Opinion
Case No. 2:14-cv-00046-DN-EJF
06-30-2015
ROBERT BIPLOVE TIMILSINA and BIG DADDY'S PIZZA RESTAURANT, LLC, a Utah limited liability company, Plaintiffs, v. WEST VALLEY CITY, a municipal corporation, and DOES 1-10, Defendants.
REPORT AND RECOMMENDATION
Judge David Nuffer
Plaintiffs Robert Biplove Timilsina and Big Daddy's Pizza Restaurant, LLC (jointly "Timilsina") seek a declaratory judgment finding West Valley City Municipal Code ("City Code") section 11-5-102 unconstitutional. (Compl. 8, ECF No. 1.) The parties filed cross-motions for summary judgment. (ECF Nos. 19 & 21.) The parties acknowledged at oral argument that section 11-5-102, while titled Temporary On-Premise Signs, governs all temporary signs as set forth in its opening paragraph—"Temporary signs shall conform to the following provisions"—without reference to on- or off-premises. City Code § 11-5-102.
The undersigned has carefully considered the Motions, Memoranda, and oral argument had on April 3, 2015. For the reasons set forth below, the undersigned RECOMMENDS the Court DENY Timilsina's Motion for Summary Judgment and GRANT West Valley City's (the "City's") Cross-Motion for Summary Judgment because the City's prohibition of A-frame signs constitutes a permissible regulation on commercial speech meant to advance aesthetics and traffic safety.
On June 9, 2014, Judge David Nuffer referred this case to the undersigned Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). (ECF No. 18.)
I. UNCONTESTED FACTS
On or about June 10, 2013, Timilsina placed an A-frame sign in an area in front of Timilsina's West Valley City restaurant. (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 22-25; City's Combined Mem. in Opp'n to Pls.' Summ. J. Mot. & in Supp. of the City's Own Separately Filed Cross-Mot. ("Def.'s Summ. J. Mot.") Resp. to Pls.' Statement of Undisputed Material Fact ("Facts") ECF No. 22.) The Parties agreed at oral argument that Timilsina placed this sign off his property, and therefore the sign constitutes an off premise sign. On July 7, 2013, the City issued Timilsina a $100 citation for violating City Code section 11-5-102(13). (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 22.) Although the citation refers to subsection (13) as prohibiting A-frame signs, both parties refer to the apparently renumbered Code, which moved the relevant provision unaltered to subsection (14). (See, e.g., Pls.' Summ. J. Mot. 5, ECF No. 19; Def.'s Summ. J. Mot. 3, ECF No. 22.) The citation includes a checkmark next to City Code section 11-5-102(13), which is now subsection (14), stating "[p]rohibited signs include: A-frame, mobile, off premise, feathers, nongovernmental flags, streamers, and additional sign attached to an existing sign or fence, etc." (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 24.) The issuing officer underlined the word "A-frame." (Id.) Section 11-5-102(14)(a) prohibits "A-frame signs ... except if located in and as regulated in the City Center Zone." (Def.'s Summ. J. Mot. Facts ¶ 5, ECF No. 22.) Timilsina placed an A-frame sign between 3576 West 3500 South and a public sidewalk—outside the City Center Zone, (Pls.' Reply Add'l Facts ¶ 4, ECF No. 26)—advertising "$5.00 Pizza READY TO GO." (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 25.) The sign contained "information that was truthful, not misleading, and advertised a lawful product and activity." (Def.'s Summ. J. Mot. Facts ¶ 2; ECF No. 22.) Timilsina does not intend to erect any other type of prohibited sign. (Pls.' Reply Add'l Facts ¶ 5, ECF No. 26.)
Timilsina focuses the Court's attention on nine exceptions to the prohibitions on temporary signs listed in section 11-5-102:
(1) New Development Signs used for any new development in any zone - subject to a size restriction of 32 square feet (City Code §11-5-102(5));(Pls.' Summ. J. Mot. 9-10, ECF No. 19.)
(2) Grand-Opening Signs - allowed in all zones without size restriction (City Code §11-5-102(7));
(3) New Subdivision and Home Sale Signs - allowed in all zones for subdivisions of 5 or more lots with a size restriction of 32 square feet in one area if one builder, a combined 128 square feet if multiple builders, all not to exceed 12' in height (City Code §11-5-102(10));
(4) Open House Signs - "advertising real estate open for inspection for a prospective sale" and may include a "maximum of four (4) off premise open house signs" with each sign not to exceed eight (8) square feet (City Code §11-5-102(11));
(5) Other Temporary Signs - used for "non-business oriented banners whose sole intent is to promote festivals, holidays, seasons, or other community events..." without any size restriction (City Code §11-5-102(12)) (emphasis added);
(6) Political Signs - allowed in all zones "relating to the nomination or election of any individual for public office or advocacy of any issue to be voted upon..." with a size restriction of 16 square feet if in a residential zone, otherwise there is no size restriction (City Code §11-5-102(13)) (emphasis added);
(7) Sale, Rent or Lease Signs - allowed in all zones subject to a size restriction of eight (8) square feet in residential areas and thirty-two (32) square feet in non-residential zones (City Code §11-5-102(15));
(8) Vehicle Signs - allowed in all commercial zones and applies if the sign exceeds four (4) square feet (City Code §11-5-102(16)); and
(9) Window Signs - allowed in all non-residential zones and may provide a "maximum of 50% coverage of all windows" (City Code §11-5-102(17)).
Title 11 of the City Code regulates all signage within the City. The ordinance describes the City's governmental interests in a section titled "Purpose and Intent," saying:
The City has developed the regulations set forth in this Title for the purpose of:City Code § 11-1-102; (Pls.' Reply 5, ECF No. 26). The undersigned appends a copy of Title 11, last revised August 20, 2014, taken from the City's website for clarity's sake. (Appendix 1.)
(1) Limiting and/or reducing the visual clutter along City streets;
(2) Encouraging good design and improved appearance by encouraging rapid replacement and eventual elimination of nonconforming or abandoned signs with the preferred sign types specified in this Ordinance;
(3) Implementing portions of the West Valley City Vision 2020 General Plan, to enhance the City's image and character;
(4) Reducing confusion and inattentive driving habits by requiring appropriate signage;
(5) Regulating all types of signs that are visible from the adjacent vehicular public right-of-way;
(6) Safeguarding and protecting property values;
(7) Promoting the public health, safety and the general welfare of the citizens of the City.
II. CONTESTED FACTS
Timilsina alleges in his Complaint and in his Motion that "several temporary and/or portable signs", similar to the sign at issue existed within close proximity. (Compl. ¶ 10, ECF No. 1; Def.'s Summ. J. Mot. Facts ¶ 3, ECF No. 22.) The City denies Timilsina's "characterizations of the signs and surrounding areas" in its Answer and Opposition. (Ans. ¶¶ 8-10, ECF No. 6; Def.'s Summ. J. Mot. Facts ¶ 3, ECF No. 22.) Timilsina did not verify his Complaint. While "'[a] verified complaint may be treated as an affidavit for purposes of summary judgment,'" Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (quoting Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988) (per curiam)), an unverified complaint does not qualify as evidence in the summary judgment context, Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1244 n.4 (D. Colo. 2012). Thus Timilsina has failed to comply with Rule 56(c)'s requirement to support asserted facts by citation to "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials" with respect to the issue of similar signs in close proximity. See Fed. R. Civ. P. 56(c)(1)(A).
Timilsina also alleged that "[p]ursuant to West Valley City Code § 11-5-102(15), real estate signs are exempt from the prohibition of WVCMC § 11-5-102." (Def.'s Summ. J. Mot. Facts ¶ 6, ECF No. 22; see also Compl. ¶ 13, ECF No. 1.) The City denied Timilsina's "characterizations of real estate signs as 'exempt' from prohibitions imposed by section 11-5-102". (Def.'s Summ. J. Mot. Facts ¶ 6, ECF No. 22; see also Ans. ¶¶ 12-14, ECF No. 6.) Section 11-5-102(15) reads as follows:
(15) Sale, Rent, or Lease Signs
Plainly read, section 11-5-102(15) does not exempt real estate signs from section 11-5-102 as whole. Section 11-5-102(15) places specific location, size, and number limits on temporary, on premise sale, rent, or lease signs.a. Zoning Restrictions. In all zoning districts, signs may be erected to advertise the sale, rent or lease of property upon which said signs are placed.
b. Setback. Signs shall be located on premise on the subject property.
c. Size. Signs shall not exceed an area of eight square feet in residential zones or 32 square feet in nonresidential zones.
d. Number. Said signs shall be limited to one sign per street frontage.
III. ANALYSIS
A. Motion for Summary Judgment
Courts may grant summary judgment only where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal quotation marks & citation omitted). All material facts "will be deemed admitted unless specifically controverted by the statement of the opposing party identifying and citing to material facts of record meeting the requirements of Fed. R. Civ. P. 56." DUCiv R 56-1. The parties agree the Court can resolve this case on summary judgment. (Pls.' Reply 3, ECF No. 26; Def.'s Reply 2, ECF No. 28.)
B. Standing
The City asserts Timilsina lacks standing to challenge the exceptions to the ordinance because all other people seeking to have a temporary off-premises A-frame sign face the same prohibition Timilsina does regardless of the other exemptions in the section. (Def.'s Summ. J. Mot. 11-12, ECF No. 22.) Thus, the City claims, Timilsina really challenges the prohibition on A-frame signs, not the exceptions to the regulations on temporary signs generally. ( Id.)
At oral argument, the City conceded that two exceptions to section 11-5-102(14)'s prohibition on A-frame signs exist. The City permits temporary A-frame signs in the City Center Zone, section 11-5-102(14)(a), and A-Frame signs "used during a Grand-Opening," section 11-5-102(14)(g).
The Supreme Court recently reiterated the standing requirements in a free speech context: "To establish Article III standing, a plaintiff must show (1) an 'injury in fact,' (2) a sufficient 'causal connection between the injury and the conduct complained of,' and (3) a 'likel[ihood]' that the injury 'will be redressed by a favorable decision.'" Susan B. Anthony List v. Driehaus, - 573 U.S. —, —, 134 S. Ct. 2334, 2341 (June 16, 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
1. Injury in Fact
"An injury sufficient to satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or hypothetical." Id. (internal quotation marks omitted). "[A] plaintiff could bring a preenforcement suit when he 'has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Id. at 2342. Timilsina has suffered a concrete harm in the form of a $100 fine for displaying an A-frame sign. However, Timilsina has not alleged any intention to use any other type of prohibited sign and thus has not suffered an injury from any portion of section 11-5-102 unrelated to A-frame signs.
Section 11-5-102(14) prohibits certain temporary signs, including A-frame signs with the two exceptions listed. The parties agree the City cited Timilsina specifically for violating the prohibition on A-frame signs found in section 11-5-102(14)(a). (Pls.' Reply Add'l Facts ¶ 5, ECF No. 26.) Thus, Timilsina has shown an injury in fact to "conduct arguably affected with a constitutional interest" as to section 11-5-102(14)(a), prohibiting temporary A-frame signs.
The City contests that Timilsina has shown injury in fact from any other portion of section 11-5-102, including the exemptions about which Timilsina complains. (Def.'s Summ. J. Mot. 11, ECF No. 22.) The City states, and Timilsina does not contest, that section 11-5-102(14)(a) prohibits an A-frame sign even if used in situations allowing for other temporary signs: real estate purposes (otherwise permitted by sections 11-5-102(5), (10), (11), (15)), community events (otherwise permitted by section 11-5-102(12)), a political purpose (otherwise permitted by section 11-5-102(13)), or on vehicles and in windows (otherwise permitted by sections 11-5-102(16) and (17)). See id. (discussing some but not all of the exemptions). Because the ordinance prohibits the A-frame sign in all of these contexts, the Court agrees with the City that Timilsina's injury in fact comes only from the prohibition on A-frame signs, not from the other exceptions with which Timilsina takes issue.
That Timilsina does not assert any intention to erect any other type of prohibited sign reinforces this conclusion. (See Pls.' Reply Add'l Facts ¶ 5, ECF No. 26.) Absent an actual enforcement action or the intention to engage in a statutorily prohibited course of conduct, Timilsina lacks standing to challenge portions of section 11-5-102 unrelated to A-frame signs or the sign ordinance as a whole. Because Timilsina insists on having an A-frame sign and has no intention of having any other type of prohibited sign, any ruling on the other exceptions would not ameliorate his concern—the ability to have an A-frame sign. For this reason, Timilsina cannot allege injury in fact as to any provision of section 11-5-102 unrelated to A-frame signs. Absent such a showing, Timilsina lacks standing to challenge those other exceptions to section 11-5-102.
2. Causal Connection
A causal connection exists between the injury asserted and the offending ordinance if the court finds the injury "'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). In this case, the parties agree that the City cited and fined Timilsina pursuant to section 11-5-102(14). Thus the causal connection between the offending section and Timilsina's injury remains beyond dispute.
3. Redressability
The City further argues that Timilsina lacks standing as to the A-frame provision because the relief sought will not redress the harm alleged. (Def.'s Summ. J. Mot. 12, ECF No. 22.) Specifically, striking the exceptions to the prohibition on A-frame signs in section 11-5-102(14) would not allow Timilsina to display his sign; it would simply prohibit those who previously displayed the exempted signs from displaying them in the future. Furthermore, even striking section 11-5-102 altogether would not allow Timilsina to display his sign because the sign ordinance prohibits off premise signs generally unless an exception exists, and no exception permitting off premise A-frame signs would exist if the Court struck section 11-5-102. See City Code § 11-1-103 (stating "sign types not specifically allowable as set forth within this Title shall be prohibited"). Therefore, the City argues, the relief requested will not redress the injury.
First Amendment jurisprudence refers to a challenge to statutory exemptions as an underinclusiveness claim.
While surprising at first glance, the notion that a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles. Thus, an exemption from an otherwise permissible regulation of speech may represent a governmental "attempt to give one side of a debatable public question an advantage in expressing its views to the people."City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (footnote and citation omitted). If the redressability prong of the standing test required removal of the exemptions to benefit the challenger, such a requirement "would effectively insulate underinclusive statutes from constitutional challenge, a proposition [the U.S. Supreme Court] soundly rejected." Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 227 (1987) (citing Orr v. Orr, 440 U.S. 268, 272 (1979)).
One exception to the prohibited temporary signs listed in section 11-5-102(14) exists at subsection (g). It states: "g. Exceptions. Any type of sign may be used during a Grand-Opening, as defined in this Chapter." Thus, Timilsina would seem to assert that the City discriminates between its content (sales) and other content (grand openings). Specifically, if Timilsina advertised a sale within thirty days of obtaining a business license, he could use an off premise A-frame sign, but because he advertised a sale after that date, he could not use an off premise A-frame sign.
In this case the exemption within section 11-5-102(14) causes a distinction between permissible signage that may cause legal injury to Timilsina if the distinction does not pass constitutional muster, because had Timilsina qualified for the exception, he could have displayed his sign. Thus, striking of the exception would level the playing field between Timilsina and other speakers, redressing the problem about which Timilsina complains. Under this analysis, Timilsina has made an underinclusiveness claim sufficient to show redressability as to the A-frame sign prohibition. To the extent the Court must refer to other portions of the section or the ordinance to understand the provision at issue, Timilsina has standing to seek review of those portions.
To the extent Timilsina's briefing suggests he challenges the entire City sign ordinance, (Pls.' Reply 4-5, ECF No. 26), Timilsina's Complaint only challenges the constitutionality of section 11-5-102, (Compl. 8, ECF No. 1), and Timilsina affirmed at oral argument that he only challenges section 11-5-102. Thus, any challenge to the entire sign ordinance exceeds the scope of the Complaint and these summary judgment motions.
Therefore, the undersigned RECOMMENDS the District Court find Timilsina has standing to challenge section 11-5-102(14), but not section 11-5-102 as whole.
C. First Amendment Challenge to Section 11-5-102(14)
Timilsina argues section 11-5-102(14) does not constitute a valid time, place, and manner restriction and that it fails the Supreme Court's Central Hudson test limiting commercial speech restrictions. (Pls.' Summ. J. Mot. 7-18, ECF No. 19 (citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980)).) The City responds by arguing section 11-5-102(14) does constitute a valid content-neutral time, place, and manner restriction narrowly tailored to serve substantial government interests. (Def.'s Summ. J. Mot. 11-28, ECF No. 22.) In the alternative, the City asserts section 11-5-102(14) complies with Central Hudson's requirements. Id. at 22-28.
Judicial evaluations of First Amendment free expression claims "begin with the venerable principle that '[e]ach medium of expression ... must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.'" Arlington Cty. Republican Comm. v. Arlington Cty., 983 F.2d 587, 591 (4th Cir. 1993) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, (1975)) (alterations in original). Faced with "the problem of applying the broad principles of the First Amendment to unique forums of expression," the Supreme Court has developed an array of tests applicable to different circumstances. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500 (1981) (plurality opinion) (citing cases reviewing billing envelope inserts, picketing in residential areas, solicitation, outdoor movie theaters, and advertising on city-owned transit).
While the Metromedia decision generally is a plurality, Parts I through IV, spanning pages 493 to 512 garnered a majority opinion, given Justice Stevens's concurrence. 453 U.S. at 541 (J. Stevens dissenting in part). This Report and Recommendation cites only to these pages. --------
The Supreme Court has held that "commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not 'particularly susceptible to being crushed by overbroad regulation,'" that merits First Amendment protection under certain conditions. Cent. Hudson, 447 U.S. at 564 n.6, 566 (quoting Bates v. State Bar of Arizona, 433 U.S. 350, 381 (1977)). Specifically, the Supreme Court stated "[t]he Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." Id. at 562-63.
Timilsina asserts that the time, place, and manner test applies to commercial speech regulations directed at the form of the speech but that the Central Hudson test applies to commercial speech regulations directed at the content of the speech, citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-73 (1976) and Central Hudson. Metromedia, 453 U.S. at 507, decided after both of these cases, refutes this contention, acknowledging the Supreme Court adopted the Central Hudson test to "determin[e] the validity of government restrictions on commercial speech as distinguished from more fully protected speech." See accord Mainstream Mktg. Servs. v. FTC, 358 F.3d 1228, 1236-37 (10th Cir. 2004) (applying Central Hudson test). Neither the Central Hudson test nor subsequent cases applying it make any attempt to first distinguish whether the restriction relates to form or content before deciding which test to apply. As set forth above, because the parties agree this regulation concerns commercial speech, the Court applies the Central Hudson test.
Because the parties agree this case concerns commercial speech and the Central Hudson applies, the Court need not address how the regulation would fare under the recent Supreme Court case, Reed v. Town of Gilbert, No. 13-502, 576 U.S. ___, 2015 WL 2473374 (June 18, 2015), and the time, place, or manner test. See accord, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554-55 (2001) (noting "we see 'no need to break new ground. Central Hudson, as applied in our more recent commercial speech cases, provides an adequate basis for decision.'") (quoting Greater New Orleans Broad. Assn. v. United States, 527 U.S. 173, 184 (1999)).
For commercial speech to come within First Amendment protection, it must concern lawful activity and not mislead. Cent. Hudson, 447 U.S. at 566. The parties concede the commercial speech at issue concerns lawful activity and does not mislead. (Def.'s Summ. J. Mot. Facts ¶2, ECF No. 22.) The parties also agree the government's asserted interests in regulation qualify as substantial. (Pls.' Summ. J. Mot. 11, ECF No. 19; Def.'s Summ. J. Mot. 22, ECF No. 22.) The last two prongs of Central Hudson present the dispute in this case: the regulation must directly advance the asserted interest and not prohibit any more speech than necessary to serve that interest. Cent. Hudson, 447 U.S. at 566. "The government bears the burden of asserting one or more substantial governmental interests and demonstrating a reasonable fit between those interests and the challenged regulation." Mainstream, 358 F.3d at 1237.
1. The Ordinance Directly Advances the Asserted Governmental Interests
The City prohibits A-frame signs for traffic safety and aesthetic purposes as set forth in section 11-1-102. The City allows A-frame signs in one area—the City Center Zone. City Code § 11-5-102(14)(a). The City also allows A-frame signs elsewhere during a limited period—"thirty (30) days from the issuance date of a business license." City Code § 11-5-102(14)(g) & (7)(d). Timilsina asserts the exceptions so undermine the City's stated interests in promoting traffic safety and aesthetics that they prevent the ordinance from advancing the asserted governmental interests. (Pls.' Summ. J. Mot. 12-15, ECF No. 19.) The Court disagrees.
Central Hudson requires that the speech restriction directly advance the stated goal. 447 U.S. at 566. In Central Hudson, the Supreme Court found a prohibition on utility advertisements sufficiently related to the state's interest in conserving energy because a "direct link" between the restriction and the interest existed from the "immediate connection between advertising and demand for electricity." 447 U.S. at 569.
In support of his arguments, Timilsina cites Rubin v. Coors Brewing Co, where the Supreme Court struck down a law banning disclosure of alcohol content on beer labels but allowing such disclosures on wine or spirits labels. 514 U.S. 476, 488 (1995). The Court held "the irrationality of this unique and puzzling regulatory framework ensures that the labeling ban will fail to achieve" the state's asserted objective in "supress[ing] strength wars". Id. at 489.
Timilsina also cites Greater New Orleans, where the Supreme Court struck down a federal statute prohibiting advertising for legal gambling in certain circumstances because the statute's exceptions undermined the statute's asserted objective. 527 U.S. at 190. With these cases in mind, the undersigned considers Timilsina's underinclusiveness argument.
The City Code contains the governmental interests behind its sign ordinance, collectively referred to as "traffic safety and aesthetics":
(1) Limiting and/or reducing the visual clutter along City streets;City Code § 11-1-102.
(2) Encouraging good design and improved appearance by encouraging rapid replacement and eventual elimination of nonconforming or abandoned signs with the preferred sign types specified in this Ordinance;
(3) Implementing portions of the West Valley City Vision 2020 General Plan, to enhance the City's image and character;
(4) Reducing confusion and inattentive driving habits by requiring appropriate signage;
(5) Regulating all types of signs that are visible from the adjacent vehicular public right-of-way;
(6) Safeguarding and protecting property values;
(7) Promoting the public health, safety and the general welfare of the citizens of the City.
Timilsina has asked the Court to demand proof in the form of studies proving that A-frame signs are aesthetically displeasing or an impediment to traffic safety. The Supreme Court has specifically rejected such a requirement:
We do not, however, require that "empirical data come . . . accompanied by a surfeit of background information . . . . [W]e have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and 'simple common sense.'" Florida Bar v. Went For It, Inc., [515 U.S. 618, (1995)] at 628, 115 S. Ct. 2371 (citations and internal quotation marks omitted).Lorillard, 533 U.S. at 555; see also Mainstream, 358 F.3d at 1237 (noting "a commercial speech regulation may be justified by anecdotes, history, consensus, or simple common sense"). Of course, "'mere speculation or conjecture'" will not satisfy the City's burden either. Rubin, 514 U.S. at 487 (citation omitted). No one can question that "the state may legitimately exercise its police powers to advance esthetic values," Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984), and that aesthetic values are inherently subjective. Metromedia, 453 U.S. at 510. Similarly, local governments have regulated signs based on their relationship to traffic safety for years, and
"[the Court] would be trespassing on one of the most intensely local and specialized of all municipal problems if [it] held that this regulation had no relation to the traffic problem . . . . It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false."Id. at 509 (quoting Ry. Express Agency Inc. v. New York, 336 U.S. 106, 109 (1949)).
Nothing in the record suggests that the City's goals in eliminating A-frame signs come from an ulterior motive of suppression of speech. The Purpose and Intent section specifically acknowledges an intent to favor some sign types over others: "Encouraging good design and improved appearance by encouraging rapid replacement and eventual elimination of nonconforming or abandoned signs with the preferred sign types specified in this Ordinance," and "Reducing confusion and inattentive driving habits by requiring appropriate signage." City Code § 11-1-102(2) & (4). When examining the entire sign ordinance, one can see that it generally disfavors A-frame signs: section 11-4-113(1) prohibits on premise mobile signs "such as an 'A' frame," and section 11-5-102(14) prohibits temporary A-frame signs. The Court accepts the ordinance's proposition that A-frame signs are aesthetically displeasing and adverse to traffic safety based on the pronouncement of purpose and the extensive prohibition of such signs in the ordinance.
Nonetheless, pervasive exceptions to an ordinance may vitiate the stated goals, making the ordinance constitutionally underinclusive. See Rubin, 514 U.S. at 488-90 (noting exceptions make the stated purpose of the legislation unattainable). Turning to the exceptions, the Court must determine whether they so undermine the goals of prohibiting the aesthetically displeasing signs and signs that impair traffic safety that they frustrate those goals. As an initial matter, "First Amendment challenges based on underinclusiveness face an uphill battle in the commercial speech context." Mainstream, 358 F.3d at 1238.
The first exception allows A-frame signs in the City Center while prohibiting them elsewhere in the City. The City Code, through zoning, has created the City Center as "the recognizable center" of the City, with a different visual quality and traffic plan than the other portions of the City. The City has explained the purpose of the City Center Zone as follows:
The purpose of the City Center Zone is to:City Code § 7-6-1601.
(1) Implement the goals set forth in the Fairbourne Station Vision within the General Plan.
(2) Create a recognizable center or downtown for West Valley City.
(3) Encourage and direct development that supports transit.
(4) Encourage infill and redevelopment near the transit station by City Hall.
(5) Create new opportunities for economic growth and redevelopment.
(6) Reinforce the use of public transportation by locating higher-intensity development, including employment-oriented businesses and higher density residential uses, adjacent to transit stops.
(7) Encourage mixed-use development to reduce automobile dependency and roadway congestion by combining trips and locating destinations within walking and biking distances - all interconnected with transit.
(8) Enhance neighborhood identity by creating more choices such as walking, biking and shopping to residents that promote safety, friendliness and livability.
(9) Provide a mix of housing types, costs and densities.
(10) Promote architectural and site design treatments that enhance the visual appearance of development within the Zone.
The allowance of A-frame signs in the City Center reflects one way in which the City Council has allowed that section of the City to differ from other areas. Permitting A-frame signs in the City Center does not detract from the City's asserted objectives to the degree that it undermines them. Rather, the permission suggests the City thinks A-frame signs in the City Center may aid in the visual distinction of that neighborhood. Additionally, the City may have fewer concerns with the A-frame sign's impact on traffic safety in the City Center since it wants to increase use of public transportation, walking, and biking in that area.
The second exception permits a person to display an A-frame sign in the thirty days after obtaining a business license. City Code § 11-5-102(7) & (14)(g). This exception allows A-frame signs for a short, explicitly limited period—thirty days. The exception further limits the use of A-frame signs to people receiving a new business license. By carefully limiting both the period and those eligible to display such signs, the City Council has made sure that A-frame signs will rarely appear outside of the City Center and then only briefly.
While at first blush the "Grand Opening" exception would appear to turn on content, further examination makes clear the ordinance defines a "Grand-Opening Sign" by its temporal proximity to the issuance of a business license not by the content of the sign. City Code § 11-5-102(7) & 14(g). Consequently, this provision prefers some speakers (new business licensees) to other speakers (everyone else). However, a speaker preference does not require strict scrutiny unless the "speaker preference reflects a content preference." Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 658 (1994), approved by Reed, No. 13-502, slip op. at 13, 576 U.S. at ___. As noted, the ordinance places no restrictions on the content of the sign a new business licensee erects. City Code § 11-5-102(7) & (14)(g). The City stated at oral argument, and Timilsina did not deny, that a new business licensee could put any message on the sign s/he wishes; it need not advertise a "Grand Opening" at all. For this reason, the Court finds the provision devoid of a content preference and does not need to analyze this exception under strict scrutiny.
Unlike in Greater New Orleans, where the Supreme Court noted the inconsistency between Congress's asserted desire to curb the evils of gambling with "Congress' simultaneous encouragement of tribal casino gambling," the City's Grand Opening exception is not inherently contradictory. See Greater New Orleans, 527 U.S. at 189. Permitting people to display signs for thirty days following the issuance of a business license does not suggest it finds A-frame signs aesthetically pleasing or not adverse to traffic safety. Rather the exception suggests that for a very limited time, the City will permit an exception. That willingness, however, does not reach so deeply as to undermine the "direct link" between the restriction and the interest. See, e.g., Metromedia, 453 U.S. at 511-12 (acknowledging accommodation reached between zoning goals and aesthetic/traffic safety goals did not undermine direct link). "The underinclusiveness of a commercial speech regulation is relevant only if it renders the regulatory framework so irrational that it fails materially to advance the aims that it was purportedly designed to further." Mainstream, 358 F.3d at 1238-9.
Thus while in Rubin, 514 U.S. at 489, "the irrationality of this unique and puzzling regulatory framework ensures that the labeling ban will fail to achieve that end," the two exceptions in this case reflect circumscribed exceptions that do not completely undercut the City's stated goals. The exceptions in this case align more closely with the distinction between onsite and offsite advertising approved in Metromedia, 453 U.S. at 511-12. Whether exceptions exist does not change the fact that the regulation relates to the stated goal. See id. at 511 ("In the first place, whether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the stated objectives of traffic safety and esthetics."). In addition, the City may believe A-frame signs in the City Center or the occasional grand opening sign, present less of a problem than ubiquitous A-frame signs. See id. at 511 ("Second, the city may believe that offsite advertising, with its periodically changing content, presents a more acute problem than does onsite advertising."). The City may also allow commercial speech in the form of A-frame signs in the City Center and following the obtaining of a new business license because it has decided that commercial speech through an A-frame at those places or times trumps the City's interests in traffic safety and aesthetics. Id. at 512 ("The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city's interests in traffic safety and esthetics.").
The City has met its burden of demonstrating a direct link between the stated goals—traffic dangers and aesthetic degradation—and the restriction on A-frame signs. The City has also met its burden of showing the exceptions to the restriction do not undermine the restriction to such a degree so as to render it insufficiently related to its objectives. Therefore, the City has satisfied Central Hudson's third prong.
2. The Ordinance Does Not Prohibit More Speech than Necessary to Serve the City's Interests
Central Hudson's final prong requires the undersigned to analyze whether the City's A-frame sign ban prohibits more speech than necessary to serve its interests in promoting traffic safety and enhancing aesthetics. See Cent. Hudson, 447 U.S. at 566. Timilsina argues "[t]he regulatory scheme presented by the City through its Ordinance does not consist of a reasonable fit between the regulation and the given interests." (Pl.'s Summ. J. Mot. 17, ECF No. 19.) The City, Timilsina contends, has overreached by banning "any cost effective signs." Id. The Court disagrees.
To satisfy Central Hudson's final prong, courts consider the overinclusiveness of the restriction:
[t]he Government is not required to employ the least restrictive means conceivable, but it must demonstrate narrow tailoring of the challenged regulation to the asserted interest—a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.Greater New Orleans, 527 U.S. at 188 (quotation marks and citations omitted); see also Nat'l Adver. Co. v. City & Cty. of Denver, 912 F.2d 405, 409 (10th Cir. 1990) ("A narrowly tailored regulation which does not burden substantially more speech than is necessary to further the government's legitimate interests will suffice." (quotation marks and citations omitted)).
The Court must determine whether the City's A-frame prohibition restricts more speech than necessary to achieve its stated aims. Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002). The City's A-frame restriction has a very narrow reach, and Timilsina's claims of overinclusiveness fall short.
Section 11-5-102(14)(a) prohibits one temporary sign design that the City has deemed especially distasteful and/or harmful—the A-frame. Businesses have the opportunity to communicate their messages through a variety of temporary sign alternatives set forth in section 11-5-102. Indeed, Timilsina has taken full advantage of his opportunities to advertise five-dollar pizza. (Cf., Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 25 (showing photograph of A-frame sign in dispute); Def.'s Summ J. Mot. Ex. A, ECF No. 23-1 (showing photographs of multiple signs advertising Timilsina five-dollar pizza).) Moreover, nothing in section 11-5-102(14) prohibits Timilsina from advertising five dollar pizza via Twitter, Facebook, flyer, newspaper, radio, television, etc. Because section 11-5-102(14)(a) affects only a sliver of potential speech—and only a tiny portion of potential signage—it does not prohibit substantially more speech than necessary to serve its interests. See Nat'l Adver., 912 F.2d at 409 (approving of regulations that do "not burden substantially more speech than ... necessary to further the government's legitimate interests" (quotation marks and citations omitted)). Advertisers do not have an unlimited right to choose their medium of expression when other alternatives, even if more expensive, exist. See Taxpayers for Vincent, 466 U.S. at 812 n.30 (citing Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949) ("That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open.")). The A-frame restriction represents the City Council's determination that A-frame signs, because of their shape, placement, and temporary nature, pose a special risk to the community.
Additionally, in considering whether the City narrowly tailored the ordinance, the Supreme Court has instructed "if there are numerous and obvious less-burdensome alternatives to the restriction on commercial speech, that is certainly a relevant consideration in determining whether the 'fit' between ends and means is reasonable." City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418 n.13 (1993). Notably, Timilsina makes no suggestion of other less-burdensome alternatives to the A-frame restriction. Instead, Timilsina argues that if the City really intended to protect aesthetics and traffic safety, it would ban all signs or at least all temporary signs. (Pls.' Summ. J. Mot. 18, ECF No. 19.) But a ban on all signs or even all temporary signs burdens more speech, not less. The City prohibits a specific sign type—the temporary A-frame sign—it deems unattractive and/or unsafe. Under these circumstances, the City employed a reasonable way to limit the harm—prohibit A-frame signs. Only a restriction on the placement and duration of A-frame signs can effectively achieve the City's goals. See Metromedia, 453 U.S. at 508 ("If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them.")
Timilsina asserts, presumably in reliance on City of Cincinnati, 507 U.S. at 428, that all signs equally cause aesthetic displeasure and harm traffic safety, and thus any law allowing some types of signs and restricting others fails to advance aesthetic and safety goals sufficiently to pass constitutional muster. (Pls.' Summ. J. Mot. 18, ECF No. 19.) City of Cincinnati, 507 U.S. at 425, found the challenged ordinance did not advance aesthetic goals because the prohibited "newsracks are no greater an eyesore than the newsracks permitted."
However, the undersigned cannot conclude based on this record that A-frame signs present the same aesthetic or traffic problems as other types of signs. Timilsina's argument completely ignores the City Council's obvious disagreement with that proposition as evidenced by its allowing some types of signs and prohibiting others. See City Code § 11-5-102 (delineating allowable and prohibited temporary signs) & § 11-2-102 (stating the purpose and intent of the sign ordinance). Timilsina fails to put forth any evidence suggesting the City Council did not find A-frame signs more distasteful than banners, for example. Similarly, Timilsina does not present evidence showing that A-frame signs present the same traffic hazards as other signs, say those at eye level. Without contrary evidence, the undersigned will not second-guess the City's stated purposes embodied in the actual sign ordinance on matters as inherently subjective as aesthetics and as fundamentally local as traffic. See Metromedia, 453 U.S. at 510 (noting subjective nature of aesthetic judgments) & 509 (noting refusal to discount local authorities' judgments re traffic absent some evidence that such judgment was "palpably false").
Furthermore, the exceptions to the A-frame prohibition also work in favor of a finding of reasonable fit. The City has identified limited circumstances that do not completely undercut the ban's purpose in which people can use A-frame signs—a certain section of the City and within thirty days of obtaining a business license. These exceptions demonstrate an attempt on the City's part not to foreclose that means of communication completely and thus narrowly tailor its ordinance.
This case differs from 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507 (1996), (addressing advertising of liquor prices) and Thompson, 535 U.S. at 371-73 (addressing advertising of compounded drugs), where the regulations at issue tried to remedy a harm caused by the content of the advertising not the actual medium. Unlike 44 Liquormart, at 507-08, and Thompson, at 372, price controls and sales volume limits applied to A-frame signs could not as effectively achieve the desired end. The City cannot enact an economic or regulatory framework that would reduce the harm imposed by A-frame signs as effectively as the existing prohibition.
By narrowly constructing a restriction targeting one category of signage deemed harmful to traffic safety and aesthetic considerations, the City Council abided by Central Hudson's restrictions and barred no more speech than necessary to accomplish its objectives. See Cent. Hudson, 447 U.S. at 566.
Because section 11-5-102(14)(a) directly advances the City's interests in traffic safety and aesthetics and prohibits no more speech than necessary to advance those interests, the undersigned RECOMMENDS the District Court find the prohibition complies with Central Hudson's requirements.
D. Facial Challenge to the Sign Ordinance
Timilsina's Complaint also challenges section 11-5-102(14)(a), alleging a facial violation of the freedom of expression guaranteed by the First Amendment. (See Compl. 8, ECF No. 1). To make a facial challenge to an ordinance when the application of the law to the case proves valid, the challenger must convince the court that "the statute's very existence will inhibit free expression." Taxpayers for Vincent, 466 U.S. at 799. "[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. 799-800 (quoting Broadrick v. Okl., 413 U.S. 601, 615 (1973)). In deciding whether a case qualifies for a facial challenge under the overbreadth doctrine, courts must exercise care to prevent the doctrine from "sweep[ing] so broadly that the exception to ordinary standing requirements would swallow the general rule." Id. at 799.
The undersigned does not find substantial overbreadth in considering this case. While section 11-5-102(14)(a) applies to non-commercial speech as well, and thus a court would consider a challenge involving non-commercial speech under a different analysis, the Court does not find that the prohibition on A-frame signs substantially inhibits the speech of third parties not before the Court, given the wide variety of avenues available for speaking.
Significantly, Timilsina does not address his facial challenge in any of his briefing. Timilsina only challenges section 11-5-102's application to commercial speech. (Pls.' Summ. J. Mot. 2, ECF No. 19 ("The ordinance contains improper time, place and manner restrictions for commercial speech. In addition, it is drafted so as to favor one business type over another.") On this basis, the undersigned finds Timilsina's facial challenge abandoned and recommends DISMISSING it.
IV. RECOMMENDATION
For the reasons set forth above, the undersigned Magistrate Judge RECOMMENDS the District Judge GRANT the City's Motion for Summary Judgment (ECF No. 21) and DENY Timilsina's Motion for Summary Judgment (ECF No. 19).
The Court will send copies of this Report and Recommendation to all parties, who are hereby notified of their right to object. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The parties must file any objection to this Report and Recommendation within fourteen (14) days of service thereof. Id. Failure to object may constitute waiver of objections upon subsequent review.
Dated this 30th day of June 2015.
BY THE COURT:
/s/_________
Evelyn J. Furse
United States Magistrate Judge