12/17/2014 Overview Legal Issues in Sign Unique Considerations - PDF document

12/17/2014 Overview Legal Issues in Sign • Unique Considerations – More than advertising • Constitutional Issues Regulation • “Time, Place and Manner” • Judicial Review: Rational Basis, “Scrutiny” • Prior Restraint • Due Process • Takings • Equal Protection James B. Carpentier AICP • Key Legislation Legal Issues Workshop Portland, Oregon December 5, 2014 • Trademark protection • Highway Beautification Act • Statutory Law Legal Issues in Sign Regulation Present Legal Issues in Sign Regulation Present Unique Considerations Unique Issues • Statement of Purpose • Signs contain protected speech (political, religious, commercial) • Moratoria and Interim Ordinances • Temporary Signs: Real Estate, Political, Handheld, City Council Banners, Balloons,etc City • State DOT rules • Digital Signs Attorney • Permit Fees • Special uses: vehicles, CUP, street furniture, etc Stakeholders (community/business) Overarching Principle First Amendment Issues Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976) Advertising one’s business is a property right. • U.S. Supreme Court declared that “commercial speech, like other varieties, is protected.” • Science-based reasonable, time, place,manner • This exposed sign regulations to a host of new 1. Narrowly tailored (not burden more speech potential challenges. than necessary to achieve the gov’t purpose) Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commission of New York (1980) 2. Significant government purpose • Commercial speech is protected by First 3. Ample alternative avenues of communication Amendment but to a lesser degree than other 4. Restriction justified w/o reference to content constitutionally guaranteed expression. 1

12/17/2014 Tests for Constitutionality of Regulation First Amendment Issues “Central Hudson Test” • Four-part test for courts to analyze regulations on commercial speech 1) Does the speech at issue concern lawful activity and is it not misleading? 2) Is the asserted government interest “substantial”? 3) Does the regulation directly advance the governmental interest asserted? 4) Is it not more extensive than is necessary to serve that interest? Oregon and the First Amendment First Amendment Issues Metromedia, Inc. v. City of San Diego (1981) • G.K. Ltd. Travel v City of Lake Oswego • Very confusing case; multiple concurring opinions with often conflicting language upheld content neutrality, pole sign • Three Key Principles widely established restriction and amortization 1.Objectives (specifically safety and aesthetics) are • Outdoor Media Dimensions, Inc. v. Dept. “substantial governmental goals” sufficient for regulating speech. of Transp, 340 Or. 275, 132 P.3d 5 (2006) 2.“Time, place and manner” restrictions on speech are allowed, if not content-based on-premise and off-premise distinction ok 3.Commercial speech may not be permitted where non- under first amendment, violates Oregon commercial speech is prohibited Constitution 10 Signs Usually Not Governed By “Rational Oregon Contd. Basis” Rules • Ackerley Communications, Inc. v. • Well-written content-neutral sign regulations have Multnomah County Sign Code is a “land “Intermediate Scrutiny” under Central Hudson test use regulation” if it implements a • These are usually upheld by courts comprehensive plan provision • Content-Based sign regulations are subject to “Strict Scrutiny” • Unlikely to survive a court challenge • Especially if addressing non-commercial speech (political, religious) • Cannot favor one over the other in form or effect 11 2

12/17/2014 Crafting an Ordinance to Comply with Courts Avoid Prior Restraint • A governmental regulation or restriction • Statement of governmental on speech before the speech is actually expressed (“permission to speak”) objectives – Traffic safety and aesthetics: “When a government regulation requires an official • Definitely lawful purposes approval as a pre-condition to ‘speaking’—for – Other objectives not addressed by example, displaying a sign—courts are court: “promote commerce” concerned that the approval requirement could • Substitution Clause be an unlawful ‘prior restraint’ on freedom of – Allow noncommercial speech to occur expression by prohibiting or unnecessarily anywhere that commercial speech is delaying the communication.” permitted -Prof. Alan Weinstein Example - Prior Restraint Avoid Prior Restraint Peru, Illinois City Council (May 5, 2014): 1. The ordinance could lack procedural safeguards, which means that it does not set out a prompt timeframe for review of a permit application. 2. The ordinance could grant government officials unbridled discretion in approving or denying the permit if the language of the ordinance does not provide sufficient direction for review of the permit application. No new commercial signs until August 4 or passage of new sign ordinance Avoid Vagueness Avoid Overbreadth • Regulations can reasonably control • A law which “impermissibly delegates basic “time, place, and manner” of signs, but policy matters to administrators and judges to such a degree as to lead to arbitrary and must provide for some form of speech discriminatory application.” and provide some alternatives to be heard • Applicant has right to know criteria • Overbroad restrictions include: • Leaving it up to DRB insufficient • Careful, well-written definitions help – Total ban on residential yard signs – Limit on total number of political signs – “Sign,” “flag,” “holiday display”… “obscene,” “indecent,” “abandoned,” “disrepair” – Allowing only illegibly small real estate signs 3

12/17/2014 Due Process Takings 5 th Amendment: “nor shall private property be • 14 th Amendment: “Nor shall any State taken for public use without just deprive any person of life, liberty, or compensation” property without due process of law” – Direct Taking (Eminent Domain) – Amortization • Procedural Due Process – Regulatory Taking – Sufficient Notice, Prompt, Fair Hearing • U.S. Supreme Court’s test (Lingle v Chevron – Example: Vague Standards (2005)) • Substantive Due Process 1. Is there a physical invasion of property? 2. Denial of economically viable use of land (for owner) – If Substance of Regulation Deprives a 3. Ad-hoc economic analysis finds either: (1) serious economic impact; (2) interference with distinct Fundamental Right investment-backed expectations; (3) character of government action warrants compensation – Example: “Unreasonable” Permit Fees Outdoor Advertising Act Other: Lanham Act • Act mandated states to maintain effective control • Protects federally registered names, of billboards/outdoor advertising along its marks, emblems, slogans, colors, etc. Interstate and federally aided primary highways. • Prohibits the government from requiring • Highway Beautification Act the alteration of a trademark • Generally applies to off-premises signs • May apply to some on-premises signs within 660 feet of highways • Especially if a sign also advertises product/service not offered on property • Landscaped highways • Redevelopment Project Signage Supreme Court of the United States Recommendations • Consult with your attorney early on in PASTOR CLYDE REED AND GOOD NEWS COMMUNITY process of drafting regulations CHURCH, • Do not copy language from other cities; Petitioners, may be borrowing unconstitutional rules v. TOWN OF GILBERT, ARIZONA AND ADAM ADAMS, IN • As always, main consideration is HIS OFFICIAL CAPACITY AS CODE COMPLIANCE tolerance of risk from legal exposure MANAGER, Respondents 23 4

12/17/2014 Any Questions? James Carpentier AICP James.carpentier@signs.org 480-773-3756 www.signs.org 5