Editor’s Note: This post originally appeared on the Rocky Mountain Sign Blog and is reposted with permission. The original post appears here: http://www.rockymountainsignlaw.com/2017/02/florida-towns-sign-code-found-violate-first-amendment/#more-2162
A local business, Sweet Sage Café, was issued notices of violation for several alleged violations of the town’s sign code. In response, the café filed First Amendment claims against the town, which is a small coastal community along the Gulf of Mexico. The town’s sign code had several features of sign codes that are commonly understood to be unconstitutional post-Reed:
- The town’s definition of “sign” had several arguably content based elements, including “Drawings of articles for sale on the premises that is related to the business and/or is intended to advertise or inform, rather than being merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an official traffic control sign, official marker, national or state flags permitted by this Chapter, athletic scoreboards, or the official announcements or signs of government.”
- The town exempted several types of signs from permitting on the basis of their message, including “national flags shown in accordance with the standards of the Adjutant General,” warning signs, murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house signs, political campaign signs, “no trespassing” signs, and others.
The town issued notices of violation to Sweet Sage Café for a series of flip-flop sandal footprint decals that the café posted on a fence, a plastic panel affixed near a dog bowl that said “Paws for Water,” a sign along a white picket fence that read “No tiptoeing through our tulips,” a small display panel inside a planter that read “Sense of humor required,” and a decorative panel attached to the side of the restaurant that had giant flip-flops where guests could take photos. The café was also cited for having an “additional parking” sign.
The café removed the local enforcement case to federal district court.
On cross motions for summary judgment, the court found against the town and in favor of the café. The town argued that the café failed to exhaust its administrative remedies, but the court found that, because the challenge to the sign code was a facial challenge, the café did not need to exhaust administrative remedies.
In reviewing the sign code, the court found that the sign code was content based due to the message-oriented restrictions contained in the code. Next, the court found that the code did not survive strict scrutiny because it was not narrowly tailored to the town’s proffered interests. The court additionally found that, because it was unclear from the sign code whether the town would have enacted it without the disputed provisions, the code was not severable and was therefore struck down in its entirety.
Sweet Sage Café is yet another example of a local sign code that contains several familiar content based provisions that did not survive strict judicial scrutiny. This case should provide further encouragement to local governments to review their sign codes for content based provisions and to make amendments accordingly.