PHOENIX – On Aug. 15, the Goldwater Institute filed a complaint in federal court on behalf of Rex Rohlfs dba Covers Plus; North Park Plaza, LLC; Putz, LLC; and University Central Center, LLC, against the city of Chandler, claiming enforcement of its sign ordinances unconstitutionally prohibits or intrudes upon plaintiffs’ rights to free speech and equal protection of the laws.
The Goldwater suit calls the city’s sign code “impermissibly vague,” claims it “imposes an unconstitutional prior restraint, and is unequally and arbitrarily applied,” while imposing different rules based on the “communicative content” of those signs, which the U.S. Supreme Court held in 2015 were unconstitutional in Reed v. Town of Gilbert.
As in the Gilbert lawsuit, Chandler’s sign code restricts certain types of signs based on a) “the topic discussed or the message expressed, b) the speakers “economic motive” and the “identity of the speaker.”
The complaint asserts, “These and other aspects of the sign code violate the freedom-of-speech and equal protection guarantees of the state and federal constitutions.”
Enumerating letters sent to Putz, LLC, along with a “Code Enforcement Notice to Comply – Sign Violation” followed by the city of Chandler’s “criminal complaint and judgment misdemeanor” filed on Nov. 25, 2014 against Robert Schure, a member and statutory agent of Putz, LLC, alleging he violated a section of the sign code in July 2014 that constituted a misdemeanor offense.
A summons was issued on Dec. 16, 2014, pursuant to that complaint, for Schure to appear in Chandler Municipal Court.
However the summons was addressed to Schure at 4815 E. Carefree Highway, Cave Creek, AZ 85331, an address neither Putz, LLC, nor any of its members or statutory agents, ever operated from.
So, Schure never had any knowledge of the two letters sent in April 2014, the May 2014 notice or the criminal complaint.
The court ended up ordering the matter dismissed without prejudice.
In January 2016, city officials met with representatives of Putz, and one of its tenants, informing them their signs were in violation of the sign code.
Fearing the city would bring criminal charges against them, Putz and its tenant “ceased exercising their right to speech and expression according to the city’s dictates.”
In the past, plaintiffs North Park Plaza, LLC, Pollack Business Park North, LLC, and University Central Center, LLC, (Plaza plaintiffs) posted “For Lease” signs in their own rights-of-way to advertise open and vacant commercial spaces for rent.
If it weren’t for the sign code, they would continue to post such signs.
Plaza plaintiffs call them lollipop signs because they’re supported by one upright pole.
Typically, plaintiffs place four to eight signs per parcel in the right-of-way of that parcel. The signs simply say “For Lease” and provide a phone number of the Plaza plaintiffs.
On Jan. 2, 2016, code enforcement officers posted violation notices on their signs, claiming they were “lease signs,” “illegally placed signs,” “Prohibited signs,” signs “in the right-of-way (please place 15 ft or more from edge of roadway),” and signs which required a permit.
On Jan. 29, the city sent Plaza plaintiffs a letter with aerial maps indicating locations of two of the Plaza plaintiffs’ properties with “For Lease signs placed in the city right-of-way.”
In March, the city sent Plaza plaintiffs another letter “related to lease signs” on Plaza plaintiffs’ property, stating staff noted a number of “For Lease” signs placed in the public right-of-way and placed an orange notice on those signs.
The letter said its main concern was the signs’ unlawful placement in the city’s right-of-way and stated the aerial photos included with the Jan. 29 letter “roughly indicate the private property versus right-of-way line and can be used to guide the proper lawful placement of signs on private property and not in the city’s public right-of-way.”
The letter stated the city “will pursue compliance for similar placements found at other properties in the area and throughout the city.”
On June 30, the city sent a letter to the Plaza plaintiffs confirming they no longer had any outstanding sign code violations and all matters noted on Jan. 2 had been abated.
Covers Plus, a tenant of one of the Plaza plaintiffs, is a family-owned upholstery business and would like to use the right-of-way to advertise its fledgling business.
However, the owners fear punishment and retaliation by the city and fear that the city will take adverse action against their business, such as imposing criminal penalties.
The Plaza plaintiffs, as landlords, have no objection to their tenants putting up signs on the landlord’s property or in the right-of-way under the landlord’s control.
As the lawsuit points out, the sign code singles out 11 types of temporary signs and applies separate sets of regulations to each type of sign. And, the 11 types of temporary signs are divided based solely on the content of the message the sign conveys.
The complaint points out the sign code subjects each of the categories to differential treatment.
For example, a permit is not required for one “contractor sign” but is required for two or more contractor signs, while no permits are required for “model home” or “open house” signs, regardless of whether the sign is a temporary or freestanding sign.
It goes on to explain how no permit is required for political signs, grand opening signs or residential real estate signs, but is required for non-residential real estate signs, development signs, subdivision signs and subdivision directional signs.
The complaint goes on to point out the disparate treatment on the size, content and number of signs based on the message.
In essence, the complaint alleges the city of Chandler “regulates substantially more speech than the state and federal constitutions allow to be regulated.”
Because of the way the sign code is written, the complaint contends all signs in the city of Chandler are presumed to be illegal, while those that are expressly declared to be not illegal presumptively must have a city-issued permit before speech can occur.
It states, “By subjecting substantially more speech to unjustified non-content-neutral laws than the state and federal constitutions allow, the city imposes a real and substantial ban or burden on constitutionally-protected speech …”
The lawsuit seeks to permanently enjoin the city from enforcing specific sections of the sign code that “violate plaintiffs’ state and federal constitutional rights to Freedom of Speech, Due Process of Law, and the Equal Protection of the Laws.”
Creekers may recall when, over a decade ago, the town hired consultants to assist with updating its zoning ordinances.
As it turned out, the consultants didn’t propose ordinances written specifically for Cave Creek, they instead lifted ordinances, and portions of ordinances, from other municipalities, perhaps even from cities such as Chander.
This appears to be a common practice, whereas smaller cities and towns “borrow” language from larger, more established municipalities’ ordinances.
However, just because it’s a larger municipality doesn’t necessarily mean its ordinances are constitutional.
