Summary
holding that ordinance imposing different fees for inspecting off-site billboards was unconstitutionally vague because it left "open to the unbridled discretion of the City agent inspecting the sign" whether or not a fee should be imposed
Summary of this case from New Mexico Gas Co. v. Bd. of Cnty. Comm'rsOpinion
Civil No. 02-1060 (DWF/AJB)
August 4, 2003
David K. Nightingale, Esq., and Marvin A. Liszt, Esq., Bernick Lifson, Minneapolis, Minnesota, counsel for Plaintiff.
Eric D. Larson, Esq., Saint Paul City Attorney, St. Paul, Minnesota, counsel for Defendant.
MEMORANDUM OPINION AND ORDER
INTRODUCTION
The above-entitled matter came on for hearing before the undersigned United States District Judge on June 27, 2003, pursuant to Plaintiff Clear Channel's Motion for Partial Summary Judgment. In its Complaint, Clear Channel asserts four causes of action: denial of due process under the Constitution of the State of Minnesota; denial of due process and equal protection under the Constitution of the State of Minnesota; First Amendment violations under the United States Constitution; and denial of equal protection under the United States Constitution. Here, Clear Channel moves for partial summary judgment on the First Amendment claims. For the reasons set forth below, Plaintiff's motion for summary judgment is granted in part and denied in part.
Background
This case centers around the question of whether the City of Saint Paul's $145 per billboard annual inspection fee violates the First Amendment of the United States Constitution. Central to this question is whether the City's sign inspection fee program, which draws distinctions between "on-site" and "off-site" signs and between commercial and noncommercial messages, is valid under the First Amendment. Prior to this motion, Defendant City of Saint Paul brought a motion for summary judgment that the Court denied on January 10, 2003. In essence, the facts and legal issues surrounding both motions are the same; only the procedural posture has changed.
Plaintiff Clear Channel, Inc., also known as Eller Media Company, is a Delaware corporation that owns and operates approximately 390 outdoor sign structures, constituting 460 advertising faces, in the City of Saint Paul. In March 2002, the City of Saint Paul (the "City") directed Clear Channel to pay a $145 fee for each sign face that Clear Channel owned, totaling $68,875. The City charged this fee to Clear Channel based on the City of Saint Paul Legislative Code (the "Code") regulations that govern sign structures. The relevant Code provisions are contained in Chapter 66 of the Code. The stated purposes of these regulations are as follows:
(1) To promote the public health, safety and general welfare of the community;
(2) To encourage a concern for the visual environment which makes the city a more desirable place to live, work and visit;
(3) To identify and promote business and industry in the city;
(4) To reduce hazards which may be caused by signs projecting over public rights-of-way;
(5) To protect open space and areas characterized by unique environmental, historical and architectural resources;
(6) To protect the right of information transmittal;
(7) Along advanced speed arteries, to promote the safety, convenience and enjoyment of public travel, to protect the public investment in highway beautification, and to preserve and enhance the natural scenic beauty or the aesthetic features of roadways in scenic and adjacent areas;
(8) To reduce the number of nonconforming signs in the city, particularly billboards;
(9) To control the quality of materials, construction, electrification and maintenance of all signs.
Code § 66.101.
The Code defines "sign" as the "use of words, numerals, figures, devices, designs or trademarks the purpose of which is to show or advertise a person, firm, profession, business, product or message." Code § 66.121.S. The Code distinguishes between "Advertising Signs" and "Business Signs."
An Advertising Sign is a "sign which directs attention to a business, profession, commodity, service, or entertainment which is conducted, sold or manufactured elsewhere than on the premises upon which the sign is placed." Code § 66.103.A (emphasis supplied). A billboard is a form of an advertising sign that is larger than 50 square feet. Code §§ 66.103.A, 66.104.B. There are approximately 620 billboards in the City.
A Business Sign is defined as "a sign which directs attention to a business, profession, commodity, service or entertainment which is conducted, offered, sold or manufactured on the premises upon which the sign is placed." Code § 66.104.B (emphasis supplied). There are approximately 16,000 business signs in the City, but it is unclear how many of these business signs are greater than 50 square feet.
In November 2000, the Saint Paul City Council passed Ordinance #00-973, establishing the Billboard Inventory, Fee, and Enforcement Program. The Code defines the program as follows:
(f) Billboard inventory and enforcement. The zoning administrator shall maintain an inventory of billboards in the city. The zoning administrator shall from time to time perform inspections of all billboards in the city and maintain records, which may include photographs, of all billboards. If the zoning administrator determines that the opinion of a structural engineer or other experts are needed, the zoning administrator may hire a consultant. A billboard owner must provide access for inspectors promptly; such access may involve getting to a rooftop through a lessor's building or providing a cherry picker.
(g) Billboard fees. The City shall collect annual billboard fees from their owners. Said fee shall be set by the city council by resolution upon recommendation from the zoning administrator on what amount is adequate to cover the city's costs for staff and contracted services to maintain the billboard inventory and strictly enforce all city regulations for billboards. The fee may be adjusted from year to year to reflect changes in the city's costs.
Code § 66.402(f)-(g).
Pursuant to these sections, the City zoning administrator evaluated the costs for staff and contracting services to inspect billboards, enforce billboard regulations, and thus to maintain the City's billboards. Based on recommendations from the zoning administrator and the Office of License Inspections and Environmental Protection, the City Council adopted Resolution #01-461 on May 9, 2001, authorizing a City-imposed fee of $145 for each billboard sign face per year to implement the Billboard inventory and enforcement program as mandated by Code § 66.402(f). Because the inventory and enforcement program only applies to billboards, by definition it only applies to signs greater than 50 square feet which advertise for services or commodities, among other things, that occur off-site, or elsewhere than on the premises where the sign is located. See Code §§ 66.103.A, 66.104.B. A company that owns a sign that is greater than 50 square feet and advertises for services or commodities, among other things, that occur on-site, or on the premises where the sign is located, is not subject to the inventory and enforcement program and thus does not pay the $145 annual fee for inspection.
In its motion for summary judgment, Clear Channel asserts that the off-site sign inspection program violates the First Amendment of the United States Constitution on a variety of grounds: (1) it favors commercial over noncommercial messages; (2) it impermissibly discriminates against one type of commercial speech in favor of another type of commercial speech; (3) it impermissibly discriminates against one type of noncommercial speech in favor of another type of noncommercial speech; and (4) it is unconstitutionally vague and overbroad. Clear Channel asks this Court to declare that the City's Code §§ 66.402(f) and (g) are unconstitutional, to prohibit the City from enforcing, collecting, or demanding payment of any annual fees for off-site sign structures pursuant to these ordinances, and to order the City to refund all monies paid pursuant to these sections of the ordinance.
Discussion
1. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1; Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
2. Content-Based Restrictions
Clear Channel asserts that the City's off-site sign inspection program violates the First Amendment because the content-based regulation impermissibly discriminates among different types of commercial and noncommercial messages without directly and materially advancing the City's purported interests. At the outset, the City appears to assert that the regulation is content-neutral, and thus subject to a more relaxed standard. However, the plain language of the statute belies the City's assertions.
A regulation targeting expressive activity is "content-based" if the government must "necessarily examine the content of the message that is conveyed" in order to determine whether the regulation applies. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) (citing F.C.C. v. League of Women Voters of California, 468 U.S. 364, 383 (1984)). Here, in order to determine whether a sign in the City is charged a fee under the Ordinance, one must analyze the content of the sign to determine whether the sign advertises services and commodities that occur on the premises where the sign is located, or if it advertises services and commodities that occur elsewhere. Signs that are greater than 50 square feet in area that advertise services or commodities occurring off the premises where the sign is located are charged a fee, but signs that are greater than 50 square feet in area and advertise services or commodities occurring on the premises where the sign is located are not charged a fee. Because a person would need to read the sign in order to determine whether it advertised off-premises or on-premises services or commodities, and thus to determine whether the ordinance applies, the ordinance imposes a content-based restriction.
3. The Constitutionality of the Content-Based Restrictions
In addition to imposing a content-based restriction, the regulation also distinguishes between commercial and noncommercial speech. Under the Code provisions implementing the sign inspection program, a sign that displays messages regarding services or commodities that occur on the premises, whether these be commercial or noncommercial messages, is not charged a fee. However, a sign that displays messages regarding services or commodities that occur off the premises, whether these be commercial or noncommercial messages, is charged the fee.
The City has repeatedly asserted, at oral argument and in its briefing both here and at the City's previous motion for summary judgment, that the Code provision at issue does not apply to noncommercial speech. However, this assertion flies in the face of the manner in which the off-site sign inspection program has been implemented. Specifically, the City has charged Clear Channel the off-site sign inspection fee for the following signs:
The #1 Cause of Suicide — Untreated Depression (SAVE)
Hiding Your Baby? (Safe Place for Newborns)
Want a Tax Break? Donate Your Car. (Goodwill)
Buckle Up. Or Pay the Price. (Minnesota Department of Public Safety)
INTEGRITY (Public Service Announcement)
Abuse (Tubman Family Alliance)
Clearly, these are noncommercial messages.
Thus, the off-site sign inspection program makes distinctions among commercial and noncommercial speech in three distinct ways. First, the program favors commercial messages over noncommercial messages, as commercial on-site signs are not charged the fee, while noncommercial off-site signs are charged the fee. Second, the program favors some noncommercial messages over other noncommercial messages, as noncommercial on-site signs are not charged a fee, while noncommercial off-site signs are charged the fee. Finally, the program favors some commercial messages over other commercial messages, as commercial on-site signs are not charged a fee, while commercial off-site signs are charged a fee. The Court will address each of these categories in turn.
Both commercial and noncommercial speech are protected by the First Amendment, although they are afforded different degrees of protection. See Central Hudson Gas Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980). Content-based regulations on noncommercial speech are subject to strict scrutiny. See Arkansas Writers' Project, 481 U.S. at 231. In determining whether the restriction withstands strict scrutiny, the government "must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Id.
The United States Supreme Court has held that a sign ordinance is invalid if it imposes greater restrictions on noncommercial signs than on commercial signs. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981). In Metromedia, the Supreme Court held invalid on First Amendment grounds a City of San Diego ordinance that banned the display of off-site signs, including most noncommercial signs, but specifically permitted the display of on-site commercial signs. Id. at 516-17. The four-justice plurality held that the government may prohibit off-site commercial advertising while permitting on-site commercial billboards. Id. at 512. However, the Court held that "[t]he fact that the city may value commercial messages relating to on-site goods and services more than it values commercial communications relating to off-site goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others." Id. at 513. In noting that the city had no explanation for the disparate treatment between noncommercial and commercial messages, the Court held that "[t]he city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages." Id.
Other courts have relied on Metromedia to hold invalid municipal sign ordinances that favored commercial over noncommercial speech. See, e.g., Whitton v. City of Gladstone, Mo., 54 F.3d 1400, 1404-05 (8th Cir. 1995); Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir. 1996); see also Clear Channel Outdoor, Inc. v. City of Los Angeles, 234 F. Supp.2d 1127 (C.D. Calif. 2002) (granting preliminary injunction against City of Los Angeles' enforcement of a sign ordinance nearly identical to that at issue here).
Although Metromedia involved a total ban on noncommercial advertising, the Supreme Court has held that "[s]peech cannot be financially burdened, any more than it can be punished or banned" by reference to its content. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 134-35 (1992). Thus, the reasoning behind Metromedia clearly applies here. There is no question that the City's off-site sign inspection program places a financial burden on off-site noncommercial signs. As noted, Clear Channel has provided undisputed evidence that it has been charged the billboard sign inspection fee for its noncommercial billboards. By imposing the sign inspection fee on off-site noncommercial signs, but not imposing the sign inspection fee to on-site commercial signs, the City's off-site inspection program favors commercial over noncommercial speech. The off-site sign inspection program subjects signs that display off-site noncommercial messages to a special financial burden that is not applied to signs that display on-site commercial messages. Under Metromedia, this distinction is invalid. The off-site sign inspection program, which burdens noncommercial speech in favor of commercial speech, violates the First Amendment.
Clear Channel also asserts that the City's off-site sign inspection program violates the First Amendment because it imposes a content-based distinction, favoring certain types of noncommercial speech over others. See Metromedia, 453 U.S. at 514-15. As aptly noted by Clear Channel, this distinction is emphasized by a number of examples. For instance, a church may display a large sign with the message "Worship with Us" without being assessed a fee; however, if the church displayed the message "Get Help for Your Newborn," the City would assess a fee. The City has provided no justification for this particular distinction, although the City rests primarily on its goals of public safety and aesthetics for justifying the off-site sign inspection program as a whole.
The City's off-site inspection program does not survive the strict scrutiny the Court must impose on such a content-based restriction on noncommercial speech. Arkansas Writers' Project, 481 U.S. at 231. First, although the Supreme Court has held that traffic safety and aesthetics are "substantial" interests, Metromedia, 453 U.S. at 507-08, these goals have not been held to be "compelling." See Whitton, 54 F.3d at 1408. Second, even if safety and aesthetics are compelling goals, the City has not proven that the off-site sign inspection program is narrowly tailored to meet those goals. Specifically, the City does not inspect or monitor on-site noncommercial signs that are equally large in size and may often face the same concerns related to safety and aesthetics as do off-site signs. Clearly, a 50 square foot on-site sign poses the same danger as a 50 square foot off-site sign. As such, the City has not met its burden of demonstrating that the off-site sign inspection program is narrowly tailored to serve a compelling government interest. The off-site sign inspection fee program thus violates the First Amendment.
Finally, Clear Channel asserts that the City's off-site sign inspection program restricts off-site commercial signs in favor of on-site commercial signs, in violation of the First Amendment. In order to justify a content-based restriction on commercial speech, the government must satisfy the four-prong test set out in Central Hudson Gas Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 566 (1980). To satisfy this test, the regulation (1) must concern lawful activity and not be misleading; (2) must seek to advance a substantial government interest; (3) must directly advance the governmental interest asserted; and (4) must not reach further than necessary to serve that interest. Id. at 566. Here, the off-site sign inspection program concerns lawful activity and seeks to advance substantial government interests in traffic safety and aesthetics, among other things. Metromedia, 453 U.S. at 507-08. However, the City has not demonstrated that the off-site sign program will directly advance these interests.
In City of Cincinnati v. Discovery Network, Inc., the United States Supreme Court struck down a municipal ordinance that required the removal of newsracks that dispensed commercial handbills because the city failed to prove that the ordinance would directly and materially advance the city's asserted interest in safety and aesthetics. 507 U.S. 410 (1993). The Court recognized that there were only 62 newsracks affected by the ordinance, while approximately 1500 to 2000 newsracks remained unaffected. Id. at 418. The Court held that the benefits derived from the removal of the 62 newsracks were a "paltry" fit, considering the number that would remain.
Here, the sign inspection program only applies to billboards, which are defined as advertising signs that advertise for services and commodities that occur off-premises from where the sign is located. There are approximately 620 billboards in the City. On the other hand, there are approximately 16,000 business signs in the City. While it is unclear how many of these 16,000 business signs are greater than 50 square feet in area, Clear Channel has set forth in its briefing several examples of on-site signs that are undisputedly larger than 50 square feet and undisputedly not subject to the sign inspection fee. The same public safety and aesthetic concerns exist with these on-site signs, and it is unclear to the Court why the City would not choose to impose an inspection fee on all signs that are greater than 50 square feet in area, whether they display on-site or off-site messages, and whether they display commercial or noncommercial messages. Because the City cannot justify this distinction, and because the City's program has a similar "paltry" impact toward achieving the City's interest, the City has failed to meet its burden of demonstrating that the off-site sign inspection program directly and materially advances the City's interest in public safety and aesthetics. For this reason, the City's off-site sign inspection fee program violates the First Amendment.
3. Vagueness and Overbreadth
Clear Channel also asserts that the off-site sign inspection program is unconstitutionally vague and overbroad. The Court is not persuaded that, as a matter of law, the off-site sign inspection fee program is overbroad. However, the Court finds that the off-site sign inspection is impermissibly vague because it delegates standardless enforcement discretion to the City's agents in determining whether a sign structure is subject to the off-site sign inspection fee.
A regulation is impermissibly vague if it "fails to establish standards for the [enforcement authorities] and public that are sufficient to guard against the arbitrary deprivation of liberty interests." See City of Chicago v. Morales, 527 U.S. 41, 52 (1999). Here, the off-site sign inspection fee applies to off-site, but not on-site messages. The imprecision with which this program may be applied is apparent. For instance, in an example noted by Clear Channel, if a grocery store co-op advertises "Shop Here for Organic Food" on its on-site billboard, the fee clearly does not apply. However, if the grocery co-op advertises "Eat Organic Food" or "We Support Organic Farmers" on that same sign, it is questionable whether or not the fee would apply. When faced with these examples at oral argument, counsel for the City stated, without basis for the assertion, that the fee would not apply to the latter. However, it is clear to the Court that the Code leaves open to the unbridled discretion of the City agent inspecting the sign whether or not to impose the fee. The Code provides no criteria by which to make a determination whether or not the fee applies to such "gray area" billboards. As such, the ordinance is impermissibly vague.
For the reasons stated, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Partial Summary Judgment (Doc. No. 27) is GRANTED IN PART and DENIED IN PART, as follows:
a. Saint Paul City Code § 66.402(f-g) favors commercial over noncommercial speech in violation of the First Amendment;
b. Saint Paul City Code § 66.402(f-g) favors some types of noncommercial speech over other types of noncommercial speech in violation of the First Amendment;
c. Saint Paul City Code § 66.402(f-g) favors some types of commercial speech over other types of commercial speech in violation of the First Amendment;
d. Saint Paul City Code § 66.402(f-g) is impermissibly vague in violation of the First Amendment; and
e. Saint Paul City Code § 66.402(f-g) is not unconstitutionally overbroad.
2. The City of Saint Paul may not directly or indirectly enforce Saint Paul City Code §§ 66.402(f)-(g), by enforcing, collecting, or demanding payment of any annual fees for off-site sign structures pursuant to these Code provisions.
3. The City of Saint Paul is ordered to refund all monies paid for off-site sign structures by Defendant Clear Channel pursuant to these sections of the City of Saint Paul Code.