Florida video game shop owner claims First Amendment violation over town's inflatable Mario ban

ORANGE PARK, Fla. — The owner of a video game store in Orange Park has filed a federal lawsuit against the town over a 9-foot inflatable Mario that officials say is a sign code violation.

Mario, the iconic Nintendo character, has caused “a visible increase in foot traffic and even became a local attraction,” Gone Broke Gaming owner Scott Fisher said in the suit.

Fisher opened his store in 2015 on Kingsley Avenue in Orange Park, a suburb of Jacksonville.

After getting the OK from his landlord and neighboring businesses, Fisher decided to put up the towering inflatable Mario character in July.

The impact on his business was immediate, he said.

“People who came in often commented to Scott that they never knew the store was there until they saw Mario,” the lawsuit said. “Others said that Mario made it much easier to find Gone Broke Gaming’s small storefront on the otherwise busy road.”

By the end of the month, though, an Orange Park Code Enforcement officer issued a notice of code violation, saying the inflatable display was an illegal portable sign.

If he left the Mario in front of the store, Fisher could have faced fines of up to $250 a day.

Fisher pointed out in his lawsuit that the town’s sign code allowed inflatable displays, specifically if it constitutes a “creative idea” that lacks a “commercial message.”

“Under (the creative idea) category, a business could display the same exact inflatable Mario that Gone Broke Gaming was displaying, so long as that business was not selling Mario-related products,” the lawsuit said.

Fisher claims the town’s prohibition of the inflatable Mario under its sign code constitutes discrimination and a violation of his First Amendment right to free speech.

The lawsuit is seeking the court to declare the Orange Park sign code unconstitutional, a permanent injunction prohibiting the town from taking enforcement action against the store for displaying the Mario, attorney’s fees and $1 for the violation of Fisher’s constitutional rights.

As of Thursday, Orange Park leaders had not filed a response to Fisher’s lawsuit.

Cox Media Group