HomeMy WebLinkAboutCOM 0454.020 1996-1998 M1v Os p~
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Stephen K. Yamashiro Richard Wurdeman
Mayor Corporation Counsel
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OFFICE OF THE CORPORATION COUPrSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720.4262 • (808) 961.8251 . Fax (808) 961-8622
31 August 1998
TO: DOMINIC YAGONG, Member
Hawaii County Council
FROM: RICHARD D. WURDEMAN ~;G ~
Corporation Counsel
SUBJECT: BILL 280 - RELATING TO SIGNS
In your memorandum of August 26, 1998, you asked whether the
provision of Bill 280 which exempts real estate signs from
the provisions of the Bill makes it constitutionally
questionable.
In Corporation Counsel Opinion 96-03, relating to election
signs, (copy attached), I pointed out that when sign
restrictions are based on content, rather than other more
legitimate reasons, th:- Courts are very unlikely to uphold
them.
We recommend, therefore, that the exemptions for real estate
signs be eliminated, and that they be treated as all other
signs.
Attachment
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R.S. Date $EP 0 1 1998
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Stephen K. Yamuhiro RitFurd Wurdeman
Mayor ~ Cer(towtian Ce.wl
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OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 125 Hilo, Haw4ii 96720262 • (808) %1$251 F„ (808) 969-7049
23 May 1996
OPINIOP NO. 96-03
Ms. Barbara Hell
County Clerk
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
SUBJECT: ELECTIOP SIGN ORDINANCE
Dear Ms. Bell:
As the electoral season approaches, and the first complaints
about the placement of election signs are received by your
office, it seems appropriate to review the County Ordinance
relating to such signs.
Chapter 3 of the Hawaii County Code (HCC) provides a
comprehensive scheme for the regulation of signs. Political
campaign signs, although ezempted from many of the chapter's
requirements, are limited to an area not ezceeding one square
foot, and are permitted only for a period of sizty days prior to
an election, and ten days following. They are also restricted
to signs announcing a candidate seeking public office, and do
not include political messages relating to "causes", as opposed
to individual candidacies. HCC 3-32(a)(1)(D).
It is the continuing opinion of this office, that this ordinance
is unenforceable, in that it is an overbroad infringement on the
right of free ezpression.
In analyzing those types of cases, the Courts traditionally have
used a two-step process. First, a determination is made as to
whether a regulation is content-based or content-neutral. Then,
based on the answer to that question, the proper level of
scrutiny is applied. Ladue v. Galleo, US 114 S. Ct.
2038, 2047, 129 Led. 36, 50 (1994) (O'Conner, J. concurring).
Barbara Bell, Cour~y Clerk
23 May 1996
Page 2
The Supreme Court has held that a restriction on speech is
content-based when the message conveyed determines the
applicability of the restriction. Cincinnati v. Discoverv
Network. Inc., US 113 S. Ct. 1505, 1516-17, 123 LEd
2d 99.
The Hawaii County Ordinance, HCC Section 3-22, which classifies
various types of signs for special consideration under the
ordinance, distinguishes between 'announcing', real estate,
sub-division and political campaign signs. For ezample,
political campaign signs can be no more than one square foot in
area, while real estate signs can be as large as eight square
feet. Political signs can onlp be erected during a 70-day
'season", while sub-division signs caa remain erected for one
year. Clearly, the type of treatment afforded is determined by
the menage, and thus the ordinance can not be considered
"content neutral'.
The difficulties with this ordinance are compounded, ironically,
by the fact the while courts have conceded a greater right to
regulate speech with commercial content, Ohralite v. Ohio State
Bar Association, 436 US 447, 455-56, 98-Sct 1912, 1918, 56 L.
Ed. 2d. 444 (1978), City of Cincinnati v. Discoverv Network,
Inc. suvra., while this regulation actually favors certain
commercial signs. The County has a legitimate interest to
regulate signage for reasons of aesthetics, traffic safety and
the prevention of clutter. Baldwin v. Redwood City, 540 F. 2d.
1360 (9th Cir 1976). This interest, however, can only be
sustained, if it is no more restrictive than necessary to
protect that interest Ibid at 1372. To be valid, any
restrictions imposed must be narrowly tailored to protect these
interests, One World Familv Now v. City and County of Honolulu,
76 F. 3d, 1009 (9th Cir 1996). An ordinance which allows real
estate signs to be larger than political ones can not be
considered "narrowly tailored'.
This office has previously reviewed this ordinance, and found it
to fall short of Constitutional standards. (See attached
opinion of Frederick Giannini, dated July 21, 1988) Upon
re-examination, we have come to the same conclusion. We can
not, therefore, take any action on referrals of violations,
until such time as the deficiencies referred to, are remedied.*
Very truly yo ,
R WURDE
Corporation Counsel
RDW:1475L
*Attached for your consideration, is a discussion of an
ordinance which has been judicially approved. Brayton v. City
of New Brighton, 519 NW 2d. 243, (Minn App 1994).
519 N.W.2d 243 Page l
(Cite as: 519 N. W.2d 243)
DeAnna BRAYTON, Appellant,
v In determining whether government regulation is
CITY OF NEW BRIGHTON, Respondent. content-neutral, government's purpose is controlling
consideration. U.S.C.A. Const.Amend. I.
No. CO-94-252.
(3] CONSTTTU'CIONAL LAW ~ 90(3)
Court of Appeals of Minnesota. 92k90(3)
Regulation is content-neutral only if it is justified
July 26, 1994. without reference to content of regulated speech.
U.S.C.A. Const.Amend. 1.
Review Denied Sept. 28, 1994.
[4] CONSTITUTIONAL LAW 4~ 90(3)
City resident brought action against city 92k90(3)
challenging constitutionality of municipal ordinance Requirement that government regulation burdening
regulating yard signs. The District Court, Ramsey speech be narrowly tailored to meet substantial
County, Gregg E. Johnson, J., granted city's motion goverttmrnt interests is satisfied if regulation
for summary judgment, and resident appealed. The promotes substantial government interest that would
Court of Appeals, Randall, J., held that ordinance, be achieved less effectively absent regulation;
which allowed one noncommercial sign all year long regulation noel not be least restrictive or least
and additional noncommercial signs during election intrusive means of furthering govermttent's
season, did not violate First Amendment. interests. U.S.C.A. Const.Amend. 1.
Affirmed. [5] CONSTITUTIONAL LAW ~ 90(3)
92k90(3)
[1] CONSTITUTIONAL LAW 4~ 90.3 To be constitutionally valid, regulation burdening
92k90.3 speech must not impair speaker's ability to convey
Municipal ordinance allowing resident to post one message to desired audience; alternative channels of
noncommercial opinion sign on his or her property communication must exist and must be adequate.
at any time, and additional noncommercial signs for U.S.C.A. Const.Amend. 1.
each candidate and issue during election season, did
not violate First Amendment on its face; ordinance '244 Syllabus by the Court
was content-neutral, it waz narrowly tailored to meet
significant governmental interests in aesthetic and This New Brighton city ordinance regulating the
traffic safety, and it left open adequate alternative content and placement of yard signs did not violate
charnels of communication. U.S.C.A. wnstimtional principles of free expression.
Const.Amend. 1.
Mark R. Anfinson, Minneapolis, for appellant.
[I] MUNICIPAL CORPORATIONS 4~ 602
268k602 Charles L. LeFevere, Corrine A. Heine, Holmes
Municipal Ordinance allowing resident to post one 8r Graven, Minneapolis, for respondent.
noncommercial opinion sigrt on his or ha property
at any time, and additional noncommercial signs for Considered and decided by KLAPHAICE, P.l.,
each candidatc and issue during election season, did and RANDALL and NORTON, Jl.
not violate First Amendmwt on its fan; ordinance
was content-neutral, it was narrowly tailored to meet OPINION
significant governmental interests in aesthetics and
traffic safety, and it left open adequate alternative RANDALL, Judge.
channels of communication. U.S.C.A.
Const.Amend.l. Appellant DeAma Brayton commenced this
litigation seeking declaratory and injunctive relief
[2] CONSTITUTIONAL LAW 4~r 90(3) against respondent City of New Brighton (the City),
92k90(3) asserting that a city ordinance regulating the content
and placement of signs was unconstitutional. On the
Copr. a West 1996 No claim to orig. U.S. govt. works
Sl9 N.W'.2d 243 Page 2
(Cite as: Sl9 N.W.2d 243, X244)
parties' cross-motions for summary judgment, the an opinion or other point of view. • • Sec. 9-
trial court ruled in favor of the City. We affirm. 030 (Definitions), paragraph (o).
FACTS The trial court concluded, and the parties agree,
that as amended, the ordinance allows a resident to
The material facts of this case are not in dispute. post one sign on its property '245 year round,
In March of 1991, appellant placed two signs in the whether i[ be an opinion sign or a campaign sign.
Cront yard of her home in New Brighton. One of During the political campaign season, a resident is
[he signs, which was approximately 2 feet by 4 fcet allowed to post additional signs, up to one sign per
in size, expressed criticism of a decision by a district ballot issue and per ballot candidate. The additional
court judge in an animal cruelty case. The other signs may be usod to express either a campaign
sign, approximately 1 foot by 1 1/2 feet, expressed message or an opinion message. Said another way,
her opinion on other issues related to the treatment the amended ordinance allows one noncottrmercial
of animals. opinion sign to be posted year round and additional,
campaign and/or noncommercial opinion signs
Appellant received a letter dated April 5, 1991, during the election season.
from the New Brighton city planner informing her
that the signs violated the New Brighton sigrt In addition to the public safety concerns cited in
ordinance and directing her to remove them. the original ordinance, the amendments also list the
Appellant complied with the City's directive and following purposes of the regulation:
took down the signs. [T]o preserve the residential chazacter of
residential neighborhoods; to preserve order and
Appellant complained to City officials, asserting cleanliness; to avoid the appeazance of clutter; to
that the ordinance is unconstitutional. On October protect property values; to avoid litter and [he
22, 1991, the ordinance was amended by the city growth of weeds around signs; to reduce the
council. Appellant subsequently initiated this action traffic hazazd caused by distractions to motorists
challenging certain portions of the amended and impairment of sight lines; to ensure that the
ordinance as violative of the coastimtional right of city remains an attractive place to live and work;
free expression. to reduce administrative burdens; and to protect
the health, safety, welfare, morals, convenience
As originally written, New Brighton Code Section and wmfort of the public.
9-040, pazagraph (c)(8) allowed for one campaign
sign per candidate and issue to be posted only ISSUE
during the election season. There was no provision
in the ordinance allowing fot opinion signs at any Is the sign ordinance, as amrnded, constitutionally
time of the year. 1'he purpose statement of the valid?
ordinance cited concerns of public safety.
ANALYSIS
As amended, Section 9-040, pazagraph (cx16) of
the sign ordinance allows a resident to post oce [1] The parties agree that this appeal is limited [o
"nos-commercial opinion sign" on its property, at an assertion of facial invalidity of the oMinance
any time [FNl). The portion of the ordirance (other initial claims for relief have been disposed
allowing campaign signs during campaign aeasoa of).
was amended to include the following sentence:
"Any sign permitted by this paragraph may be used, On appeal from summary judgment, the reviewing
in lieu of other uses permitted by this paragraph, as total must determine whether there are any genui>K
a Non-Commercial Opinion Sign.' Ody this issues of material fact and whether the trial court
amended ordinance is at issue. erred in its application of the law. Offerdahl v.
University of M[nn. Hosps. & Clinics, 426 N.W.2d
FTI1. A 'noncommercial opinon sign' tt defined 425, 42'7 (Mim.1988). The determination of the
as '[al sign which does not advertise products, constitutionality of a statute is a question of law
goods, businesses or services and which expresses which this court reviews de novo. See Hibbing
Copr. ° West 1996 No claim to orig. U.S. govt. works
Sl9 N.W.2d 243 Page 3
(Cite as: 519 N. W.2d 243, •245)
Educ. Assn v. Public Employment Relations Bd., trial court concluded the ordinance is content
369 N.W.2d 527, 529 (Minn.t985). neutral.
The following framework is useful in determining A regulation that places a higher value on certain
whether an ordinance restricting time, place or topics of speech creates the danger of impermissible
manner of speech will survive constitutional content discrimination. See City Council of Los
scrutiny: Angeles v. Taxpayers for Vincent, 466 U.S. 789,
l.) Dces the challenged ordinance burden 816, 104 S.Ct. 2118, 2135, 80 L.Ed.2d 772
protected speech? (1984). Appellant argues thaz the ordinance is not
2.) If so, does the ordinance contain contrnt-based content neutral because, as amended, it incorporates
restrictions or wntrnt-neutral restrictions? a preference for political signs over non-commercial
aJ If the restrictions arc content-based, are they opinion signs. Appellant bases her argumnt on the
necessary to serve a compelling government fact that the ordinance provides for additional signs
interest, and are they narrowly drawn to achieve during the political campaign season.
that end?
b.) If the restrictions aze wntrnt-neutral, do they [o support of her argument, appellant cites
serve any substantial government interest, are they Goward v. City of Minneapolis, 456 N.W.2d 460
narrowly tailored to further this interest, and do (Minn.App.1990). In Goward, the ordinance a[
they leave open ample alternative means for issue permitted campaign related signs on private
communicating the desired message? property but did not allow signs expressing an
See Simon & Schuster, Inc., v. New York Crime opinion critical of the city government. The
Victims Board, 502 U.S. 105, 112 S.Ct. 501, ordinance was content-based because it permitted
508, I16 L.Ed.2d 476 (1991); Clark v. Community campaign signs while completely prohibiting
for Creative Non-violence, 468 U.S. 288, 293, 104 opinion signs. The ordinance was found to be
S.Ct. 3065, 3069, 82 L.Ed.Zd 221 (1984). unconstitutional because it plated a total ban on a
particular category of speech, namely, opinion
The parties agree the limitation on speech signs. Id. az 465. The facts of We Goward case are
contained in the ordinance is a burdrn on speech. not close to the facts of this case. The City of New
The parties also agree thaz the City's interest in Brighton not only does not totally ban anything, but
traffic safety, aesthetics, and retaining the residential carefully allows any opinion on any issue subject to
charaaer of its neighborhoods are 'substantial," but the same time frames as political speech.
not 'compelling' governmental interests.
Therefore, the issue is whether the ordinance is a The trial court concluded the ordinance does not
content-neutral regulazion and, if so, whether it "favor' political speech over opinion speech because
satisfies the requirements of narrow tailoring and it does not allow a greater number of campaign signs
adequate alternatives so as to be a valid time, place, than opinion signs. Both are treated idrntically at
and manner regulation. all times. The portion of the ordinance allowing
carnpaigo signs during campaign season, paragraph
Content-neutral. (cx8) of section 9-040, was amended to include the
following semrnce: 'Any sign permitted by this
[2](3] Tn determining whether a government paragraph may be used, in lieu of other uses
regulation is content-neutral, the government's permitted by this paragraph, as aNon-Commercial
purpose is the controlling consideration. Ward v. Opinion Sign.' Whey read as a whole, the
Rock Against Racism, 491 U.S. 781, 791, 109 ordinance, as amended, allows a resident to post one
S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989). A sign on his property, year round, whether it be an
regulation is content-neutral only if it is justified opinion sign or a campaign sign. During the
without reference to the content of the regulated political campaign season, a resident is allowed ro
speech. Id. az 791, 109 S.Ct. az 2754. The purpose post additional signs, up to one per balls issue and
portion of the ordinance states that it is based on candidate. The additional signs may be used to
concerns for public safety, order, cleanliness, express either a campaign message or an opinion
aesthetics, and administrative convenience. Because message. [FN2] Thu is, during the campaign
these concerns are not related •246 to contrnt, the season, a resident is not limited [o political speech
Copr. ° West 1996 No claim to orig. U.S. govt. works
Sl9 N.W.2d 243 Page 4
(Cite as: 519 N.W.2d 243, X246)
but can put up az many noncommercial opinion in duration under the ordinance but commercial
signs as there are issues and ballots, the same as signs such az a 'for rent' sign can be posted
those professing political speech. During all other indefinitely, the ordinance impermissibly favors
times of the year, a resident may put up one sign; some forms of commercial speech over political
either a noncommercial opinion sign or a campaign speech. We disagree. Appellant's argument
sign, with any message, and multiple messages, if misinterprets the ordinance. The ordinance allows
desired, on the same sign. In contrast to Goward, one noncommercial opinion sign to be posted at any
the New Brighton ordinance is decidedly content time of the year for any length of time. That
neutral. opinion sign can contain any type of non-
commercial constitutionally protected speech. That
FN2. Appellant urges on the court consideration of sign, by definition, could include, outside the
a recent U.S. Supreme Court cox, City of Ladue v. campaign season, political speech. Thus, one
Gilleo, - U.S. 114 S.Ct. 2038, 129 L.Fd.2d campaign sign or political sign can be posted a[ any
36 (1994). We do not fmd Ladue dispositive but time during the year with no durational limit.
simply inswctive on the general principle that when Further, New Brighton ordinances limit "for sale"
municipalities ux their legitimate police power to and 'for rent" signs to One pet premises, the same
regulate signage, that power needs to be narrowly numerical limit imposed upon opinion signs and
tailored to protect legitimate governmenul interests. political signs, except during a short campaign
Minimizing visual clutter, maintaining property season where numerical limits go up to the number
values, public safety, the elimination of traffic of ballot candidates and issues. Also, signs
hazards, are legitimate purpoxs providing the advertising garage sales, rummage sales, sale of
regulations are carefully drawn, reasonable, and do produce grown on [he premises, real estate sales,
not impermissibly prefer one kind of speech over parade of homes production, and Church or school
another. The failure of the municipal ordinance in events are limited to one per frontage, and these
the City of endue is simply put. The ladue typo of signs have durational limits az well. Thus,
ordinance attempted to ban all residential signs New Brighton has done az well as can be expected in
except for thox falling within one of certain sated balancing the rights of noncommercial opinion
exemptions. Thus by analogy, thox purpoxs speech, political speech, for sale and for reut signs,
falling within the listed exemptons were preferred casual and for business sale signs, U cetera.
over all others. Here, the City of New Brighton
has done no such thing. The ordinance st issue was When the smoke cleats, Gowned simply does not
carefully drawn to allow any opinion on any sign at apply as i[ Contains a total prohibition against
ezacdy the same times that political signs are opinion speech. There is no such prohibition in
allowed. During the campaign season, campaign New Brighton.
signs and noncommercial opinion signs arc virtually
unlimited. The only limit u one sign per ballot We conclude [he ordinance is content-neutral. We
issue and one per ballot candidate. Between ballot now rum to whether it (I) is narrowly tailored to
issues, local elections, school board electons, mtx:t significant governmental interests, and (2)
judicial elections, sate and rational elections, a few leaves open adequate alternative channels of
m dozens of signs would be allowed. le the communication. Clark, 468 U.S. ar 293, I04 S.Ct.
noncampaign season, campaign signs and at 3069.
noncommercial opinion signs lad ezactty the same
privilege-one sign of any message on any issue at Narrowly tailored to meet substantial government
any time year around, with fie added benefn to interests.
homeowners that the one sign could be changed
daily and Ne one sign could contain any number of Appellant concedes that the interests involved,
multiple messages. aesthetic and traffic safety, arc substantial
govertment interests. See Taxpayers for Vincent,
New Brighton allows various types of commercial 466 U.S. u 806-07, 104 S.Ct. at 2129-30;
signs such az "for sale" or "for rent" signs. Metromedia Inc., v. San Diego, 453 U.S. 490, 507,
Appellant azxrts that since the posting of campaign 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981). The
signs is limited (outside the '247 campaign season) cases cited by appellant and respondent repeat the
Copr. ° West 1996 No claim to orig. U.S. govt. works
S l9 N. W .2d 243 Page ~
(Cite as: 519 N.W,2d 243,'247)
proper use of governmental power to protect aze not adequate as to her based on an assertion of
substantial governmental interests if the protection is lack of time and/or money. The trial coon noted
reasonable and narrowly tailored. appellant's position on this issue but properly found
that these alternative means of communication are in
[4] The requirement of narrow tailoring is addition to the posting of one opinion sign at any
satisfied if the regulation promotes a substantial time and additional opinion signs during the election
government interest that would be achieved less season. Cf. Gowazd, 456 N.W.2d at 468 (a total
effectively absent the regulation. Rock Against ban on one form of political expression, namely,
Racism, 491 U.S. at 799, l09 S.Ct. at 2758. The lawn signs, was unconstitutional).
regulation need not be the least restrictive or leas[
intrusive means of furthering the government's Reasonable regulation and the reasonable use by a
interests. Id. at 798, l09 S.Ct, at 2757-58. governmental entity of police power is as essential
to the first amendment and frce speech as the right
Because the ordinance allows appellant to post at of frce speech itself. Concededly, the framers of
least one opinion sign, which can contain multiple our United States Constitution and its Bill of Rights
messages, on one or multiple issues, at any time of mandated the judiciary to scmtinize the exercise of
the yeaz, it is reasonably and narrowly tailored. The governmental police power. But the framers also
ordinance contains a modification for election assumed that the exercise of some police power was
season. The City can reasonably conclude that the reasonable, did happen, that it would happen, and
concerns for aesthetics and public safety are served that i[ would be essential in a democracy. The
by the one sign (multiple message) limit that is in complete absence of regulation and a total lack of
effect most of the year. The City can also police power is the definition of anarchy, of chaos.
reasonably conclude that the balance shifts in favor With anarchy the right to put downs or hundreds of
of fewer limitations during the short election season. signs on one's lawn would be for naught since
See Gowazd, 456 N.W.2d at 464 (only the anyone disagreeing would simply walk into your
narrowest range of restrictions should be imposed by yard, knock them over, and if you attempted to
the city on political speech, the core of first rebuild them, simply stay on the lawn and knock
amendment protection). We find no merit in them over again.
appellant's assertion that [he City's reasons for the
ordinance are pretexmal. The City of New Brighton's amended ordinance
balances the City's inherent substantial interest in
Alternative channels of communication. aesthetics, residential home value, visual clutter, and
traffic hazards with the right of its residents to
[5] To be constitutionally valid, a regulation must express opinions on nonpolitical, political, and
not impair the speaker's ability to convey a message business-oriented issues.
to the desired audience. Gowazd, 456 N.W.2d at
467-68. Alternative channels of communication DECISION
must exist and must be adequate. Taxpayers for
Vincent, 466 U.S, at 812, 104 S.Ct. at 2132. Here, This New Brighton sign ordinance does not
appellant can present one or more opinion messages violate first amendment principles of frce
on one sign on her property at any time, and expression. The trial court properly granted
multiple signs with multiple messages during the summary judgment in favor of the City.
election season. This satisfies the requirement of
alternative channels of communication. Although Affirmed.
we do not rest our decision on this point, we agree
with the trial coon's observation that, in addition to END OF DOCUMENT
the signage and the multiple messages, there are
alternative means to express opinions such as
handbills, picketing, and letters.
'248 Appellant argues these additional means of
communication--handbills, picketing, and letters--
Copr. o West 1996 No claim to orig. U.S. govt. works