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Billboard against sky background day imageLamar Central Outdoor, LLC v. City of Los Angeles, 2016 WL 911406 (Cal. App.) constituted another round between cities and billboard companies over the limits of regulation. In 2002, defendant banned most billboards in the City, except for those allowed in a certain planned development zone and those advertising goods and services sold on the premises and for noncommercial billboards.   The City also banned alterations to existing billboards.   Exceptions to the ban included billboards allowed under a development agreement, special zoning district, and to work located primarily in a public right of way (such as a bus or transit stop).   The City’s sign code rests on traffic safety and aesthetics.

Blank White Sign in City StreetAfter the U.S. Supreme Court held that the government cannot single out one form of noncommercial speech over another, comes a series of rulings that similarly should have dealt with the questions of content neutrality, a primary tenet of free speech under the Oregon and federal constitutions. Yet, in the Icon Groupe. LLC v. Washington County series of cases, strategic lawyering seems to have put the free speech issues in the back seat.

In 2010, Icon Groupe, LLC filed applications to locate 17 freestanding signs that exceeded the otherwise applicable size and height restrictions, claiming an exemption from these restrictions on the basis that they were “safety signs,” described as:

“[d]anger signs, trespassing signs, warning signs, traffic signs, memorial plaques, signs of historical interest, holiday signs, public and service information signs such as rest rooms, mailbox identification, [and] newspaper container identification”

Some of the signs cautioned drivers on safety matters, while others exhorted them to have a “safe Memorial Day.”

The county did not contest that the signs qualified as “safety signs.” Rather, it denied the applications stating that the exemption was a content-based regulation that violated the Oregon Constitution that must be severed from the remainder of the code, leaving the remaining dimensional requirements, which if found, were violated. Icon appealed the denials but no final action was taken within 120 days, whereupon Icon asked the circuit court to compel the county to approve all the applications under a state statute. The court granted relief and denied a stay pending an appeal, noting that the 120-day statute required it to grant relief unless the permit would violate a substantive provision of the county’s plan or code and holding that statute did not authorize the court to consider constitutional questions. The county appealed that decision to the Oregon Court of Appeals but authorized a number of the requested sign permits.

While the county’s challenge to the mandamus decision was pending, Icon filed a civil rights action in federal district court, claiming that denial of the sign permit applications violated Icon’s constitutional rights to free speech, due process and equal protection under the U.S. Constitution.

Although the court agreed that the county did not present evidence that regulating signage advances a government interest, the court also found that Icon did not contest the constitutionality of the safety sign exception, effectively arguing that the exemption was constitutional.

The court then evaluated Defendants’ time, place and manner sign regulations, finding them related to valid public concerns, i.e., traffic safety and aesthetics, the code narrowly tailored in its dimensional requirements and allowing for alternative means of communication. Rather than arguing that the county’s sign regulations, including the exception were unconstitutional, Icon argued that the county’s denial of the applications was (1) premised on an impermissible purpose; (2) lacked consideration of less restrictive alternatives; (3) was arbitrary; and (4) a pretextual regulation of speech.

The impermissible purpose was the use of the asserted unconstitutionality of the exemption. However, the reasons given for the denial were the failure to comply with Code dimensional requirements. The court found that Icon did not have a vested or otherwise unfettered right to approval of its applications and content-neutral time, place and manner restrictions on free speech are constitutionally permitted.

As to a less restrictive alternative of approving the applications and dealing with the constitutionality of the exemption later, the court again noted that the denial was based on failure to comply with the narrowly tailored dimensional requirements of the code and the fact there might be imagined a less intrusive on free speech is not unconstitutional. The court also rejected the failure to act on its local appeal in a timely way as a due process violation, as that failure allowed for its mandamus remedy to be pursued successfully. The dimensional requirements was constitutional.

As to an allegedly unwritten policy allowing the building official to operate without standards in dealing with sign matters, allowing the use of a content-based restriction, it was clear that the official did not exercise arbitrary judgment over application of the dimensional standards, which was the basis for denial.

The final allegation was that the denial was pretextual and was really based on hostility to messages that Icon might communicate in the future. While these considerations were present, the dimensional reasons for the denial were valid time, place and manner restrictions that were narrowly tailored to accommodate valid public interests, toallow for free speech and left open other adequate channels for free speech. The court thus granted summary judgment to the county.

As a postscript, it should be noted that the Oregon Court of Appeals affirmed the judgment of the circuit court in ordering mandamus relief, confining itself to the issue of whether a code violation occurred and not considering the constitutionality of the exemption. A Petition for Reconsideration is now pending and a Petition for Review may well be filed in the Oregon Supreme Court.

This is a case that contains many free speech strategic issues under the federal and Oregon constitutions. As a civil rights action, the costs to the county would have been immense had it not prevailed. Perhaps, one can view these cases as an immense chess game in which free speech was an onlooker.

Have you ever seen the iconic advertisements on the side of the Hotel Figueroa in Los Angeles? I bet you have - if not on a commute opportunity through the metropolis, then in a movie. Or, perhaps your business is similar to the Pier House 60, Clearwater Beach Marina Hotel where a condition of approval required compliance with both the public art requirements for the development and the local sign code. If you are interested in how to avoid an eight-armed strangle on your business’ commercial speech, read on for guidance about how to avoid problems with local sign regulations.

The Washington Court of Appeals in Catsiff v. McCarty, 167 Wash App 698, 274 P3d 1063 (2012), issued a broad decision regulating commercial speech on signage. If you own a business that is on the lookout for name recognition and the perfect location for the right type of sign, you should consider this case of the Inland Octopus toy store. Catsiff, the owner of a toy store in Walla Walla, decided to paint a wall sign depicting an octopus hiding behind a rainbow over the rear entrance of the store. He did not obtain a permit. Later that year, he painted on the store front an octopus hiding behind several buildings with a rainbow over the buildings. Again, he installed the front entrance sign without obtaining a permit. The City of Walla Walla took code enforcement action against Catsiff for violating the sign code. In response, Catsiff admitted to the facts constituting the violation – exceeding the height limitations and not obtaining a permit to ensure compliance with the downtown design standards, but took umbrage to the overall sign code and countered that the regulations were unconstitutional.

The court reviewed Catsiff’s free speech rights under the state and federal constitutions. The court concluded that the two octopus signs were commercial speech and were placed as an expression related solely to the economic interests of the speaker and audience because their design matched the store’s logo and Catsiff intended to invite people into his store to purchase toys through the advertisement. The court found that the city reasonably exercised its police powers through the adoption of its sign ordinance because such regulation of commercial speech, where the city was concerned about the obstruction of views and distraction to motorists legitimately call for regulation. The court found that the city’s size and design standards were content neutral and that all downtown businesses were subject to the same set of standards.

Similarly, Oregon’s Supreme Court upholds proper time, place and manner regulation of signs as discussed in Outdoor Media Dimensions, Inc. v. Department of Transportation, 340 Or 275, 132 P3d 5 (2006). In that case Outdoor Media Dimensions, Inc. had displayed several outdoor advertising signs without a permit in violation of the Oregon Motorist Information Act (1999) (“OMIA”). The media company, like Catsiff, challenged the citations on several state and federal constitutional grounds. The court concluded that size limits on signs are permissible time, place, and manner restrictions because such regulations are unrelated to the substance of any particular message. However, the court did rule that the OMIA impermissibly required a fee for off-premises signs while exempting on-premises signs from the fee requirement. The court ruled that the on-premises/off-premises distinction is not content neutral because that distinction allows a sign owner without a permit to display one narrowly defined category of message - a message related to activity conducted on the premises where the sign is located - but not to display any message respecting any other subject. Further, the court refused to accept that the state’s reliance on legitimate safety and aesthetic goals of the OMIA justified a prohibition of speech based on content. Therefore, the court concluded that the fee structure based on the type of expression is an impermissible restriction on the subject of expression under the state constitution.

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