821 F.2d 1103 (5th Cir. 1987), 86-2744, Lindsay v. City of San Antonio

Docket Nº:86-2744.
Citation:821 F.2d 1103
Party Name:Jay LINDSAY, d/b/a Mac Advertising Company, et al., Plaintiffs-Appellees, v. The CITY OF SAN ANTONIO, Defendant-Appellant.
Case Date:July 17, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1103

821 F.2d 1103 (5th Cir. 1987)

Jay LINDSAY, d/b/a Mac Advertising Company, et al.,



The CITY OF SAN ANTONIO, Defendant-Appellant.

No. 86-2744.

United States Court of Appeals, Fifth Circuit

July 17, 1987

Rehearing and Rehearing En Banc Denied Sept. 4, 1987.

Page 1104

Steven W. Arronge, Christine Chemell, Asst. City Attys., San Antonio, Tex., for defendant-appellant.

Michael F. Archer, Jorrie, Archer & Standley, Inc., San Antonio, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before RANDALL, GARWOOD and DAVIS, Circuit Judges.

RANDALL, Circuit Judge:

Defendant, the City of San Antonio, appeals the district court's issuance of a preliminary injunction restraining the enforcement of a city ordinance that prohibits the future display or placement of portable signs. We reverse.


Plaintiffs, who are in the business of supplying, leasing, renting and selling portable signs 1 in San Antonio, Texas, brought suit to challenge the constitutionality of San Antonio City Ordinance 62652 ("the ordinance"), enacted on April 3, 1986. The ordinance amends article V of Chapter 28 of the City Code of San Antonio by adding the following section:

Sec. 28-161 Prohibition of portable signs

It shall be unlawful to intentionally place or display, or cause to be placed or displayed, any portable sign on any premises other than at a properly zoned storage area of one properly licensed under this chapter unless it has been registered in accordance with section 28-162.

San Antonio, Tx., City Code ch. 28, art. V, Sec. 28-161 (Apr. 3, 1986). Section 28-162 awards nonconforming status to portable signs in place prior to September 22, 1985, if those signs are registered and maintained. 2

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2] In the commentary accompanying the ordinance, the purposes underlying the ordinance are expressly set forth: "Prohibiting further placement of portable signs is desired because they are not consonant with aesthetic values of the community and because they present unique safety problems." 3 Commentary to San Antonio, Tx., City Code ch. 28, art. V, Secs. 28-161 & 28-162 (Apr. 3, 1986).

In their complaint, plaintiffs alleged that the ordinance violates the first and fourteenth amendments of the Constitution, and is an impairment of contract rights in violation of article I, section 10, clause 1 of the Constitution. In conjunction with their original complaint, plaintiffs filed a motion for a preliminary injunction, requesting that the district court restrain the City from enforcing the ordinance pending a final determination of the merits of the action. Pursuant to 28 U.S.C. Sec. 636(b)(1)(B), the motion was referred to a United States Magistrate for the purpose of having the magistrate conduct an evidentiary hearing. After the hearing, the magistrate submitted to the district court proposed findings of fact and conclusions of law and a recommendation for disposition of the motion. The magistrate found that plaintiffs had satisfied the prerequisites to the issuance of a preliminary injunction and recommended that the motion for preliminary injunction be granted. The City filed objections to certain findings and conclusions. On August 13, 1986, after conducting a de novo review of the record, the district court issued a preliminary injunction prohibiting the enforcement of the ordinance. This appeal followed.


The district court issued a memorandum opinion in which it concluded that the plaintiffs were entitled to a preliminary injunction, having satisfied the four prerequisites for such relief: (1) substantial likelihood that the moving party will ultimately succeed on the merits; (2) irreparable harm if the injunction is not issued; (3) the threatened harm to the moving party will outweigh any potential injury the injunction may cause the non-movant; and (4) the injunction will not disserve the public interest. Lindsay v. City of San Antonio, No. SA-86-CA-636 (W.D.Tex. Aug. 13, 1986) (memorandum opinion) at 6 [hereinafter cited as "Memorandum Opinion"] (citing Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074, 1079 (5th Cir.1986); Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir.1974)).

The court focused its attention on the question of whether the plaintiffs were likely to prevail on the merits and found that success on the merits was likely. The court viewed the ordinance, which it found to "effectively impose[ ] an absolute ban on portable signs," 4 Memorandum Opinion at 7, as a "content neutral" ordinance, affecting commercial and non-commercial speech equally. The court then identified the proper standard for reviewing such a content-neutral regulation as that set forth in Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984):

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"[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

Id. at 805, 104 S.Ct. at 2128-29 (quoting United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)). 5 Finding the asserted interests behind the ordinance--aesthetics and safety--to be "important" governmental interests, in furtherance of which there was little doubt that the City may exercise its police powers, the court concluded that the crucial issues to be addressed were whether the ordinance in fact furthers the City's interests and whether the scope of the restriction on the plaintiffs' expressive activity is "substantially broader than necessary to protect those interests." Considering those questions, the court determined that the problems with the ordinance were "its failure to accomplish its aesthetic purpose and its overly broad application." Memorandum Opinion at 9.

The court found that the photographs introduced into evidence by the plaintiffs "indicate that the aesthetic appearance of the City will imperceptibly change, at best, if portable signs are eliminated since portable signs appear to represent a small fraction of the total number of sign advertisements." Id. The court found that the City had not shown that the ordinance furthers its aesthetic interests. The court went on to say that, even if the City had made that showing, the City could, according to certain testimony, control aesthetics by passing a less restrictive ordinance limiting the number of signs per commercial establishment. Further, the court noted its belief that "if the City were truly concerned with the effect of portable signs, it would not have created the grandfather clause allowing some signs to remain in place." Id. at 10.

With respect to the asserted interest in traffic safety, the court found that the testimony adduced at the evidentiary hearing substantiated the traffic concerns. However, the court also found that the evidence established that the City's goals could be accomplished by means less severe than a total ban. Indeed, the court found that all of the City's concerns could be addressed by an ordinance imposing a regulation less drastic than a total ban. According to the court, the record contains substantial evidence of more "narrowly tailored" means to achieve both traffic safety and aesthetics.

Therefore, based on the reasoning discussed above, the court concluded that the plaintiffs had shown a likelihood of success on the merits. 6 The court summarized:

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While traffic safety and aesthetics are legitimate governmental concerns, the ordinance furthers the former but not the latter. The evidence clearly showed that a total ban is completely unnecessary and unwarranted. The City can avoid traffic and other public safety problems related to portable signs by regulations concerning placement, construction and maintenance. Aesthetic appearance of the signs can also be regulated. The City ordinance, as now written, violates freedom of speech.

Memorandum Opinion at 17. Therefore, the court issued a preliminary injunction prohibiting the enforcement of the ordinance.

On appeal, the City raises two points of error. The first point of error appears to be an attack on the district court's finding that the City had not shown a substantial reason for prohibiting the future placement of portable signs (i.e., that the ordinance would have only an "imperceptible" effect). 7 In this regard, the City argues that this court's decision in Dunagin v. City of Oxford, 718 F.2d 738 (5th Cir.1983) (en banc), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984), dictates that we give the record de novo review because the case raises a first amendment question.

The City's second point of error is a more general attack on the district court's determination that the plaintiffs were likely to succeed on the merits because the ordinance violates the first amendment. The City argues that the City Council has stated its legitimate reasons for the content-neutral prohibition embodied in the ordinance and has demonstrated them to the district court. The City notes that the Supreme Court has recognized that a content-neutral regulation does not, on review, warrant the same strictness of scrutiny that a content-based restriction warrants. Therefore, according to the City, since the ordinance does not abridge first amendment rights, the preliminary injunction should be dissolved.

Implicit in the City's contentions on appeal must be the argument that the district court's issuance of a preliminary...

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