A sign is defined by the International Code Council as any device visible from a public place that displays either commercial or noncommercial messages by means of graphic presentation of alphabetic or pictorial symbols or representations. There are significant legal considerations that affect governmental agencies’ ability to enforce sign regulations without having the proper sign codes and ordinances capable of passing constitutional tests and judicial scrutiny. There is a strong need for local lawmakers to be cognizant of the challenges that can be presented when the enforcement of sign codes and zoning ordinances cause citizen discontent and possibly lead to claims of unfair treatment under the law. Many business owners may attempt to litigate increased signage regulation by claiming unconstitutionality. It is imperative to ensure that the service that is provided, and the codes that are enforced, are beneficial and lawful.
There are many reasons why a wide variety of signs are regulated. They may range from purely aesthetical concerns to the desire to promote cohesive business advertising and even for purposes of safety. Unregulated signage often leads to visual blight, cluttered storefronts, which also assist in limiting visibility to interior of stores from the exterior, a concern for law enforcement. Uncontrolled signage may become inefficient, as well as, unpermitted signs may become dangerous if improperly installed.
Since Zoning and Code Enforcement Agencies are part of governmental bodies, the administrative actions that are taken are subject to basic constitutional checks. The First, Fifth and Fourteenth Amendments to the United States Constitution all have some relevance to signage regulation and personal rights. The most critical issue that is usually raised when applying constitutionality is whether or not a sign code attempts to regulate sign content. The First Amendment to the US Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech.” In order for a sign code or zoning regulation to pass strict scrutiny under the First Amendment, it needs to be content-neutral. Sign codes that are content-based may be problematic to enforce lawfully. In the case North Olmstead Chamber of Commerce, et al v. City of North Olmstead, State of Ohio, 2000, the Federal Court struck ruled a sign code unconstitutional when a directional sign in front of a business could contain the words such as “Enter Here” but could not display the McDonald’s “Golden Arches” logo or the words “Honda Service.” The court also cited the fact that the local government had interpreted another content-based provision of the code by prohibiting a Dodge dealership from displaying on its sign a corporate logo.
Based upon the ruling in this case if a sign code contains regulations or ordinances that define sings by their use, such as identification sign, information sign, etc., the only way to actually classify a sign may be by the content of the message on the sign and such codes are therefore content-based. Basically, a sign regulation may be considered to be unconstitutional when regulation of a sing requires the reading of the message. In order for a sign code to be considered constitutional it has to avoid regulating a particular viewpoint or amount to censorship. Most signs codes should therefore have certain signs as being classified as exempt or not requiring a permit, but requiring limits on number and size.
The application of the Fifth Constitutional Amendment that guarantees that “no person shall be…deprived or life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” towards the regulation of signage deals with actual government takings of sign through physical removal or prohibition. This provision may apply to signs that were once lawful, but have been taken or made to be removed by codes that severely limit the ability for a business to communicate to customers. Additionally, on-premises signs may be treated differently than off-premises ones involved in required removal or condemnation and may be suitable for Fifth Amendment compensation. If a code is being changed to prevent once authorized signs, careful consideration should be given towards the grandfathering-in of previously existing signs or an amortization period for the removal of those signs. The jurisdiction may also opt to provide for the removal of such signs at no cost to the sign owner.
The Failure to provide certain requirements such as reasonable permit fees or clear permit standards and codes may constitute a violation of the Fourteenth Amendment. In addition, due process irregularities may also violation the First Amendment and render a code unenforceable. Problems such as lack of due process, unconstitutionality and restrictions on personal rights, may lead to the filing of lawsuits and result in unnecessary litigation with sign owners, business owners and sign companies.
In 2003 the City of Sunrise, Florida was sued for unconstitutional inconsistencies discovered in their sign code which ultimately allowed Coral Springs Street Systems, Inc. to construct a billboard within the cities’ jurisdiction. The attorney for the plaintiff pointed out that permits were not needed to display temporary political signs, but required for other similar signs and this sign company had also won similar lawsuits against three other South Florida municipalities.
In the 1994 case of Ladue v. Gilleo, 512 US 43, the court found that a city ordinance was not constitutional when it aimed at prohibiting the posting of political signs in residential neighborhoods. The issue of this particular case was that the code restricted speck without an adequate alternative for people of modest means to express themselves. Such is the case where prohibiting the display of a “For Sale” sign at a residence could be viewed as unconstitutional because all other options for expressing the same message would be inadequate because of cost and lower likelihood of reaching persons who were deliberately seeking the information. Sign codes will typically allow for these types of signs only restriction areas such as size and number while still allowing for the accomplishment of the goal of the sign owner.
Before the mid 1970’s very little constitutional protection was afforded to advertising classified as “commercial speech.” However, in 1980, the Central Hudson Gas and Electric v. Public Service Commission, 447 US 557, case defined the test for constitutionality of restrictions on commercial speech which became known as the “Central Hudson” test. This test asks four distinct questions that determine allowable restriction that may be placed on commercial speech:
1) Is the speech protected by the First Amendment
2) Is a substantial governmental interest being served
3) Will there be a direct benefit to a legitimate governmental interest
4) Is the regulation more restrictive than necessary
Of course prohibited language that relates to items such as obscenity and illegal activity, for example, would not be protected speech.
While sign codes may lawfully regulate the height, size, location and other characteristics of business signs, regulations that define signs based on their content or the message that they display may infringe on constitutional rights. In order to regulate signs that are placed in residential areas, the codes or ordinances need to focus on the areas that may be regulated, such as limiting the size and height of signs that may be placed at a residence. When regulating business signs, zoning laws which may be constitutional do not allow for a governmental entity to fully remove all economical use of property through the exercise of police powers via zoning regulations and sign ordinances. Since the business community does heavily influence local politics, it is important to strike a balance between needs of regulation and advertising.
This article was designed to provide accurate and authoritative information in regard to the subject matter covered. It was written with the understanding that the author is not engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.