(Publisher’s note: This is the first installment of a three-part series in which the case of Dave Mongielo, a Lockport businessman now facing jail time for displaying the wrong kind of sign at his business, is explored.. In many ways, the Mongielo affair brings to light the consequences of an out-of- control government and what can happen to ordinary people caught up in its madness.)

Lockport town justice Raymond Schilling (L) was both judge and jury as he sought to imprison defendant David Mongielo for displaying a sign to raise money for decorated war veteran and Niagara County sheriff’s deputy, Allen Gerhardt. Gerhardt lost his legs after crashing when rushing to the aid of a fellow deputy. Schilling sentenced Mongielo to 15 days in prison.

As is so often the case here in Niagara County, there is more to the recent sentencing of Town of Lockport businessman Dave Mongielo (15 days in jail and a $250 fine for violation of a sign ordinance) than meets the eye.

Mongielo was granted a stay of the sentence last week by Niagara County Court Judge Matthew J. Murphy who ruled that Mongielo has until Sept. 24, giving the court time to consider his appeal.

At issue is an electronic video sign Mongielo has on the property where his auto repair business is located in the town which has an ordinance forbidding such signs.

Specifically, the zoning ordinance prohibits signs that change more than once every 10 minutes. Town officials say that such signs could constitute a public safety hazard because they might distract drivers who could potentially become involved in accidents.

This flies in the face of actual research. In 2001, the Federal Highway Administration completed a Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction. Signs such as the one Mongielo displays were shown to have no impact whatsoever on highway safety.

Laws such as the one used in Lockport do nothing to protect the public, according to the million-dollar study. They do give local government officials another venue with which to harass, intimidate, and extort money from honest citizens. In any event, when Mongielo moved his business from Pendleton, where the sign was legal, to Lockport in 2008, he sought and was denied a zoning variance that would have permitted its use.

He went ahead and put it up anyway, using it to advertise charitable benefits rather than to promote his own business, with the thought that officials might be convinced the sign could be a public benefit rather than a menace to society.

They were not swayed and they cited Mongielo on three separate occasions in 2009 for zoning ordinance violations.

Mongielo sought legal advice and was told that since the Lockport ordinance didn’t even mention video displays it could not apply to a sign like the one he had.

Mongielo therefore believed that his sign was legal and continued to display it." But there is little room for reason in the court of Town Justice Raymond E Schilling.

Frank J. LoTempio Jr., Mongielo’s attorney at the time, tried to get the charges dismissed on the grounds that the sign law was arbitrary, and that it violated the free speech clause of the First Amendment. However in July, 2010, Schilling ruled that since the law regulates signs regardless of their message, it is constitutional.

Also, he said the town is entitled to regulate flashing signs to enhance traffic safety and the town’s visual attractiveness.
He cited a federal circuit court ruling that upheld a Concord, N.H. ,, law banning electronic signs completely.

“The 10-minute limitation on changing message is not arbitrary, but narrowly tailored to serve the substantial government interests of protecting the town and its citizens from dangerous distractions caused by signs and preserving the aesthetic attractiveness of the town,” Schilling wrote.

LoTempio questioned why the flashing holiday lighting displays people put on their homes at Christmas or the electronic digital clocks that change every minute out in front of many banks are permitted.

“Are those people in violation? There’s no difference,” LoTempio said.

Schilling, acting as judge and jury, found Mongielo guilty on all three counts and fined him $750 in September, 2010. Mongielo saw it coming all along.

Asked at the time what he expected from Lockport’s justice system, he was fatalistic.

“Definitely,” Mongielo said when asked whether he thought he’d be convicted. “I think that they’ll just try to hang me, which is pretty pathetic for a sign. It is politics as usual.”

As part of his sentence, Mongielo was also ordered to refrain from further violations of the ordinance for one year or face jail time.
Days before the year was up, Mongielo's sign promoted an upcoming fundraiser for Niagara County Sheriff's Deputy Allen Gerhardt who lost both legs in a car accident while on duty.
"Displaying a fundraising event, sending a happy birthday message, anything non-commercial is my constitutional right. They can't regulate it," he said.

He asked for a change of venue, a request that was denied by Schilling, again denying Mongielo a jury trial, sentenced him to serve the 15 days. By that time Mongielo had retained a different attorney, Jeffery Palumbo, who argued that Mongielo’s sign wasn’t even the kind the law was written to regulate.

“The ordinance makes no mention of ‘video’ and does not define the technical characteristics of a ‘message,’” Palumbo said. “That’s a problem, because video messages and text messages are not composed the same way technologically, and the ordinance appears to have only text messages in mind.”

Surprisingly, Mongielo’s local newspaper, the Lockport Union Sun & Journal, came down foursquare against him – and freedom of speech.

Earlier this year, the paper published an editorial advocating a position seemingly at odds with the First Amendment of the United States Constitution, that article of law that allows newspapers such as the Lockport US&J to exist as they do in the first place.

“If he is convicted of this latest charge of violating the law, it’s time for him to face the music,” the editorial said. “If that’s jail time, so be it. Later this month, a town justice will decide whether Mongielo is guilty and, if so, what the sentence should be.”
The editorialist, who is able to make a living directly because of the law contained in the First Amendment, actually argued that a Town of Lockport zoning ordinance should take precedence over the U.S. Constitution.

“Bottom line, the law is the law, and Mongielo is subject to it, whether he agrees with the letter and spirit or not,” the editorial continued. “If he can’t abide by the law, let him face the consequences of running afoul of it.”

Many would argue it is the Town of Lockport that is running afoul of the law set down by James Madison, Thomas Jefferson, Benjamin Franklin and the other Founding Fathers, to the extent that they would strip a man of his freedom and lock him in a cage without a trial by jury.

He got a trial by government instead.

"I'm just sick to my stomach,” Mongielo said after the sentencing. “I feel bad for my wife, my children, more than anything else. I try to do my best to help in the community." said Mongielo.

"There's so much wrong with this prosecution,” said his new attorney Frank Housh. “There's so much wrong with this case, I can't really begin. But I think that says it all. They want to put him in jail over a sign ordinance."

(Mongielo operates www.signjail.com that provides information on his case and an appeal for donations to help pay mounting legal fees he is incurring to stand up for freedom of speech and the right in all criminal prosecutions to a trial by jury.)

(Next Week: Are Dave Mongielo’s legal woes a result of his political activism in the Town of Lockport?)