By Charles Keeshan | Daily Herald StaffContact writer
Lakemoor resident Tina Asmus last year was cited by the village for having planters made from old toilets in her yard.
PAUL VALADE | STAFF PHOTOGRAPHER
Published: 2/3/2010 11:18 AM | Updated: 2/3/201 11:19 AM
A McHenry County judge Wednesday refused to throw out a nuisance charge against a Lakemoor woman using two old toilets and a bathroom sink as front yard planters, rejecting arguments the village was applying its rules too broadly.
The decision by Judge Michael Caldwell moves Tina Asmus closer to a trial showdown with the village over whether the old bathroom fixtures are constitutionally protected artistic expression, as she maintains, or old junk that belongs in a landfill, not a front yard.
In his decision, Caldwell said whether the village is applying its nuisance ordinance unconstitutionally is a fact issue to be decided at trial, but the ordinance itself is not overbroad as Asmus's attorney argued.
The ruling comes about seven months after village officials cited Asmus, of the 100 block of South Highland Drive, for maintaining a public nuisance when she refused to remove the fixtures. The village ordinance declares as a nuisance any item "no longer safely usable for the purpose for which it was manufactured" and stored without shelter.
Asmus attorney Tom Spencer argued before Caldwell that the fixtures are not stored, and it is not for the village to decide whether an item is being used for its manufactured purpose. By that standard, he noted, residents who place wagon wheels and other items of "Americana" outside their homes should also be ticketed.
Spencer added that messages written on the planters - including one stating "God bless my neighbors" adds to their constitutionally protected nature.
"The fact of the matter is that they don't like that her artistic expression happens to involve plumbing," Spencer said. "They can't just willy-nilly decide that they don't like it. I don't have to like it, you don't have to like it, but it is her constitutional right."
Lakemoor attorney Greg Waggoner said the village's decision to cite Asmus has nothing to do with her art or her message, but rather with her medium.
"We're not objecting to a sign," Waggoner said. "But at the same time, a person can't decide to put a sign on anything they choose and call it freedom of expression. This is a reasonable exercise of government authority."
Asmus, who faces a $25 fine if found guilty of maintaining a public nuisance, continues to display the fixtures.
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