Marras was notified by the City ordinance enforcement officer on a number of occasions over a two year period that he was in violation of the zoning regulations regarding sign postings and placements. Specifically, he was informed that the parking of a vehicle advertising his business in front of his store, as well as the use of LED and Banner signs were prohibited. In each case, Marras complied with the requests to eliminate or relocate the offending signs. Marras then employed a man dressed as Santa Claus to hold a sign that read “Piano Sale” on one side and “Guitar Sale” on the other side. The enforcement officer cited Marras for violating the portable sign prohibition in the zoning ordinance. Marras was ticketed for this incident when he refused to move the sign inside the store. A misdemeanor complaint was later filed against Marras not for the violation of the portable sign ordinance, but rather alleging a violation of the restrictions pertaining to right-of-way access. After the State District Court dismissed the complaint because the relevant right-of-way in front of his store was defined vaguely, Marras filed a federal complain alleging First Amendment, due process and equal protection violations. The District Court previously dismissed the due process claim, and allowed Marras to amend the complaint to plead a “class of one” for purposes of equal protection. In this opinion, the Court is responding to a request for summary judgment by the City to dismiss the rest of the claims.
As to the Plaintiff’s claim that the ordinance violates the First Amendment both facially and as applied to them, the Court reviewed the City’s thirty-three pages dedicated to sign regulation. The Court considered first whether the ordinance was content neutral or content based. Finding that the ordinance includes explicit exceptions to its general prohibitions, the Court determined that the regulations were not content neutral. Specifically, the Court noted that three sections of the ordinance provided for certain exemptions/exceptions. Finding that the regulations reach both commercial and non-commercial speech, the Court applied the strict-scrutiny test to the content-based restriction on the non-commercial speech; and the four-part Central Hudson, 447 U.S. 557 (1980) test to the regulations applicable to commercial speech.
With respect to the regulations pertaining to non-commercial speech, the Court found that even if they were to find the government interest in traffic safety and aesthetics to be compelling, the City has not satisfied the Court that the regulations are narrowly tailored. Turning to the commercial speech aspects of the regulations, the court determined that the City has not set forth sufficient proof as to how restricting certain signs, while permitting others, directly and materially advances its interests. Although the City did cite to other studies, the Court said it not explain the disparate treatment between different types of signs. Further, the City did not satisfy the Court that this part of the ordinance was narrowly tailored to achieve the desired result. The Court therefore denied the City’s request for summary judgment.
Marras v. City of Livonia, 2008 WL 835816 (E.D. Mich. 3/28/2008).
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