Institute for Justice · September 26, 2017

Orange Park, Fla.—Today an inflatable Mario, the iconic video game character, is back outside Gone Broke Gaming, a popular North Florida video game store. Last summer, local officials in Orange Park (a suburb of Jacksonville) channeled their inner Bowser and smashed Mario for violating the town’s sign code. Threatened with fines of $100 a day, store owner Scott Fisher had no choice but to power down Mario.

But in April, he teamed up with the Institute for Justice (IJ) to sue Orange Park in federal court for violating his constitutionally protected free speech rights. After court-ordered mediation, town officials have now agreed to allow Mario back up and amend the town’s sign code to make it pass constitutional muster and be more friendly for all businesses.

“Mario is more than just a sign for Gone Broke Gaming,” said Fisher. “He is the staple of our advertising campaign. We are so excited to have him back and cannot wait to meet the new customers he attracts to the store. ”

The controversy started when Fisher opened Gone Broke Gaming to sell popular but often hard-to-find video games. To attract more customers to his easy-to-miss storefront, he inflated a 9-foot Mario to great success. Over the next two months, Mario not only helped customers find the small store but also quickly became a safe and fun local attraction for kids and adults alike.

But according to Orange Park regulations, Mario violated the town’s ban on inflatables that contain a “commercial message” because Mario advertised products sold inside the store. By contrast, it is perfectly legal to display noncommercial inflatables, like Santa Claus or the Easter Bunny—and Scott is even free to put the Mario in front of his home. Following a U.S. Supreme Court ruling, treating signs differently based on the content of their message is unconstitutional.

“The First Amendment does not play favorites,” said Erica Smith, an attorney at the Institute for Justice, which represents Fisher. “It protects everyone’s right to speak out, including small businesses, and signs are the most effective way for many small businesses to reach customers.”

After litigating the case for five months, Orange Park officials decided it was time for a different approach. Not only have they agreed to allow Mario back up, but they also expressed interest in working with the Institute for Justice to amend the town’s sign code to allow all businesses to effectively advertise. As part of this collaboration, IJ has offered its model sign code as a guide for business-friendly reform that would allow commercial inflatables, as well as a variety of other signs.

“We’re thrilled that Orange Park leaders want to reach a solution that helps all businesses and respects the Constitution,” said IJ Senior Attorney Robert Frommer. “Robust sign reforms would be a wonderful development for a healthy economy that benefits all hardworking taxpayers in Orange Park.”