Posted by: Patricia Salkin | January 8, 2014

Fed. Dist. Court in CA Holds Enforcement of City’s Directional Sign Law Does Not Violate Business Owner’s Equal Protection Rights Where he Used “Wavers” Dressed in Costume to Attract Business

Mr. Govan owns Liberty Tax Service which operates within the City’s limits. Liberty Tax Service provides tax services during the January to April tax season, and employs “wavers” who dress in Statue of Liberty or Uncle Sam costumes and wave small signs regarding tax services. Govan brought an equal protection claim alleging that the Sign Law favors certain groups and organizations such as homebuilders, while simultaneously prohibiting the speech of other groups that would cause no more detriment to the City’s interests, and the Sign Law’s discriminatory provisions do no directly advance any legitimate governmental interest, or reach further than necessary to accomplish any alleged legitimate governmental objective.
The City of Clovis argued that Mr. Govan was not a member of a protected class because of his “commercial entity-based” equal protection claim. See Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 907 (9th Cir.2007) (“Because billboard operators are not a protected class, the city’s distinction between off-site and on-site advertisers is sustained if rationally related to a legitimate government interest”). The City claimed the Sign Law’s directional sign provisions did not have a relationship to Mr. Govan’s allegations or alleged harm to survive the rational basis test and to reflect the City’s reasonable distinction “between the relative value of different categories of commercial speech.” See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).The City further argued that the Sign Law justifies distinctions among differing commercial speech to defeat an equal protection claim. Section 9.4.203 addresses concerns in “high concentrated commercial areas” whereas the directional sign provisions address development projects “located in areas where streets and highways are newly constructed. These thoroughfares are seldom shown on maps available to persons seeking to purchase new homes; and, consequently, developers use signs to aid such persons locating their subdivisions.”

Because the Sign Law’s directional sign provisions rationally relate to a legitimate interest to safely and efficiently direct the public to projects in newly developing areas, and Section 9.4.203’s animated and moving sign prohibitions rationally relate to public safety and promotion and enhancement of the City’s character, the City showed a legitimate government interest. Since Govan’s pleadings lacked facts to demonstrate the Sign Law’s impossibility to relate to legitimate governmental objectives and to negate conceivable bases to support the Sign Law, the equal protection claim was subject to dismissal by the court pursuant to Fed.R.Civ.P. 12(b)(6).

Govan v. City of Clovis, 2013 WL 6000573 (E.D. Cal. 11/12/2013)

The opinion can be accessed at:

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