Supersign of Boca Raton, Inc. v. City of Fort Lauderdale, 85-5062

• Citation: 766 F.2d 1528
• Decision Date: 29 July 1985
• Docket Number: No. 85-5062,85-5062
• Parties: SUPERSIGN OF BOCA RATON, INC., a Florida Corporation and Barbara Weiss, an individual, Plaintiffs-Appellees, v. CITY OF FORT LAUDERDALE, a Municipal Corporation, Defendant-Appellant. Non-Argument Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1528

766 F.2d 1528

SUPERSIGN OF BOCA RATON, INC., a Florida Corporation and Barbara Weiss, an individual, Plaintiffs-Appellees, v. CITY OF FORT LAUDERDALE, a Municipal Corporation, Defendant-Appellant.

No. 85-5062

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

July 29, 1985.

Thomas J. Ansbro, Jr., Asst. City Atty., Ft. Lauderdale, Fla., for defendant-appellant.

Charles Wender, Boca Raton, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, FAY and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

The Fort Lauderdale City Commission determined in 1983 to limit the presence of advertising vehicles in the city. Such vehicles, operating in both the streets and waterways of Fort Lauderdale, traveled about displaying the messages of various clients--primarily commercial establishments hoping to attract the patronage of tourists frequenting the local beaches. The ordinance passed by the City Commission expressly prohibited the operation of advertising vehicles or watercraft:

(1) It is unlawful for any person to operate, or cause to be operated, any advertising vehicle or watercraft in or upon any roadway, waterway, marine area, or other public place within the city in which the public has the right of travel. An advertising vehicle or watercraft is any wheeled conveyance or any waterborne craft designed or used for the primary purpose of displaying advertisements.

(2) This section shall not apply to:

(a) Any vehicle or watercraft which displays an advertisement or business notice of its owner, so long as such vehicle or craft is engaged in the usual business or regular work of the owner, and not used merely, mainly or primarily to display advertisements;

(b) Buses; or

(c) Taxicabs.

The preamble to the ordinance stated that it was designed to promote the "safe movement of vehicular and waterborne traffic and to improve the aesthetic appearance" of the city.

Several months after the passage of this ordinance, Supersign of Boca Raton, Inc., began to operate a fifty-foot vessel off the beaches of Fort Lauderdale. The vessel contained an "electric billboard" that displayed the advertisements of the various commercial clients of Supersign. ¹ After the city threatened to prosecute Supersign, the company filed suit in federal district court, alleging that federal law prevented the city from enforcing the ordinance because it conflicted with the First Amendment. The district court found that the ordinance infringed upon commercial speech protected by the First Amendment and enjoined the city from enforcing the statute against Supersign. ²

Expression related solely to the economic interests of the speaker and its audience, known as "commercial speech," receives some protection under the First Amendment from unwarranted governmental regulation. Like other forms of expression, the dissemination of economic information furthers an important societal interest. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978); Virginia Board of Pharmacy v. Virginia Citizens Consumers Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Yet commercial speech does not receive the same degree of constitutional protection as other forms of constitutionally guaranteed expression, and the former may be forbidden and regulated in situations where the latter may not be. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); Central Hudson, 447 U.S. at 562-63, 100 S.Ct. at 2349-2350; Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).

The constitutionality of an ordinance alleged to infringe on commercial speech must be measured under the four-part analysis expounded in Central Hudson, supra. First, the court must determine whether the expression is protected by the First Amendment. In order to qualify for protection, commercial speech cannot be misleading and must concern lawful activity. Next the court asks whether the asserted governmental interest is substantial. If the speech is protected and the governmental interest is substantial, the court goes on to determine whether the regulation directly advances the governmental interest asserted and whether a less extensive regulation could serve the purpose. Id. 447 U.S. at 566, 100 S.Ct. at 2351.

The district court obtained positive answers to the first two of these questions and neither party contests those findings. The record does not disclose the use of any misleading advertising or advertisements advocating the performance of illegal acts, nor does the ordinance limit its coverage to that type of speech. Cf. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, --- U.S. ----, 105 S.Ct. 2265, 85 L.Ed.2d 652 (May 28, 1985). The objectives served by the ordinance, traffic regulation and aesthetic improvement, undoubtedly qualify as substantial governmental interests. See Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Dills v. City of Marietta, Georgia, 674 F.2d 1377 (11th Cir.1982); E.B. Elliott Advertising v. Metropolitan Dade County, 425 F.2d 1141, 1152 (5th Cir.1970).

As for the third step in the Central Hudson analysis, the district court held that the ordinance "provides only ineffective or remote support" for the city's aesthetic and safety concerns because it does not apply equally to all forms of advertisements on vehicles. The ordinance allows advertising by a business on its own vehicles "engaged in the usual business ... of the owner" so long as the vehicle or craft is not used primarily to display advertisements. The district court reasoned that since the identity of the owner of a vessel does not make it any more or less of an aesthetic and safety concern, the ordinance offers at best a "remote solution to the City's problems."

Of course, it is true that the distinction made by the ordinance excludes only one group of advertisements and that the prohibited category poses no more of a threat to aesthetics or traffic safety than the category falling outside the terms of the prohibition. Nevertheless, it does not follow to say that as a result of its incomplete coverage the ordinance does not address the problems of traffic safety or aesthetic improvement. By prohibiting the operation of some advertisement vehicles, the City solves some of its traffic problem and reduces the total number of unsightly advertisements.

Fort Lauderdale does not claim to be regulating every advertisement that affects traffic safety or aesthetics and Supersign is not raising an equal protection challenge to the ordinance. The city may "directly advance" its interests by pursuing a partial solution to its problems, a proposition confirmed by the Supreme Court in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). The Court upheld the constitutionality of an ordinance which prohibited the placement of billboards anywhere but where the advertised good or service was manufactured, sold or rendered. While a billboard in front of the owner's store was no less of a traffic hazard or an aesthetic blot than the same billboard when placed elsewhere, the ordinance did limit the...