Willson v. City of Bel-Nor, Case No. 4:18–CV–0003 RLW

• Decision Date: 29 March 2018
• Docket Number: Case No. 4:18–CV–0003 RLW
• Citation: 298 F.Supp.3d 1213
• Parties: Lawrence WILLSON, Plaintiff, v. CITY OF BEL–NOR, MISSOURI, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

298 F.Supp.3d 1213

Lawrence WILLSON, Plaintiff,

v.CITY OF BEL–NOR, MISSOURI, Defendant.

Case No. 4:18–CV–0003 RLW

United States District Court, E.D. Missouri, Eastern Division.

Signed March 29, 2018

Anthony E. Rothert, Jessie M. Steffan, American Civil Liberties Union of Missouri Foundation, St. Louis, MO, Gillian R. Wilcox, American Civil Liberties Union of Missouri, Kansas City, MO, for Plaintiff.

Aaron I. Mandel, Jeffrey J. Brinker, Brinker and Doyen LLP, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

The motion of Lawrence Willson (Plaintiff) for a preliminary injunction enjoining the City of Bel–Nor, Missouri (Bel–Nor) came before the Court for a hearing on March 23, 2018. Plaintiff and William Hook, the mayor pro tem of Bel–Nor, testified. Various documents and photographs were admitted into evidence. The Court now finds and concludes as follows.

Findings of Fact

1. Plaintiff is, and at all times relevant has been, a resident of Bel–Nor and owner of a single-family residence.

2. There are three signs in his front yard. They are freestanding and stake-mounted, and read: "Black Lives Matter"; "Clinton Kaine"; and "Jason Kander U.S. Senate." The "Black Lives Matter" sign has been there since the unrest in Ferguson. The other two signs have been there since the 2016 election. Plaintiff believes these signs have a political message and wishes to continue displaying all three.

3. Plaintiff received a written warning about his signs in June 2017 for a violation of Bel–Nor Code § 400.270.

4. In September 2017, Bel–Nor enacted Ordinance No. 983, repealing in full § 400.270. Ordinance 983, enacted after a public hearing and codified as § 400.120(E), reads, in relevant part:

WHEREAS , the City of Bel–Nor wishes to regulate signs within the City in a manner that does not infringe upon the rights granted by the First Amendment to the Constitution of the United States of America, but that promotes the public safety, health and general welfare of the City and its citizenry, and

WHEREAS , the City is cognizant of the limitations upon the regulation of signs recognized by the Courts, but the City has the power and obligation to its citizens to ensure that signs are not placed and/or maintained in a manner that is harmful to the health, safety and welfare of the City and its citizenry, ...

BE IT ORDAINED ... AS FOLLOWS:

Sign Regulations

1. Definitions . For purposes of this Section, the following terms shall mean:

Sign: Any poster, object, devise, or display, situated outdoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event, idea, belief or location by any means, including but not limited to words, letters, figures, designs, symbols, colors, logos, fixtures, cartoons or images.

....

2. Permitted Signs on Private Property . Each improved parcel is allowed to post one stake-mounted self-supporting freestanding sign with no more than two sign faces which are directly back-to-back of one another in the exterior portions of the property as long as the sign meets the following requirements:

....

(f) No sign shall be affixed to any building, fence, tree, gas light, lamp post, garage, basketball hoop or any structure or improvement.

(g) No sign shall be displayed from the interior of any window.

3. Prohibitions . The following materials, appurtenances and types of signs are prohibited:

(a) The use of balloons, streamers, banners or similar objects as part of or attached to a sign.

....

(e) Moving signs, including any material that flutters, undulates, swings, rotates or otherwise moves.

....

5. Flags . The term "flag" shall include any fabric or bunting containing distinctive colors, patterns or symbols used as a symbol of a government or institution. For purposes of this Section, flags shall not be considered "signs."

Not more than one (1) flag is hereby permitted on each improved parcel within the zoning district .... Within five (5) days prior to and three (3) days following a national holiday such as Independence Day, Memorial Day, Labor Day or Veterans Day, there shall be no limitation on the number of flags displayed on any parcel of land within the City.

5. Plaintiff's three signs are "signs" as defined in § 400.120(E).

6. Plaintiff received an information and summons in December 2017 charging him with violating Ordinance 983 by displaying his three signs. The information also advised him that the violation was punishable upon conviction under § 100.080 of the Municipal Code. Section 100.80(A)(1) provides for fines not exceeding $1,000.00 or imprisonment not exceeding 90 days, or by both such fine and imprisonment, but in any case wherein the penalty for an offense is fixed by any Statute, the same penalty shall apply." Section 100.80(A)(2) provides that "each and every day any violation of this Code or any ordinance ... shall constitute a separate offense." The summons listed a court date of January 3, 2018. It also read, in relevant part: "If you fail to appear, a WARRANT may be issued for your arrest."

7. Section 479.350 of the Missouri Revised Statutes prohibits incarceration for an ordinance violation. Section 479.353 prohibits the imposition of a fine in excess of $250 for the first violation.

8. Plaintiff testified he is afraid he is may be subject to a fine and incarceration for violating § 400.120(E). Until the hearing, no one had explained to him state statutes prevented him from being incarcerated for violating a municipal ordinance or limited the amount of fines he could be assessed.

9. As of the date of the hearing, Plaintiff's three signs remain in his lawn.

10. Plaintiff and his wife have a sign taped to the inside of their glass front door. It reads, in relevant part: "IN CASE OF AN EMERGENCY PLEASE RESCUE OUR PETS!" This sign has been there for years.

11. They also have a garden flag reading "Irish for a Day."

12. Plaintiff has not been cited for either the garden flag or the front-door sign.

13. A neighbor of Plaintiff has a sign in his yard supporting a candidate for mayor in an upcoming municipal election and also has a fabric pennant with a stylized "B"—the first letter of his last name—by his front door.

14. Another neighbor has a sign reading "Proud Union Home" in his front yard and a security system sign by the front door.

15. Bel–Nor is a city of approximately 1,500 residents and is 1.4 square miles. It is 95% residential. Included in the remaining 5% are an elementary school and a Catholic girls' school, Incarnate Word. Students at the elementary school arrive by bus or private vehicle. The 400 students at Incarnate Word are either driven or drive to the school.

16. On the north, Bel–Nor abuts the University of Missouri at St. Louis. The students are commuters.

17. The homes in Bel–Nor are well-maintained, primarily two-story brick homes, and usually sit on a 50–foot lot. The streets are usually 26 feet wide. When vehicles are parked on both sides of the street, two cars cannot pass.

18. Concern with public safety and a desire to comply with the Supreme Court's First Amendment rulings led to the enactment of Ordinance 983. The narrow streets, the amount of school-related traffic, and a concern about drivers being distracted by signs are all safety-related considerations. Bel–Nor did not rely on any traffic studies in enacting Ordinance 983.

19. There was no testimony about what had occurred at Plaintiff's January 3, 2018 court date.

Conclusions of Law

"To determine whether to issue a preliminary injunction, [this Court] must consider: (1) the threat of irreparable harm to the movant; (2) the balance between that harm and the injury that granting the injunction will inflict on the other interested parties; (3) the probability the movant will succeed on the merits; and (4) whether the injunction is in the public interest." Powell v. Noble , 798 F.3d 690, 697 (8th Cir. 2015) (citing Dataphase Sys, Inc. v. C L Sys., Inc. , 640 F.2d 109, 114 (8th Cir. 1981) (en banc) ). "[N]o single factor is determinative"; rather, the likelihood of success "must be examined in the context of the relative injuries to the parties and the public." Dataphase , 640 F.2d at 113. " ‘When[, however,] a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.’ " Minn. Citizens Concerned for Life, Inc. v. Swanson , 692 F.3d 864, 870 (8th Cir. 2012) (en banc) (quoting Phelps–Roper v. Troutman , 662 F.3d 485, 488 (8th Cir. 2011) (per curiam) ).

Likelihood of Success."The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’ " Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) (quoting U.S. Const., Amdt. 1). "Under that Clause, a government, including a municipal government vested with state authority, ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ " Id. (quoting Police Dep't of Chi. v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ). "[S]igns are a form of expression protected by the Free Speech Clause," but "pose distinctive problems that are subject to municipalities' police powers." City of Ladue v. Gilleo , 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). "[S]igns take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." Id. "[G]overnments 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." Id. "[T]he First Amendment does not guarantee ‘the right to communicate one's view at all times and places or in any manner that may be desired.’ " Hensel v....