Florida Federal Court Preliminarily Enjoins Sign Ordinance
 
June 3, 2008
 
Cynthia L. Hain- Jacksonville

A federal district court in Fort Myers, Florida, preliminarily enjoined a sign ordinance in Collier County, Florida, as an unconstitutional, content-based restriction. The suit was brought by Bonita Media Enterprises, LLC (BME), a mobile sign company, after Collier County charged BME with violating specific provisions of the code.

BME operated its mobile signs on the roads of Collier County until cited by the county for violating the following provisions of the county’s ordinance prohibiting:

• signs with motion, visible parts, or the illusion of motion, except for time and temperature signs
• signs constituting a traffic hazard or detriment to safety by reason of, among other things, their content
• signs mounted on vehicles if the sign is intended to attract attention for the purpose of advertising a business, product, service, or the like, but exempting signs based on the type of vehicle, e.g., emergency vehicles, taxi cabs and delivery vehicles

BME challenged the violations before the county’s code enforcement board. The board found that BME had violated the county sign ordinance by changing the content of its signs within the county and imposed a $1,000 fine for each violation thereafter. According to the board, BME could continue to use its mobile signs as long as it did not change the content of those signs within the county. BME sued the county in federal court, alleging violations of BME’s First Amendment rights through an unconstitutional, content-based sign ordinance and violations of BME’s due process rights through a vague ordinance.

In federal court, BME sought a preliminary injunction to enjoin the enforcement of the county’s sign code during the duration of the lawsuit. The district court found that a preliminary injunction should issue as there were numerous content-based provisions in the sign code’s exemptions and prohibitions, rendering the code an unconstitutional, content-based regulation of free speech.

In arriving at its conclusion, the district court noted many similarities between the exemptions in the Collier County sign code and those in the sign code struck down by the Eleventh Circuit in 2005 in a case arising out of Neptune Beach, Florida. For example, as in the Neptune Beach sign code, the Collier County code exempted from regulation memorial plaques, cornerstones, historical tablets and similar types of commemorative signs, as well as flags or insignias of “governmental, religious, charitable, fraternal or other nonprofit organizations” when displayed on property owned or leased by the organization. There were exemptions for bulletin boards and identification signs of “public, charitable, educational or religious institutions,” but not for other organizations.

The Collier County sign code contained additional content-based exemptions, such as allowing signs at “shopping centers, theaters, billboards or marquees” to change copy if the signs are specifically designed to change copy or the signs have routine changes in copy. Copy changes for other signs were not exempt. One of the prohibitions excludes from its scope signs based on the type of vehicle used. A few of the listed prohibitions exempted residential nameplates from the prohibition of illuminated signs. “Time and temperature” or barber-pole signs were exempted from one of the code’s prohibitions.

Some provisions of the Collier County sign code were overtly content-based. One provision exempted from
regulation signs with the words “No Trespassing,” “No Dumping,” “For Rent” and “For Sale.” Other provisions banned signs that constitute a traffic hazard or detriment to traffic safety because of their “content” – signs that depict nudity, sexual conduct, or sexual excitement; and signs that contain certain words, such as “stop,” “look” and “danger.”

The district court further found that Collier County’s asserted interests in aesthetics, traffic safety and economic growth were not sufficiently compelling to justify the content-based distinctions and that the content-based provisions were not narrowly tailored to achieve the county’s stated goals. The district court even commented that the county’s interest in regulating signs appeared superficial at best.

Having found that BME had a substantial success on the merits of its First Amendment claim, the remaining prerequisites for entry of a preliminary injunction were easily disposed of by the court. Because BME suffered a direct penalization, not just an incidental inhibition, of its First Amendment rights, BME established that it would suffer irreparable injury if a preliminary injunction would not issue. The First Amendment injuries to BME caused by denying the preliminary injunction outweighed any potential harm to the county by granting the injunction. In addition, the public would not be disserved by the preliminary injunction because the public had no interest in enforcing an unconstitutional ordinance.

Consequently, the district court entered a preliminary injunction enjoining Collier County from enforcing several sections of the sign code as to BME during the pendency of the case.

Holland & Knight represented Bonita Media Enterprises, LLC in this matter.

For more information, email Cynthia L. Hain at cynthia.hain@hklaw.com or call toll free, 1.888.688.8500.