part of a harassment campaign, defendant erected a 15-foot “menu board” on the property line that blocked the view of plaintiff’s competing store, though defendant had not seen any need for such a display at a similar restaurant he owned at a different location. The court ordered him to remove the sign.
Capital Video’s Victoria’s Secret Standard: Not Compatible with Northampton’s Signage Regulations
In December, Capital Video initially proposed a bondage display for the outside of their porn shop at 135 King Street. When some Northampton Planning Board members objected at the Capital Video Site Plan Review on December 14, Capital Video attorney Michael Pill withdrew the display and verbally asserted the company would instead adhere to a “Victoria’s Secret” standard.
The problem is, this standard is vague, loose, changing, and itself might well violate Northampton’s site plan approval criteria (PDF), which state that:
No signs, text, graphics, pictures, publications, videotapes, CDs, DVDs, movies, covers, merchandise or other objects, implements, items or advertising, depicting, describing sexual conduct or sexual excitement as defined in MGL Chpt. 272, §31 shall be displayed in the windows or on any building or be visible to the public from the street, pedestrian sidewalks, walkways, or bikepaths or from other areas outside such establishments.For an example of a Victoria’s Secret store display, here is a 2005 report from Newsweek:
At the Tyson’s Corner mall in northern Virginia last week, just a quick escalator ride from Oliver Owl’s toddler playground and three doors down from Gap Kids, four beautiful plastic women shared an intimate moment in the brand new Victoria’s Secret store. One of the mannequins, impossibly thin and blonde and dressed in microscopic panties and garters, crawled across a countertop on all fours toward her disheveled and reclining brunette partner, she of the bra with convenient nipple cutouts. Below them, in plain view of anyone walking past the store, two thong-sporting dream women spooned on a black leather bed, their perfect synthetic derrieres aligned side-by-side. A window display revealed a scantily-clad beauty draped in heavy ropes and teetering on five-inch stiletto heels, her arms straight up in the air, wrists entwined.Here are more pictures of the store display mentioned in the Newsweek article. This display, almost certainly not in compliance with current Northampton signage regulations, is an example of how Northampton’s Planning Board was hasty in approving Capital Video’s Site Plan. Capital Video has not demonstrated that it knows what it means to comply with Northampton’s laws.
And all this before you’d even gotten to the “For Adults Only” section near the back of the store, where a topless mannequin was lounging on a sofa. Let’s just say, if this were a movie, it would definitely be R-rated and pushing for NC-17…
[T]he Virginia version sent the local media and DC talk radio into a frenzy. The Washington ABC affiliate warned that “the subject matter and the pictures in this upcoming story may be too mature for some viewers,” and some of the photos were “too graphic to show on TV…”
Rhoda Barrett, who lives nearby, said when she complained about the display a manager at the store told her to walk her 7 and 10-year-old daughters “on the other side” of the mall if she found the display objectionable…
Victoria’s Secret launched another controversial promotion earlier this year when it hired Crispin Porter + Bogusky of Miami to create an interactive Internet strip poker “adver-game” to promote the July startup of its Pink fashion line, which caters to women in their late teens and early 20s.