Posted by: Patricia Salkin | March 13, 2016

Fed. Dist. Court in UT Dismisses Claim that City’s Ordinance Prohibiting A-Frame Signs Violated Operator’s Free Speech Rights

On or about June 10, 2013, Timilsina’s West Valley City restaurant placed an A-frame sign in an area in front of the restaurant. The Parties agreed at oral argument that Timilsina placed this sign off his property, and therefore the sign constituted an off premise sign. On July 7, 2013, the City issued Timilsina a $100 citation for violating City Code section 11–5–102. In this case, the restaurant operator brought action against city, alleging that the city’s ordinance prohibiting A-frame signs violated operator’s free speech rights. Timilsina argued section 11–5–102(14) did not constitute a valid time, place, and manner restriction and that it failed the Supreme Court’s Central Hudson test limiting commercial speech restrictions. The parties conceded the commercial speech at issue concerned lawful activity and does not mislead. The parties also agreed the government’s asserted interests in regulation qualify as substantial. The last two prongs of Central Hudson presented the dispute in this case: the regulation must directly advance the asserted interest and not prohibit any more speech than necessary to serve that interest.

The City prohibited A-frame signs for traffic safety and aesthetic purposes as set forth in section 11–1–102, and allowed A-frame signs only in the City Center Zone. The City also allowed A-frame signs elsewhere during a limited period: “thirty (30) days from the issuance date of a business license.” Timilsina asserted the exceptions so undermine the City’s stated interests in promoting traffic safety and aesthetics that they prevented the ordinance from advancing the asserted governmental interests. The court found that permitting A-frame signs in the City Center did not detract from the City’s asserted objectives to the degree that it undermined them. Instead, the permission suggested the City thinks A-frame signs in the City Center might aid in the visual distinction of that neighborhood. Additionally, the City could have fewer concerns with the A-frame sign’s impact on traffic safety in the City Center since it wanted to increase use of public transportation, walking, and biking in that area. Lastly, by limiting both the period and those eligible to display such signs, the City Council ensured that A-frame signs would rarely appear outside of the City Center and then only briefly.

Timilsina asserted, that all signs equally cause aesthetic displeasure and harm traffic safety, and thus any law allowing some types of signs and restricting others would fail to advance aesthetic and safety goals sufficiently to pass constitutional muster. However, Timilsina failed to put forth any evidence suggesting the City Council did not find A-frame signs more distasteful than banners, or that A-frame signs presented the same traffic hazards as other signs. Without contrary evidence, the court declined to second-guess the City’s stated purposes embodied in the actual sign ordinance on matters as inherently subjective as aesthetics and as fundamentally local as traffic. The court found that the above mentioned exceptions demonstrated an attempt on the City’s part not to foreclose that means of communication completely and thus narrowly tailored its ordinance. The City’s motion for summary judgment was dismissed.

Timilsina v West Valley City, 121 F. Supp. 3d 1205 (D. Utah 8/3/2015)

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