829 F.2d 1051 (11th Cir. 1987), 86-3159, Don's Porta Signs, Inc. v. City of Clearwater

Docket Nº:86-3159.
Citation:829 F.2d 1051
Party Name:DON'S PORTA SIGNS, INC., West Coast Sign Co. Ltd., Signs by Design of Florida, Inc., et al., Plaintiffs-Appellees, v. CITY OF CLEARWATER, Defendant-Appellant.
Case Date:October 13, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1051

829 F.2d 1051 (11th Cir. 1987)

DON'S PORTA SIGNS, INC., West Coast Sign Co. Ltd., Signs by

Design of Florida, Inc., et al., Plaintiffs-Appellees,

v.

CITY OF CLEARWATER, Defendant-Appellant.

No. 86-3159.

United States Court of Appeals, Eleventh Circuit

October 13, 1987

Alan S. Zimmet, Asst. City Atty., Clearwater, Fla., Charles L. Siemon, Siemon, Larson & Purdy, William W. Merrill, III, Sarasota, Fla., for defendant-appellant.

Donald E. Hemke, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for plaintiffs-appellees.

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

Before GODBOLD and ANDERSON, Circuit Judges, and SWYGERT [*], Senior Circuit Judge.

SWYGERT, Senior Circuit Judge:

The City of Clearwater appeals from a judgment of the district court declaring the City's regulation of portable signs to be in violation of the first amendment and granting injunctive relief. We reverse.

I

The City of Clearwater is a resort community with several miles of beaches located on the west coast of Florida. Since the City relies heavily on tourism, preserving a visually attractive environment is of great importance to the community. On August 29, 1985, the City adopted a comprehensive Land Development Code which, among other

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things, regulates the location, placement, erection, alteration, extension, installation and continuation of all signs. See City of Clearwater, Fla., Land Development Code ch. 134 (1985). Section 134.004 of the Code provides that the sign regulations are designed to:

3. Lessen hazardous situations, confusion and visual clutter caused by proliferation, improper placement, illumination, animation and excessive height, area and bulk of signs which compete for the attention of pedestrian and vehicular traffic.

4. Enhance the attractiveness and economic well-being of the City of Clearwater as a place to live, vacation, and conduct business.

Id. Sec. 134.004(A)(3), (4).

The portion of the sign regulations pertaining to portable signs 1 states:

Portable Signs:

a. Not more than one (1) portable sign shall be placed on any property.

b. The sign and sign structure shall be positioned at least five (5) feet from all property lines.

c. The sign and sign structure shall not exceed six (6) feet in height in any residential zoning district or in the Limited Office District, and shall not exceed eight (8) feet in height in any other district.

d. Any portable sign with a height in excess of three (3) feet which is strategically placed with respect to a vehicular accessway shall require the approval of the Traffic Engineer in order to ensure that sufficient cross-visibility is afforded.

e. Portable signs shall be used only as temporary signs.

Id. Sec. 134.012(A)(7). The plaintiffs-appellees, small businesses engaged in the leasing and renting of portable signs, and merchants who use portable signs to advertise, claim that the portable sign regulation amounts to a total ban. 2 The City does not dispute this characterization of the regulation. Shortly after the Land Development Code became effective, the plaintiffs challenged the section of the ordinance pertaining to portable signs on various constitutional grounds. On February 27, 1986, the district court granted the plaintiffs a permanent injunction and declared the portable sign regulation unconstitutional under the first amendment. 3

In evaluating the plaintiffs' first amendment claims, the court applied the four-part commercial speech test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). 4 Under the Central Hudson test, (1) only commercial speech which concerns a lawful activity and is not misleading is protected under the first amendment. A restriction on protected commercial speech is valid if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective. 447 U.S. at 566. The parties did not dispute that the speech at issue satisfied the first prong of the test, and the court readily conceded the substantiality of

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the City's asserted interest in aesthetics. 5 However, the court concluded that the regulation did not directly advance the City's interest in aesthetics because the City had failed to establish that portable signs are any more unattractive than permanent signs, buildings, utility poles and wires, parking lots, or traffic congestion. 6 In addition, the court held that the City had not demonstrated that less intrusive restrictions would not serve the City's interests as well. This appeal followed. 7

II

On appeal, the City argues that the present case is controlled by this court's recent decision in Harnish v. Manatee County, 783 F.2d 1535 (11th Cir.1986). We agree. In Harnish, this court concluded, based upon the record before it, that a similar ban on portable signs satisfied the Central Hudson test. In so holding, the Harnish court emphasized that the governmental entity charged with the responsibility of making determinations...

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