Dewey shop loses legal battle over 'junkie' displays

A beach trinkets store in Dewey Beach that displays rafts, beach chairs and boogie boards on its exterior lost a federal lawsuit that argued Dewey's fines for the decor, called "junkie" by the town, violated free speech standards.

U.S. District Chief Judge Leonard P. Stark ruled that the owner of the store, Jeremiah's, wasn't persuasive in claiming Dewey overstepped in repeatedly issuing fines over the decorations. Owner Jason Fruchtman had argued Dewey singled out his store for scrutiny to benefit his competitors, and also argued that regulating his store's appearance just because town officials thought it was ugly infringed on commercial free speech.

But Stark, in his ruling, wrote that Dewey Beach "targeted plaintiff for enforcement because he was the most prominent violator of the code, and his non-compliance incited other business owners to violate the law as well." Stark granted summary judgment in the town's favor. He noted that Jeremiah's "is the only three-story building to display beach merchandise on all stories."

Jeremiah's started adding its outdoor decor around 2006. In 2008, Dewey Beach amended its building code to limit how much of a commercial building could be covered with displays of "seasonal merchandise." They could only go on a building's ground floor, and could not cover more than 500 square feet of a building's outer wall. Town officials said in court filings they worried the garish merchandise attached to the walls of Jeremiah's got in the way of people on the sidewalk, and that it distracted drivers.

"He's cut back some, but he's still got twice as much stuff out there as he should have," Diane Hanson, the Dewey Beach mayor, said of the store's current look. She said the town was hesitant to widely enforce the part of its code regarding displays while the lawsuit was undecided, and that had been a long while. Fruchtman first sued in 2010, triggering depositions, court pleadings and mediation conferences.

"We haven't really been able to enforce this law in five years. We are in a good position to do that now, assuming we get through the appeal period," Hanson said. "And I think the other businesses in town will be glad to hear it. It just went on for so long."

Fruchtman could not be reached for comment. In his court filings, he argued Dewey officials complained about the displays "because the defendants do not like the way they look," which he said made little sense given Dewey's informal beach town atmosphere.

"Dewey Beach is a party town, known mainly for drinking and a culture of hedonism," according to a 2012 court memo he filed. "How rafts and beach chairs detract from the aesthetics of Dewey is hard to fathom."

And, he contended, Dewey enforced the law selectively "to aid plaintiff's business competitors," an allegation the defendants denied.

Fruchtman has not decided whether to appeal Stark's ruling, his lawyer, Edward C. Gill, said. He has 30 days to appeal.

"Throughout the process, I think both sides have tried to tone things down a little bit. He's made amendments. They've made amendments," Gill said. "Hopefully we can put an end to litigation, but both sides have to agree to that."

Contact James Fisher at (302) 983-6772, on Twitter @JamesFisherTNJ or jfisher@delawareonline.com.