Sign Case Developments After Reed eed v. T Tow own of of G - PowerPoint PPT Presentation

Sign Case Developments After Reed eed v. T Tow own of of G Gilbert rt APA 2016 National Conference Professor Alan Weinstein Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs Cleveland State University a.weinstein@csuohio.edu

Issues in Cases  Commercial/Non-Commercial Distinction  On-site/Off-site Distinction  Exemptions  Time, Place & Manner Regulations

Commercial/Non-Commercial Distinction  All post- Reed decisions to-date discussing the issue find the distinction is still valid  Regulation of commercial speech triggers Central Hudson intermediate scrutiny … not strict scrutiny

Commercial/Non-Commercial Distinction  “ Reed is of no help to plaintiff either . . . , it does not purport to eliminate the distinction between commercial and noncommercial speech. It does not involve commercial speech, and does not even mention Central Hudson. ” Lamar Cent. Outdoor, LLC v. City of Los Angeles , 2016 WL 911406, (Cal. Ct. App. Mar. 10, 2016)

On-site/Off-site Distinction  All but one post- Reed decision has ruled the distinction is still valid … but  Thomas v. Schroer , 2015 WL 5231911 (W.D. Tenn.)

On-site/Off-site Distinction  Thomas v. Schroer , 2015 WL 5231911 (W.D.Tenn.) “[t]he only way to determine whether a sign is an on-premise sign, is to consider the content of the sign and determine whether that content is sufficiently related to the ‘activities conducted on the property on which they are located.’ ”

On-site/Off-site Distinction  Thomas v. Schroer , 2015 WL 5231911 (W.D. Tenn.) Justice Alito's concurrence in Reed is inapposite to the instant analysis. Not only is the concurrence not binding precedent, but the concurrence fails to provide any analytical background as to why an on- premise exemption would be content neutral.

Exemptions  Central Radio Co., Inc. v. City of Norfolk, VA , 2016 W.L. 360775 (4 th Cir. 2016)  Sign code exempted certain displays, including: • any “flag or emblem” of any government or “religious organization” • “works of art” that do not identify/relate to a product or service  Sign code regulated size of signs in I-1 district • temporary (60 sf); other (1sf per 1 linear ft of frontage)

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Exemptions  Citation Central Radio seeks injunction  District Ct. denies injunction because exemptions were reasonably related to city’s interests in traffic safety/aesthetics  4 th Cir. affirms … Reed ... Central Radio files cert. petition, S.Ct. vacates/remands  On remand, 4th Cir. finds exemptions made code content-based under Reed • government flag exempt … but not non-government • “works of art exempt” ... unless refer to product/service

Exemptions  Compelling government interest? “Although interests in aesthetics and traffic safety may be substantial government goals, neither we nor the Supreme Court have ever held that they constitute compelling government interests.”  Narrowly-tailored? No evidence that restrictions on non-government flags or works of art that refer to product/service was necessary to eliminate threats to safety or to achieve aesthetic goals

Exemptions  Marin v. Town of Southeast , 2015 WL 5732061 (S.D.N.Y. Sept. 30, 2015)  Regulation that exempted certain signs, but not political signs, from restrictions placed on temporary signage, was a content- based restriction that did not withstand strict scrutiny

Time, Place & Manner Regulations  Peterson v. Vill. of Downers Grove , 2015 WL 8780560 (N.D. Ill. Dec. 14, 2015) …upheld a content-neutral ban on all painted wall signs  Vosse v. The City of New York , 2015 WL 7280226 (S.D.N.Y. Nov. 18, 2015) … upheld a content-neutral prohibition on signs extending more than 40 feet above curb level as a reasonable time, place, and manner restriction on speech

Fallout from Reed Panhandling/Solicitation Cases  Norton v. City of Springfield, IL , 768 F.3d 713 (7th Cir. 2014) • upheld ordinance that prohibited panhandling in “downtown historic district” … panhandling defined as an oral request for an immediate donation of money • signs requesting money and oral pleas to send money later were allowed • city justified distinction because it claimed some persons found oral request threatening … especially at night or when no one else is nearby

Fallout from Reed Panhandling/Solicitation Cases  Reed Norton v. City of Springfield, IL , 806 F.3d 411 (7th Cir. 2015) • “ Springfield's ordinance regulates ‘because of the topic discussed’” • After Reed it must be subject to strict scrutiny.  City then amends ordinance.

Fallout from Reed Panhandling/Solicitation Cases  Amended ordinance: • unlawful for any individual to engage in “[p]anhandling while at any time before, during, or after the solicitation knowingly approaching within five feet of the solicited person.” • ordinance defines “panhandling” as a “vocal appeal” for “an immediate donation of money or other gratuity.”

Fallout from Reed Panhandling/Solicitation Cases  Norton v. City of Springfield, IL , 2015 WL 8023461 (C.D. IL)  Language of the amended ordinance still addresses the content of the speech  If you are “knowingly approaching within five feet” • OK to ask for the time, comment on weather, ask someone to sign a petition or even to solicit support for causes/organizations … • BUT NOT OK to ask for “an immediate donation of money or other gratuity”

Fallout from Reed Panhandling/Solicitation Cases  Brown v. City of Grand Junction , 2015 WL 5728755 (D. Colo.) “At times, threatening behavior may accompany panhandling, but the correct solution is not to outlaw panhandling. The focus must be on the threatening behavior. Thus, the problem in this case is that Grand Junction has taken a sledgehammer to a problem that can and should be solved with a scalpel.”

Next Issue?

Regulating Signs after Reed v. Town of Gilbert CASE STUDY: CITY OF SPARKS, NEVA VADA

WHERE IS SPARKS, NEVADA?

MAIN COMPONENTS OF SPARKS SIGN CODE  Content Neutral  No discretionary permits  No on-premises versus off-premise signs  Signs regulated by place (i.e. building or freestanding)  Maximum size determined by sign placement:  Building Signs  Freestanding Signs  Monument Signs

BACKGROUND  Law suit against City settled in 2001, United States District Court for the District of Nevada ruled that City cannot prevent the construction of off-premise signs  Adopted Content Neutral Sign Code in January 2002  Updated Sign Code and adopted December 2014

CONTENT NEUTRAL  Sign Code categorized by:  Building Signs  Monument Signs  Freestanding Signs  Temporary Signs  Do not look at the sign content  Regulate by placement and size (sign category)  In Industrial Zoning allowed one Special Freestanding Sign  Maximum size – 672 square feet  Not counted towards maximum allowable sign area  1500 linear feet between SFS  If digital then 3,000 linear feet between SFS

TEMPORARY SIGNS - 2 TYPES  Portable  Other Temporary Signs

PORTABLE SIGNS REGULATIONS  Maximum size – 8 square feet  Display only during business hours  Must be located within 20 feet of public entrance  Not located in public ROW, drive aisle, parking lot, landscaping or pedestrian way  No temporary sign permit required

 Subject to approval by property TEMPORARY owner / property manager SIGNS  Requires issuance of Temporary PERMITT TTING Sign Permit  $35 for each temporary sign permit  Requires temporary sign permit good for calendar year (January – December)  Must renew annually

 Allowed 2 signs per public entrance with maximum of 8 per site TEMPORARY  Located on private property SIGNS  Maximum size – 18 square feet REGULATIONS  If site has digital sign then maximum is reduced by 2 signs  Setback minimum – 1 foot for every foot of height from ROW  Cannot be higher than roof or parapet of building

 Cannot be affixed to structure or TEMPORARY vegetation, utility structures or traffic SIGNS signs / poles  Cannot be permanently affixed to REGULATIONS building or structure CON’T .  Must be kept neat and clean – not faded, torn or damaged  May not be illuminated  Exception – Vacant buildings – may display temporary sign affixed to building not exceeding 80 square feet and does not require temporary sign permit

PROCESS  Started the program in January 2015  Printed informational flyer  Distributed to all businesses, homebuilders and industries  Code Enforcement talks to business and/or leaves notice  Contact Planning

 Period from 1 st day of filing to 10 days after election (Federal, State, EXCEPTION - County or City) ELECTION  No limitation on number of signs or PERIOD size  Do not count against maximum allowable sign area  No sign permit required  Not placed in ROW, drains, ditches, flood channels or river belt  Not affixed permanently  No illumination  No spacing requirement