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'Nobama' salesman sues Mall over eviction

By Brad Hicks
Press Staff Writer
bhicks@johnsoncitypress.com

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The merchant who sold anti-Obama merchandise from his kiosk at The Mall at Johnson City and whose lease was terminated has filed a lawsuit in Washington County Chancery Court against the mall and the company owning it.

Dan Fuchs has filed a complaint against the mall and Glimcher Realty Trust, the Ohio-based company which owns the mall, and is seeking damages for lost profits and emotional stress he says was caused when the mall terminated its lease with him. An amended complaint was filed Thursday afternoon in Chancery Court.

Fuchs was the owner of the Graphic Edge kiosk in the mall, a business that printed pictures and slogans on items such as cups, bumper stickers and shirts. On display at the kiosk were items critical of President Barack Obama and members of Congress. Items for sale contained slogans such as “I’ll keep my guns, freedom and money ... you can keep the ‘change,’ ” “That Obama sticker on your car might as well say, ‘Yes, I’m stupid,’ ’’ and “Go Green, Recycle Congress.”

Previously, Fuchs said more than half of his business came from the sale of such items and that most were printed upon customer request.

Prior to his lease termination notification on Sept. 25, Fuchs’ kiosk had been the subject of several customer complaints. These complaints led officials with the Mall at Johnson City to approach Fuchs and suggest the display of pro-Obama merchandise which would allow him to maintain display of anti-Obama items. The day he received the notice but prior to receiving it, Fuchs said anti-Obama items had been removed from display and later said he was given no reason for the termination.

Fuchs could not be reached for comment but his attorney, Robert L. King, said Fuchs thinks his Tennessee Constitutional rights protecting free speech were violated when the lease was terminated. While he said the U.S. Supreme Court has ruled that the First Amendment does not apply to mall properties, King said the right to choose whether free speech extends to malls has been left up to individual states to determine. King said Tennessee law has yet to define if such rights extend to mall properties and a declaration of this is sought in the lawsuit.

The businessman also argues that the rights of those who ordered items from Fuchs were violated, King said.

“It’s not a political thing with us, it’s just a matter of protecting free speech,” he said.

Officials with the mall previously said that the mall is private property and while they did not wish to it used as a political forum, the mall does not conduct business based on political views and that the termination of Fuchs’ lease was due to a matter between him and the mall. The complaint however contends that Fuchs met the requirements outlined in his lease agreement with the mall.

Fuchs’ complaint argues that the mall is public property.

“While the Defendants hold the Mall as private property, they have intentionally transformed the Mall into a public gathering place, a public square and marketplace where they have openly invited the public to freely roam, shop, congregate and engage in public discourse as well as Mall sponsored events,” the complaint states.

Tembra Aldridge, general manager of The Mall at Johnson City, said mall officials were aware of the lawsuit but did not think it would be appropriate to comment on it at this time.

Fuchs is also seeking actual and punitive damages for loss of profits caused by his eviction from the mall and for “intentional infliction of emotional distress,” with both amounts not to exceed $1 million. Attorney fees are also being sought.

Days following his lease termination, Fuchs had set up a Web site to sell the merchandise available at the mall kiosk. Since that time, King said Fuchs has sold his printing equipment and is no longer in business.