Published: December 30, 2008 10:22 am      

Art or junk?

Fight over Planet K car still touring court system

More than a year after a judge deemed it junk, an old smashed-up Oldsmobile with cactus growing out of it is still in park outside a local novelty store.

That’s because what began as a citation for a public nuisance grew into a legal case whose end is not yet in sight. And until that day comes, the car authorities have called an eyesore will continue to be in plain sight.

The car has been there since November 2007, when store patrons paid a fee to smash it, with proceeds going to charity. After fluids and glass were removed, it was filled with dirt and cactus planted inside. Then, local artists decorated it with scenes reminiscent of San Marcos.

But it wasn’t long before a city code officer saw the car and deemed it a public nuisance, a ruling that would be upheld in January 2008 by San Marcos Municipal Judge John Burke.

Planet K founder and CEO Michael Kleinman had insisted the car was an expression of free speech that had been “transformed” into a work of art; as had been done with vehicles at other store locations including three in Austin.

After Burke issued his ruling, Kleinman vowed to take the case to the U.S. Supreme Court “or as far as the city of San Marcos wants to take it.”

The car was again ruled a nuisance by U.S. District Judge Sam Sparks in March. Sparks also ruled that the car must be screened from view or removed within 30 days, unless Kleinman again appealed.

He did. According to Cosentino, the case is now pending before the U.S. Court of Appeals for the Fifth Circuit in New Orleans. “They are in the stage of legal briefing between the attorneys for Planet K and the city,” Cosentino said.