Florida Business Gets Sign Ordinance Thrown Out
 
March 29, 2006
 
Cynthia L. Hain- Jacksonville

A federal appeals court recently struck down a Florida sign ordinance as an unconstitutional content-based restriction and a prior restraint on speech. The sign code was challenged by Solantic, LLC, a health care facility in Neptune Beach, Florida, after the city imposed fines for the operation of Solantic’s electronic variable message center sign, known as an “EVMC sign.”

The city and Solantic have been locking horns for nearly three years. Solantic went through several unsuccessful rounds of the city’s administrative process, then sued in Florida state court, alleging violations of its First Amendment right through unconstitutional content-based restrictions and prior restraints on speech.

The city removed the case to the United States District Court for the Middle District of Florida, where Solantic sought to enjoin the city from enforcing its code restrictions until final resolution of the court case. The District Court denied Solantic’s request, finding that the sign code was a constitutional, content-neutral time, place and manner restriction, and not a prior restraint. Solantic appealed this decision to the United States Court of Appeals for the Eleventh Circuit.

The Eleventh Circuit reversed the District Court. Noting that the sign code included numerous content-neutral restrictions, the Eleventh Circuit held that the exemption of certain messages rendered the code an unconstitutional content-based regulation. For example, the ordinance exemptions would permit a fully operational EVMC sign for government, such as a 10-foot tall sign identifying city hall in blinking lights. Religious displays, including signs with movable parts and flashing lights, were allowed year round without a permit. A property owner would be allowed to display indefinitely a directional sign guiding traffic that has a flashing neon arrow, but would not be allowed to post a “Re-Elect Mayor Smith” sign for more than 16 days. A memorial plaque could be freely erected, while a sign reading “The Brown Family” could be displayed only after obtaining a permit.

The city contended that government interests in aesthetics and public safety were sufficient justifications for making distinctions between messages conveyed. The Eleventh Circuit disagreed. Significantly, the Court noted that such interests constitute merely substantial, not compelling, government interests and are therefore insufficient to justify the city’s content-based distinctions in the code.

The Eleventh Circuit also struck the sign code as an unconstitutional prior restraint on speech after finding that the ordinance improperly vested the licensing official with unbridled discretion as it contained no time limits for permitting decisions.

This decision reaffirms several First Amendment principles that prohibit the regulation of protected speech on the basis of content. The Eleventh Circuit also reinforced the unconstitutionality of licensing schemes that fail to include procedural safeguards to prevent officials from silencing a speaker because of disagreement with the message.

For more information, e-mail Cynthia Hain at cynthia.hain@hklaw.com or call toll free, 1-888-688-8500.

Holland & Knight represented Solantic, LLC in this matter.