The McHenry Code

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The latest proof that our traditional civil liberties are under siege came in mid-August, when the city council of McHenry, Illinois, passed an ordinance that bans the use of outdoor costumed business mascots. The councilmembers have apparently classified the mascots as “moving signs” that can be regulated in the same way as other business signs, and are regulating them right out of existence.

The new law will affect Mattress Man (Verlo Mattress Factory) and Lady Liberty (Liberty Tax Services), among others. Mattress Man until recently danced and waved to motorists for a couple of hours each day, year-round, clad in his 4-by-3-foot baby blue costume “with comically large hands”; and Lady Liberty waved to potential tax-preparation customers between January and April, because who doesn’t choose their tax preparer according to which one has the friendliest mascot?

Only 23 percent of Liberty Tax customers, according to the owner of that business, Angie ZXUH.  ZXUH claimed that a survey had shown that 77 percent of her new customers last year said they had chosen her business because of her Statue of Liberty mascot. She said it was more effective than direct mail or regular advertising. “It’s really quite strange, if you think about it,” said a woman who uses all capital letters in her last name.

But the wandering-mascot way of life may be coming to an end, based on the councilmembers’ belief that the mascots are a distraction to drivers and caused a nuisance (because the drivers tended to honk at the mascots), as well as allegedly posing a safety risk to the people inside the costumes. “On a 100-degree day, you have a guy in one of those mattress costumes,” said Joseph Napolitano, the city’s director of community development. “I know I wouldn’t want to do that.”  But Mattress Man (who is actually only 17) said he actually liked the job and didn’t think he was in any danger.  “If it gets too warm,” he said, “we can just come inside.” Not in McHenry, you can’t, mattress boy.

The minutes of the critical meeting of the McHenry City Council show that the Council approved the revised zoning ordinance after a debate that showed a reckless disregard for the mascot livelihoods that were about to be destroyed, or indeed the United States Constitution itself:

Alderman Schaefer noted he had concerns regarding the live moving signs such as student car washes, Liberty tax service, etc. He opined this should be addressed in the “moving sign” definition. Director Napolitano responded these signs would be included in the “moving sign” category….  Alderman Glab inquired if first amendment rights would be violated as a result of adopting the new Sign Code, particularly regarding the moving signs. Attorney McArdle responded this issue would be addressed if it occurs.

McHenry City Council Meeting Minutes, p. 8 (Aug. 7, 2006) (failing even to capitalize “First Amendment”). Only Alderman Murgatroyd voted “nay,” and I’m just happy to know that somewhere out there in this vast country of ours there is an Alderman Murgatroyd who gives a damn about free speech, in addition to providing the name “Alderman Murgatroyd” to some aspiring rock band.

Anyway, now that the “issue” has occurred, having been raised by the Chicago Tribune (among others) last week, there is still no indication that the issue will be addressed. The agenda for Monday’s meeting does not mention the issue at all, although there is a note that a “sign variance” has been requested by Don’s Burgers and Dogs, out on West Route 120. That simple notation may presage a titanic battle over the future of a family supported only by a man dressed as a giant hot dog, which will evolve into a national drama that will ultimately play itself out in the United States Supreme Court over our rights as Americans to engage in expressive conduct. Or it may be something totally unrelated.  Hard to say.

Professor Rodney Blackman, who teaches First Amendment law at DePaul University, was quoted by the Tribune as saying he thought there was a serious First Amendment issue connected with banning the mascots entirely. While some regulation is appropriate, he said, especially for commercial speech, here a government was arguably imposing a complete ban on expressive conduct. I would urge you all, if possible, to attend the McHenry City Council meeting (Monday at 7:30 PM) and express your outrage. Also stop by Don’s Burgers and Dogs and find out what the deal is there.

I did take the liberty of exploring the McHenry Municipal Code for about .1 hours and have noted a few other areas that may pose concerns, constitutional or otherwise. In Section 5-4, I note that the permit fee for carnivals is $100/day but circuses get away for $25. Why the bias against carnival workers, McHenry? Maybe I’ll show up in town dressed as the Equal Protection Clause. Section 6 says you can’t own a lion, tiger, ape, or monkey (and I don’t trust any town without monkeys), and that the animals you can own may not “caterwaul” for more than 15 minutes at a time. Section 9-1 and 9-3 require “good moral character” as one of the conditions for having a license to operate a jukebox or pinball machine, and Section 10-33 prohibits makes it illegal to discharge a torpedo within city limits without a license. (“Torpedo” may refer to a kind of explosive used in the railroad business, but let’s pretend it doesn’t.) Finally, I refer you to Municipal Code Section 30-1, p. 951, for the very elaborate and specific definition of “buttocks”  you’ve been searching for all these years.

You know what?  I’m not going to refer you, I’m going to reprint it in full, because what else is this “Internet” thing for, anyway?

Buttocks: The area at the rear of the human body (sometimes referred to as the gluteus maximus) which lies between two imaginary straight lines running parallel to the ground when a Person is standing, the first or top such line being one-half inch below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom such line being one-half inch above the lowest point of the curvature of the fleshly protuberance (sometimes referred to as the gluteal fold), and between two imaginary straight lines, one on each side of the body (the “outside lines”), which outside lines are perpendicular to the ground and to the horizontal lines described above and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg. Notwithstanding the above, buttocks shall not include the leg, the hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above-described portion of the human body that is between either (i) the left outside perpendicular line and the left outside perpendicular line or (ii) the right inside perpendicular line and the right outside perpendicular line. For the purpose of the previous sentence the left inside perpendicular line shall be an imaginary straight line on the left side of the anus (i) that is perpendicular to the ground and to the horizontal lines described above and (ii) that is one third of the distance from the anus to the right outside line.

So that’s settled.

Link: Chicago Tribune
Link: City of McHenry, Illinois [Note: code has been recodified since this post was written]