RANDAL R. MORRISON’S SIGN REGULATION / PUBLIC FORUM BULLETIN

Religious Monument: A city park in Pleasant Grove UT contains several historical displays, including a Ten Commandments (TC) monument donated by the Eagles, a private group, in 1971. In 2003 a religious group called Summum requested permission to place a physically similar monument with its "Seven Aphorisms" in the same park; the city council denied permission saying the Summum monument was not related to the history of the city. On appeal, the 10^th Circuit: said: 1) the park is a traditional public forum; 2) the exclusion of Summum’s monument was content based and not sufficiently justified; and 3) the trial court must grant a preliminary injunction (allowing Summum to erect a monument in the park). Summum v. Pleasant Grove, 483 F.3d 1044 (10^th Cir. No. 06-4057, 2007). Cert granted 3/31/08, 128 S.Ct. 1737. Issue: did the city adopt the Eagles TC monument as its own speech? Oral argument 11/12/08.

Info on Summum religion: www.summum.org.

"Choose Life" License Plates. The Ninth Circuit held that a "choose life" message on state-issued license plates was private speech, not government speech. Arizona Life Coalition v. Stanton, 515 F.3d 956 (9^th Cir. No. 05-16971, 1/28/08); cert denied 10/6/08, No. 07-1366. Contrast: ACLU v. Bredesen, 441 F.3d 370 (6^th Cir. 2006) ("Choose Life" plates were government speech) and Choose Life Illinois v. White, __ F.3d __, 2008 WL 4821759 (7^th Cir. No. 07-1349, Nov. 7, 2008) (specialty plates implicate private speech in a nonpublic forum; extended discussion of the issue; the State’s exclusion of all abortion-related messages from specialty plates did not violate First Amendment.)

Signco Standing. The Georgia Supreme Court held that a billboard company could challenge only those parts of a sign ordinance which actually caused it harm. Granite State Outdoor v. Roswell, 283 Ga. 417, 658 SE2d 587, No. S07A1885 (3/10/08). Cert. denied 10/6/2008, NO. 08-50. For a survey of federal cases on the same issue, see: Maverick Media v. Hillsborough County, 528 F.3d 817 (11^th Cir. No. 07-12330, 5/22/08) (all reaching essentially the same conclusion; more cases on standing, below).

Teachers’ Mailboxes. School’s mailbox policy, requiring approval before teachers could distribute flyers, did not violate free speech rights of a teacher. Policastro v. Kontogiannis, 262 Fed.Appx. 429 (3d Cir. 2008). Cert denied 10/06/2008, No. 07-1341.

Parade Permits. City law requiring parade sponsors to pay costs of traffic control and clean-up was valid as a reasonable "time, place and manner" rule. No "indigency exception" was required. Sullivan v. Augusta, 511 F.3d 16 (1^st Cir. 2007). Cert denied 10/06/08, No. 07-1500.

Banning Billboards Outside City Limits. Signco RTM got state DOT permits, but not city permits, and then built new billboards in the extra-territorial jurisdiction (ETJ) of Houston TX. City demanded removal of the signs as violating the billboard prohibition and an amortization program for existing billboards, which excluded any device "used exclusively and at all times for" non-commercial messages. Signco sued, charging that the city law unconstitutionally discriminated between non-commercial and commercial message signs, based mostly on Cincinatti v. Discovery Network, 507 U.S. 410 (1993). Initially, the federal trial court issued an order saying the city could not enforce its sign ordinance (518 F.Supp.2d 866); this order was narrowed to apply only to the plaintiff (2007 WL 5006527). Held: In Discovery Network the commercial / non-commercial distinction did not advance the city’s interests; here, it does advance the city’s interests in community aesthetics, traffic safety, and protecting property values. Evidence shows that the amortization program has produced a significant decline in the number of billboards in the city. Summary judgment is granted to the city on all claims. RTM Media v. Houston, __ F.Supp.2d __, 2008 WL 4381540 (SD TX No. 4:07-cv-2944, 9/29/08). Notice of Appeal filed 10/28/2008. [Disclosure: Randal Morrison is a consultant to the City of Houston.]

Protesting Neighbors / "Tombstone" Yard Signs. Neighbors objected to parking of large RV, and petitioned city for law forbidding such parking, which was adopted. RV owner responded with a set of temporary yard signs shaped like tombstones, bearing inscriptions which insulted the complaining neighbors. During an argument, "tempers flared, a shouting match erupted, and [one neighbor] chest-butted [the RV owner.]" After Officer Mason separated the men, he told [RV owner] if he did not agree to remove the tombstones, he would be arrested for disorderly conduct. RV owner sued the Officer for violation of free speech, and damages. Jury found in favor of the officer. Held: Lawn signs were not "fighting words," and thus were protected free speech. The officer had reasonable cause to make an arrest for disorderly conduct, and enjoyed qualified immunity from damages. Purtell v. Mason, 527 F.3d 615 (7th Cir. No. 06-3176, 5/14/2008).

Protesting Homosexuality / Picketing Funerals. Plaintiff protests the "sin of homosexuality" by picketing at certain funerals, including the funerals of United States soldiers. She challenges a state law that criminalizes funeral picketing, saying it was enacted for the purpose of silencing her speech in particular. Held: The law applies to all funerals, so it is content neutral. However, since it targets all funeral picketing, rather than just disruptive picketing, it is not narrowly tailored. The law does not leave open adequate alternatives, because those who protest or picket at or near a military funeral cannot effectively reach such an audience in any other way. The trial court is ordered to block enforcement of the state law until the case can be decided on the merits. Phelps-Roper v. Nixon, ___ F.3d ___, 2008 WL 4755559 (8th Cir. No. 07-1295, 10/31/2008.)

Protesting Animal Mistreatment / Sign Truck. Animal rights protest group operates a "Tiger Truck" displaying video monitors with recordings of animals being cruelly mistreated, and broadcasts the cries of animals being abused. The group challenges a city law which bans all "mobile billboard advertising" of any content, at any time, on any street, but exempts "Any vehicle which displays an advertisement or business identification of its owner, so long as such vehicle is engaged in the usual business or regular work of the owner, and not used merely, mainly or primarily to display advertisements; buses; or taxicabs." Held: the term "advertising" applies to both commercial and non-commercial messages. The ban is content neutral and serves the city’s interests in safe movement of traffic, reducing air pollution, and enhancing city esthetics. The city law is valid. One judge dissented, saying the law applies only to commercial speech. Showing Animals Respect and Kindness v. West Hollywood, 166 Cal.App.4th 815 (Cal.App. 2 Dist., No. B2017212008, 9/9/2008).

Protesting Abortion / Sign Truck. Members of Center for Bio-Ethical Diversity drove a truck, displaying color pictures of early term aborted fetuses, around a public middle school during the time when most students were being dropped off at school. School officials notified police, who soon arrived. Citing a state law (Cal. Penal Code 626.8) which makes it a misdemeanor to interfere with the peaceful conduct of the activities of the school, police told the protestors they had to leave the area around the school. Held: The state law does not discriminate on content; however, depending on the audience reaction, it might create a "heckler’s veto", which the First Amendment forbids. "California Penal Code § 626.8, read as we believe a California court would construe it, does not apply to Plaintiffs’ expressive activities in driving their trucks around [the school]. Thus, the officers’ order that Plaintiffs leave the area . . . violated Plaintiffs’ First Amendment rights. The individual defendants, however, have qualified immunity from a damages action." Center for Bio-Ethical Reform v. Los Angeles County Sheriff Dept., 533 F.3d 780 (9^th Cir. No. 05-55294, 7/2/2008.)

Protesting Immigration / "Adopt a Highway" Signs. California Dept. of Transportation revoked San Diego Minutemen’s adopt-a-highway courtesy sign, located near an immigration check point, because of safety concerns over adverse reactions to the sign. Held: The state agency is entitled to 11th Amendment immunity; its officers also have immunity from money damages, but not from injunctive relief (court orders). The courtesy sign program creates a non-public forum; the sign is protected, private speech. Speech cannot be suppressed simply because it will offend some people. There are no objective standards for judging safety risk and public controversy. The state is ordered to reinstall the Minutemen sign, pending trial. San Diego Minutemen v. California Business Transp. and Housing Agency, 570 F.Supp.2d 1229 (SD CA No. 08CV210, 6/27/2008).

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Building Identification Signs. Business acquired and leased naming rights to buildings. City denied permits, saying the names (including WEHIRENURSES.COM BUILDING, & PARALEGALHELP.COM) were not bona fide identification signs. Held: the definition of "building identification sign" was not unconstitutionally vague; the rules satisfied the Central Hudson test for commercial speech. City acted properly in denying the permits. Melrose. v. Pittsburgh, 2008 WL 4449687 (USDC WD PA No. 02-1161, 9/30/2008).

Flashing Signs. Owner of legal but nonconforming billboard challenged City’s denial of permits to add "electronic flashing display" to the sign. Held: City law prohibits structural changes to non-conforming signs, unless the sign is first brought into compliance with current law. Given the sign’s location in a large vacant lot, that is not possible. A sign change is "structural" if the alteration modifies the size, shape or height of a sign structure or requires replacement of sign material with other non-comparable materials. The rule prohibiting structural change is content neutral and sufficiently justified. Meredith v. Lincoln City OR, 2008 WL 4375591 (D OR Civ No. 03-6385-AA, 9/25/2008).

Similar cases: Naser Jewelers v. Concord NH, 538 F.3d 17 (1st Cir. No. 07-2098, 8/12/2008) – complete ban on electronic message centers (EMCs) which made no exceptions, was valid. (Earlier holding in same case: 513 F.3d 27, 1/18/2008)); Marras v. Livonia, Mich., __ F.Supp.2d __, 2008 WL 3843533 (ED Mich. No. 07-12562, 8/15/2008) (ban on flashing, moving, and portable signs was legitimate and constitutional) (earlier decision on equal protection: 2008 WL 2397642).

Standing: Does the Challenger / Plaintiff Have the Legal Right to Present the Case? If the plaintiff lacks standing, the court has no jurisdiction. Many recent sign cases explore this issue.

Standing Case 1: Authority. Billboard company challenged sign regulation, saying fees were based on speech content. City Solicitor entered into settlement, on behalf of City. Solicitor’s authority was challenged by individual members of City Council and various civic groups. Held: Individual council members, and civic groups, all lacked standing because they held only a generalized grievance, and suffered no concrete injury which was particular to them. However, others who have standing may challenge the settlement. Goode v. City of Philadelphia, 539 F.3d 311 (3d Cir. No. 07-3164, 8/12/2008).

Standing Case 2: Actual Injury. Signco wishes to place general advertising messages on taxicabs. City’s law requires that signs on vehicles must relate to the vehicle’s business, and that the sign’s primary purpose must be related to transporting people, merchandise, or freight. Held: Signco’s agreements with taxi companies are subject to city approval; it has no business license; it does not currently have signs on any cabs licensed in the City; it does not have firm agreements with any advertisers. It has suffered no harm or injury from the vehicle sign rule, and thus has no standing. Case dismissed. NTY v. Gainesville GA, 2008 WL 3853412 (ND GA No. 2:04-cv-78, 8/13/2008). Similar case: Lamar Adv. v. Pitman, __ F.Supp.2d __, 2008 WL 4053441 (ND NY No. 5:05-CV-375, 8/6/2008) (denial of variance to exceed size and height rules -valid).

Standing Case 3: Redressability. Signco sought permits for seven new billboards, each 49'6" high with display faces of 672 sf; all applications were denied for violation of rules regarding height (20'), horizontal max (15') and vertical max (10'). Signco then applied for variances, which were denied. Shortly after signco filed suit asserting that the sign ordinance was unconstitutional, city adopted a new sign code which completely banned all new billboards. The trial court held that because of the size and height violations, signco could not have erected its proposed signs; the sign code’s unconstitutional provisions caused no injury. Summary judgment to city. 2006 WL 1294390 (May 2006). On appeal, held: the proposed billboards exceeded the variance discretion (350 sf), and signco never offered to apply for conforming signs. When no change in the permit procedure would result in the approval of the requested permits, then plaintiff lacks standing to challenge the permitting process. Case remanded with instructions to vacate the judgment in the City’s favor and dismiss the case with prejudice. Boulder Sign v. Boulder City NV, 281 Fed.Appx. 701 (9^th Cir. No. 06-16603, 6/4/2008) (not officially published). [Disclosure: Randal Morrison defended Boulder City NV in this case.]

More Cases on Standing / Redressability: Maverick Media Group, Inc. v. Hillsborough County, Fla., 528 F.3d 817 (11^th Cir. No. 07-12330, 5/22/2008); Lockridge v. City of Oldsmar, 273 Fed.Appx. 786 (11^th Cir. No. 07-11442, 4/7/2008); Covenant Media v. Lawrenceville GA., __ F.Supp.2d __, 2008 WL 4462422 (ND GA No. 1:07-CV-2522, 9/18/2008), Roma Outdoor v. Cumming, GA., 558 F.Supp.2d 1283 (ND GA No. 2:07-CV-0133, 5/14/2008); Midwest Media v. Crescent Springs KY, 2008 WL 924570 (ED KY No. 06-07, 4/4/2008) [Disclosure: Randal Morrison was a consultant on the amended sign ordinance in the Crescent Springs case.]

Standing Case 4: Overbreadth. Signco applied for new billboard permits, which were denied for violation of size, location and spacing rules. Company then sued, challenging many provisions of the sign ordinance. Held: Signco had standing to challenge only those provisions of the sign code upon which permit denials were based. A finding that a plaintiff has standing to bring suit challenging one provision of an ordinance does not provide it a passport to explore the constitutionality of every provision of a sign regulation. The size restriction was enough reason to deny the permits, and is valid. Covenant Media of North Carolina v. City of Monroe NC, Slip Copy, 2008 WL 2780559 (4^th Cir. No. 07-1194, 7/18/2008).

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Is a Billboard a "Fixture" (attached to the land) or Removable Personal Property? Several recent cases have addressed the question of whether a billboard is a fixture; if so, then compensation must be paid for its removal; if no, then removal is not compensable, under Texas condemnation law.

Case 1 / Lease Terms: Signco’s lease said that it owns the billboard structure, and must remove it upon cancellation of the lease. The State said the sign is relocatable, so no inverse condemnation damages are due, and on that basis, challenged the jurisdiction of the court. Held: the permit requires embedding the central mounting pole in concrete; the sign cannot be moved without severe damage. This is enough to raise a triable issue as to whether the billboard is a fixture, and thus compensable in condemnation. The court has jurisdiction. State v. Clear Channel Outdoor, ___ S.W.3___, 2008 WL 4166500, Tex.App.-Houston (1 Dist. No. 01-07-00353-CV, 9/11/2008). See also:"Termination upon sale" and condemnation clauses were included in the lease. Private landowner negotiated sale to a college district, in lieu of condemnation; signco claimed condemnation compensation. Held: the termination was authorized by the lease, and was voluntary; there was no taking; and thus no damages need be paid. Dallas County Community College Dist. v. Clear Channel, 2008 WL 3307085 (Tex.App-Dallas, No. 05-07-00701-CV, 7/31/20008).

Case 2 / Degree of Attachment: Whether a billboard is a fixture or personal property is a question of fact to be determined from (1) the mode and sufficiency of annexation, either real or constructive; (2) the adaptation of the article to the use or purpose of the realty; and (3) the intention of the party who annexed the chattel to the realty. There is no compensable property right in a TX DOT billboard permit. Argyle v. Pierce, 258 S.W.3d 674 (Tex.App. - Fort Worth, No. 2-07-255-CV, 5/15/2008). Contrast: Harris County Flood Control Dist. v. Roberts, 252 S.W.3d 667 (Tex.App.- Houston No. 14-06-00696-CV, 4/3/08) (facts sufficiently supported a finding that a billboard was a fixture, and its removal compensable.)

Case 3 /Forced Removal: By forcing signco to remove its billboard as part of a road project, the state took private property; Fifth Amendment requires just compensation for the loss of that private property. Harris County v. Clear Channel, 2008 WL 1892744 (Tex.App.- Houston, No.14-07-00226 -CV, 4/29/08).

Grandfathering. In 1962, the side of a building was used to display off-site advertising, without obtaining a required permit. Over the years, various changes were made to the sign, all without permits. The City issued notices in 1986, 1990, 1994, and 1997. The operator applied for a permit in 1998, but it was denied because the sign did not meet then-current code for separation from residential uses. Operator then sued charging violation of substantive due process. Held: Substantive due process requires a vested or protected property right. There was none here, because the sign was illegal from the outset. A property owner may not rely on purported defects in prior versions of the law to claim a vested interest in a property use for which it never obtained permission. Judgment to the city. General Auto Service Stn v. Chicago, 526 F.3d 991 (7^th Cir. Nos. 05-2515, 06-2672, 5/16/2008.)

Relocation / Grandfathering. A road widening project required removal of existing, permitted, non-conforming billboard. The State notified owner of eligibility for relocation, and that funds were available. Signco moved the sign to a different location on the same property, and requested reimbursement, which was paid. Signco then applied for new permit, which was denied because "the relocation of the structure ... constitutes the construction of a new device at a new location." Held: the proposed billboard location is illegal and non-conforming because it is within 660 feet of a primary highway and the Billboard Control and Regulation Act prohibits billboards in that ("FAR") zone located near the highway. The billboard must be removed; all grandfathering rights have been lost. Universal Outdoor. v. Tennessee Dept. of Transp., 2008 WL 4367555 (Tenn.Ct.App. No. M2006 -02212-COA-R3-CV, 9/24/2008.)

Discretion / Planners. City law banned all off-site and supergraphic signs, unless the proposed signs are "specifically permitted pursuant to a legally adopted specific plan, supplemental use district, [or] an approved development agreement" or are part of a relocation agreement authorized by state law. Signco asserts that the exceptions grant too much discretion to restrict speech. After reviewing Ninth Circuit billboard cases on permit discretion, the district court held: the development agreement exceptions fall much closer to the ordinance invalidated in Desert Outdoor [ v. Moreno Valley, 103 F.3d 814 (1996)] than the ordinances upheld in G.K. Ltd. Travel [v. Lake Oswego, 436 F.3d 1064, 2006) and Outdoor Media [Group v. Beaumont, 506 F.3d 895, 2008], but that the relocation agreement exception does not grant the City unfettered discretion to deny signs based on content. Summary judgment for signco on specific plans, development agreements and supplemental use districts; summary judgment for the City on relocation agreements. World Wide Rush v. Los Angeles, __F.Supp.2d __, 2008 WL 4416751 (CD CA No. CV 07-238, 8/20/08). Note: this case is now on appeal to the Ninth Circuit.

Discretion / Police. Police officer removed political posters of perennial candidate, who then challenged the state law prohibiting signs "within the limits of a public highway, without first obtaining the written consent of the chief of police of the city or town in which the highway is located." Held: the state law, to the extent it vests unbridled discretion in local police chiefs to approve or disapprove political signs posted on private property within the limits of a public highway right-of-way, is unconstitutional. Driver v. Richmond RI, 570 F.Supp.2d 269, (D RI No. 07-291, 7/31/2008.)

Discretion / Variance. City challenged decision of Board of Zoning Appeals to approve variances allowing new billboard which exceeded height limit and violated spacing rule. Held: The evidence did not show "practical difficulty or unnecessary hardship [that] inheres in and is peculiar to the premises . . ." The variances are invalid; the sign cannot be built as proposed. Cleveland v. Patrick Realty, 2008 WL 3870617 (Oh App. 8 Dist. No. 90349, 8/21/2008.)

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This free newsletter is distributed only by email. It is for information purposes only, and does not constitute legal advice. Receipt of, or reading of, this newsletter, does not form an attorney - client relationship. Copyright 2008 Randal R. Morrison, Member of the State Bar of California, PO Box 531518, San Diego CA 92153-1518. Phone: 619.234.2864; Fax: 619.342.4136; email: rrmatty@yahoo.com. Website: www.signlaw.com.