Lauder Inc. D/B/A Houston Tribune v. City of Houston

• Decision Date: 04 November 2010
• Docket Number: Civil Action No. H–08–3223.
• Citation: 751 F.Supp.2d 920
• Parties: LAUDER, INC. d/b/a Houston Tribune and Heights Tribune, Plaintiff,v.CITY OF HOUSTON, TEXAS, Defendant.
• Court: U.S. District Court — Southern District of Texas

751 F.Supp.2d 920

LAUDER, INC. d/b/a Houston Tribune and Heights Tribune, Plaintiff,

v.CITY OF HOUSTON, TEXAS, Defendant.

Civil Action No. H–08–3223.

United States District Court, S.D. Texas, Houston Division.

Nov. 4, 2010.

Anthony P. Griffin, A. Griffin Lawyers, Galveston, TX, for Plaintiff.Mary H. Mayzie Burke, City of Houston Legal Dept., Houston, TX, for Defendant.

MEMORANDUM AND OPINION ENTERING FINDINGS OF FACT AND CONCLUSIONS OF LAW

LEE H. ROSENTHAL, District Judge.

This is a First Amendment challenge to a newsrack ordinance enacted by the City of Houston in 2007. The ordinance requires newsracks on the City's rights-of-way to meet certain material, size, and placement standards and requires publishers using newsracks to pay a permit fee. Lauder, Inc., the plaintiff, publishes a free monthly newspaper funded almost entirely by advertisements. Lauder uses newsracks to distribute the paper. Lauder alleges that the ordinance violates the First Amendment because, among other reasons, it was not based on an established record of specific problems, it imposed detailed requirements without allowing City officials discretion to deviate from them, and it was not sufficiently tailored to the problems it was intended to address. The City asserts that the ordinance was carefully drawn; was adopted after hearing from many of those affected, who were given opportunities to express their concerns; and was modeled after similar ordinances enacted in other municipalities.

This court held an evidentiary hearing in 2008 and denied Lauder's application for a temporary restraining order. The parties conducted discovery and this court held a two-day bench trial. As explained in detail below, this court finds and concludes, based on the pleadings, the evidence, and the applicable authorities, that Lauder's First Amendment challenge to the City's newsrack ordinance fails as a matter of law.

I. FINDINGS OF FACTA. Background

On February 14, 2007, the Houston City Council passed, and the Mayor signed, ordinance number 2007–225. (Docket Entry No. 44, Ex. A at 15). Before that date, the City's ordinance regulating newsracks, which was enacted in 1976, stated as follows:

A person may sell and/or install any nonelectrical apparatuses for the sale of daily or weekly newspapers on sidewalks, or other public property or property dedicated to public use provided, it shall be unlawful for any person to install any apparatus used for the sale of newspapers where such apparatus will impede or interfere with the free passage of persons on sidewalks or other public property. The permission granted by this section shall apply to the extent of the city's right, title and interest only.

(Def.'s Ex. 4).

The 2007 ordinance was more specific and detailed. It began by stating the reasons for the new regulation:

WHEREAS, the uncontrolled placement and maintenance of newsracks in public rights-of-way presents a danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering or exiting vehicles and buildings, and persons performing essential utility, traffic control, and emergency services; and

WHEREAS, newsracks located so as to cause a danger to persons using public rights-of-way, and unsightly newsracks located therein, such as newsracks that are poorly maintained or that have been defaced with graffiti, constitute public nuisances; and

WHEREAS, the City Council finds and declares that regulating the placement, appearance, size and servicing of newsracks on public rights-of-way is necessary to promote the public health, general welfare, and safety of persons using public rights-of-way, and to foster the aesthetics of the City ....

( Id. at 1).

The 2007 ordinance requires a publisher who wants to distribute publications in a newsrack on a public right-of-way to obtain a permit and decal from the City. ( Id. § 7, § 40–452). To obtain a permit, each publisher must submit an application setting out contact information; the number of newsracks and a description of the location for each one; a description of each newsrack, including dimensions, signage, and whether it has a coin-operated mechanism; and the name and frequency of the publication to be placed in the newsrack. ( Id. § 40–453(a)). The City's parking management division “shall” issue, within ten business days after the application is filed, a single permit that covers all that publication's newsracks meeting the ordinance standards. ( Id. § 40–453(c)). The permits are valid for three years. ( Id. § 40–453(d)). The publisher must also obtain a decal for each newsrack. The permit application fee is $300 per publication and the decal fee is $5 per newsrack. ( Id. § 40–453(e)). The publisher can renew a permit before expiration for a fee of $5 per newsrack. ( Id. § 40–453(g)). The City can require a publisher to replace decals that have become worn, faded, defaced, or missing, at a cost of $1 per replacement decal. ( Id. § 40–453(f)).

If a permit application is denied in whole or in part, the applicant must be notified within ten business days by certified mail or e-mail and the City must explain the reasons for the denial. ( Id. § 40–453(i)). The applicant has ten business days after receiving the denial to revise and resubmit the application or submit a written request for an appeal. ( Id.). If an appeal is requested, a hearing examiner must conduct a hearing within thirty days. ( Id. § 40–453(k)). Written notice of the time and place of the hearing must be provided no less than ten business days before the hearing. ( Id.). The hearing examiner must issue a written decision within fifteen business days after the hearing. ( Id.). The hearing examiner's decision on the appeal is final. ( Id.).

The ordinance imposes maintenance and display requirements on a publisher's newsracks. The requirements include that the newsracks be “in a neat and clean condition and in good repair at all times” and “constructed, installed, and maintained in a safe and secure condition.” ( Id. § 40–454(a)(1), (a)(2)). The ordinance limits newsrack size to “a height of not less than 36 inches and not more than 54 inches (including the base); a width of not less than 15 inches and not more than 25 inches; and a depth of not less than 12 inches and not more than 21 inches.” ¹ ( Id. § 40–455(a)). The ordinance requires newsracks to “be manufactured from 20–gauge or thicker zinc coated steel.” ( Id. § 40–455(b)(1)). A coin-operated newsrack must weigh no less than eighty pounds when empty, excluding the base; no-charge newsracks must weigh no less than fifty pounds when empty, excluding the base. ( Id. § 40–455(b)(4)). The ordinance requires both types of newsracks to be attached to a concrete base or base and pedestal with a net weight of not less than 95 pounds. ( Id. § 40–455(b)(5)). The concrete base must measure 23 inches from front to back, not extend more than 1.5 inches beyond the side of the newsrack bottom, measure 3 inches high, and not be decorated or colored. ( Id.). The ordinance imposes other requirements on windows, handles, and springs. ( Id. § 40–455(b)(6)-(8)). Finally, the ordinance requires that every newsrack be painted a specified dark-green color. ( Id. § 40–455(b)(9)).

The ordinance restricts the placement and location of the newsracks. A newsrack cannot be placed where it “[e]ndagers public safety”; “[i]nterferes with public utility, public transportation, or other governmental use”; or “interferes with or impedes: a. Pedestrian or vehicular traffic; b. Entry or exit from a residence or business; c. access to a legally parked or stopped vehicle; d. Use of a traffic sign or signal, emergency call box, transit shelter, bus stop, elevator, mailbox, or other public service; or e. Access to use of a delivery area or loading zone.” ( Id. § 40–456(a)). Other requirements include how much space a group of newsracks can occupy, how close the group can be to other newsracks, and how the newsracks must be placed. ( Id. § 40–456(b)). Special requirements are imposed for newsracks within the central business district, including distances to the curb and the amount of clear pedestrian passage space. ( Id. § 40–456(c)).

The ordinance allows the City to seize and remove noncompliant newsracks. ( Id. § 40–458). If a newsrack has no permit, the City can seize that newsrack. ( Id. § 40–458(a)(1)). If the newsrack has a permit but does not comply with the ordinance, the City must provide the person responsible for the newsrack's installation and maintenance with notice and ten business days to remedy the violation or request a hearing to contest the seizure. ( Id. § 40–458(b)). The ordinance provides deadlines for the hearing officer to hold a hearing and issue a written decision. ( Id. § 40–458(d)–(f)). If the violation is not remedied within ten days after notice of the hearing officer's written decision, or if the permittee fails to ask for a hearing within ten days, the City may seize the newsrack. ( Id. § 40–458(a)).

The maintenance, display, size, and design provisions were effective immediately for new newsracks placed in a public right-of-way. The other ordinance requirements had to be met by December 31, 2007 for newsracks inside the central business district, by December 31, 2008 for newsracks outside the central business district but within the area defined by an interstate that provides a large “loop” around the City (the “I–610 loop”), and by December 31, 2009 for newsracks outside the I–610 loop. ( Id. § 8(a)). For existing newsracks, the effective date within the central business district was December 31, 2007, with certain provisions, such as the color requirement, not taking effect until December 31, 2008. ( Id. § 8(b)). For existing newsracks located outside the central business district, the effective date for all ordinance provisions was December 31, 2008. ( Id. § 8(c)).

On May 2, 2007, the City amended the ordinance to make it...