Amendment to the Sign Code Temporary Signs post Reed v. Town of Gilbert, AZ

Transcription

1 Amendment to the Sign Code Temporary Signs post Reed v. Town of Gilbert, AZ MAY 10, 2018 COMMUNITY MEETING Presented By: R. Gregory Hyden, Esq. Special Outside Counsel

2 Legal Background Reed v. Town of Gilbert, AZ, 135 S. Ct (2015): Reed is a 2015 United States Supreme Court case that dramatically altered the legal landscape for temporary signage. The facts of the case were straightforward. A church and pastor seeking to place temporary signs announcing services filed suit claiming Gilbert s sign code which restricted the size, duration, and location of temporary signs violated the right to free speech. The Supreme Court agreed. The primary takeaways: Gilbert had a sign code that prohibited the outdoor display of signs without a permit but exempted certain categories of signs (23 to be exact). Each of those signs had different size restrictions. A sign code that defines categories of signs based on their message and then subjects those messages to different restrictions is content based. Traffic safety and aesthetics remain compelling government interests. Signs can still be regulated on a content neutral basis such as size, building materials, lighting, moving parts, and portability.

3 Legal Background Continued Justice Alito s Concurring Opinion provides greater clarity. He states the following rules would not be content based: Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below. Rules regulating the locations in which signs may be placed. Distinguish between free-standing signs and those attached to buildings. Rules distinguishing between lighted and unlighted signs. Rules distinguishing between signs with fixed messages and electronic signs with messages that change. Rules that distinguish between the placement of signs on private and public property. Rules distinguishing between the placement of signs on commercial and residential property. Rules distinguishing between on-premises and off-premises signs. Rules restricting the total number of signs allowed per mile of roadway. Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.

4 Legal Background Continued Commercial Speech Most federal Courts believe that Reed only applies to non-commercial speech and that Central Hudson remains the seminal case for commercial speech. Commercial Speech is defined as an expression related solely to the economic interests of the speaker and its audience or speech proposing a commercial transaction. See Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) The Constitution affords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection afforded to commercial speech turns on the nature of the expression and the governmental interest served by the regulation. The test of whether a regulation is permissible: (1) Whether the regulated commercial speech concerns a lawful activity and is not misleading; (2) Whether the restriction seeks to implement a substantial government interest (traffic safety and aesthetics); (3) Whether the restriction directly advances that interest; and (4) Whether the restriction is no more extensive than is necessary to achieve that interest. If a restriction will impact both commercial and non-commercial signs, then the time, place, manner test is used. Under that test, in order to be constitutional, the regulation may not be based upon the contents of the speech, must be narrowly tailored to serve a significant government interest and must leave open ample alternative channels of communication. See Café Erotica of Fla, Inc. v. St. Johns County, 360 F. 3d 1274 (11 th Cir. 2004).

5 Legal Background Continued Commercial Speech Central Hudson Gas & Elec. Corp. v. Public Service Comm n of N.Y., 447 U.S. 557 (1981). The primary takeaways: Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. The First Amendment protects commercial speech from unwarranted governmental regulation. The First Amendment's concern for commercial speech is based on the informational function of advertising. Consequently, there can be no Constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity. If the commercial speech is neither misleading nor related to unlawful activity, the government's power is more circumscribed. In commercial speech cases a four-part analysis has developed. At the outset, a court must determine whether the expression is protected by the First Amendment. Next, a court will ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, the court must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

6 Legal Background Continued Key Takeaways of Commercial Speech Commercial Speech A number of cases ask why commercial signs, such as real estate signs or garage sale signs, are not treated the same as temporary political signs. See Beaulieu v. City of Alabaster, 454 F. 3d 1219 (11 th Cir. 2006). In other words, courts are struggling with whether certain types of temporary signage can be treated differently. Commercial speech cannot be given a greater protection than non-commercial speech. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).

7 Legal Background Continued post-reed cases Geft Outdoor, LLC v. City of Indianapolis et. al., 187 F. Supp. 3d 1002 (S.D. IN 2016): A billboard company brought suit challenging the applicable sign code as a violation of the First Amendment because it contained content-based speech regulations. At issue was the differing treatment of on-premises and off-premises signs and the exemption of non-commercial signs from certain general requirements. The Court noted that the majority of courts have held that the holding in Reed is limited to noncommercial sign regulations and does not alter or otherwise affect precedent relating to municipal regulations of commercial signs. Wagner v. City of Garfield Heights, OH, 675 Fed. Appx. 599 (6th Cir. 2017): Resident of Ohio city challenged ordinance limiting the size of signs, political and otherwise, that residents could place on their lawns. The Court found the City s ordinance unconstitutional. This case involved treating various kinds of temporary signs differently by restrictions on their size.

8 Legal Background Continued post-reed cases Lone Star Security and Video, Inc. v. City of Los Angeles, 827 F. 3d 1192 (9th Cir. 2016): Owners of mobile advertising billboards brought actions alleging that municipal ordinances for four cities, prohibiting the parking of mobile advertising billboards on public streets, violated free speech. The Court upheld the ordinances. Here the Court noted that the government may impose reasonable time, place, and manner restrictions on speech in traditional public forums so long as the restrictions are content neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. Here the Court found that regulating advertising content refers to the activity of displaying a message to the public, not to any particular content that may be displayed. Act Now to Stop War and End Racism Coalition and Muslim American Society Freedom Foundation v. District of Columbia, 846 F. 3d 391 (D.C. Cir. 2017): This case involved plaintiffs suing the District of Columbia s municipal regulations governing display of posters in public spaces. The Court upheld the regulations as content-neutral time, place, and manner restrictions that were sufficiently tailored to a significant governmental interest in avoiding clutter. The Court held that the regulation does not impose a content-based distinction because it regulates how long people may maintain event-related signs on public lampposts, not the content of the signs' messages.

9 Other Local Government s Sign Codes West Palm Beach s Sign Code: Unregulated signs include temporary decorations which include displays celebrating the occasion of traditionally accepted patriotic or religious holidays. They also address temporary signs but delineate them on the basis of commercial, political, special noncommercial events of public interest, and noncommercial free expression signs. The sign code would not pass muster under Reed. Orlando s Sign Code (Chapter 64): Orlando ties the size of its signs to the different zoning districts and the size of building/street frontage. However, they regulate political campaign signs (Sec ) differently than temporary signs (Sec ). I do not believe their Sign Code as written will pass muster in light of Reed. In any event, temporary signs may only be on the premises of the sponsoring entity and may not exceed 24 square feet. They shall be allowed no more than fourteen (14) days prior to the event and no more than three (3) days after its termination. Cape Coral s Sign Code (Article 7 of the Land Use Code): Allows for temporary directional signs with a maximum of 4 square feet. They cannot be in theright-of-way. Fort Lauderdale s Sign Code: Fort Lauderdale regulates temporary signs. Its code provides that temporary signs shall be permitted in addition to any other permitted sign on private property. The size of temporary signs is based upon the size of the land parcel. For example, for parcels less than one (1) acre in area, a maximum of twelve (12) square feet in sign area and six (6) feet in height above the ground. They are also limited to one temporary sign for each one thousand (1,000) lineal feet of street or waterway frontage of a plot. Jacksonville Beach s Sign Code (Sec ): Temporary signs are permissible but are limited by size and number in various zoning districts. For example, there is a maximum of 8 temporary signs in residential areas, each sign not to exceed 4 square feet, and 4 temporary signs in most non-residential areas, each sign not to exceed 16 square feet.

10 Proposed revisions to the Sign Code: Temporary Signs Sec Definitions A. The definition of temporary sign should be revised. The current definition is: A sign that advertises for a specific limited period of time, political candidates, parties, or issues, a building under construction, business grand opening, other special events and model homes. B. The sign code should include a definition of a permanent sign. C. The sign code should reconsider the usefulness of the definitions of political sign and special event sign. Sec (C) Permitting Procedure This section needs to be revised to be clear that it applies to permanent signs or at the very least that it does not apply to temporary noncommercial signs. Sec (H) Master sign program This section may need to be clarified so that it is clear what this actually applies to. Sec (I) Garage sale signs This section can be deleted as it would fall under the criteria of a temporary sign. Sec (J) Estate sale signs This section can be deleted as it would fall under the criteria of a temporary sign. Sec Exemptions to Permitting Procedure Subsection (B)(3) needs to be revised to make clear that this refers to a permanent Instructional, ingress/egress, sign.

11 Proposed revisions to the Sign Code: Temporary Signs Sec (B)(6) Non-commercial decorative art This section needs to be revised. Sec (B)(5) Flags and Sec (B)(9) Corporate Flags This section needs to be reviewed to determine if the additional exemption of corporate flags favors noncommercial speech especially in light of Sec (N). Sec (B)(18) Window Signs This section needs to be revised to refer to Fla. Stat (1)(e). Sec (P) Roof signs This section needs to be revised to remove preference for a religious entity as opposed to a blanket allowance for similar structures. Sec (V) Rights-of-Way This section needs to be revised to address whether any temporary signs may be placed in the right-of-ways Sec Regulations for Temporary Signs or Special Events Requiring Permits This section needs to be completely rewritten. The recommendation is to replace the categories (i.e. political signs, special event signs, and so on) with standard rules similar to Daytona Beach which allow temporary signs in each zoning district. The size, number, set backs, etc. will be determined by the size of the parcel. It is recommended that each residential parcel be allowed up to 32 sq. ft. for temporary signs along with all other zoning districts under 5 acres. It is recommended that all non-residential zoning districts larger than 5 acres be allowed up to 60 sq. ft. for temporary signs. Temporary signs would be allowed up for a maximum number of set days.

12 ECMs Marijuana signage Practical Considerations The code needs a substitution clause, which could be easily placed at section , purpose and intent. The code needs a severability clause. There should be a single review process for all signage (for usability) or, at the least, a single review process for signage. The present sign code does not account for trademark signage. Small sign exemption at least a dozen signage categories could be condensed into a small sign exemption provision. Master sign program the code reflects an existence of this but it should be updated as it gives developers a complete alternative to code compliance. Very few provisions related to light pollution are included in the current code. Provisions related to temporary political signs must change. Review signs in the right-of-way, floating billboards (i.e. down the St. Lucie River).

13 Questions?