NY Court of Appeals Holds that Portion of Town Ordinance Found to be Unconstitutional was Severable

Defendant, an opticians’ business, pleaded guilty in the District Court of Suffolk County to placing a prohibited sign on public property in violation of town code. Defendant appealed. The Supreme Court, Appellate Term, reversed judgments of conviction and remitted fines paid after concluding that portions of chapter which unconstitutionally favored commercial speech over noncommercial speech could not be severed from constitutional parts. Section 57A–11, entitled “Signs, posters and stickers prohibited on public property,” stated as follows:

“Prohibitions. With the exception of any sign created by the Town, county, state or other governmental entity and all signs pertaining to traffic regulations, parking regulations and fire zones which are subject to the rules and regulations of the New York State Vehicle and Traffic Law, no sign, poster, sticker, flag or advertising device shall be located within or upon the right-of-way of any Town, state or county road or highway or upon any Town, county or state or other publicly owned land, or upon any utility pole, tree, fence, or any other structure or object thereupon” (Town Code § 57A–11[B]).

The court found that section 57A–11 dealt only with signs posted on public property, a discrete regulatory topic. This is reinforced by section 57A–11 (A), which explained the provision’s purpose and focuses entirely on the unique problems posed by signs on public right-of-ways. It imposed a content-neutral ban on all signs on public property, applied to both commercial and non-commercial signs without consideration of their content, and directly served the Town’s valid interests in traffic safety and aesthetics, as expressly articulated in section 57A–11 (A). Because of section 57A–11’s independent legislative purpose, this provision could be severed from any unconstitutional portions of chapter 57A. The Appellate Term’s holding was therefore reversed.

People v On Sight Mobile Opticians, 2014 WL 7069518 (NY 12/16/2014)

The opinion can be accessed at: https://www.nycourts.gov/ctapps/Decisions/2014/Dec14/222mem14-Decision.pdf