Byron Shire Council is fining a sex-shop owner for the second time in two years for the signage on his van while maintaining it is powerless to take action against much more offensive slogans on the sides of Wicked Campers.
Krystal Adult World proprietor Stephen Keen received a $1,500 fine in April 2015, which was upheld by the court in March 2016.
Mr Keen told Echonetdaily that although he pleaded guilty under a bargain he believed he’d struck with council’s legal services coordinator Ralph James, he doesn’t believe he is breaking any law.
‘I have emails back and forth between myself and Mr James re sign changes and believe I did [have] an agreement with council [before the hearing], Mr Keen said.
But the businessman, who represented himself in court, says he didn’t know that the relevant papers had to be handed to the judge before the hearing and, as they were never handed up, there was no proof of any formal agreement.
‘The council solicitor said in front of my daughter that he would waive the fine,’ Mr Keen said.
‘We went back into court, I pleaded guilty, and was fined.
‘On my way out I said to the solicitor that he told me I wouldn’t be fined. The solicitor said “bad luck”.
‘Council says the van it is being used as an advertisement but in the government act it refers to “a vessel and a sign on a building”.
‘But the dictionary definition of a vessel is not a car. Council says I can’t leave it for any time on one spot,’ Mr Keen said.
Five months after the court case, in October last year, he received another fine, this time for $3,000.
Mr Keen, who believes council has discriminated against him, is currently preparing for a second court case.
Byron Shire council’s legal services coordinator Ralph James said that complaints received about the Krystal Adult World van, which was parked for extended periods on Shirley Street, related to the nature of the artwork on the van.
But, he says, that’s not why the fine was imposed. Instead he says it was because of laws relating to the advertising of restricted premises.
‘The businesses was approved as a restricted premises and therefore is limited in what advertising can take place.
‘The pink van was parked on Shirley Street, away from the premises in the Byron Industrial Estate, and clearly had a map, directions to the business, graphics and a list of products for sale.
‘This was considered advertising of a restricted business and the owner was repeatedly requested to park the van at the premises.’
Mr James said that, at council’s request, the artwork was modified.
‘However, subsequently a trademark was registered which included artwork that was similar to what was previously on the car.
‘Part of the agreement previously reached was that if a trademark was registered, council would be consulted before the artwork on the vehicle was changed.
‘As it turned out, council was not contacted about the new trademark and its use on the vehicle – and the vehicle was still considered to be advertising a restricted premises.
‘The owner was again warned in writing, did not heed the warning and an additional fine issued. This is now being challenged in court next week,’ Mr James said.
Last year, council’s then sustainable development manager Wayne Bertram told Echonetdaily that council was powerless to act on the much more offensive slogans on the sides of Wicked Camper vans.
But Mr James said the issue of comparing Wicked Campers and Mr Keen’s van came down to ‘what is advertising and what is not.’
Under the EP&A Act advertisement means ‘a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water.’
‘Whilst some people may consider the Wicked Campers sexist and offensive, the wording on the vehicles is not advertising,’ Mr James said
‘Council considered the Krystal Adult Shop van to be advertising a restricted premises and this is not allowed under planning regulations,’ he added.