February 14, 2017
SIGN ORDINANCES MAY VIOLATE THE FIRST AMENDMENT
Invoking rights under the First Amendment might seem foreign to some people, but consider this hypothetical situation: a Florida business’s signs convey a message that they deem is important to their customers. The Town that business is located in has an ordinance that regulates those signs. Pursuant to that ordinance, the business received a notice of violation identifying violations of the sign ordinance. The sign ordinance may violate the First Amendment. This hypothetical situation might not be so hypothetical.
In Sweet Sage Café, LLC, v. Town of North Reddington Beach, Florida, a Tampa federal court recently permanently enjoined the Town of North Redington Beach (the “Town”) from enforcing its sign ordinance because the ordinance violated the First Amendment. The court in that case described the Sweet Sage Café (the “Café”) as a restaurant with a building “decorated to create a ‘Key West’ style atmosphere and to showcase the owners’ sense of humor.” A number of items decorated the exterior or near the exterior of the restaurant, including “Flip-flop footprint decals” on a fence surrounding the parking lot, a “plastic display panel attached to a white picket fence along the entrance reading ‘No Tiptoeing through our Tulips,’” a “small display panel set inside a planter reading ‘Sense of humor required,’” and more.
In 2015, the Town adopted a sign ordinance that regulates signs in the Town. Among the requirements is a permit requirement for certain signs. The ordinance exempts certain signs from the permit requirement. While commercial advertising signs require a permit, warning signs, government signs, certain garage sale signs, and “[h]oliday, seasonal, commemorative or special event decorations or signs provided that such signs display no commercial advertising and provided that such signs are displayed only between November 15th and January 10th,” and more do not. The Town issued a Notice of Violation to the Café stating that the Café’s above signs, and others, were in violation of the sign ordinance. The Café filed a lawsuit challenging the constitutionality of the sign ordinance under the First Amendment.
In granting the Café’s motion for summary judgment, the court found that the Town’s “sign ordinance is facially unconstitutional because it regulates based upon the content of the speech and cannot survive strict scrutiny.” The court found that the sign ordinance is a “content-based regulation of speech” because it purports to govern all signs within the Town “but then exempts numerous categories of signs from the permit requirement, like government signs, holiday and seasonal signs, political campaign signs, and warning signs.” The court found that “[t]hese exemptions necessarily depend upon the content of the signs and require the Town’s enforcement officer to evaluate the content of the sign to determine whether an exemption applies.” As the ordinance is content-based, the court then considered whether it is narrowly tailored to serve compelling government interests. The court stated that the “the purpose and intent of the code is to protect and promote the health, safety, and welfare of the community by establishing a set of comprehensive standards for the use and placement of signs, symbols, and markings.” The court further stated that the code “describes its objectives as including: the enhancement of visual attractiveness, preservation of aesthetic qualities, and promotion of traffic and pedestrian safety.” The court ruled that “such general and abstract aesthetic, business, and traffic safety interests are generally not considered so compelling as to justify content-based restrictions on signs.” Moreover, the court found that the Town offered “no rationale” why the exempt signs merit different treatment than the non-exempt signs. The court concluded that the Town’s sign ordinance is facially unconstitutional under the First Amendment.
Invoking your rights under the First Amendment may be a practical response to an ordinance or other governmental action impacting your business or you. For more information about this topic, please contact Weber Law, P.A.’s Steven D. Weber at 305-377-8788 or firstname.lastname@example.org.
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