Salib v. City of Mesa

• Decision Date: 03 May 2006
• Docket Number: No. 1 CA-CV 04-0436.,1 CA-CV 04-0436.
• Citation: 212 Ariz. 446,133 P.3d 756
• Parties: Edward SALIB, Plaintiff/Appellant, v. CITY OF MESA, Defendant/Appellee.
• Court: Arizona Court of Appeals

133 P.3d 756

212 Ariz. 446

Edward SALIB, Plaintiff/Appellant, v. CITY OF MESA, Defendant/Appellee.

No. 1 CA-CV 04-0436.

Court of Appeals of Arizona, Division 1, Department C.

May 3, 2006.

As Corrected May 5, 2006.

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Jorden Bischoff McGuire Rose & Hiser PLC By Court Rich, Scottsdale, and Institute for Justice, Arizona Chapter By Timothy D. Keller, Phoenix, Attorneys for Appellant.

City of Mesa By Julie M. Kriegh, Assistant City Attorney, Mesa, Attorneys for Appellee.

OPINION

IRVINE, Presiding Judge.

¶ 1 Edward Salib ("Salib") appeals from the denial of his claim that the City of Mesa violates his right to free speech under the Arizona and United States Constitutions by limiting how much of his donut business's windows can be covered by advertising signs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Salib owns a Winchell's Donut House franchise within a designated redevelopment area of Mesa. To attract customers, Salib displays signs affixed to his store windows that advertise his products. On August 5, 2002, after giving Salib several warnings, a Mesa code enforcement officer ordered Salib to remove his window signs because their display violated Mesa's Sign Code, ch. 19 (2001) (the "Sign Code"), which Mesa had enacted the prior November. Specifically, the officer contended that Salib's display violated Sign Code 11-19-6, which prohibited businesses from covering more than 30% of their windows with signs.¹ The parties disagree whether Salib was forced to remove the signs that day. In any event, the matter apparently ended there as Mesa did not cite Salib for the violation.

¶ 3 On January 8, 2003, Salib filed a complaint against Mesa alleging the Sign Code violates his free speech rights under the Arizona and United States Constitutions. He asked the court to declare the Sign Code unconstitutional and enjoin Mesa from enforcing it. After engaging in discovery, the parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of Mesa, stating that "[t]he ordinance ... satisfies the Arizona and U.S Constitution[s]." This timely appeal followed.

DISCUSSION

¶ 4 Salib argues the trial court erred by ruling in favor of Mesa because the Sign Code violates his rights to engage in free speech as guaranteed by both the First Amendment of the United States Constitution and Article 2, Section 6 of the Arizona Constitution. We review de novo the grant of summary judgment, viewing the evidence in the light most favorable to the non-prevailing party. Romley v. Arpaio, 202 Ariz. 47, 51, ¶ 12, 40 P.3d 831, 835 (App.2002). The trial court correctly entered summary judgment if there is "no genuine issue as to any material fact and ... [the City] is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(c). Likewise, we review de novo whether the Sign Code passes constitutional muster. State ex rel. Napolitano v. Gravano, 204 Ariz. 106, 110, ¶ 11, 60 P.3d 246, 250 (App.2002).

¶ 5 Salib raises issues under both the Arizona and United States Constitutions. As will become apparent, our analysis of the two constitutions overlaps in many respects. Nevertheless, because the standards are not identical, we discuss them separately.

I. The First Amendment to the United States Constitution

¶ 6 The protections provided by the First Amendment must be considered in the context of the particular form of expression at issue. As the United States Supreme Court has recognized, "[e]ach method of communicating ideas is `a law unto itself' and that law must reflect the `differing natures, values, abuses and dangers' of each method." Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion) (quoting Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 93 L.Ed. 513 (1949)). With regard to government regulations of signs, the Supreme Court has explained:

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities' police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs — just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise.

City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). Even within the narrow context of sign regulation, the First Amendment may apply differently depending upon whether signs are residential, commercial or non-commercial, off-site or on-premise, content or viewpoint neutral, or near highways and roadways. See generally Daniel R. Mandlker, Free Speech Issues in Sign Regulation, Land Use Institute, SH018 A.L.I.-A.B.A. 159 (Aug. 22-24, 2002). Consequently, any precedent in this area must be relied upon with caution and with careful regard to its particular context.

¶ 7 As recognized by the Supreme Court in City of Ladue, signs are generally subject to time, place and manner restrictions.² The Supreme Court has also recognized, however, that there is a distinction between commercial and noncommercial speech. See generally Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Because of this distinction, a restriction on a sign expressing a purely commercial message is subject to a separate test under the First Amendment, although one that overlaps in many respects with the time, place and manner test applicable to all signs. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (noting that the "framework for analyzing regulations of commercial speech [ ] is `substantially similar' to the test for time, place, and manner restrictions").

¶ 8 If a sign regulation burdens both commercial and noncommercial speech it may be necessary to analyze it under the standards applicable to each. See e.g., Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604 (9th Cir.1993) (applying both the Central Hudson test and the time, place and manner test). In this case, both parties agree that the signs at issue involve only commercial speech, so we confine our First Amendment analysis to that standard, although we will address the elements of the time, place and manner test in more detail in our discussion of the Arizona Constitution.

¶ 9 Under Central Hudson, commercial speech that concerns unlawful activity or is misleading is not protected by the First Amendment. Central Hudson, 447 U.S. at 563-64, 100 S.Ct. 2343. Commercial speech that falls into neither of these categories may be regulated if the government satisfies a three-prong test. Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995). First, the government must assert a substantial interest in support of the regulation. Id. Second, the government must demonstrate that the restriction on commercial speech directly and materially advances that regulation. Id. Third, the regulation must be narrowly drawn. Id. Mesa does not argue that Salib's signs are misleading or concern unlawful activity, so the Sign Code must meet the three-part test. Mesa argues, and Salib concedes, that the governmental regulation of aesthetics constitutes a substantial interest, so the first prong of Central Hudson is not at issue.³

¶ 10 Under the second prong of Central Hudson, the government "must demonstrate that the challenged regulation advances [its] interest in a direct and material way." Id. at 625, 115 S.Ct. 2371 (quotations omitted). This burden is "not satisfied by mere speculation or conjecture; rather, [the government] ... must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Id. at 626, 115 S.Ct. 2371 (quotations omitted). Nevertheless, the Supreme Court does not "require that empirical data come to [the courts] accompanied by a surfeit of background information" and has "permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even ... based solely on history, consensus, and `simple common sense.'" Id. at 628, 115 S.Ct. 2371 (citations omitted).

¶ 11 Salib argues that this prong has not been met because the Code "is arbitrary and incapable of actually furthering a significant governmental purpose." Salib asserts that no studies were conducted to determine what aesthetic or safety problems existed and how the Sign Code could solve such problems, so the Sign Code has not been proven to advance governmental interests.

¶ 12 Mesa responds that the Sign Code was enacted because of legitimate concerns among business owners that many businesses in the area had 100% coverage of their storefront windows and that this total coverage was unattractive and detracted from the aesthetics of the city. Mesa further argues that because the Sign Code clearly listed statements of purpose and intent, the Sign Code directly advances substantial governmental interests. It also argues that the city council researched the effects of the Sign Code on aesthetics, although copies of the research were not kept. The record does contain a 1999 Council Report from the City Manager to the City Council listing aesthetics as a reason for the limit on window coverage to 30%. The same report noted the "primary task of [amending the Sign Code] is to provide an encouraging environment for investment in the redevelopment area."

¶ 13 To update the Sign Ordinance Mesa created a Project Team, which included business owners and City staff. After receiving recommendations from the Project Team, city staff held public meetings seeking input regarding the suggested changes,...