HARLINGEN — For nearly three months, attorney Ruben Peña’s tall electronic sign’s been flashing advertising over the rooftops of downtown’s La Placita business district.

Months earlier, the prominent attorney and former school board president filed a lawsuit against the city, arguing his freedom of speech gave him the constitutional right to advertise on the massive 35-foot-tall digital billboard for which City Hall mistakenly issued a permit.

Now, the city’s filed a counterclaim in U.S. federal court, arguing the sign poses “substantial danger of injury or an adverse health impact to local residents and their property,” while requesting the court issue Peña fines of $1,000 a day.

On Monday, city spokeswoman Irma Garza stated officials “do not comment on pending litigation.”

But attorney Laura Peña, Peña’s daughter, stood by her father’s first amendment rights to use his sign to advertise.

“It’s disappointing the city of Harlingen would rather spend taxpayer dollars suing small businesses than protecting the First Amendment,” she said.

“The old days of a select few controlling who can speak and what people can say are over. The law is on my client’s side. The First Amendment right to freedom of speech must be protected for all — not just the wealthy or the privileged,” she said.

City files counterclaim

Since last year, officials here have argued city ordinances restrict Peña to advertising businesses located within his office building at 222 W. Harrison Ave.

But in February, Peña’s began advertising outside businesses along with community events and now political candidates running against incumbents in Saturday’s election.

Earlier this month, lead attorney Roger Hughes of the law firm Adams & Graham filed a counterclaim in U.S. federal court, where he requested the case be moved based on Peña’s federal constitutional claims.

“Perhaps emboldened by their legal challenge, plaintiffs are now engaged once again in off-premises advertising with the subject sign,” the city’s lawsuit states. “In fact, plaintiff’s sign blatantly and boldly advertises that the sign is available for advertising.”

The lawsuit argues Peña’s sign poses “a substantial danger of injury or an adverse health impact to local residents and their property.”

Meanwhile, the city requests the court order Peña to stop “operating the electric sign in question to advertise a product or service on a lot at which is not the location at which the product or service is offered,” requesting the court fine him $1,000 a day.

City mistakenly issues sign permit

The case dates back to October 2019, when the city’s building inspection’s department issued AAA Electronic Signs, which sold Peña the sign, a permit allowing its installation next to his office.

More than two months later, Xavier Cervantes, the city’s planning director, told Peña the city had mistakenly granted the permit for the sign whose size violated an ordinance, Laura Peña wrote in her lawsuit filed in September 2020.

During a telephone call, Cervantes told Peña “the city had mistakenly given him the permit for a sign that had a size in excess of the permitted sign ordinance,” her lawsuit states.

“Cervantes requested Peña to have the sign reduced to conform with the ordinance. As the sign had already been ordered and Cervantes did not have authority to pay for the replacement or offer to pay for the sign Peña had already ordered, Cervantes conceded that the city had made a mistake and Peña could proceed,” her lawsuit states.

In late February, the planning department told Peña “the permit issued for the sign was strictly for an ‘on-premises’ sign,” a designation which restricted advertising to “any advertisement for products or services … located on the premises,” the lawsuit states, adding “the city of Harlingen is vague, ambiguous, arbitrary and inconsistent in its zoning ordinances as related to signs.”

“The letter was a cease and desist notice that no advertising of any product or service was to be permitted that was not on the premises,” the lawsuits states.

On March 30, the city began issuing Peña the first of at least six citations for violating the ordinance.

The lawsuit states “the city fails to provide any substantive evidence to establish a showing of substantial danger of injury or an adverse health impact to any person or to the property of any person other than the defendant.”

City’s arguments

In its counterclaim, the city argues “any error in issuing the permit does not bar or estop the city from enforcing its code.”

“The permit application and permit are not vague,” the lawsuit states. “It expressly required the applicant disclose whether the intended sign would be an off-premises sign, stated what were off-premises signs and stated they were subject to various restrictions.”

The lawsuit argues Peña and AAA Electrical Signs didn’t disclose the sign would advertise businesses outside his office building.

“Plaintiffs and AAA Electrical Signs failed to inform the city that plaintiffs intended the proposed sign would be operated as an off-premises sign,” the lawsuit states. “Had they disclosed this intent, the permit would have been denied. The application not only failed to disclose the proposed sign would be an off-premises sign, the plan details showed it would be used for on-premises advertising.”

The lawsuit states “the code’s definitions of on-premises and off-premises signs are designed to regulate only commercial speech.”

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