A federal lawsuit has been filed on behalf of a downtown Salina restaurant in a case involving a mural on the outside of their facility.
According to the Kansas Justice Institute, a lawsuit was filed by the Cozy Inn against the City of Salina on Monday.
The organization says thew case is about a business owner in Salina who was told by the city that he could not finish painting a mural on the building that he owns.
Steve Howard is the owner of The Cozy Inn that has served sliders for over 100 years. Since Steve bought The Cozy, it has been featured on Travel Channel’s “101 Tastiest Places to Chow Down,” and “America’s Top Ten Hamburgers.” USA Today has picked it as the “Best Burger Joint in Kansas.” The Cozy was named by Trip Advisor as the best burger in Kansas in 2022 and 2023, and it has topped Google’s list of burger joints in Kansas for the past three years. Customers travel from around the world for a chance to feast on The Cozy’s famous hamburgers.
Salina is home to a thriving mural scene, with beautiful murals gracing walls throughout the city. Steve wanted to participate in this vibrant part of Salina culture by painting a mural on the wall of The Cozy. Steve teamed up with local artist Colin Benson to paint the mural. The Cozy is small—the dining area is only around 192 square feet—and every slider is famously served with onions, giving The Cozy a distinctive aroma. With that in mind, Mr. Howard decided the mural should include the phrase “Don’t fear the smell! The fun is inside!!” The whimsical mural would depict burger-esque flying saucers piloted by aliens attacking The Cozy with blasts of ketchup and mustard. “Over 90% of our customers are travelers,” says Steve, “I want them to feel the fun and excitement when they get here. My customers traveled hundreds or thousands of miles, and they are excited but now they are finally here, and it is fun when they see the aliens who traveled light-years to get here.”
That all came to a halt when the City of Salina told Steve that he can’t finish painting a mural on the side of The Cozy. The City of Salina takes the position that murals of any size are acceptable, but once there’s a “message that pertains to the good or service for sale it makes it a sign that is subject to the sign code.” In other words, the city regulates murals based upon their content. The City believes that since Steve sells hamburgers, and the unfinished mural on The Cozy depicts hamburgers, the message pertains to the goods sold at The Cozy and the mural is a regulated sign. The City says that, based on The Cozy’s existing signs, Steve is only allowed 10 square feet for a mural, while the City claims that the existing mural is 528 square feet.
What’s the issue?
The government cannot restrict a mural simply because it contains references to the business on which it is painted. The First Amendment prohibits content-based restrictions on speech and artwork. The First Amendment does not allow the City to pick and choose which murals to allow and which to prohibit based on the message or content of the mural. But that is exactly what the City is doing here.
At a City Commisison meeting, a City official explained that a coffee shop could freely paint a mural depicting a dove and the word “peace,” becaue that has nothing to do with coffee, but if the coffee shop painted a mural depicting a “steaming cup of coffee and a coffee pot” that would be regulated as a sign. But the exact same mural depicting a steaming cup of coffee and a coffee pot would be treated as an unregulated mural if it was painted on a business that did not sell coffee. But the Constitution does not allow the City to regulate speech differently based on the message conveyed or on the identity of the speaker.
About the client
Steve Howard was raised in Saline County and spent years working as a maintenance worker for the local school district. In 2007 he bought The Cozy Inn and continues its legacy of selling hamburgers to the people of Salina, and to its many customers who travel from around the world to enjoy The Cozy’s world-famous sliders. “Salina is my hometown, I love it here,” says Steve, “I want to finish my mural.”
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Kansas Justice Institute is a free public-interest litigation firm protecting the freedoms guaranteed by the Kansas and United States Constitutions through cutting-edge litigation.