In a §1983 action, Plaintiff Icon Groupe, LLC, (“Icon”), alleged that defendants Washington County and Andrew Singelakis, violated Icon’s constitutional right to freedom of speech when they failed to grant Icon’s applications for permits to erect and maintain seventeen freestanding signs displaying public safety messages, such as “Celebrate the Holiday Safely—Happy Memorial Day.” Because the signs contained safety messages, Icon believed they qualified for an exemption from otherwise applicable size and height restrictions under section 414–5.9 of the County Community Development Code (“CDC”). Icon specifically alleged that Defendants’ denial of the Application was: 1) premised on an impermissible purpose; 2) not based on a consideration of less restrictive alternatives; 3) a standardless and arbitrary exercise of discretion; and 4) a pretextual restriction on speech. Defendants moved for summary judgment arguing that their actions did not result in a violation of Icon’s right to freedom of speech, and that even if such violation occurred they were entitled to absolute or qualified immunity.
The court first stated that to justify a prior restraint on noncommercial speech, the states must establish that the regulation or restriction furthers sufficiently substantial and legitimate governmental interests and is narrowly drawn to serve those interests without unnecessarily impinging on a citizen’s freedom of speech. Alternatively, a restriction on otherwise protected commercial speech is valid only if it: seeks to implement a substantial governmental interest, directly advances that interest, and reaches no further than necessary to accomplish the given objective. Here, the court found Singelakis did not deny the Applications solely because he considered the Exemption to be content-based and, therefore, unconstitutional. Once the County decided the Exemption was unconstitutional, Signelakis severed the Exemption from the CDC, analyzed the Applications under the remaining provisions, and found they were not in compliance. The denial of the Application was therefore based on a finding the Applications did not comply with the CDC’s constitutional restrictions on time, place, and manner.
Next, Icon argued that Defendants could have declared unconstitutional the entire portion of the CDC relating to signs, thereby eliminating any restrictions on signs and either requiring the approval of the Applications or eliminating any need for approval. The court, however, determined Defendants properly severed the Exemption and denied Onsite’s applications based on the constitutional restrictions found in the rest of the CDC. While Singelakis’s alleged authority to disregard the Exemption could have afforded him arbitrary discretion to violate Icon’s free speech rights had he denied the Applications on this basis alone, he did not do so. Accordingly, Singelakis did not exercise arbitrary discretion in applying the remaining parts of the CDC to the Applications. The court therefore granted Defendants’ motion to dismiss, finding that denial of the applications was based on content-neutral restrictions on the time, place, and manner found in the County’s applicable regulations and did not violate Icon’s free speech rights.
Icon Groupe, LLC v Washington County, 2015 WL 3397170 (D. OR 5/26/2015)