Fed. Dist. Court in OK Finds City’s Sign Code Violated the Fourteenth Amendment and was Unconstitutional

This post was authored by Matthew Loeser, Esq.

Plaintiff owned property in Oklahoma City, which had been zoned agricultural, or “AA”, and had been zoned AA since Plaintiff purchased the property in 2003. Plaintiff used his property for agricultural purposes, and his single-family rural homestead was also located on his property. Plaintiff made multiple attempts to rezone his property to a zoning classification other than AA, but each request had been denied. In response to the denial of his applications to rezone his property, Plaintiff painted signs on farm equipment and other objects located on his property. These signs included messages that were critical of Plaintiff’s neighbors, the City government, and City officials, including City Councilman Lawrence McAtee and Defendant Locke.

In 2012, Defendant Smith inspected Plaintiff’s property and observed that Plaintiff had noncommercial, expressive signs in excess of the limits provided for in § 3-100(6) on his property. As a result, Plaintiff was issued four municipal court citations for violating the ordinance. a criminal trial was held, and Plaintiff was convicted of all four citations and was fined $400 plus costs for each case. Plaintiff appealed the decision to the Oklahoma Court of Criminal Appeals, reversed Plaintiff’s convictions and remanded the case to the Oklahoma City Municipal Court to dismiss based upon Defendant City’s failure to meet its burden of proof regarding Plaintiff’s property being in a “residential area.” Following the reversal of his convictions, Plaintiff again began displaying expressive signs on his property. In 2014, Plaintiff filed the instant action, alleging that Defendants violated his First Amendment free speech rights as a result of the enforcement of § 3-100(6), retaliated against him for exercising his free speech rights by prosecuting him under § 3-100(6), and selectively enforced the ordinance against him in violation of the Equal Protection Clause of the Fourteenth Amendment.

At the outset, the court noted that even assuming Plaintiff had shown a constitutional violation and that the law was clearly established at the time the violation occurred, Defendants Locke and Smith demonstrated extraordinary circumstances, specifically reliance on the advice of counsel and on the City’s Sign Code, and were therefore entitled to qualified immunity.

Plaintiff first asserted that the City’s Sign was facially unconstitutional. The record reflected that while the City’s Sign Code generally required a permit for signs; the Sign Code, allowed for certain exceptions to that requirement. As the City’s Sign Code imposed content-based restrictions on speech, the court found that Sign Code would violate the First Amendment unless the provisions survived strict scrutiny, which required Defendant City to prove that the restrictions furthered a compelling interest and were narrowly tailored to achieve that interest. Defendant City claimed the purpose of the Sign Code was to increase safety, lessen congestion on the streets, conserve residential values, provide for improved community appearance, and encourage the most appropriate use of land. The court found, however, that a municipality’s asserted interests in traffic safety and aesthetics, while significant, have never been held to be compelling. Furthermore, Defendant City had not shown that limiting certain categories of signs was necessary to eliminate threats to traffic safety, to lessen congestion on the streets, to improve the aesthetics of the City, or to encourage the most appropriate use of land, but that limiting other categories of signs was not. For the same reasons, the court found the City’s Sign Code violated the Fourteenth Amendment and was unconstitutional.

The court next found that the prospect of criminal prosecution and/or a daily fine of $400 would likely chill a person of ordinary firmness from keeping his noncommercial, expressive signs up on his property. Additionally, the record reflected that Plaintiff presented evidence, which when viewed in his favor, supported a finding that Defendant City’s citation and prosecution of Plaintiff for his signs in 2012 were substantially motivated as a response to the messages contained on Plaintiff’s signs. Specifically, Plaintiff submitted evidence that indicated that due of the content of the signs, Defendant City had been attempting to get rid of Plaintiff’s signs for years and only in 2012 did the City, and particularly the Municipal Counselor’s Office, find a way to accomplish that through the use of § 3-100(6). Accordingly, the court held that Defendant City was not entitled to summary judgment as to Plaintiff’s First Amendment retaliation claim.

As to the state constitutional claims, the court noted that pursuant to the Oklahoma Governmental Tort Claims Act (“OGTCA”), “a claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.” Moreover, the Oklahoma Supreme Court held that notice is a jurisdictional prerequisite to bringing a claim under the OGTCA and that failure to present the required notice “results in a permanent bar of any action derivative of the tort claim.” Since Plaintiff failed to show that he presented the required notice under the OGTCA, the court found that Plaintiff’s Oklahoma Constitution claim was barred.

Knutson v City of Oklahoma City, 2019 WL 3291574 (WD OK 7/22/2019)