defensible regulations for effective and context...

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Defensible Regulations For Effective And Context-Sensitive Signage (Reed vs. Town of Gilbert SCOTUS Decision) Jeffrey N. Katims, AICP, CNU-A Managing Principal, the Mellgren Planning Group Fort Lauderdale, FL Kathryn M. Mehaffey, Esq. Partner, Weiss Serota Helfman Cole & Bierman, P.L. Fort Lauderdale, FL Florida American Planning Association 2018 Annual Conference

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Page 1: Defensible Regulations For Effective And Context …floridaplanningconference.org/wp-content/uploads/2018/09/...Defensible Regulations For Effective And Context-Sensitive Signage (Reed

Defensible Regulations For Effective And Context-Sensitive Signage (Reed vs. Town of Gilbert SCOTUS Decision)

Jeffrey N. Katims, AICP, CNU-A

Managing Principal, the Mellgren Planning Group

Fort Lauderdale, FL

Kathryn M. Mehaffey, Esq.

Partner, Weiss Serota Helfman Cole & Bierman, P.L.

Fort Lauderdale, FL

Florida American Planning Association

2018 Annual Conference

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First Amendment and Sign

Regulation

Protected Speech,

Expressive Conduct

Lower Level

Protection

Not Protected

Flag desecration

Racist/sexist comments

Political

Religious

Social commentary

“I Hate Trump”

Blasphemy/heresy

Commercial Speech

Erotic or Adult

Entertainment that

does not meet the

legal definition of

“obscene”

Defamation

Obscenity or child

pornography

Perjury

Fighting words

Criminal conspiracies

Threatening life of President

or VP

Violent or destructive acts

Deceptive commercial

speech

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Types of Speech

Ideological / “Noncommercial Speech”

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Types of Speech

Commercial Speech

Protected at “lower level”

Information unrelated to “any direct contribution to the interchange of ideas.”Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (Stewart, J., concurring).”

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Understanding the Why

Litigating the Sign Case

Typical Land Use Case – City Usually WinsSee, e.g., Haves v. City of Miami, 52 F.3d 918 (11th Cir. 1995).

De novo review: After-the-fact justification

allowed.

Rational basis: Is the regulation rationally related

to a legitimate governmental interest?

Fairly debatable standard: If it’s a tie, the

government wins

Presumed constitutional

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Understanding the Why

Litigating the Sign Case

Signs - City May Likely to Lose (Reed changed things)

See, e.g., Tipp City v. Dakin, 929 N.E.2d 484 (Ohio App. 2 Dist. 2010)

Not presumed constitutional

Generally, no greater regulation than necessary to advance a substantial governmental interest

If content based – narrowly tailored to achieve a compelling governmental interest

REQUIRES detailed statement of intent (and record)

Establish the governmental interest

Establish that the regulation advances the interest

MUST BE DONE AT ADOPTION – cannot be after the fact

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Understanding the Why

Litigating the Sign Case

Federal court - Civil rights case

Fees$$$$$

Money damages also possible

Burden of proof is on the government

Sign regulation is a source of considerable

legal risk – be careful!

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Page 11: Defensible Regulations For Effective And Context …floridaplanningconference.org/wp-content/uploads/2018/09/...Defensible Regulations For Effective And Context-Sensitive Signage (Reed
Page 12: Defensible Regulations For Effective And Context …floridaplanningconference.org/wp-content/uploads/2018/09/...Defensible Regulations For Effective And Context-Sensitive Signage (Reed

Understanding the Why

Litigating the Sign Case

General cases – deference to government’s

discretion and policy choices

BUT First Amendment cases:

No deference given to the local government

discretion

Using discretion creates real legal risk

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Issues in Regulating Signs

Content Neutral Regulation is required

Rule is not based on message –

Example: Regulate “temporary signs”, not “political signs” or “campaign signs”

Viewpoint Neutral Regulation is required

Rule applies to all speakers equally and does not vary by message

“narrow, objective rules,” not tied to message, that are consistently enforced

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Issues in Regulating Signs

Prior Restraint – a government action that prohibits speech or other expression before it can take place

Deadlines for City for each step in process

Sign permit review should be administrative

Sign variance procedure must also comply with prior restraint requirements

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15

A sign permit application submitted

10 days – City completeness review

5 days - additional completeness review for resubmittal

Process continues until determined “Complete” of

applicant requests “As Is” review

30 days after compete application received – City

approve or deny (in writing) permit

30 days from denial to file appeal to City Council

Council must consider and decide appeal at next meeting

at least 25 days after receiving appeal notice

Denial – relief from Circuit Court

Issues in Regulating Signs

- The Permitting Process

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Issues in Regulating Signs

No governmental review of message content

Rule has no relationship to message content

Focus: regulate time, place and manner

Sign programs – rarely litigated

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Issues in Regulating Signs

No “one-size-fits-all” solution exists

Desired outcome dictates customized strategies

Most codes have legal issues, so borrowing can be problematic

Governing law is very fact-sensitive, evolving and unpredictable

Regulate the Medium (Non-communicative aspects), not the Message (communicative aspects)

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Medium v. Message

THE MEDIUM IS NOT THE MESSAGE

MANTRA

We regulate

the medium, not the message

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TPM Rules

Apply without regard to message

Size

Height

Setback

Illumination

Separation

Location

Display method

Form/sign type

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Reed v. Town of Gilbert – a brief synopsis

Before Reed, predominant test for whether a law

was content-neutral

The flexible test: Ward v. Rock Against Racism

– a law is content neutral unless -

It restricts speech because of the ideas it

conveyed; or

It restricts speech because the government

disapproves the message.

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Reed v. Town of Gilbert – a brief synopsis

Plaintiffs were a small church without a

permanent facility, its pastor, and its

members

Weekly display of temporary directional

signs to guide people to their services

Town of Gilbert is a suburb of Phoenix, with

a population of almost 250,000

Two Primary Regulatory Distinctions

Size of permitted signs

Duration of display

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Maximum sign sizes in Town of Gilbert

Political signs (nonresidential zone) (32 sq. ft.)

Qualifying Event signs (6 sq. ft.)

Ideological signs (20 sq. ft.)

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Nonpolitical, non-ideological, non-commercial

“qualifying event” signs:

12 hours before - 1 hour after the event

Political temporary signs:

60 days before - 15 days after elections

Town of Gilbert – Sign Duration

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Town of Gilbert – Sign Size

“Qualifying Event” signs

“Political” signs

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Majority Opinion – Justice Thomas

“Government regulation of speech

is content based if a law applies

to particular speech because of the

topic discussed or the idea or

message expressed.”

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Maximum sign sizes in Town of Gilbert

Political signs (nonresidential zone) (32 sq. ft.)

Qualifying Event signs (6 sq. ft.)

Ideological signs (20 sq. ft.)

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NEW RULE

If you have to look at what the

sign says in order to determine

what regulations apply, the

regulations are content based

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The concurrence of Justice Alito

Preserved TPM regulations size based on any content-neutral criteria

location

Distinguishing between placement of signs :

on public and private property;

on commercial and residential property

on-premises and off-premises

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Grand Opening Sign

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What is it?

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Classification/Function

Political Sign

Menu Board Sign

Construction/Contractor Sign

Grand Opening Sign

Special Event Sign

Garage Sale Sign

Real Estate Sign

Movie Theater Sign

Model Home Sign

Development Sign

Directory Sign

Wayfinding Sign

Identification Sign

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What it Means…

Reed forces us to evaluate and change our

mindset

Cannot regulate by purpose or function

A new “safe” regulation can still be

problematic if it is based in a content-based

definition.

Ex - Sign, banner. A temporary sign, having characters,

letters or illustrations, if any, applied to cloth, paper,

plastic, or fabric of any kind, with only such material for

backing. such as used to announce open houses, grand

openings or special announcements.

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The HOW

Legislative Intent

Governmental Purpose

Severance

Pull all government speech out of sign code

Approval process – tight timeframes for

applicant AND City

Eliminate or limit permit exceptions

Definitions

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The HOW

Signs in the right of way – all or nothing

Prohibited signs - get rid of exceptions

Temporary signs

Substitution

Must allow non-commercial signage –

everywhere – to the same extent you allow

commercial speech – 32 sq.ft. temporary sign

with an active building permit? 32 sq.ft. non-

commercial signage

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Uniform Treatment between temporary commercial

signs and temporary noncommercial signs is KEY

Exemptions to a general prohibition are often not

content-neutral.

De-regulate temporary commercial signage with

caution.

Commercial speech cannot be favored over

noncommercial speech (before and after Reed)

If you open the door for greater temporary

commercial signage (such as Temporary Sign During

an Active Building Permit), then to avoid favoring

commercial over noncommercial speech you must

open the door at least as wide for noncommercial

signage

Temporary signs after Reed

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Non-commercial signage

Cannot be less than what is permitted in similar

temporary commercial signage categories

Sign Budget

Allotment of certain square footage (any number)

Up to a total of 12 sq.ft. with no individual sign exceeding 3

sq.ft.

Allotment of number of signs (with size limits)

Extra signage?

90 days enough?

Year round “Free Expression” Sign

Temporary or permanent?

Temporary signs after Reed

How do you deal with election season??

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Remove content language from regulations AND

definitions

Sign identifying property which is available for

sale, lease or rent

Sign sizes no larger than non-commercial allotments

Linmark does not preserve other types of real

estate signs (open house, sold, waterfront, etc.)

In addition to the real estate sign, one temporary sign, no larger than

four square feet, may be erected on a property which is open for

inspection. Such sign shall be posted only while the property is open

for inspection and shall be removed at the completion of the

inspection hours, and during non-supervised hours.

One additional sign, not to exceed 2 sq.ft. may be attached to the

face of the real estate sign upon execution of a contract for sale,

lease or rent until closing has been completed.

Temporary signs after Reed

Real Estate Signs - Linmark

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What is it – now?

Temporary sign during

period of active building

permit.

Only during active building

permit but not to exceed a

period of one year

Temporary sign upon

issuance of a new Business

Tax Receipt.

14 day period during first 60

days after issuance of BTR.

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Problem - Before Reed: an exemption for “drive-in” or

“menu” sign

Concrete solution: regulate signs based on activity or

physical characteristic on the site, not sign content

After Reed: allow an extra sign for a lot that

includes a drive-through window(X sq. ft., Y height,

and within six feet of a drive-through service lane),

Troubleshooting Examples

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Problem: how should a community legalize address signs?

Concrete solution: exempt an extra sign, of that size and location

“Every parcel shall be entitled to one sign <36 sq. inches in

surface area to be placed in any of the following locations:

On the front of every building, residence, or structure;

On each side of an authorized United States Postal Service

mailbox;

On one post which measures no more than 48 inches in height

and 4 inches in width.”

Treat as compelled speech? – and compel it outside of the sign code

Troubleshooting Examples

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Stadiums, Gas Stations, Theme Parks, Multi-Tenant Centers

Different From Regulating by Zoning District

Speaker-Based Regulation? Per Thomas Opinion, Not Automatically

Invalid BUT treat ALL similarly situated speakers the same!

Regulation by Land Use

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A government’s control over its own property is the exercise

of proprietary power rather than regulatory power.

Governments generally have broad discretion in their

proprietary realm.

Governments generally have more regulatory authority in

limited public forums. (see ex. Northeastern Pa. Freethought Soc’y v.

Cnty. of Lackawanna Transit Sys., 2018 WL 3344910 (M.D. Pa. Jul. 9, 2018))

Implication:

Sign codes should be strictly defined to apply to private

speech on private property – exempt local government

from sign code

Do not allow private speech of any kind to be placed on

public property

Traffic control devices

Government Speech

and Other Issues

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Simplify - content neutral does not necessarily mean a

more permissive or complicated sign code

Provide substitution clause

Provide clear severance language

Provide prior restraint application procedures

Reduce permitting exceptions

Eliminate ALL exceptions in the prohibited sign list

Minimize discretionary review (including aesthetics)

during sign permit review

To Do List:

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Reduce the number of sign categories

Consider deregulation of some signage categories AND a

flat ban on others

Both extremes are more likely to withstand constitutional

scrutiny after Reed than a nuanced regulatory scheme with a

different regulation for each type of sign

Convert to other procedures – Flags Special Events

To Do List:

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Thomas and Alito both allow for regulation of the size,

shape, location, illumination, and other physical attributes

of signs, so long as distinctions are not drawn on content

Advantage of master sign plan – usually approved at time of

site plan, before anyone is seeking a sign permit and is

unrelated to particular message. Can incorporate into

overall aesthetic review, and need not worry about prior

restraint timeframes.

Businesses may assert protection under Lanham Act, but it

is limited to the actual registered mark and not associated

attributes. Cannot require alteration of a mark.

Florida Statute – 553.79(20) – Trademarks, Logos, Gasoline

Prices

Special Notes