Brewster v. City of Dallas, Civ. A. No. CA 3-83-0964-G.

• Decision Date: 16 December 1988
• Docket Number: Civ. A. No. CA 3-83-0964-G.
• Citation: 703 F. Supp. 1260
• Parties: A.E. BREWSTER d/b/a Brewster Realty and Investment Co., et al., Plaintiffs, v. The CITY OF DALLAS, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

703 F. Supp. 1260

A.E. BREWSTER d/b/a Brewster Realty and Investment Co., et al., Plaintiffs, v. The CITY OF DALLAS, et al., Defendants.

Civ. A. No. CA 3-83-0964-G.

United States District Court, N.D. Texas, Dallas Division.

December 16, 1988.

COPYRIGHT MATERIAL OMITTED

Charles R. McConachie, Harold B. Gold, Stutzman & Bromberg, Dallas, Tex., for plaintiffs.

Sam A. Lindsay, Katherine Knight, Asst. City Atty., Dallas, Tex., for defendants.

MEMORANDUM ORDER

FISH, District Judge.

This case is before the court on the motion of defendant City of Dallas ("the City") for summary judgment against plaintiffs A.E. Brewster, et al. (collectively "Brewster"). Upon review of all submissions, the court is of the opinion that the motion should be granted.

I. NATURE OF THE CASE

On June 7, 1983, Brewster filed this action challenging the City Sign Ordinance of the City of Dallas, Texas ("the Ordinance").¹ The Ordinance's purpose is to promote the safety of persons and property, improve communications efficiency, protect the public welfare, and enhance the City's appearance. § 51-7.101.

The Ordinance regulates the location of signs within business and non-business districts and within individual parcels of property. It also restricts the size, luminance, and movement of signs; their projection from building walls; the size and number of words they may contain; and the number of signs at a given location. Any sign not conforming to the Ordinance is designated a nonconforming sign. Signs legally erected or maintained prior to passage of the Ordinance are required to be removed or modified to conform by May 14, 1983. Owners of nonconforming signs are entitled to exemption from these restrictions if their signs are designated as landmark signs under the criteria in § 51-7.605. The Ordinance provides for a 10 year amortization period in which owners may terminate nonconforming signs and recoup their investment; it also provides a depreciation allowance for such signs. Sign owners may seek an extension or variance if necessary. §§ 51-7.702 to 51-7.704.²

Brewster seeks injunctive and declaratory relief concerning enforcement of the Ordinance as it pertains to on-premise signs. He contends that the Ordinance is unconstitutional under the First and Fourteenth Amendments. In particular, he contends that the Ordinance violates his freedom of speech and deprives him of property without due process of law.

II. THE APPLICABLE STANDARD

A. Summary Judgment

Summary judgment is mandatory when a party fails to establish the existence of an essential element of his case on which that party will bear the burden of proof at trial. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1122 (5th Cir.1988). The failure of the non-movant's proof as to any one essential element renders all other facts immaterial. Celotex Corporation, above, 106 S.Ct. at 2553. The non-movant's evidence is to be believed and all justifiable inferences will be drawn in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987). Nevertheless, unless there is sufficient evidence for the jury to return a verdict in the non-movant's favor, there is no genuine issue for trial. Evidence that is "merely colorable" or "not significantly probative" is insufficient. Anderson, above, 106 S.Ct. at 2511. Likewise, a mere scintilla of evidence will not suffice. Id. at 2511-12. Moreover, the non-movant may not rely on naked assertions of dispute, but must adduce admissible evidence creating a fact issue as to each essential element of the claim. Matter of Lewisville Properties, Inc., 849 F.2d 946, 950 (5th Cir.1988). The movant may discharge its burden to demonstrate the absence of a genuine issue of material fact by pointing out the absence of evidence supporting the non-movant's case. Celotex Corporation, above, 106 S.Ct. at 2552-54; Fontenot v. Upjohn Company, 780 F.2d 1190, 1195-96 (5th Cir. 1986).

Finally, a dispute over the legal inferences to be drawn from the facts will not preclude summary judgment. Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 728 n. 13 (5th Cir.1976); International Association of Machinists and Aerospace Workers, District 776 v. Texas Steel Company, 538 F.2d 1116, 1119 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1110, 51 L.Ed.2d 542 (1977).

B. Burdens of Proof and Presumptions

The same substantive evidentiary burden of proof that applies at trial will apply to a summary judgment decision. Phillips Oil Company, above, 812 F.2d at 273 (quoting Anderson, 106 S.Ct. at 2512).

Zoning ordinances are presumed valid. Schafer v. City of New Orleans, 743 F.2d 1086, 1089 (5th Cir.1984); Price v. City of Junction, Texas, 711 F.2d 582, 588 (5th Cir.1983). The courts may interfere only if an ordinance is unreasonable and arbitrary. Hence, parties challenging an ordinance bear the "extraordinary burden" of demonstrating that reasonable minds could not differ as to whether the ordinance has a "substantial relationship to the protection of the general health, safety or welfare of the public." Otherwise, the ordinance will stand. Price, above, 711 F.2d at 588.

Thus, the Ordinance need only have a possible rational basis; the court will not inquire into its actual purposes. In other words, the court's review is deferential to the City. SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273 (5th Cir. 1988), pet. for cert. filed, 57 U.S.L.W. 3001 (July 5, 1988).

However, the courts will subject an ordinance regulating protected speech to a more intense level of scrutiny. Ordinances regulating highly protected speech are scrutinized more intensely than those which, like this one, regulate speech given less protection. Id. at 1274. However, only rational basis scrutiny is accorded the due process question. See SDJ, Inc., above, 837 F.2d at 1273; Schafer, above, 743 F.2d at 1089.

III. FIRST AMENDMENT ANALYSIS

The First Amendment extends to commercial speech that neither misleads nor concerns an unlawful activity. Nevertheless, the protection is limited, allowing the ban and regulation of such speech in certain situations. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 506, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981) (plurality opinion).

A restriction on otherwise protected commercial speech is valid only 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.

Id. at 507, 101 S.Ct. at 2892.

Brewster does not dispute that the Ordinance seeks to implement three substantial government interests: promoting traffic safety, communications efficiency, and landscape quality and preservation. Plaintiffs' Response to Defendants' Motion for Summary Judgment at 9.³

Consequently, the critical inquiries are whether the Ordinance directly advances these interests and whether it reaches any further than necessary to do so.

A. Direct Advancement of Interest

As long as the City has a reasonable basis for believing that the restriction of commercial speech directly advances the government interest at issue, the court will not disturb that decision. Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 340, 106 S.Ct. 2968, 2977, 92 L.Ed.2d 266 (1986); Metromedia, 453 U.S. at 509, 101 S.Ct. at 2893. See also Lindsay v. City of San Antonio, 821 F.2d 1103, 1109-10 (5th Cir. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 707, 98 L.Ed.2d 658 (1988) (judge's finding that portable sign ordinance barely improved city's appearance was wrongful substitution of his judgment for that of city officials).

1. Communications Efficiency

Brewster argues that the Ordinance does not improve communications efficiency. In support of this argument, Brewster offers the affidavit of Kirk L. Brimley, which states that (1) the sign readership chart represents the judgment of the sign industry as to communications efficiency and (2) he "believes" that persons traveling at the speed limit would be unable to comprehend the messages on signs conforming to the Ordinance. Plaintiffs' Response to Defendants' Motion for Summary Judgment, Exhibit E. Under Anderson, this affidavit is not sufficiently probative evidence to defeat the City's summary judgment motion. The affidavit does not indicate that the City's judgment was unreasonable, but only that the sign industry has rendered its judgment as to the relationship of speed, character sign size, reading distance, and how long the sign remains readable. Brimley's belief, aside from being pure conjecture, likewise does not demonstrate unreasonableness on the part of the City. Similarly, Brewster's Exhibit D, consisting of affidavits of sign owners who believe that the ordinance hinders the effectiveness of their communications with the public, fails to demonstrate that the City's judgment was unreasonable. The affiants may not substitute their judgment for that of the City.

In particular, the affidavits fail to negate the City's judgment that the restrictions promote efficiency by ensuring that "persons exposed to signs are not so overwhelmed by the number of messages presented that they cannot find the information they seek, and are able to observe or ignore messages, according to the observer's purpose." § 51-7.101(b)(4). The City has thus made clear that the interest served by the Ordinance is not the interests of sign owners but rather the observer's ability to efficiently observe or ignore messages.⁴

2. Safety

Likewise, there is no evidence that the Ordinance does not promote safety. The Brimley affidavit is conjectural, and does not in any way actually state that the sign ordinance...