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CCPC Backup 02/05/2009 R CCPC REGULAR MEETING BACKUP DOCUMENTS FEBRUARY 5, 2009 COURT REPORTER AGENDA Revised COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, FEBRUARY 5, 2009, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE A V AILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDlNGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDlNGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - DECEMBER 18,2008, REGULAR MEETING 6. BCC REPORT- RECAPS - DECEMBER 16,2008, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA ITEMS A. CPSP-2008-6, A staff initiated petition amending the Capital Improvement Element of the Collier County Growth Management Plan to incorporate updates based on the 2008 Annual Update and Inventory Report on Public Facilities (AUIR), the 2008 Water and Wastewater Master Plans, and additional statT analysis, including updates to the 5-Year Schedule of Capital Improvements (for Fiscal Years 2009 - 2013) and the Schedule of Capital Improvements for Future 5-Year Period (for Fiscal Years 2014 - 2018). [Coordinator: Corby Schmidt, AICP, Principal Planner] [ADOPTION HEARING - Consent) B. CPSP-2007-6, A petition requesting an amendment to the Potable Water Sub-Element of the Public Facilities_Element of the Collier County Growth Management Plan to amend Policy 1.7 to add a reference to, and incorporate, the County's "Ten-year Water Supply Facilities Work Plan." [Coordinator: Carolina Valera, Principal Planner] [ADOPTION HEARING - Consent) 1 ~__""__._,,_w_.'" _._._.,_~.=...'_~__'___'_~ 9. ADVERTISED PUBLIC HEARINGS A. Petition: SV-2008-AR-13618, CHM Naples Hotel Partners, LLC, is requesting three sign variances to allow two wall signs for Spring Hill Suites, and one directional monument sign to serve as both an on- premises sign for Spring Hill Suites and an off-premises sign for Fairfield Inn. The first variance is from Section 5.06.04.CA. of the Land Development Code (LDC), which requires that one wall sign shall be pennitted for each single-occupancy parcel, to allow two wall signs. The second variance is from Section 5.06.04.C.16.b.i. of the LDC, which allows a maximum sign area of 12 square feet for an off-premise directional sign, to allow a 35.5," square foot off-premise sign. The third variance is from Section 5.06.04.C.16.b.ii. of the LDC, which allows a maximum sign height of8 feet above the lowest center grade of the arterial roadway for an off-premise directional sign, to allow a maximum sign height of 12 feet. The subject property is located at 3798 White Lake Boulevard, in Section 35, Township 49 South, Range 26 East, Collier County, Florida. (Coordinator: Nancy Gundlach, AICP) B. Petition: PUDZ-2007-AR-l 1320, Sembler Family Partnership #42, represented by Robert Mulhere, AICP of R W A, Inc and R. Bruce Anderson, Esquire, of Roetzel and Andress, requesting a rezoning from Rural Agriculture (A) zoning to Mixed-Use Planned Unit Development (MPUD) to be known as McMullen MPUD. The 19.32 acres Rural Agricultural zoned site is proposed to permit a mixed-use development. The rezoning petition allows for a maximum of 122,000 square feet of medical office and medical support facilities, and up to 48 multi-family dwelling units, with allowances for modifications of commercial activates and residential uses for additional pennitted commercial uses, In no case shall the commercial square footage exceed 185,000 square feet. The subject property is generally located one- half mile east of Collier Boulevard (CR 951) on Rattlesnake-Hammock Road Extension, the south one-half of the Southeast one- quarter of the Southwest one-quarter of Section 14, Township 50 South, Range 26 East, Collier County, Florida. (Coordinator: Nancy Gundlach, AICP) CONTINUED TO 3/5/09 10. OLD BUSINESS II. NEW BUSINESS ]2. PUBLIC COMMENT ITEM 13. DISCUSSION OF ADDENDA 14. ADJOURN 2-5-09 cepe AgendalRB/mk/sp 2 "-~..._~--- PLEASE READ AND SAVE THIS MEMO FOR YOUR THURSDAY FEBRUARY 5,2009 CCPC HEARING Co~-y <;;Oun'ty DATE: 30 January 09 TO: Collier County Planning Commissioners FROM: Corby Schmidt AICP, Principal Planner Comprehensive Planning Departtnent C1 .;1 SUBJECT: CPSP-2008-6, Amendment to the Capital Improvement Element of the Growth Management Plan The CCPC considered Capital Improvement Element (CIE) amendrnents at its January 16 and January 20, 2009 hearings. Planning Commissioners voted unanimously (6/0) to forward ClE amendments to the BCC with a recolllll1endation to adopt and to transmit to the Florida Departtnent of Community Affairs. The CCPC approved the amendments incorporated by staff, with only modest changes recommended for the body of the CIE, as listed below: V' Removing the East of 951 Bridge Report from the liJt of Data and AnalysiJ (Supporl Documents) appearing in the CIE Table of ContentJ V' Revising staff recommended entnes reading 'Vrainage and S tormwater Management" and "Sanitary Sewer and Wastewater Management" to {Vrainage - Stormwater Management" and {'Sanitary Sewer _ Wastewater Management" throughout V' Including the re?Jlsed Roads page from the 5-Year Scbedule of CaPital Improvements which differed from tbe onginal version with the addition of one project not affecting the re?Jenues, expenditures or finanCIal feasibility of the CIE The three modest changes checked above are the extent of actual revisions to the CIE document, and the CCPC has already taken action on a recommendation. The CIE is included on your Agenda for Thursday, February 5, 2009 as a Consent Agenda Item but presumably require no further consideration. I will be present however to answer any questions. No materials in addition to this memo will be prepared for your further consideration of CIE amendments unless requested to do so. For future policy consideration, and not related to the adoption of Capital Improvement Element updates, Planning Commissioners also recommended: 1. In an effort to reduce costs, consider a once-a-week refuse pick-up schedule as an alternative to the current twice-a-week arrangement. 2. In an effort to localize costs associated with landscape improvements on County roadways, consider utilizing Municipal Services Taxing Units (MSTU) for targeting those people benefiting most directly from said improvements as an alternative to the current Municipal Services Taxing District (MSTD) arrangement. The changes checked above have been written into the version of the CIE that appears in BeC materials and the recommendations immediately above are reflected in the Executive SUlllll1ary prepared by staff for their February 24 hearing for adoption of the amended CIE. Thank you for your attention to this matter. -~'_._--~~, AGENDA ITEM 9-A - ~H.Yr~, C;pXl;fex County . . .,.....~::.~:.",.~"'.(,,, ,,"" ,;',~ ''''.f':; ST AFF REPORT TO: COLLIER COUNTY PLANNING COMMISSION FROM: DEPARTMENT OF ZONING AND LAND DEVELOPMENT REVIEW COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES DIVISION HEARING DATE: FEBRUARY 5, 2009 SUBJECT: PETITION SV-2008-AR-13618, SPRINGHILL SUITES PROPERTY OWNER/AGENT: Applicant: CHM Naples Hotel Partners, LLC. 7569 Cordoba Circle Naples, FL 34109 Agent: Mr. Mike Blo-Sliman 7569 Cordoba Circle Naples, FL 34109 REQUESTED ACTION: The applicant is requesting a total of three (3) Sign Variances from Section 5.06.00 of the Land Development Code (LDC) to permit a second wall sign and to permit one (I) pole sign that is to serve as both an on-premises sign for Spring Hill Suites and an off-premises sign for Fairfield Inn. GEOGRAPHIC LOCATION: The subject property is located in the Citygate PUD/DRI at 3798 White Lake Boulevard, in Section 35, Township 49 South, Range 26 East, Collier County, Florida. (See the location map on the following page) PURPOSEIDESCRIPTION OF PROJECT: The requested Sign Variances are to allow for a second wall sign (Sign B) for the Spring Hill Suites and to allow for a larger and taller monument sign (Sign C) that will serve as both an on- premises sign for Spring Hill Suites and an off-premises sign for Fairfield Inn. The Fairfield Inn is located adjacent to and directly north of the Spring Hill Suites site. Please see the Site Plan and the Elevations on the proceeding pages. A permit has been issued for an existing wall sign (Sign A), which is to be located on the western building fayade of the Spring Hill Suites which faces Collier Boulevard (CR 951). 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" I , , ~ j ,.1. j< III~ .11111 J 'ill!/ I j.1 Ill, I j < ~ li!llI ~!fH !:i ~ ~ wall sign (Sign B), the subject of this sign variance, is for a proposed wall sign to be located on the southern building fayade of the Spring Hill Suites which faces south towards 1-75. The purpose of this second wall sign is 10 provide visibility to the traveling public from 1-75. A permit has also been issued for an existing monument sign (Sign C) for Spring Hill Suites. This sign is located on the Spring Hill Suites property; it is also located in the cntrancc driveway that serves both the Spring Hill Suites and the Fairfield Inn. This monument sign is also proposed to contain the off-premise signage for thc Fairfield Inn. It is important to note that while the existing on-premisc sign meets the LDC prescribed size for an on-premise sign, it does not mcet the LDC prescribed sizc for an off~premise sign. This is because the LDC allows for on-premise signs to be larger (12 feet high and 60 square feet) than off-premise signs (8 feet high and] 2 square feet). The requested variances for each sign are as follows: 1. The first variancc is from Section 5.06.04.C.4. of the Land Development Code (LDC), which requires that onc wall sign shall be permitted for each single-occupancy parcel, to allow two wall signs on the Spring Hill Suites Bui lding. 2. The second variance is from Section 5.06_04.C.16.b.i. of the LDC, which allows a maximum sign area of 12 square feet f()r an oft~premise directional sign, to allow a 44"= square foot oft~premise sign for the adjacent hotel to the north of the subject site, Fairfield Inn. 3. The third variance is Irom Section 5.06.04.C.]6.b.ii. of the LDC, which allows a maximum sign height of 8 feet above the lowest center grade of the arterial roadway for an off-premise sign, to allow a maximum sign height of 12 feet. SURROUNDING LAND USE AND ZONING: (Please refer to aerial on next page). North: Vacant undeveloped lot within the Citygate PUDIDRl, a 287"= acre Mixed Use Planned Unit Development (MPUD). East: Vacant undeveloped land within the Citygate PUD/DRI, 287"= acre Mixed Use Planned Unit Development (MPUD). South: 2 vacant undeveloped lots within the ]44"= acrc White Lakc Industrial Park PUD. West: White Lake Boulevard, a 60-foot wide right-of-way, then a vacant undeveloped lot within the City gate PUD/DRI. Page 6 of 11 i ._,t..' ,,1'. - .i:'~ ; .. "~.",," "'" ;;;" - .... i,'!/Ji'I'''' ~ , ~ -, _"""".,n ~ I ~' ..",.-.~l . .. . ''''. """"'-'-'--~4- , :., - , -'-l GROWTH MANAGEMENT PLAN (GMP) CONSISTENCY: The subject property is located in the Urban Designation, Interchange Activity Subdistrict of the Future Land Use Map of the Growth Management Plan (GMP). The GMP does not address individual Variance requests but focuses on the larger issue of the actual use. The Citygate PUD/DRI is consistent with the Future Land Use Map. Based upon the above analysis, staff concludes that the proposed use for the subject site is consistent with the Future Land Use Element, although the Sign Variance request is not specifically addressed. ANALYSIS: Section 9.04.00 of the LDC gives the Board of Zoning Appeals (BZA) the authority to grant Variances. The Collier County Planning Commission (CCPC) is advisory to the BZA and utilizes the provisions of Section 9.04.03.A through 9.04.03.H as general guidelines to assist in making a recommendation. Staff has analyzed this petition relative to the evaluative criteria and offers the following responses: Page 7 of 11 "'---.-----.--.....-- "'-.-.-------- a. Are there special conditions and circumstances existing which are peculiar to the location, size and characteristics of the land, structure or building involved? Yes. The Spring Hill Suites is located approximately 1,000 feet north of the 1-75 north bound lanes. The hotel is also separated from 1-75 by a 125 to 400-foot wide vegetated area, an 1-75 exit ramp, another 30-foot wide vegetated area, White Lake Boulevard and two lots within White Lake Industrial Park PUD. These features tend to screen the hotel from motorists traveling on the interstate highway. In regards to the first Sign Variance request for a second wall sign (Sign B) at Spring Hill Suites, the proposed wall sign is to be located on the southern building fayade and would face towards 1-75. Since the subject hotel is not on a corner lot, it is only allowed one sign pursuant to Section 5.06.04.CA of the LDC. The second and third Sign Variance requests are for a monument sign (Sign C) that is to be located at the entrance driveway that serves both the off-site Fairfield Inn and the on-site Spring Hill Suites. b. Are there special conditions and circumstances which do not result from the action of the applicant, such as pre-existing conditions relative to the property, which is the subject of the variance request? No. There are no special conditions or circumstances in regards to the above criteria. These hotels are newly designed and Spring Hill Suites was recently constructed. c. Will a literal interpretation of the provisions of the LDC work unnecessary and undue hardship on the applicant or create practical difficulties for the applicant'! Yes. The applicant contends that the signage is needed to create visibility for potential guests traveling along 1-75. If a literal interpretation of the LDC provision is applied, the applicant would be unable to have a second wall sign facing 1-75 and would not be able to accommodate the LDC prescribed size for the off~prcmiscs monument sign for the Fairfield Inn. The proposed directional monument sign, if used for an on-premise sign only, would meet the LDC prescribed sign area of 60 square feet and height of 12 feet for an on-premise sign. However, because the subject sign is proposed to also be used for an off-premise sign as well, it exceeds the LDC prescribed sign area of 12 square feet and 8 feet for an ofj~premise sign. A variance is necessary in order to place the off~premise sign on the monument sign which currently contains the on-premise sign. These two signs will have a combined sign area of 44* square feet and height of 12 feet. d. Will the variance, if granted, be the minimum variance that will make possible the reasonable use of the land, building or structure and which promote standards of health, safety and welfare? The purpose of the first requested Sign Variance is to allow for an additional wall sign that is otherwise not permissible by code. The existing sign faces Collier Boulevard (CR 951). Page 8 of 11 The purpose of the second and third requested Sign Variances are to allow for a larger off- site monument sign than what is permissible by code. However, it is important to note that the size of the sign that the off-site signage is to be placed upon is permissible by code under the on-site signage provision. As previously stated, the proposed sign, if used for an on-premise sign only, would meet the LDC prescribed sign area of 60 square feet and height of 12 feet. However, because the subject sign is also proposed to be used for an off- premise sign, it exceeds the LDC prescribed off-premise sign area of 12 square feet and height of8 feet by 32* square feet of area and 4 feet of height. However, if the Conditions of Approval recommended by Staff are followed, the reasonable use ofland is possible. e. Will granting the variance confer on the applicant any special privilege that is denied by these zoning regulations to other lands, buildings, or structures in the same zoning district? Yes. A Variance by definition confers some dimensional relief from the zoning regulations specific to a site. The granting of the first Sign Variance request would allow for an additional wall sign at Spring Hill Suites. The granting of the second Sign Variance request would allow the monument sign to have an additional 32* square feet of sign area than the 12 square feet currently prescribed by the LDC. The granting of the third Sign Variance would allow the proposed off-premise sign to have an additional 4 feet of height than the 8 feet of height prescribed by the LDC. Each of these sign variances confer special privilege on the applicant. f. Will granting the variance be in harmony with the general intent and purpose of this Land Development Code, and not be injurious to the neighborhood, or otherwise detrimental to the public welfare? Yes. Section 5.06.01.A. of the LDC states that the purpose and intent of the LDC relative to signage is to ensure that all signs are: I. Compatible with their surroundings; 2. Designed, constructed, installed and maintained in a manner that does not endanger public safety or unduly distract motorists; 3. Appropriate to the type of activity to which they pertain; 4. Large enough to convey sufficient information about the owner or occupants of a particular property, the products or services available on the property, or the activities conducted on the property, and small enough to satisfy the needs for regulation; 5. Reflective of the identity and creativity of the individual occupants. In staff's opinion, the request for an additional wall sign and for the larger off-premises sign advances all of these objectives. Therefore, approval of the Variance would be consistent with the purpose and intent of the LDC. Page 9 of 11 ^ ^_.,...,._---.~~~_.."---~". . ---"""-------- g. Are there natural conditions or physically induced conditions that ameliorate the goals and objectives of the regulation such as natural preserves, lakes, golf courses, etc.? Yes. As illustrated on the Site Plan on page three, travelers must enter the shared entry drive to access the Fairfield Inn site. Consequently, the Fairfield Inn must rely on the off- premises directional sign for visibility of its entrance. h. Will granting the variance be consistent with the Growth Management Plan? Yes. Approval of this Variance petition would be consistent with the GMP since it would not affect or change any of the GMP's requirements. EAC RECOMMENDA nON: The Environmental Advisory Council docs not normally hear Variance petitions and did not hear this one. RECOMMENDATION: Staff recommends that the Collier County Planning Commission (CCPC) forward Petition SV- 2008-AR-136l8 to the Board of Zoning Appeals (BZA) with a recommendation of approval subject to the conditions below: 1. The second wall sign (Sign B) shall be located on the southern building fayade. 2. The directional monument sign size (Sign C) area shall be limited to 44ct square feet. 3. The directional monument sign height (Sign C) shall be limited to 12 feet. Page 10 of 11 PREPARED BY: H, ICP, PRINCIPAL PLANNER ZONING AND LAND DEVELOPMENT REVIEW ~ REVIEWED BY: JM ~ A Ufo HEIDI ASHTON-CICKO ASSISTANT COUNTY ATTORNEY , /.zolo~ DATE I-j{.,(\~ DATE RAY ND V. BELLOWS, ZONING MANAGER DEP 1\ TMENT OF ZONING AND LAND DEVELOPMENT REVIEW ~vn.~ /SUSAN M. ISTENES, AICP, DIRECTOR DEPARTMENT OF ZONING & LAND DEVELOPMENT REVIEW /l2e/o9 / riA TE APPROVED BY: Ilt-(. ~~ ~ /~t? . ATE "PH K. SCHMITT, ADMINISTRATOR MUNITY DEVELOPMENT & ENVIRONMENTAL RVICES DIVISION COLLIER COUNTY PLANNING COMMISSION: MARK P. STRAIN, CHAIRMAN DATE Attachment I: Elevation of Permitted Wall Sign A Attachment 2: Site Plan for the Fairfield Inn Tentatively scheduled for the March 24,2009 Board of County Commissioners Meeting. SV-2006-AR-10482 Page 11 of11 ------.----------- ______.,,_'~~"'.~~.=_,___.~.. .,.w..__~_.._.__._ f-' u.. d rn ;:: ,.: "' II W '" '" o o u.. w cr: <( :::0 o rn o w >< o en z o ~ > w -' W f- rn w s: I 9 o ". " 0 ~ N ~ 0 0 0 N 0 . ~ " C W . W Z ~ ~ " . ~ W ~ ~ . ~~ ~ ~Q~~ , .. ~ ~~ ~~~ "g A: ~~ YJ~~ ~~ it 1- " ." ~ . (j ~~ >< ~o: z .- w ~! e---- ~; ! . .J; " . - - , ~ .~ I t~ <( ., 0 - . ~li: OJ " l~ ~ ls~ @ ~, i "'- lL , , 0 ~i . 0 ~ '8 ~ i~ X 11 ;;: C- 0" E ~ -' .- - , '-' >:J'i .- 8, 0 2i~ '" II -' '-' >. :;- m '" ~ :2 -' ~ . 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I , I J]I'I j< &I! .hl" ~iilf!1 :hll I i E j B ~ i',1I r !r!~ ~ ~ ~ J RESOLUTION NO. 09-_~ A RESOLUTION OF THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA, RELATING TO PETITION NUMBER SV-2008-AR-13618, GRANTING THREE VARIANCES FROM SECTION 5.06.04.C OF THE LAND DEVELOPMENT CODE, CONCERNING A SECOND WALL SIGN FOR SPRING HILL SUITES AND A SHARED DIRECTIONAL SIGN FOR SPRING HILL SUITES AND FAIRFIELD INN, WHICH SIGNS ARE LOCATED AT 3798 WHITE LAKE BOULEVARD, LOT 16, CITY GATE COMMERCE CENTER, PHASE ONE, IN SECTION 35, TOWNSHIP 49 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA WHEREAS, the Legislature of the State of Florida in Chapter 125, Florida Statutes, has conferred on all counties in Florida the power to establish, coordinate and enforce zoning and such business regulations as are necessary for the protection of the public; and WHEREAS, the County pursuant thereto has adopted a Land Development Code (LDC) (Ordinance No_ 04-41, as amended) which establishes regulations for the zoning of particular geographic divisions of the County, among which is the granting of variances; and WHEREAS, CHM Naples Hotel Partners, LLC (Petitioner) is constructing a Spring Hill Suites hotel in close proximity to 1-75; and WHEREAS, Petitioner requests to be allowed to install a second wall sign on the south side elevation of its building which faces 1-75; and WHEREAS, the adjacent property to the north is owned by CHM Naples II Hotel Partners, LLC, upon whose property a Fairfield Inn hotel is to be constructed; and WHEREAS, Petitioner requests to construct a 12 foot high monument sign to be located at the street entrance to its property, and to allow the neighboring business, Fairfield Inn, to share the same sign, which would result in the sign being on-premises as to Spring Hill Suites and off-premises as to Fairfield Inn; and REV_ 1/22/09 Page 1 WHEREAS, the Board of Zoning Appeals has held a public hearing with due notice made, and all interested parties have been given opportunity to be beard by this Board in public meeting assembled, and the Board having considered the advisability of granting three sign variances as follows: I. A variance from Subsection 5.06.04.C.4. of the LDC which requires that one wall sign shall be permitted for each single-occupancy parcel, to allow two wall signs, and 2. A variance from Subsection 5.06.04.C.16.b.i. oftbe LDC wbich allows a maximum sign area of 12 square feet for an off-premise directional sign, to allow a 44", square- foot shared sign which shall be off-premise as to Fairfield Inn and on-premise as to Spring Hill Suites, and 3. A variance from Subsection 5.06.04.C.1 6.b.ii. of the LDC which allows a maximum sign height of 8 feet in height above the lowest center grade of the arterial roadway for an off-premise directional sign, to allow a maximum sign height of 12 feet for a shared sign which shall be off-premise as to Fairfield Inn and on-premise as to Spring Hill Suites, as shown on the sign drawings attached as Exhibit "A" and incorporated herein by reference, in the City Gate Commerce Park Planned Unit Development for the property described herein; and WHEREAS, the Board has found as a matter of fact that satisfactory provision and arrangement have been made concerning all applicable matters required by the Land Development Code. NOW, THEREFORE, BE lT RESOLVED BY THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA, that the Board hereby approves the afore-described REV_ 1/22/09 Page 2 ____'_"'A'w'.-"_"~..""".=__~_.._._..___.___._ variances from the LDC to allow the construction of a second wall sign and a shared directional hotel sign as depicted in Exhibit A, as requested in Petition SV-2008-AR-13618, filed by the Petitioner, CHM Naples Hotel Partners, LLC, d/b/a Spring Hill Suites, concerning the subject property described as: Lot 16 as described in the Plat of City Gate Commerce Center, Phase One, as recorded in Plat Book 41, Page 6 and 7, of the Public Records ofCoUier County, Florida, which parcel is located at 3798 White Lake Boulevard, in Section 35, Township 49 South, Range 26 East, Collier County, Florida. BE IT FURTHER RESOLVED that this Resolution relating to Petition Number SV- 2008-AR-136l8 be recorded in the minutes of this Board. This Resolution adopted after motion, second and majority vote, this day of ,2009. ATTEST: DWIGHT E. BROCK, CLERK BOARD OF ZONING APPEALS COLLIER COUNTY, FLORIDA By: _ --. --------- , Deputy Clerk By: DIANA FIALA, CHAIRMAN Approved as to form and legal sufficiency: \~(/,.1.. _0"\ -& "-' " Heidi Ashton-Cicko Assistant County Attorney 08-CPS-00883/18 REV. ] /22/09 Page 3 f-' LL d Ul ;:: o.i '" ~ " ill CJ ;:: o o LL W a: <( ::J o rJJ o ill X o III z o ;:: D- I ~ ,0 )~ l~ EXHIBIT A Page 1 of 3 o b " ~ >~ 8ill <:> ~~ ~ C)=' ~ il5g [;:; ~li:i @ ~~oz ~~"~ ~!~ !i;"'lllt- i5~~~ ~g:~ ~ -1:1 ~ ~ ~ ~:i5 ~~:\ ~: ,,-g ~j~ ........ .~ ~G; ~ & ~-~ ~~ ...... 0 ii ~>< " . ~. i! Ii j! . ~ ~ d ~~ K~ -~,s .~i . . 0' ~~ ;i ii '5 ~ Ii !! ~~ ~~ z< I <( o N @! LL o x i-- --' o o '" --' 0 >. " '" '" ~ ~ ~ --' . ~ 0 0 Q: a, --'- q: ro o _ .. t') '" 0 0 E ro . ro z .,. -" ;;: ..(0 00 . C rJJ W !::: ::J rJJ --' --' I Cl z a' .. D- O; rJJ E i:: o .~ Vi 'lQ o u u .3 --' LL rJi w --' D- <( Z ~ ~ ry I:.:,'~:ffff ,-..~-;.'". ~ ~ , 0 u " 0 z 90 w~ ~ re Ow ow Z wo ~ _e OW ~iii ~ o- w eN i ~g 0_ ~~ ~Qtil~ ~j~ ,,~ !:;t ~ ~ ,,- ~; ~~" ~~ ~ I~ .! I" : -- ~ x ~! ffi e'l I~h- ~f .<1;; , > =<'~ go;;: ji;,;; ii ..J ..J ~~ :x: g,~ Cl ~ ;- z III ii:: a. (f) J~ '" >< 0"> o/l ~ g :x: z" <( 0 N ~c:: ~ ~ ~ @ . .::;: u. ~ 0 . L '" >< CO 0"> 0 . 0"> .0 0 ~ 0; CO ..;. E CO . .... . Z " . C ;;: (f) o/l - ..J 0 U. ..J W (f) u: W ..J a:: a. <C <( u. Z c C . E 0 0 ~ ;; u , 0 0 ~ (0 ~ ;0 "? "' I I- ~ M I -j:,.I-- ~ M 9 N EXHIBIT A Page 2 of 3 ',,'~:i:~ 6, . ~~II i I! II!I '- 0... , :t= o i i ! d I . ! I I I . ~ ! . , . ~ w ~ = II ~ Ie- w = h "i ~I ~ . I . z II w ~ 0 -" ro S i ~ i . ~ I . ,'" T., ". . EXHIBIT A Page 3 of 3 1.1....lOiMIJ ''''""""'_~~.,,,,..,...,<,,----- BONITA MEDIA V. COLLIER COUNTY CASE DOCUMENTS CCPC,2j5j09 1. Plaintiff's Motion for Preliminary Injunction (9/24/07); 2. Defendant's Memorandum of law in Opposition to Plaintiff's Motion for Preliminary Injunction (10/26/07); 3. Opinion and Order (with Preliminary Injunction) (2/13/08); 4. Solantic v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005) ; 5. Metromedia v. City of San DieQo, 453 U.S. 490 (U.S. Sup. Ct. 1981) . ~~. 'l\ \ i' 'lL ~ ,",...,,- '\.. - ("Nf'\ UNITED STATES DIsT~1CcM~?rl L MIDDLE DISTRICT OF F~ORID~'1 ~: \ 1 FORT MYERS qWlS~ 4 \ BONITA MEDIA ENTERPRISES, LLC., a Florida Limited Liability Company, Plaintiff, Case No.: 2:07-cv-411-FtM-29DNF vs. COLLIER COUNTY CODE ENFORCEMENT BOARD COLLIER COUNTY, a Political Subdivision of the State of Florida, and the COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants, / PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND MEMORNDUM OF LAW IN SUPPORT / Plaintiff BONITA MEDIA ENTERPRISES, LLC, a Florida Limited Liability Company (hereafter referred to as "BME"), files its Motion for Preliminary Injunction against Defendants COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY, and COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS (hereafter collectively referred to as "the County"), and in support states as follows: I. STATEMENT OF FACTS' As stated in its verified Complaint, BME is a Florida Limited Liability Company organized and registered under the laws of the State of Florida. BME maintains its principal I BME's Statement of Facts is derived from BME's Verified Amended Complaint which is attached hereto as Composite Exhibit "A" with all exhibits. Also, an Affidavit of Jon McLeod, the manager of BME, is attached hereto as Composite Exhibit "B", A video, demonstrating the operation of the BME's signage is attached hereto as part of Jon McLeod's Affidavit as Exhibit "B-1" for the Court's reference. A copy of the transcript from the code enforcement proceeding is attached hereto as Composite Exhibit "e" without exhibits. place of Business in Lee County, Florida, and is engaged in the business of mobile signs in Collier County and other counties throughout Florida. At all times material to this lawsuit, BME owned and operated a mobile sign business and continues to operate the same. At all times material hereto, BME has actively engaged in the exercise of free expression and the exchange of truthful and valuable information concerning both noncommercial and commercial speech on its specially manufactured mobile sign vehicles in Collier County. BME's signs, and the change of copy on its signs, are in no way inimical to the health, safety, morals, or general welfare of the County or its residents. BME has engaged, and intends to continue to engage, in speech on its mobile sign vehicles in Collier County by conveying information about products and services available in Collier County; by promoting political, social or general welfare related ideas and causes; and identifying its business and that of other businesses located in Collier County and elsewhere. BME owns and operates its business on the public roadways of Florida, including, without limitation, the federal, state and local roadways within Collier County. BME owns no real property within Collier County, and relies upon signage to communicate messages important to its business, its customers, and to the general public. See BME's Verified Amended Complaint' 2, and ~ 9 through ] 2. In January 2007, Collier County Code Enforcement Investigator, Kitchell T. Snow, cited BME for alleged violations of the Sign Code. The notice was dated December 18,2006 and was for alleged violations occurring on December 14, 2006. The notice required BME to comply with the Sign Code on or before December 21, 2006. A copy of the December I 8, 2006 notice is attached to and incorporated into BME's Amended Complaint as Exhibit "A." The notice cited alleged violations of the Sign Code, sections 5.06.06 (V), 5.06.06 (W) and 5.06.06 (X), specifically. A copy of the Sign Code, including the relevant sections, is attached to and 2 incorporated into BME's Amended Complaint as Exhibit "B." See BME's Verified Amended Complaint 113 through 14. On or about May 24, 2007, the CCEB convened a public hearing and determined that BME was in violation of the above referenced sections of the Sign Code. CCEB entered an Order to that effect on June 4, 2007 (hereafter referred to as the "June Order"), which was received by BME on June 7, 2007. A copy of the June Order is attached to and incorporated into BME's Amended Complaint as Exhibit "c." See BME's Verified Amended Complaint 1 15. In its June Order, the CCEB ordered that BME be fined $1,000 for any sighting of future violations and assessed fees against BME by directing it to pay all operational costs incurred in the prosecution of the case. The CCEB also directed BME to immediately cease "displaying any sign within Collier County that employs motion, or the illusion of motion, or any sign mounted on vehicle be it roof, bed, hood, truck and so on where said sign is made to attract or distract the attention of motorists for the purpose of advertising a business, product, service or the like. . . whether or not said vehicle is parked or driven or any sign which constitutes a traffic hazard or detriment to traffic safety by is size, color, movement, content, coloring, or method of illumination." See BME's Verified Amended Complaint' 16; and Exhibit "c" to BME's Verified Amended Compliant. Although BME is currently in compliance with the June Order, its compliance is solely to avoid the imposition of additional fines. BME continues to have a desire to use its mobile sign vehicles without the restrictions imposed by the June Order. See BME's Verified Amended Complaint' 17. 3 Additionally, as discussed below, BME has a substantial likelihood that it will succeed on the merits of its First Amendment and Fourteenth Amendment Due Process2 claims. B. SUBSTANTIAL SUCCESS ON THE MERITS I. The Sign Code Is An Unconstitutional Content-Based Regulation of Protected Non-Commercial Speech. Whether a regulation directly or indirectly governing speech passes constitutional muster requires, fIrst, an analysis of whether the regulation is content-based or content-neutral. See Cafe Erotica of Florida. Inc. v. Sl. Johns County, 360 F.3d 1274, 1286-87 (11th Cir. 2004). A regulation which is content-neutral is one which regulates speech "without reference to the content of the regulated speech." See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). A regulation is content-based when it is triggered by thc substance of the speaker's message. See Hill v. Colorado, 530 U.S. 703, 767 (2000). This distinction is important because it determines the standard the court must employ when reviewing the constitutionality of the regulation. Under the First Amendment "reasonable" time, place, or manner regulations are permissible. To determine whether time, place, or manner regulations are reasonable, the Supreme Court employs a three-part test. The Supreme Court has held that: [T]he government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justitied without reference to the content of the regulated specch, that thcy are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information' Ward, 491 U.S. at 791 (citations omitted). 2 BME's Due Process claim is much like its First Amendment claim in that the Due Process claim serves as an additional impediment to BME's free speech rights. 5 ~,-..,...- ...." On the other hand, if a regulation "distinguishes . . . between permissible and impermissible signs at a particular location by reference to their content," it is content-based and potentially subject 10 more rigorous scrutiny. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516-17 (1981) (citation omitted); see also Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1259 (11th Cir. 2005); Cafe Erotica, 360 F.3d at 1287. Content-based restrictions of noncommercial speech must meet a strict scrutiny standard, see KA.V. v. City of St. Paul, 505 U.S. 377, 395, 112 S. Ct. 2538, 2550 (1992); Cafe Erotica, 360 F.3d at 1286-87, while content-based restrictions of commercial speech are reviewed under the less stringent "serve and directly advance" standard articulated in Central Hudson Gas & Elec. Corn. v. Public Servo Comm'n ofN.Y., 447 U.S. 557 (1980), see Cafe Erotica, 360 F.3d at 1285 n.14 (noting that restrictions on purely commercial speech are governed by Central Hudson). The Sign Code here applies to all signs in the County, not just commercial signs, and distinguishes between permissible and impermissible signs at a particular location by reference to content. (See Exhibit C.) Therefore, a strict-scrutiny, content-based analysis should be employed. See Solantic, 410 F.3d at 1268 n.l5 (finding that "[b]ecause the sign code does not regulate commercial speech as such, but rather applies without distinction to signs bearing commercial and noncommercial messages, the Central Hudson test has no application. . . ."). In the present case, Sections 5.06.05 (A) through (W) of the Sign Code set forth the signs that are exempted from regulation under the Sign Code. These exemptions clearly distinguish between signs at a particular location by reference to content.' For example, Section 5.06.05(0) exempts flags and insignia of government, religious, charitable, fraternal, and nonprofit organizations; Section 5.06.05(K) exempts government signs, including legal notices and 3 The County's Sign Code also favors certain speech based on particular speakers. Exemptions that favor certain speech based on the speaker are content based. So]antic. 410 F.3d at 1265,66. 6 railroad crossing signs, when erected by an appropriate governmental authority; and Section 5.06.05(A) exempts signs required by governmental order, rule or regulation. While governmental signs are exempt from regulation, the Sign Code subjects an individual or private organization, who wishes to post a sign identifying the office Or home, to limitations as to size and content of the sign, and the requirement to get a permit. Consequently, exemptions (K) and (A) would allow governmental signs that contain features such as moving parts or flashing lights, whereas nonexempt individuals are prohibited from using such signs. See S 5.06.06 (U) and (Y), Sign Code. In essence, all governmental authorities including the County may display an electronic variable message center sign without limitation and with any content matter it chooses, while those nonexempt may not. Exemptions (B), (F), (G), (H), (N) and (T) of Section 5.06.05 permit directional signs, "for sale" signs, "for rent" signs, "open house" signs, name and address signs on residences that are 2.25 acres or greater, and construction signs by contractors on private property to be posted freely with some exceptions as to size and location. Thus, a homeowner could post a sign reading, "For Sale" or "Open House" and bearing a flashing neon arrow pointing toward the property, but not a traditional yard sign-which is recognized as "a venerable means of communication" that "may have no practical substitute" City of Ladue v. GilIeo, 512 U.S. 43, 54,57 (1994); see also SoJantic. 410 F.3d at 1264. Most significantly, to express any political message a would-be speaker must comply with the sign code's permitting rules and all of its other restrictions. Thus, a sign espousing a viewpoint on a salient political issue - for example, "Reform Medicare," "Save Social Security," "Abolish the Death Penalty," or "Overturn Roe v. Wade" - would be subject to a permitting process while other signs such as those directional signs, "for sale" signs, "for rent" signs, "open 7 -"'-'--~----"'--"~""-" ..".-..--,,-----.----. house" signs, name and address signs and construction signs are exempt from such permitting restrictions. Accord Solantic. 410 F .3d at 1264-65. Exemption (0) exempts from regulation memorial plaques, cornerstones, historical tablets and similar types of commemorative signs when cut into any masonry surface. Exemption (P) permits advertising and identifying signs located on taxicabs, buses, trailers, trucks or vehicle bumpers, provided such signs are not otherwise prohibited by the Sign Code. Thus, identifying signs are permitted on such vehicles, but not signs reading "Support Your Local Public Schools" or "Support Your Local Police." Accord Solantic. 410 F.3d at 1265. Exemption (Q) excepts "[r]eligious displays that do not constitute advertising." Thus, a homeowner could display year-round, without a permit, a manger scene stretching across his entire front yard. The scene could even include all of the features off-limits to nonexempt signs, such as moving parts, flashing lights, music, and even smoke. However, at the same time, his neighbor could not freely display even a small, silent, stationary statue of the President, the Mayor, or any other secular figure. Nor could he put up, for example, an image of a soldier bearing the sign, "Support Our Troops" or "Bring Our Troops Home." Indeed, a simple sign, without the soldier figure would require a permit because of the nature of the message. Accord Solantic, 410 F.3d at 1265. Each of the above exemptions is a content-based regulation of speech. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514 (198]) (identifying religious symbols, commemorative historical plaques, time and temperature, and governmental messages as content-based speech); Solantic, 410 F.3d at 1264-66 (listing numerous examples of content- based provisions in the sign ordinance at issue there); King Enterprises. Inc. v. Thomas Township, 215 F. Supp. 2d 891, 911-12 (ED. Mich. 2002) (considering similar provisions in a 8 sign ordinance and finding them to be a content-based regulation of speech). Turning to the next step of the strict scrutiny standard, the County must show that the Sign Code is the least restrictive means to further a compelling governmental interest, see R.A.V., 505 U.S. at 395, and the County can make no such showing. Although safety and aesthetics are substantial governmental interests, see Cafe Erotica. 360 F.3d at 1291, they are not compelJing governmental interests sufficient to justifY a content-based restriction on protected speech, see Solantic, 410 F.3d at 1268 (recognizing that in this Circuit "aesthetics and traffic safety, , . interests are not sufficiently 'compelling' to sustain content-based restrictions on signs." (citations omitted)). Nonetheless, if this Court should find that the County's interests in aesthetics and traffic safety rise to the level of a compelJing interest, the County cannot show that the distinctions drawn in the ordinance are the least restrictive means to further any compelling governmental interest. Like in the City of Neptune Beach in Solantic, Collier County "recites those interests only at the highest order of abstraction, without ever explaining how they are served by the sign code's regulations generalJy, much less by its content-based exemptions from those regulations:'" See Solantic, 410 F.3d at 1267. As to aesthetics, it is not clear how a government-authorized sign reading, "Support Your Board of County Commissioners" or a religious sign rcading, "Support Your Church" or "God Loves You", degrades the County's aesthetic attractiveness any less than a yard sign reading, "Support Our Troops," Accord Solantic, 410 F.3d at 1268. There is no evidence the Sign Code is the least restrictive means to further this governmental interest, accordingly, the County has not carried its burden. 4 The Collier County Sign Code's preamble states: "The indiscriminate erection of signs degrades the aesthetic attractiveness of the natural and manmade attributes of [he community and thereby undermines the economic value oftounsm, visitation and permanent economic growth." 9 5.06.0], Sign Code. 9 As to traffic safety, the Sign Code states that "[i]ncreased numbers and sizes of signs, as well as certain types of lighting distract the attention of motorists and pedestrians, and interfere with traffic safety." S 5.06.01, Sign Code. The Sign Code therefore permits signs that are "[ d]esigned, constructed, installed and maintained in a manner which does not endanger public safety or unduly distract motorists." S 5.06.01, Sign Code. The Sign Code does not, however, explain how its regulation of signs enhances motorist safety or reduces motorist distractions. For example, it is not clear how a sign changing copy between time and temperature, which would be permissible as expressly exempted under Section 5.06.06 (U), or a sign changing copy between depictions of religious figures, which would be permissible under Section 5.06.05 (Q), is less distracting or less of a safety hazard on one hand, than the same sign changing copy between messages depicting a social or political nature on the other hand. Accord Solantic, 410 F. 3d at 1268. Even the particular sections of the Sign Code BME allegedly violated, Sections 5.06.06(U), (W) and (X), are subject to a strict scrutiny, content-based analysis since these prohibitions, like the exemptions discussed above, do not regulate commercial speech as such, but rather apply without distinction to signs bearing commercial and noncommercial messages. For instance, Section 5.06.06(U) prohibits signs that employ motion, have visible moving parts, or give the illusion of motion unless the content of the sign is time and temperature. Section 5.06.06 (W) expressly and specifically prohibits any sign that constitutes a "traffic hazard or detriment to traffic safety by reason of its. . . content." Accord Solantic, 410 F.3d at 1258-64. Section 5.06.06(X) prohibits signs "mounted" on a vehicle if said signs "advertise a business, product, service or the like." Accord id. Bccause the County's stated exemptions and prohibited 10 signs are content-based regulations of speech and are not narrowly tailored to serve a compelling goverrunent interest, the County's Sign Code cannot survive strict scrutiny. 2. The Sign Code Is An Untonstitutional Content-Based Regulation of BME's Protected Commercial Speeth. BME posits that the Sign Code regulates speech without regard to the commercial or noncommercial nature of the speech. Nevertheless, if the Court should find that the Sign Code must be evaluated under the commercial speech standard inasmuch as it regulates commercial speech, BME contends that the Sign Code's regulation of BME's commercial speech fails constitutional muster under the Central Hudson standard. The First Amendment protects commercial speech5 that is not misleading and concerns lawful activity. See. e.g., Metromedia, 453 U.S. at 507. The County has never complained that BME's speech is misleading or concerns unlawful activity, and BME avers in the Amended Complaint that its speech is neither misleading nor concerning unlawful activity. BME's Verified Amended Complaint, at ~ 10. To regulate lawful commercial speech the County must demonstrate that the restrictions serve and directly advance a substantial govemmental interest and reach no further than necessary to accomplish that goal. Central Hudson. 447 U.S. at 563-66; see also Edenfield v. Fane, 507 U.S. 761, 770 (1993) (explaining that the burden of justirying restrictions on commercial speech is carried by the person seeking to uphold the restriction); City of Cincinnati v. Discovery Network. Inc., 507 U.S. 4]0, 416 (1993) (finding that it is the goverrunent's burden to establish the "reasonable fit"). 5 Commercial speech is "expression related solely to the economic interests of the speaker and its audience" or "speech proposing a commercial transaction." Central Hud2Q!!. 447 U-S. at 561-62. ]] Given the alleged violations charged by the County,6 it appears that the County is focused on traffic safety when it seeks to ban BME's messages on its mobile signs.? The courts have consistently held that the goverrunent's interest in traffic safety is substantial, see Cafe Erotica, 360 F.3d at 1291, and thus, the County's justifications for the Sign Code likely satisfY that element of the Central Hudson standard. However, the Sign Code, and the County's attempt to prohibit BME's mobile signs, does not serve or directly advance the County's interest in traffic safety. The "directly advance" prong of the Central Hudson standard "involve( s] a consideration of the fit between the legislature's ends and the means chosen to accomplish those ends." United States v. Edge Broad. Co., 509 U.S. 418, 427-28 (1993) (quoting Posadas de Puerto Rico Assocs. V. Tourisme Co. of P. R., 478 U.S. 328, 341 (1986) (internal quotation marks omitted)). Unlike the standard employed under strict scrutiny, the fit between the restriction and the substantial interest the government seeks to advance need not be perfect, just reasonable. See Edge Broad., 509 U.S. at 429 (citations omitted). 'Traffic safety appears to be the County's focns because in its June 4.2007, Order, the County specifically seeks to prohibit BME from "displaying any sign within Collier County that employs motion, or the illusion of motion, or any sign mounted on vehicle be it roof, bed, hood, truck and so on where said sign is made to attract or distract the attention of motorists for the purpose of advertising a business, product, service or the like. . . whether or not said vehicle is parked or driven or any sign which constitutes a traffic hazard or detriment to traffic safety by is size, color, movement, content, coloring, or method of illumination" Further, Sections 5.06.06 (U), (W) and (X) expressly or implledly appear to seck to prohibit signs which may distract or are intended to attract motorists and/or may consthute a traffic hazard or detriment. 7 The County cannot claim that the provisions BME was cited for violating were enacted fot aesthetic purposes. There is simply no evidence that Sections 5.06.06(U), (W) or (X) were enacted to address aesthetic concems. As the Eleventh Circuit has stated: When all-inclusive statements ofpUIpose are used we are forced to Jook in the record for evidence of the interest underlying a measure. [O]ur review of the record confirms, an absence of any evidence that [the government] officials considered portable signs esthetically displeasing. We therefore decline to accept counsel's mere incantation of esthetics as a proper state purpose in evaluating the chailenged provisions. Dills v. City of Marietta, 674 F.2d 1377, 138] (11th Cir. 1982) (citing Trimble v. Gordon, 430 U.S. 762 (1977)). 12 Although a reasonable fit is sufficient, conclusory statements that do nothing more than reiterate the government's justification for the regulation do not satisfY this burden. See Edenfield. 507 U.S. at 773. The government must demonstrate the fit between the harms advanced and the regulation, and may do so through the use of studies, anecdotal evidence, or evidence that the plaintiffs own actions caused the harms purportedly addressed by the regulation. See id. at 771-773. See also Desert Outdoor Advertising. Inc. v. City of Moreno Valley, 103 FJd 814, 8]9 (9th Cir. 1996) (reversing swnmary judgment in favor of the city because the city did not provide evidence that the ordinance furthered substantial government interests); Sciarrino v. City of Key West, 83 F.3d 364, 368-69 (lith Cir. 1996) (finding that the government must present concrete evidence, such as studies and anecdotal evidence, that the regulation will have its intended effect). Moreover, the County has the burden of showing the harms recites are real and the regulation of commercial speech alleviates these real harms to a material degree. Edenfield, 507 U.S. at 770-71; see also Sciarrino. 83 F.3d at 368 (reiterating that "the party defending the regulation must present some concrete indication that the regulation will have the intended effect"). "[T]his requirement [is] critical; otherwise, 'a [governmental body] could with ease restrict commercial speech in the service of other objectives that could not themselves justifY a burden on commercial expression.'" Rubin v. Coors Brewing Co., 514 U.S. 476,487 (1995) (quoting Edenfield, 507 U.S. at 771). Assuming for purposes of argument only that BME's mobile signs qualify as merely adyertisin2 sips mounted on a mobile vehicle under Section 5.06.06(X),8 a point BME does , Section 5.06.06(X) prohibits, in part, "[s]igns mounted on a vehicle, be it the roof, hood, trunk. bed, and so on, where said sign is intended to attract or may distract the attention of motorists for the purnose of advertisioE a business. Droduct. service. or tbe like. whether or not said vehicle is parked, Or driven, excluding emergency 13 not concede, it is clear that the County has no evidence to support a finding that "advertisin2 messa2es" distract motorists or that such signs constitute a traffic hazard or detrintent, any more than non-advertising messages on the same sign. The same deficiencies exist in Section 5.06.06 (W), which prohibits "[a]ny sign which constitutes a traffic hazard, or detriment to traffic safety by reason of its size, location, movement, content, coloring, or method of illumination, or by obstructing or distracting the vision of drivers or pedestrians," (emphasis added) and Section 5.06.06(0), which prohibits the use of "[a]ny sign which employs motion, has visible moving parts, or gives the illusion of motion (excludinl! time and temperature)." (emphasis added.) There is simply no evidence to support a finding that the "content" of the purported advertising messages on BME's sign constitutes a "traffic hazard." And there is no evidence that time and temperature signs are any less of a traffic hazard than other signs that employ the same mechanisms to change its content. The County's speculation and conjecture about traffic safety here is simply not enough to carry its burden. 9 It is certainly true that the Supreme Court in Metromedia accepted the commonsense judgments of the goverrnnent about its reasons for regulating the location of commercial billboards. See Metromedia, 453 U.S. at 508-10. Content restrictions, however, do not lend themselves to the kind of commonsense conclusions about safety and aesthetics permitted in Metromedia. See North Olmsted Chamber of Commerce v. Citv of North Olmsted, 86 F. Supp. 2d 755, 772 (N.D. Ohio 2000) (recognizing and applying, in a commercial speech context, a vehicles, taxi cabs, and deUvery vehicles, where a roof mounted sign does not exceed two square feet." ~ 5.06.06(X), Sign Code. 9 Indeed, at the May 24, 2007 hearing before the Code Enforcement Board, when asked what the basis was for his conclusion in his Notice of Vi oJ at ion that a traffic hazard occurred as a result ofBME's change in sign CopY. Code Enforcement Investigator Snow was non~responsive and simply stated "Section 5.06,06 (W)." Sl:e Exhibit "C", p. 22, L. ] 3.25. When asked whether there would be a violation of Section 5.06.06 (V) ifthe BME's signs changed to show time and temperature, an exception Slated in that section of the Sign Code, lnvestigator Snow testified that there wonld be no violation. See Exhibit "C", p. 25, L. ] 6-2!. When asked how he concluded in his Notice of Violation that that the motorized public was anracted to BME's change in sign copY. he replied '"Again, 5.06.06 (W)." See Exhibit "C", p. 23, L. 1-4. The County is engaged in circular reasoning. 14 distinction between the regulation of a sign's size and the regulation of a sign's content). Surely, there is nothing inherent in the nature of commercial messages, as opposed to non-commercial messages on the same sign, that leads naturally to a conclusion that traffic safety is compromised. Therefore, this Court should not defer to unsubstantiated conclusions when content, not location or structural aspects of signs, is being regulated. Because the County's stated interest in traffic safety rests on speculation and conjecture and because the ban of such messages does not alleviate this unsubstantiated harm to a material degree, the Sign Code's regulation of BME's commercial speech fails to meet the Central Hudson standard. 3. The County Sign Code Is Unconstitutionally Overbroad and Void for Vagueness. An imprecise law may be attacked on its face under two different doctrines. First, "the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impennissible applications of the law are substantial when Judged in relation to the statute's plainly legitimate sweep.''' Citv of Chical!o v. Morales, 527 U.S. 41, 52 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973)). Second, a law "may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests." Id. (citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)). The Supreme Court has instructed that in a facial challenge on the grounds of overbreadth and vagueness of a law, a court's first task is to determine whether the law at issue reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, 15 assuming the challenged law implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. Village of Hoffman Estates v. Flipside, Hoffman Estates. Inc., 455 U.S. 489, 494-95 (1982). "A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself." United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cil. 2000). The general rule is that for a facial challenge to a legislative enactment to succeed, "the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). "The fact that [a legislative act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid. . . ." ld. a. The County Sif[n Code is Unconstitutional/v Overbroad With regard to the matter at hand, BME challenges the County Sign Code on the ground that it is overbroad. "An ordinance is unconstitutionally overbroad 'when lawmakers define the scope of a statute to reach both unprotected expression as well as, at least potentially, protected speech.''' Ward v. Countv of Orange, 217 F.3d 1350, 1355 (11th Cil. 2000) (quoting American Booksellers v. Webb, 919 F.2d 1493, 1502 (11th Cir. 1990)). The Supreme Court permits facial challenges based on overbreadth "in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionalJy protected." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30 (1992). The overbreadth doctrine is employed because "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." ld. A sign code, therefore, will be found facially invalid under the unconstitutional in a substantial proportion of cases." Ward, 217 F.3d at 1355 (quoting Agan v. Vaughn, 119F.3d ]538, 1542 (11th Cir. 1997)). As discussed in subsection B. I. above, the content-based exemptions to the Sign Code and applicable to the prohibitions set forth in section 5.06.06, renders the Sign Code unconstitutionally overbroadw See SoJantic, 410 F.3d at 126-66; see also Dimmitt v. Citv of Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993) ("Section 134.008(18) impermissibly distinguishes government flags from other flags; it operates unconstitutionally both in exempting government flags and in denying such an exemption to other flags. . . . Dimmitt therefore may attack the Clearwater ordinance upon the ground that it impermissibly restricts speech based upon its content, even though the statute has been applied to Dimmitt in a content neutral fashion. "). b. The County Sign Code is Unconstitutional/y Vague On Its Face and As-Applied to BME. A law is vague if it fails to afford a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Gravned v. City of Rockford, 408 U.S. 104, 108 (1972); accord Connal1v v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) (explaining the traditional test for whether a law is void on its face is if it is so vague that "persons of common intelligence must necessarily guess at its meaning and differ as to its application"). "The [vagueness] doctrine serves two central purposes (1) to provide fair notice of prohibitions, so that individuals may steer clear of unlawful conduct; and (2) to prevent 10 Jfthis Court finds that BME's speech is constitutionally prohibited, BME nonetheless asserts the speech rights of third parties whose interests are unconstitutionally affected by this Sign Code. See Metromedia. Inc, v. City of San Diego, 453 U.S. at 504 0.11; }lational Advertising Co. v. City of Fort Lauderdale, 934 F.2d 283, 285 (lith Cir. 1991). When noncommercial expressive speech is implicated, a litigant may mount a facial challenge without resorting to the overbreadth docrrrne. See National Endowment for the Arts v. Finley, 524 U.S. 569, 618 Il.J2 (1998) ("[T]he overbreadth doctrine does not apply to commercial speech,"). 17 arbitrary and discriminatory enforcement of laws." Mason v. Florida Bar, 208 F.3d 952, 959 (11th Cir. 2000) (citing Gravned v. City of Rockford, 408 U.S. 104, 108 (1972)); ~ also DA MortR.. Inc. v. City of Miarni Beach, 486 F.3d 1254, 1271 (11th Cir. 2007) (recognizing to succeed in proving an ordinance is vague, the plaintiff must "either show that the ordinance fails to give fair warning of what constitutes a wrongdoing or that the statute lacks objective enforcement standards."). Measures affecting First Amendment rights must be drafted with an even "greater degree of specificity." Smith v. Goguen, 415 U.S. 566, 573 (1974); accord Shamloo v. Mississippi State Bd. of Trustees oflnstitutions of Higber Learning, 620 F.2d 516, 523 (5th Cir. 1980)" ("The degree of specificity required in regulations affecting First Amendment rights is even greater."). "Condemned to the use of words," however, "we can never expect mathematical certainty from our language." Gravned v. Citv of Rockford, 408 U.S. 104, 110 (1972). In Citv of Chicago v. Morales, 527 U.S. 41, 55 (1999), the Supreme Court was faced with an ordinance banning gang members from loitering in public places after being ordered to disperse. Id. at 45-47. The ordinance defined loitering as "to remain in anyone place with no apparent purpose." Id. at 47 n.2. The Supreme Court found the ordinance to be facially vague in that it did not identifY with sufficient clarity the conduct or overt act so as to distinguish ilUJocent loitering from criminal loitering. :lit at 60. The Chicago ordinance also was unconstitutionally vague in that it did not provide specific limits on or adequate guidelines for enforcement, resulting in affording the officers with unbridled discretion in the enforcement of the ordinance. Jd. at 63-64. 11 The Eleventh Circuit, in an en bane decision, BOMer Y. City of Pritchard. 661 F.2d 1206. 1209 (lith Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prjor to October], 198]. 18 Here, BME argues section 5.06.06(X) is unconstitutionally vague in that it lacks both fair warning and objective standards. 12 Section 5.06.06(X) provides: Signs mounted on a vehicle, be it the roof, hood, trunk, bed, and so on, where said sign is intended to attract or may distract the attention of motorists for the purpose of advertising a business, product, service, or the like, whether or not said vehicle is parked, or driven, excluding emergency vehicles, taxi cabs, and delivery vehicles, where a roof mounted sign does not exceed two square feet. This section shall not apply to magnetic type signs affixed to or signs painted on a vehicle, provided said vehicle is used in the course of operation of a business, and which are not otherwise prohibited by this Code. It shall be considered unlawful to park a vehicle and/or trailer with signs painted, mounted or affixed, on site or sites other than that at which the firm, product, or service advertised on such signs is offered. S 5.06.06(X), Sign Code (emphasis added). In section 5.06.06(X) the prohibition against advertising signs "intended to attract or mav distract the attention of motorists" (emphasis added) is vague in that it provides no objective criteria from which the decisionmaker can determine whether the sign actually constitutes a hazard. Instead, section 5.06.06(X) leaves that determination to the subjective opinion of the decisionmaker, and thereby, affords the code officer unbridled discretion in his or her enforcement of this section of the Sign Code. As such it is void for vagueness. See Horton v. City of St. Augustine. 272 F.3d 1318, 1329-31 (11th Cir. 2001) (recognizing a void-for- vagueness challenge based on the failure of an ordinance to provide specific limits on and guidelines for enforcement discretion); Shamloo, 620 F.2d at 523-24 ("The regulation must not be designed so that different officials could attach different meaning to the words in an arbitrary and discriminatory manner"); see also Kolender v. Lawson. 461 U.S. 352 (1983) (noting that the most important aspect of the doctrine of void for vagueness is "not actual notice, but the other 12 "Although the Supreme Court has held the overbreadth doctrine inappropriate in commercial s.peech cases, the Court has not limited the reach of the vagueness doctrine in the same way. To the contrary. the Supreme Court has squarely entertained a vagueness challenge to an advertising restriction on pure commercial speech. See Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 339, 347 (1986)." Jacobs v. The Florida Bar, 50 FJd 901, 907 (I j th Cir. 1995) (footnotes omitted). 19 principal element of the doctrine - the requirement that a legislature establish minimal guidelines to govern law enforcement" . . . . Where the legislature fails to provide such minimal guidelines, a criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." (citations omitted) (internal quotation marks omitted)). Section 5.06.06(X) also fails to provide fair notice of what is prohibited. If there is no objective criteria to guide the code enforcement officer's discretion, the speaker cannot be on notice, let alone fair notice, of what constitutes prohibited speech. Moreover, this section's prohibition of signs "intended to attract or may distract the attention of motorists" is vague because signs by their very nature are intended to attract attention. Begging the question, what signs run afoul of this prohibition? Not only does the Sign Code fail to give fair notice as to what is prohibited, but it leaves persons of ordinary intelligence wondering what is permitted. The last sentence of Section 5.06.06(X) states: "It shall be considered unlawful to park a vehicle and/or trailer with signs painted, mounted or affixed, on site or sites other than that at which the firm, product, or service advertised on such signs is offered." S 5.06.06(X), Sign Code. In trying to divine when a vehicle with a mounted sign may lawfully park - since it may neither park "on site" nor on "sites other than at which the . . . product. . . advertised. . . is offered" - BME is genuinely at a loss. Section 5.06.06 (W), which prohibits" [a]ny sign which constitutes a traffic hazard, Or detriment to traffic safety by reason of its size, location, movement, content, coloring, or method of illumination, or by obstructing or distracting the vision of drivers or pedestrians" is impermissibly vague. S 5.06.06(W), Sign Code (emphasis added). By allowing enforcement based on content, an officer's enforcement discretion is unfettered and the door is wide open for 20 the discriminatory enforcement. Sham100, 620 F.2d at 523-524 ("The regulation must not be designed so that different officials could attach different meaning to the words in an arbitrary and discriminatory manner."). As the Sign Code is drafted, an officer could prohibit a sign carrying a message the enforcement officer dislikes under the guise of it being a traffic hazard, And the speaker would have neither advance nor fair notice of what content is prohibited. As discussed above, the degree of specificity required in regulations affecting First Amendment rights is even greater. See DA Mortg" Inc., 486 FJd at 1271. And as illustrated above Sections 5.06.06 (W) and (X) are void for vagueness on their face. For the same reasons sections 5.06.06 (W) and (X) are facially void for vagueness, so are they vague as applied to BME's mobile signs. And with regard to Section 5.06.06 (U), the restriction against use of "[a ]ny sign which employs motion, has visible moving parts, or gives the illusion of motion (excluding time and temperature)" is likewise vague and uncertain as applied to BME. The BME signs in question change the text from one sign to the next at controlled intervals. Such signs do not employ any motion to convey messages, as would a television, computer monitor, or electronic variable message center. The signs, once the copy is changed, do not in any way move, or give the illusion of movement. Also, with the exception of the change in copy, the terms "visible moving parts" is uncertain. It is not clear whether the change in copy is what constitutes visible moving parts, whether the moving parts comprise portions of the vehicle, or whether it is something else entirely. Additionally, the Sign Code is silent as to the County's seemingly arbitrary requirements that BME not change the copy on its signs within the County's geographic boundaries. In light 21 of this silence, BME could not possibly be on notice that change of copy within the County's boundaries is prohibited. II. CONCLUSION WHEREFORE, BME respectfully requests the Court grant its motion for preliminary injunction by enjoining the County, its agents and assigns, during the pendency of this action, from enforcing the Sign Code against BME, including the imposition of any fines against BME, and from taking any steps to enforce the June Order, including any liens the County may seek to impose against BME or its personal property. Respectfully submitted by: s/Richard S. Annunziata Richard S. Annunziata Florida Bar No. 0078212 Attorney for Plaintiff Bonita Media Enterprises, LLC BRENNAN, MANNA & DIAMOND, P.L. Bonita Beach Road, Suite 100 Bonita Springs, Florida 34134 Telephone: 239.992,6578 Fax: 239.992.9328 E-mail: rsannunziata@.bmdpI.com and HOLLAND & KNIGHT LLP Cynthia L. Hain Florida BarNo. 0061300 Amanda Reid Payne Florida Bar No. 0011638 50 North Laura Street, Suite 3900 Jacksonville, Florida 32202 Telephone: (904) 353-2000 Facsimile: (904) 358-1872 Email: fvnthia.Hain@hklaw.com Amanda.Pavne@hklaw.com 22 CERTIFICATE OF SERVICE I hereby certify that on September 24, 2007, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to counsel of record, I further certify that on September 24, 2007, a copy of this motion with all exhibits was sent via Hand Delivery to attorney for Defendants, Jennifer Belpedio, Office of the Collier County Attorney, 3301 Tamiami Trail E., Naples, Florida 341 12. s/Richard S. Annunziata 23 Case 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION BONITA MEDIA ENTERPRISES, LLC, a Florida Limited Liability Company, Plaintiff, vs. Case No.: 2:07-cv-411-FI.M-29DNF COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY. a Political Subdivision of the State of Florida, and the COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. / COLLIER COUNTY'S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION COMES NOW the COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY, a Political Subdivision of the State of Florida, and the COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS (collectively COLLIER COUNTY and hereinafter referred to as the "COUNTY"), by and through the undersigned attorney, and presents its Memorandum of Law in Opposition to the Plaintiff's Motion for Preliminary Injunction, and states: STATEMENT OF FACTS AND OF THE CASE The Plaintiff is a Florida Limited Liability Company, which became effective with its filing with the State on September 22, 2006. A copy of the relevant documents of record with the Division of Corporations is attached hereto as Exhibit "A." At the time the Plaintiff filed with the State, the Sign Code provisions of the Collier County Gase 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 2 of 20 Land Development Code ("LDC") were in existence, and in particular, Sections 5.06.06 (D), 5.06.06 (W) and 5.06.06 (X). Those sections alone were alleged as violations against the Plaintiff. The provisions of the Sign Code were and, at all times prior to and after the violation, published and readily available to the public. Therefore, it is reasonable to assume that the Plaintiff was or should have been aware that Collier County prohibited such motion signs on its roads prior to soliciting business to advertise in contravention of the Sign Code. As Plaintiff states in the first paragraph on page two (2) of its Motion, in part, its business involves the use of mobile signs to convey information about its customers' products and services available in Collier County. The Plaintiff owns no property in Collier County and is not conveying messages to advertise its own business. On December 14, 2006, the Plaintiffs mobile sign truck was observed operating in Collier County. The Plaintiff represents in Exhibit B-1 attached to its Motion that the sides of the truck flipped every 8 seconds changing the advertiser. The Plaintiff was cited for violations of the Sign Code, set forth above, and a citation was issued. On January 18, 2007, the Plaintiff was served with the Notice of Violation, and was given to February 20, 2007 to comply and cease the prohibited conduct. On March 15, 2007, the Plaintiff had not complied. See Transcript attached as Exhibit "c" to Plaintiffs Amended Complaint (Doc. # 8), page 4. On May 24, 2007, after notice and an opportunity to be heard, the Code Enforcement Board ("CEB") found the Plaintiff in violation of LDC Sections 5.06.06 (D), 5.06.06 (W) and 5.06.06 (X) and rendered Finding of Facts, Conclusions of Law and 2 " Case 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 3 of 20 Order of the Board ("Order") dated June 4, 2007, requiring the Plaintiff to cease the prohibited conduct or be fined $1,000.00 "per sighting." The Order did not prohibit the Plaintiff from operating its truck in Collier County but only prohibited it from utilizing the motion aspect of its advertising. See June 4, 2007, Order attached hereto as Exhibit "B." Thereafter, the Plaintiff filed a Notice of Administrative Appeal on June 25, 2007. A copy of that Notice is attached hereto and marked as Exhibit "C." On that same day, the Plaintiff filed its Complaint before this Court (Doc. # 1). On August 14, 2007, the Plaintiff filed its Amended Complaint herein, seeking declaratory relief and injunctive relief Doc. # 8). On September 24, 2007, the Plaintiff then filed its Motion for Preliminary Injunction. The County filed its Motion for Abstention or Stay on October 23, 2007 (Doc. # 27). At present, the Plaintiff still operates his truck in Collier County, but has allegedly ceased to utilize the motion aspect. 1 As to the County's Motion for Abstention (Doc. # 27), the County respectfully submits that consideration of the relief requested in that motion, as a threshold matter, would promote and advance the interests of judicial economy rather than first determining the issues raised by the Plaintiff's Motion for Preliminary Injunction. IThe tirneline set forth herein is instructive. The Plaintiff filed its original complaint on June 25, 2007. On August 14,2007, some fifty (50) days later, the Plaintiff filed its Amended Complaint (Doc. # 8) and then sent the Request for Waiver of Service to the County (Docs. # 9, 10, 11). Not until September 24, 2007, some forty-one (41) days after filing the Amended Complaint did Plaintiff file this Motion for Preliminary Injunction. Plaintiff did not seek a ruling or hearing on this Motion until requested in its Motion for Reconsideration filed on October 17,2007. Based on this timeline, it is reasonable to conclude that there is no real urgency to the Plaintiff's request for preliminary injunction. 3 Case 2:07 -cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 4 of 20 LAW In the Eleventh Circuit, the Issuance of a "preliminary injunction IS an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of [four] prerequisites." Suntrust Bank v. Houghton Mifflin Co., 252 F.3cd 1165, 1166 (11th Cir. 2(01), reh'g and reh'g en banc denied, 275 F.3d 58 (11th Cir. 2001); see also, Four Seasons Hotels & Resons, B. V. v. Consorcio Barr, SA, 320 F.3d 1205, 1210 (11th Cir. 2003). The four prerequisites required for issuance of a preliminary injunction are: (I) a substantial likelihood of succeeding on the merits; (2) a substantial threat of irreparable injury if relief is denied; (3) an injury that outweighs the opponent's potential injury if relief is not granted; and (4) an injunction would not harm or do disservice to the public interest. See Suntrust, supra, at 1166; Four Seasons, supra, at 1210; see also, Global Retail Enterprises, Inc. v. Personalized Products, LLC, 2006 U.S. Dist. LEXIS 55562 (M.D. Fla. August 10, 2(06).2 If the damages sought can be readily calculated, there is no threat of irreparable injury. Global Retail Enterprises, Inc., 2006 U.S. Dist. LEXIS at *3. In John S. Latour v. City of Fayetteville, 442 F.3d 1094 (8th Cir. 2006), a Certified Public Accountant ("CPA") challenged the City of Fayetteville's sign ordinance, which prohibited him from displaying a flashing or blinking electronic sign in his office window, as unconstitutional. The City of Fayetteville did not enforce that provision with respect to flashing signs that display only time and temperature. The United States Court 2 The County notes that the Plaintiffs Motion for Preliminary Injunction only addresses one of the four (4) prerequisites~ whether there is a substantial likelihood of prevailing on the merits. The Plaintiff apparently assumes that there is irreparable harm based on its civil rights allegations and ignores the other three (3) prerequisites altogether. 4 -n,' Case 2:07 -cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 5 of 20 of Appeals for the Eighth Circuit held that the time and temperature sign exemption allowed by the City of Fayetteville did not render the ordinance content-based but rather prohibiting flashing signs was content-neutral and upheld the ordinance. Latour, 442 F.3d at 1097. The Court further opined that the CPA had ample alternative channels to communicate his messages, including operating his electronic sign in a non-flashing manner. In Granite State Outdoor Adver., Inc. v. City of Fort Lauderdale, 194 Fed. Appx. 754, 2006 U.S. App. LEXIS 22817 (lI'h Cir. 2006), Granite State applied for sign permits and was summarily denied by the City of Fort Lauderdale because one specific section of its sign code prohibited all outdoor advertising. Granite State attacked the entire sign ordinance as unconstitutional and the District Court dismissed its complaint. On appeal, Granite State persisted in attacking the entire sign ordinance as unconstitutional and challenged the constitutionality of the sign ordinance facially and as applied. It attacked several provisions of the ordinance as granting unbridled discretion to city officials or as unconstitutional prior restraints based on a multitude of reasons including content. The District Court ruled that Granite City did not have standing to challenge any provision other than the provision that applied to its circumstance; and since the applied provision was content-neutral, it dismissed the complaint. On appeal, the Eleventh Circuit Court of Appeals affirmed holding that Granite State only had standing to challenge the provisions on which it could allege injury resulting from the Defendant's sign ordinance. Granite State, 2006 U.S. App. LEXIS 22817, at *10-12. Since the ordinance banned all outdoor advertising, the Court reasoned 5 :- Case 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 6 of 20 that the other challenged provisions of the code did not apply to Granite State; and therefore could not be challenged. The Court further opined that "In a challenge of a prior restraint on speech the plaintiff must establish that the challenged provision pertains to its activity, and not merely that it is 'subject to the law.''' Doe v. Pryor, 344 F.3d 1282, 1287 (11 th Cir. 2003). quoting, City of Lakewood v. Plain Dealer, 486 U.S. 750, 755-756. 108 S.C!. 2138, 2143 (1988). DISCUSSION The Plaintiffs Motion seeks the entry of a preliminary injunction against the County to prohibit it from enforcing the Sign Code against Plaintiff during the pendency of this action. Notably, the Plaintiff's Verified Amended Complaint goes even further by requesting that the court declare the Sign Code facially unconstitutional and enjoining the County from enforcing it against anyone. (Plaintiff's Verified Amended Complaint, pg. 1, 'II and prayer, Doc. # 8). As previously mentioned, the Plaintiff's Motion neglects to substantively address three (3) of the four (4) prerequisites for obtaining the extraordinary relief of a preliminary injunction. Rather than address those four (4) prerequisites, the Plaintiff only focuses on one- the likelihood of success on the merits; while contending that the County's entire Sign Code compels injunctive relief rather than those specific provisions of which it claims injury. In addition, the Plaintiff's memorandum of law merely restates the opinion set forth in Soltantic, UC v. City of Neptune Beach, 410 F.3d 1250 (11 th Cir. 2005). The Solantic case is distinguishable from the instant case in that So/antic sought to erect a large sign in front of its business, to advertise on its own behalf, in violation of several 6 .!f',; "" Case 2:07 -cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 7 of 20 provisions of the Neptune Beach sign code that required the Court to consider the entire code. In the case before this Court, the Plaintiff is prohibited from employing flipping (moving) signs on a truck whether parked or driven. Finally, the Plaintiff also makes arguments similar to those that were rejected in the Granite State Outdoor Adverrising, Inc., supra. 1. Likelihood of Success The Plaintiff relies on So/antic, supra, in claiming that the entire County ordinance is unconstitutional, arguing it is content-based, and therefore discriminates and is a prior restraint on speech. The Plaintiff further argues that it was not given due process. After the issuance and actual service of the Notice of Violation to Plaintiff's attorney, the Plaintiff was given a full evidentiary hearing bcfore the CEB. At the hearing the Plaintiff was represented by the same attorney representing it in these proceedings, who presented evidence and argument to the CEB. The Plaintiff claims the Sign Code did not give fair warning as to what was prohibited. Section 5.06.06 (D) states: (in reference to prohibited signs): "Any sign which employs motion, has visible moving parts, or gives the illusion of motion (excluding time and temperature signs)." This section is quite clear and would apparently apply to the Plamtiff's flipping signs on its truck. The County submits due process was given to Plaintiff, and that the Ordinance gave sufficient advanced waming not to employ these types of motion signs. Applying the law from the Eleventh Circuit in Granite State, supra, it would also appear that the Plaintiff does not have standing to challenge the entire County Sign Code. 7 Case 2:07 -cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 8 of 20 According to the Granite State ruling, the Plaintiff can only challenge those Sign Code provisions applied to it, and those provisions are patently content-neutral. It does not matter what the sign says, if it moves or has moving parts, it is prohibited. It also does not matter what the Sign Code states as to political signs, signs on premises or other types of signs regulated by the ordinance, as these provisions were not applied to the Plaintiff. Indeed, the Plaintiff emphasizes that it is not a land or property owner in Collier County such that he would even be subject to any fixed sign regulations. In addition, it has been held on the Circuit Court of Appeal level, that time and temperature signs can be exempted without causing sign ordinances to be unconstitutional. See eg., Latour, supra. Based on the foregoing, it is the County's position that the Plaintiffs likelihood of success on the merits is remote, when viewed against the Sign Code sections actually appliedtoil. 2. Substantial Threat of Irreparable Injury if Relief is not Granted The Plaintiffs Motion is devoid of any discussion of irreparable injury. Although the Plaintiff does not discuss money damages, the question of damages is germane in considering whether the issuance of a preliminary injunction is appropriate. The Plaintiff in this case sells advertising, and the speech it wishes to protect through its allegations is that of its customers. The Plaintiff is not prohibited from driving its truck through Collier County with non-moving advertising signs on the sides and rear. If the Plaintiff elects not to do business that way, for purposes of argument only, it might assert a claim for lost revenue resulting from not being able to advertise for multiple customers. Such revenue, however, is quantitative and presumably an exact measure of damages could be 8 Case 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 9 of 20 calculated. As this Court stated in Global Retail Enterprises, Inc., supra, a substantial threat of irreparahle harm is not established because damages can be readily calculable. Id. at *3. 3. Plaintiff's Alleged Ininrv Does Not Outweigh the Countv's Potential Iniurv The Plaintiff's Motion also fails to address the prerequisite showing of whether its alleged injury outweighs the County's potential injury if relief is not granted. The Plaintiff alleges an infringement of its free speech rights. However, its speech is not allegedly being affected but rather that of its customers. In any event, damages can be assessed for that alleged harm if it is determined that the County is liable. If the preliminary injunction is issued, however, then the County will not be able to enforce its Sign Code, which will potentially affect thousands of persons who presently abide by it, as well as, all future persons who wish to display a sign anywhere in the County and the residents and visitors of Collier County who rely upon enforcement of the Sign Code. The magnitude of potential injury to the County far outweighs that of the Plaintiff under the facts of this case. 4. Harm to the Public Interest The Plaintiff also fails to discuss in its Motion whether the entry of a preliminary injunction would do harm or disservice to the public interest. The Sign Code was promulgated in the public interest by the elccted representatives of the community. The specific sections applied to the Plaintiff mention traffic safety; indeed, the Plaintiff relies on that fact in its Motion (footnote 6, page 12 of its Motion, Doc. # 12). If the injunction is issued and the County is prohibited from enforcing its Sign Code, the number of 9 Case 2:07 -cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 10 of 20 persons affected and the potential that any type of sign could intrude upon the County's roadways is unthinkable. The potential harm to the public interest resulting from such lack of regulation is great. The public interest in having regulation through code enforcement is extremely important and, to the extent that the Plaintiff wishes to raise constitutional issues, those issues can be addressed in the appeal from the CEB's Order to the Circuit Court; which appeal is pending and undetermined. See Robinson v. Ciry of Tampa, 982 F.Supp. 1465 (M.D. Fla. 1997). The County submits that entering a preliminary injunction would do harm or disservice to the public interest. CONCLUSION Based upon the foregoing discussion, the County contends that the Plaintiff did not sustain its burden in proving the four (4) prerequisites needed for this Court to issue a preliminary injunction. Therefore, the County requests that this Court deny the Plaintiffs Motion for Preliminary Injunction. Respectfully submitted, COLLTER COUNTY ATTORNEY'S OFFICE By /S/ Scott R, Teach SCOTT R. TEACH ESQ. Managing Assistant County Attorney Florida Bar No.: 996874 Harmon Turncr Bldg. - 8th Floor 3301 Tamiarni Trail East Naples, Florida 34112 Tclephone (239) 774-8400 Facsimile (239) 774-0225 JO Case 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 11 of 20 CERTIFlCA TE OF SERVICE The undersigned attorney hereby certified that he served the above and foregoing Response and Memorandum of Law to Plaintiff's Motion for Preliminary Injunction, electronically by filing it with the Court upon Richard S. Annunziata, Esq. of Brennan, Manna & Diamond, P.L., 3301 Bonita Beach Road, Suite 100, Bonita Springs, FL 34134 and Cynthia L. Hain of Holland & Knight LLP, 50 N. Laura St., Jacksonville, FL 32202 on this.:l~ day of October, 2007. ISI Scott R. Teach SCOTT R. TEACH, ESQ. Managing Assistant County Attorney Florida Bar No.: 996874 11 WWW~~~~~OO?:cB~8e~ff-~~l1\%'f:: Document 28 Filed 10/26/2007 Page 12~d of2 Home Contact Us E-Filing Services Document Searches Forms H Prell[QY'Ulnl.[st N!t)(tPn !"jsl RetJlrn Tgj"ist 1___ . __~_____--1 No Events No Name History Detail by Entity Name Florida Limited Liability Company BONITA MEDIA ENTERPRISES, LLC Filing Information Document Number L06000093088 FEI Number 841719879 Date Filed 09/22/2006 Slate FL Status ACTIVE Effective Date 09/22/2006 Principal Address 27499 RIVERVIEW CTA BLVD SUITE 229 BONITA SPRINGS FL 34134 Changed 04/19/2007 Mailing Address 27499 RIVERVIEW CTR BLVD SUITE 229 BONITA SPRINGS FL 34134 Changed 04/19/2007 Registered Agent Name & Address BRENNAN, MANNA & DIAMOND, PL. 3301 BONITA BEACH ROAD SUITE 202 BONITA SPRINGS FL 34134 US Manager/Member Detail Name & Address Title MGRM MCLEOD, JON 17501 STEPPING STONE DRIVE FORT MYERS FL 33967 EXHIBIT I IIA'I kH_. JJ,~".C~",....... .-l....~~._h....... +1 ,.'" l",,,"":~.~~ 1",,,-~A'=""_~'Cr,{)"rd~L.=._I\"C'T'L'TI. .Qtl""n ._JI,.....~ numhPrc--JI16nn lIl/1Q/7()()7 www.sunhiz.org - Department of State Page 2 of 2 t . ,"':_. wwwcMggi2i(J1l-ct?-mrtrl~9~-tJfl,JF I Document 28 Filed 10/26/2007 Annual Reports Report Year Filed Date 2007 04/19/2007 Document Images 04/19/2007 -- ANNUAL REPORT 09/22/2006 -- Florid;; ~imited Liability I Note: This is not official record. See documents if question or conflict. -.-.......-----.. _...... _.......- ---...-' . elJ!'lioY!;J;>ILL~.t Next on l,lst R~t!.lm IQ. List L__.._ ..T______J No Events -.. No Name History Home Contact us Document Searches E-Filing Services Forms Help Copyright and Privacy Policies Copyright (f) 2007 State of Florida, Department of State. Page 13 bY121t of 2 http://ccfcorp.dos .state.fl. us/scripts/cordet.exe?action=DETFlL&inq.._doc_number=L0600... 10/19/2007 Case 2:07-cv-00411-JES-DNF Document 28 Electronic Articles of Organization For Florida Limited Liability Company Article I The name ofthe Limited Liability Company is: BONITA MEDIA ENTERPRISES, LLC 4 of 20 L06000093088 FILED 8:00 AM September 22, 2006 Sec. Of State gharvey Article II The street address of the principal office of the Limited Liability Company is: 17501 STEPPING STONE DRIVE FORT MYERS, FL. 33912 The mailing address of the Limited Liability Company is: 17501 STEPPING STONE DRIVE FORT MYERS, FL. 33912 Article III The purpose for which this Limited Liability Company is orgamzed is: ANY AND ALL LAWFUL BUSINESS. Article IV The name and Florida street address of the registered agent is: BRENNAN, MANNA & DIAMOND, PL. 3301 BONITA BEACH ROAD SUITE 202 BONITA SPRINGS, FL 34134 Having been named as registered agent and to accept service of process for the above stated limited liability company at the place designated in this certificate, I hereby accept the appointment as registered agent and agree to act in this capacity. I further agree to comply with the provisions of all statutes relating to the proper and complete performance of my duties, and I am familiar with and accept the obligations of my position as registered agent Registered Agent Signature: RICHARD S. ANNUNZIATA, ESQ. Case 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 15 of 20 Article V 'lbe name and address of managing members/managers are: Title MGRM JON MCLEOD 17501 STEPPING STONE DRIVE FORT MYERS, 1'1" 33912 Article VI The effi ctive date for thIS Limited Liability Company shall be: 09/2 12006 Signa member or an authorized representative of a member Signature: RICHARD S. ANNUNZIATA, ESQ. ~ll~ L06000093088 FILED 8:00 AM September 22, 2006 Sec. Of State gharvey 2007 Ul,.,~[-mEm.'lrv..\S~IllAN)DA'NI'rmrA~iRE~ 0/26/2007 Fll:m 16 of 20 , Apr 19, 2007 DOCUMENT# L06000093088 Secretary of State Entity Name: BONITA MEDIA ENTERPRISES, LLC Current Principal Place of Business: New Principal Place of Business: 17501 STEPPING STONE DRIVE FORT MYERS, FL 33912 27499 RIVERVIEW CTR BLVD SUITE 229 BONITA SPRINGS, FL 34134 Current Mailing Address: New Mailing Address: 17501 STEPPING STONE DRIVE FORT MYERS, FL 33912 27499 RIVERVIEW CTR BLVD SUITE 229 BONITA SPRINGS, FL 34134 FEI Number: 84.1719819 FEI Number Applied For ( ) FE! Number Not Applicable ( ) Certlfic~te of Status Des.lred ( ) Name and Address of Current Registered Agent: Name and Address of New Registered Agent: BRENNAN, MANNA & DIAMOND, PL. 3301 BONITA BEACH ROAD SUITE 202 BONITA SPRINGS, FL 34134 US The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both, in the State of Florida. SIGNATURE Electronic Signature of Registered Agent MANAGING MEMBERSlMANAGERS~ Date AODITIONSlCHANGES: TItle: Name: Address: City~SI~Zip: MGRM ( ) Delete MCLEOD, JON 17501 STEPPING STONE DRIVE FORT MYERS, Fl 33912 Tille. Name. Address: Cily~St~Zip: MGRM (X) Change ( ) Addition MCLEOD, JON 17501 STEPPING STONE DRIVE FORT MYERS, Fl 33967 I hereby certffy that the information supplied with this filing does not qualify for the for the exemption stated in Chapter 119, Florida Statutes. I further certify that the information indicated on this report is true and accurate and that my electronic signature shall have the same legal effect as if made under oath; that I am a managing member or manager of the limited liability company or the receiver or trustee empowered to execute this report as reqUired by Chapter 608, Florida Statutes. SIGNATURE: JON MCLEOD MGRM 04/19/2007 Electronic Signature of Signing Managing Member, Manager, or Authorized Representative I Date , . "~', Case 207 -cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 17 of 20 R,tn: BIIOISA KAlIU COLLIlR ccum COOl mOReR 1800 I HORSISHOI 08 IAlLIS lL 3l101 4030299 OR: 4241 PG: 2452 R1CORDIO in th, omOrAL IICOROS of COLLm COUITl, Oi/01/1001 at OI:lOPK OiIGBll. BROCK, CLm R1C1ii !L 1i.\0 CODE ENFORCEMENT BOARD COLLIER COUNTY, FLORIDA BOARD OF COUNTV COMMISSIONERS. COLLIER COUNTY. FLORIDA, Petitioner. CEB NO. 1007-35 vs. BONITA MEDIA ENTERPRISES. LLC, BRENNAN, MANNA & DIAMOND, (Reg. Agent) Respondents FINDINGS OF FACT CONCLUSIONS OF LA W AND ORDER OF THE BOARD TH1S CAUSE came on for public hearing before the Board on May 24, 2007, and the Board, having heard teslimony under oath. received evidence, and heard respective to ~II appropriate malters, thereupon issues its Findings of Fact, Conclusions of Law, and Order of the Board. as follows: FINDINGS OF FACT I. ThaI MMB OF SOUTHWEST FLORIDA, LLC AND BONITA MEDIA ENTERPRISES. LLC. BRENNAN, MANNA & DIAMOND, (Reg. Agent) are the owners o{t.he subjcct business. MMB OF SOUTHWEST FLORJDA is no longer in existence. 2. That lhe Code Enforcement Board has jurisdiction of the person of the Respondents and mat th~ R~spondents. having been duly notified, appeared at the public nearing in person and by counsel. 3. That the Respondents were notified oflhe date of hearing by certified mail and by posling. 4. That the real property located at irinerant or transient in nature, is in violation of Collier CounlY Ordinance County Ordinance 04-41, the Land Development Code, as amended, sections 5.06.06(U), S.06.06(W) and 5.06.06{X) in the following particulars: Vehicle with moving/changing sign copy_ ORDER OF THE BOARD Based upon the foregoing Findings of Face and Conclusions of Law, and 10 Ihe authority granted in Chapler 162, Florida Statutes:. and Collier Counry Ordinance No. 04-41. it is hereby ORDERED: That [he violations of Collier Counl)' Ordinance 04-41, the Land Developmen[ Code. as amended, sections 5.06.06(U). 5.06.06(W) and 5.06.06(X) be corrected in the following manner: ";'.. L By ceasing immediately displaying of any sign within Collier County thai employs motioI.. 'ortl1e illusion of motion, or any sign mounted on vehicle be it roof, bed, hood, truck a.nd so on where said ,iign is m1tde in . anracl or distract [he artention of motorists for tne purpose of advertising a business, product. service or the like EXHIBIT I 1\ B" Case 2:07-cv-00411-JES-DNF Document 28 Filed 10/26/2007 Page 18 of 20 *** OR: 4241 PG: 2453 t*t anTaCI or distract the attention of motorists fOT the purpose: of advertising a business, product, service or the like whether or not said vehicle is parked or driven or any sign which constirutes a traffic hazard or detriment to traffic safety by its size. coJor, movement. content, coloring, Dr method of illumination. The Respondent agreed to stop Ihe motion of fhe sign inunediatcly. 2. That if the RespondenlS do not comply with paragraph I orlhe Order of the Board, then there will be a fine of 5 1,000 per sighting. 3. Thai the Respondents are ordered to pay all operational costs incurred in the prosecution of this Case. Any aggrieved party may appeal a final order of the Board to the Circuit Court within thirty (30) days of lhe execution of [he Order appealed. An appeal shall not be a hearing de novo, bUl shall be limited to appellate review of the record created within. Filing an Appeal shall not stay the Board's Order. DONE AND ORDERED this 1l It day of I! , 2007 at Colli" County, Florida. ~ CODE ENFORCEMENT BOARD COLLlER COUNTY, FLORlDA BY: ..JL. /3......;tr Sheri Barnett, Chair 2800 North Horseshoe Drive Naples, Florida 34104 STATE OF FLORIDA ) )SS: COUNTY OF COLLlER) The foregoing initnlmenl was acknowledged before me thi5~day of ~.tiL . 2gp;.x by Sheri Barnett, Chair of the Co~ Enforcement Board of Collier County, florida, who is ~ personally known to me or ~ who has produced a Florida Driver's License as identification. ~ CtRmIALUAIANOWSJQ W. :o.i M'f~SI(JUOO2417l7 , . EXPIRES:_22.= ,8l:rGd1'lllu/rlcwyfUllt~ C' h\'rlti.~,~~ NOTARY PUBLlC My commission expires: CERTIFICATE OF SERVICE J HEREBY CERTIFY that II. true and correct copy of this ORDER has been sent by U. S. Mail to U. s. Maillo BONITA MEDIA ENTERPRlSES, LLC. 17501 Slepping Slone Drive, Ft. Myers, FL 33912 and BRENNAN, MANNA & DIAMOND, (Reg. Agent), 3301 Bonita Beach Road, Ste. 202. Bonita Springs, FL 34134Ihis~ayof... \.. ,,~ ,2007. .....~ BY. j\1J" L\6 I tIer ~ o.a. or stata or FLORIDA -'."'''''" ::aunt)' of COWEll I HEREBY CERTlP/'~ATthiSlsatJue.. correct copy ot a oocumeAt-on:Jlle Ih 30ard Minules.llnd Ril!:cms of~1II8r-counl) ~ESS my ~nD'ano official seal 1.1115 day 01 ~." :",~-:r . c' I)WIGHT E. BRO'-K, eLmK OF G(jum .c. Bt' 'f;. Case 207 -cv-00411-JES-DNF Document 28 JUN-~9"~o01(F~J) 1~,22 Brenn.n. Mann. . 01uond. PL . <. Filed 10/26/2007 Page 1p'Jan~fJl~ (fRX)~39 gg~ 93~B '.' 0.1,_/ ,~;.. ."i:,l.... -.c, VcD -.. -,. 'Y'!lrf' ~.7 1.'1 ~ :5 CODe ENFORCEMENT BOARD COLLlER.COUNTY FLORi'filvL~/ 25 P,'1 4: . . (.'. 51. Ltl~:f O. COUlns' Appeal No..: .8Y_ --o.c, LT. No. CEB No.: 2007-35 . BONITA MEDlA ENTERPRISES. LLC. BRENNAN. MANNA &. DIAMOND (REG. AGENT), Respondent/Appellant v. BOARD OF COUNTY COMMISSIONERS. COLLIER COUN1Y. FLORIDA, Pe1illcnerlAppel11l8 I -, 'I NOTICE OF ADMINSITRATIVE APPEAL' a. CE IS GIVEN !hat BOI\IITA MEOlA ENTERPRISES. LLC; Appellllnt, ap to.the CII'I:uit.Cow\l iJ:l and for1ha TWIlnlieth J~ CiJpull llfCollillt County the 0 CJf Ills CGIilt Enbe&lr1eI1t BeanI ClD&r CIlum,. Florida tendltred ill! JUrle 4, . 2007. ..fonilad.... of whldI_ aU8chad.Mmo in acton:lllllCe. wIlh F1aRApp.P. 9.110{d} and 9.13D(c). The n!ItUre ofthl!! Olll$r is a lInal Order of the Coda Enl'orclIment !lOR1!l for CoUiIll' county agalllst lJanita MedilI E:nt.erpfises, LLC. BRENNAN, MANNA & DIAMOND, P.L AltolTlllYs for Defendant 3301 Bonlla Beach Rd.. Suit& 100 Bonita FL EXHIBIT I II C II ';~,.ii~fl;;'~ Case 2:07 -cv-00411-JES-DNF Document 28 JUH-,9-'OOT(FRl) 1':" 6rennan. Manna I Dla..n~. PL Filed 10/26/2007 (FRX1Z39 99' 9,'S Page 20 of 20 P. 006/01~ . " CER11FICATE OF SERVICE' I HER~Y CERTIFY 1haf a Iru8 and correct copy of 1I1e .BIlow and foregoing ha!; been furnished to the following: Jean Rawson, Esq. (AtIorney for Code Enfllrcement Board) 400 Fifth Avenue 6., Suite 300 . Naplss, FL 34102 JIll'f'I(Jatzkow, Esq. (Attorney for Collier County and Board of County COinmissi_, Roricl8) 33Q1 Tah1famiTIWI, E., Sldg. F Na~, FL 34112 She/fBamett CClnIirWoman for Board) Code Eni'on:ement Board Collier County, Rorida 2!1Oll N. HolMSlloe Drive Naples, FL 34-104 Mlthe1/e AmoId (Code EntblClllll8nt Dilelllor) 2tJItlo N. Hgill'j ~0ri\Ie . . Naples. FL 3ifl04 . Beiu(l'i,.,.;liu (Code Ei1forc:8m8l1t Oper.a1ioRs i:::oaminaiDr) 2IllJlI N. HllIMShl/tl Drive . N8pIes, FL 34104 by rwgu"'lJ.5.. Mall tfW 20- day at June, 2OfJl. BRENNAN, MANNA & O/AMOND. P.L A\toFne'J$ for Defendants 33D1 6On1l8 Beach Rd.. SuilB 100 Bonila . 5, FL "1~ Case 2:07 -cv-00411-JES-DNF Document 45 Filed 02/1Ji200il Page 1 of 22 UNITED STATES DISTRICT COURT MIDDL~ DISTRICT OF ~LORIDA FORT MY~RS DIVISION BONITA MEDIA ENTERPRISE,;, LtC, Plaintiff, V<. 0. Ca.se No. 2:07-cv-4Il-FtM-29DNF COLLIER COUNTY CODE ENFORC~MENT BOARD, COLLIER COIJNTY, a politici] subdivision of the SLate of Florida, COLLIER COUNTY BOARD DE' COUNTY COMMISSIONERS, Defendants. OPINION AND ORDER This matter comes before tt1e Court on PIai,nLiff's Motion for Preliminary Injunction (Doc. 1112), filed on September 24, 2007. Defendants filed 3 Memorandum of Law in CJppositlon (Doc. 1128) to the motion on October 26, 2007. The (~ourt heard nrQl. arguments on ,January 8, 2008. v..lith t~hc Court'.s pennis~)i()n, plaintiff filed Plaintiff's Supplemental BLic:f on ,;tanding (Doc. 1144) on January 11, 2008. 1. Plaintiff Bonita Media Enter[lrises, TJLC (plaintiff or Bonita Media) owns and operates a mabi 1.e 51g0 hllsi.fless which sell,s adVf,;rtising on E;p(-,:,cially rnanufaf:tur8d vehic.les driven on the .::itreet.:-; and highwClY3 of Coilier County Clnd other counties 10 Case 2:0'f-cv..004'11-JES-DNF Document .1:5 Filecl 02/13/2008 Page 2 of 22 Souttlwcst Florida. The vehicles cue essentially largE: vans with billboards on IJoth sides and ~he rear; the billboards corlslsL of trianqlllar vertical panels which rotate every eight secoIlds, thus displRying a different image. Plaintiff asserts that the advertising has includE::d both nonc omrnercial and commercial speech, and it intends both types of speEch 1n the future. In a December 18, 2006, Collipr County Code Enforcement Notice of Violation, plaintiff was informed that on December 14, 2006, Investigator Kitchell T. SrlOW obs(!rved i_t~; "vehicle wittl moving sign copy that changed approximc.ltely every 30 to 40 seconds advertising business, creaL:inC] d Lr6.fJ."ic: hazard through the attraction atld/or distraction t.O the motorized public. 'l'his j s contrary to the Collier County L~nd DevcloI)ment Code and must be brought into compJ.j,arlce with currE~rlt code." (Doc. #8-2, Exh. A.) The Not.ice of Violation ad'vised pL--iintiff that it Plust, on or before December 21, 2006, "cease displayirlg any sign that employs movement or motia:'l or that 9ivc:; U1C illll:;ion of motion, whether said vehicle i::.; Ln operation or- sLaLi.onary within the unincorporated area of Collier CC)unty. Cease all future l,,13e of signs that do not comply with the Collier County Land Development Code." (Id.) Plairltiif fai.led Lo cornply, arId the Notice of Violation was scheduled to be heRrd by the Collie; CounLy Code Enforcement Board (CES). Plaintiff's ettorney filed " Memorandum of Respollse for the CEB's (~onsideration, r~ising First Aroendmerlt- isslles, among others. -) -- Case 2:07 -cv-00411-JES-DNF Document 45 Fllecl 02/13/2008 Page 3 of 22 ^ hearing bpfore the CEB was held on Mi:lY 24, 2007, at w:hich plaintiff and its attorney participated. Tn a June 4, 2007 written Findings 01: I'-acts, Conclusions of Law and Order of the Board (Doc. #8-4, Exh. C), the CEB found plaintiff to be in violation of Sections 5.06(U), 5.06.06(W), and 5.06.06 (X), ordered plaintiff to immed.Lately cease "displaying of any sign within Collier Count.y th~tt_ employs motion, or the illusion 0[- mot.ion, or any slgn mounted 011 vehicle be it roof, bed, hood, trllck and so 011 where the sign ic made t.O attract or distract the attention of motorists for the purpose of advertising a business, product, service or ttle Ii, kef at.tract or {listracL the attentiorl of motorists for thE': purposE:; of advcrti~:;inq a b1J.,=-;iness, product, serVlre or the like whether or llot said vehicl(~ 15 parked or driven or any slgn which c::onstitutes a traffic hazard or detriment to traffic safety hy its size, color, movement, content, coloring, or method of illuminatioIl." (Doc. #[3-4, Exh. C.) It p1ainhff did not cornpIy, the CES's Order irnpospd a fine of .:?1,000 per sighting. Plaintiff was aIsc) ordered to pay all operaL.iona.1 c:osts j.ncurrcd in the CER proseclltion. Plaintiff is c:urrently in compliance \vi.Lh t.he Sj.gn Code, soleJy j.Il order to avoid the impositioIl of fines. On June 2::', 200'/, pIalnt.lif fded its COITlpldlnL (Doc. #1) ln the instanL federal ca~.;e . PlainLiff' E3 operati VP. pleadi ng le' " a three-.count Amended Complaint (Doc. #8) seeking declaratory and injunct.ive (SIlef pursuant. t.o 42 [1.c;.C. ".; 1983. Count I of the Amended Complclint.. (Doc. #8) seeks ;1 declaraLiorl "tr)dt. Lht::; Siqn COdf~ -3 Case 2:01-cv-00411-JES-DNF Document 45 Filecl 02/13U00i3 Page 4 of 22 is, orl its fare arid as af)plied, uncunstjtutjonalH as a violation of the FIrst Amendment. COUIlt II s('eks a dpcJaration ~that the Sign Code is unconstitutional'! as a viol.alian of due process under the Fourteenth Amendment both on its [ace and as applied. Count III seeks a preliminary injunction barring defendants from enforcing the Sign Code against plaintiff arId a permanerlt injunction barring defendants front enforcing the Sigrl Code against "the world,u and enjoinio9 defendants' enforcemer-ll or co11f:ction ot any fines imposed on plaintiff. II. Plaintiff seeks a prclimirlary injllDct.ioIl "enjoining the County, its agents and assigns, during the penderlcy of tllis action, from erlforcirlg the Sign Code agaiI15t [Bonita Media], including the imposition of any finc~) against [Bonita Med_ia], al1ci from tClking any steps to enforce the June Order, jl1(~.Luding any lieI15 the County may seek to impose agai_nst [Bonita M0dia] or its persclIlal fJrOfJerty." (Doc. #12, p. 22.) At oral argum,.nt: the County stipulated that it WOllld not assert any liens against Bonita Media or its personal property during t~he pendency of t_hi::; act.:..ion. 1\1so at ora] argument, plaint.iff clarified 1.:.h.::1t by E:eeking an injllnction precluding tile County from "takiIlg any stC[lS tCJ erliorce tile June Order" it did rlot intend to restric:t the Courlty's IJarticipatioIl in its state court appeal of the CEB decision. What (-emains at i.ssue, therefore, is pIai nti ff' s reque:.;L too enjoin E'-:ntorcc:ment of the ~~ign -4 Case; 2:07-cv-00411-JES-DNF DOCUfllE'nI45 Filed 02/13/2008 Page 5 of 22 Code in its entirety, including irnpositi.on of fines, agairlst Bonjta Media. In the Eleverlth Circuit, issuance of "a preliminary injunction is an extraordinacy and drastic remedy whrch should not be granted unless the movant clearly carries the burden of persuasion" on each of four prerequisites. Canal Auth. of State of Fla. v. Callaway, 489 F. 2d 567, 573 ('ith Cir. 1974) '. See also McDonald's Corp. v. Robertson, ] 47 F. 3d 1301, 1306 (l.lth Cir. 1998) The four prerequisi.tes for a preliminaryirljunction are: (1) a subs Lan tial likE~lihoocl at succeeding on the mErits; (2) a substantial threat of irreparable injur-y if relief is denied; (3) an inJury that outweighs the opponent's potentia] LIt-Jury if relief is graIlled; and (4) the injunctiorl \t.;ould nol fE-lrm or do a disservice to the public interest. SunTru,;t Bank v. Houghton Mrfflin Co., 768 F.3d 1257, 1166 (11th Cir. 2001) (citing American Red Croti.s v. Palm Beach Blood Bank, ]43 F.3d 1407, 1410 (11th Cir. 1998)); Gold Coast Pub1'ns, Inc. v. Corrigan, 42 F.3c1 1316, 1343 (.l.lth Cir. 1994), cert.. denied, 516 u.s. 93J (1995). The burden of persud~)ion tor each of the four requirements is upon the movant. Siege] v. LePore, 234 F.3d 1163, 1176 (lIth Cir. 7(00) (eCl banc). These four requirement.s apply in FirsL Amendment cases challenging a sign ordinance. KH Outdoor, LLC v. TrusCiville, 458 F.3d 1261, 1269 (.l.lth Cir. 2006); Lln Bonner v. Cit~v of Pr_L:=hard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane) the Eleventh Circui t adoptced as bi ncling precedent ~lJ th(~ decisions of ttlC former Fittll Circuit handed down prior to the cl()se of busi_ness on September 30, 1981. - ~) Case 2:07 -cv-00411-JES-DNF Document 45 Filed 02/13/2008 PagE' 6 of 22 Solant.ic, 1.1C v. Cit.y oC Neptun" Beach, 410 F.3d 1250, 1253 n.3 (11th Cir. 20(5). III. I'lhile conceding that plaint! ff has standing to challenge Sections 5.06(U), 5.06.Cl6(W), and 5.06.Cl6(X) of the S.Cgn Code, defendant.s assert that plaintiff has no standing to make a First. Amendment. challenge to t.he recoaCnder of the Sign Code. Plaintiff insists that it has standing to chzl11enge the constitutionality of the Sign Code in its entirel~y. The Court concludes that fleither side is correct. A. A plaintiff must have standing in order to satisfy the case or controversy requirement of Article III of the United States Constitution. KH Out-.door, ],.1.C. v. Clav Countv, 482 E'.3d 1299, 1303 (11th Cir. 2007). The standing princlples are well-settled in the Eleventh CCrcuit: [T]he irreducible constit.ut~ioncll ml_nlffium of E;tanding contains three eJ€'ments, [ ] all of which must be satisfied: Fir.:;t, the plaintiff mu::;t have suf:fered an injury l_n fact an J.nvaSlon of a 1ega lly protect.cd interest whic:h is (a) coner-eLf.: and particularized, and (b) actual or imminent, noL corljectural or hypot.hetical. Second, there must bE:' d. causa] connection between the injury and the conduct_ compJa lrled of -- tile in=iury ha.:::; t.O be fairly.., trace[able] to the challenged actlon of the defendant, and not... t.h[e] result [of] the independent. action of some third party nor t,efore the COllrt. Third, it mllst be likely, as opposed to rnerely speculative, that tIle injury wilJ be redrE?Ssed }JY a tavorable de~isiorl. -f)- Case 2:01-cv-00411-JE:S-DNF Document 45 Filed 02/13/2008 Page 1 of 22 Trussvllle, 458 F. 3d at 1266.-67 (cltations omitted) (alteration.c; El original). \'In addition to the c()rlstitGtjonaJ~ requirements, ttlere are also prudential standing princ:iples, one of which requires that 'a party generally may assert only his or her own rights and cannot raise the claims of thircl parties not before the court.'" Trussville, 458 F.3d at. 1266-67 (quoting Granite St.at.e Outdoor Arlver., Inc. v. Cit.y of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003) ) . Furthe r, First Amendment standj. ng analysis may be campI icated fllrther by the overbreadth doctrine, which serves as all exception to the prudential principle noted above. Under overbreadth, a party nLJY br Lng a First_ Amenclment case asserting the rights of thirci parLj.es if a statute is constitcLionally applJ.erl t.o the litigant. but might be unconst.it.utionally applied to third parties not before the court. [] Significantly, t~he ()verbreadt~h doctrine does not relieve: a plaintifE f.rom having to est_ablish constitutional ~:;tandinCJ; it i~; simply an exception to one of the prudential requirement.:::;. [] lndeed, a plaintiff may hring an overbreadtll challenge to OIlly those provisiorls of a law ar ordinance ttlat \'2ffect its activities." [] In oth(:r words, ttlC overbreadth doctrine does flot cllange the statut~s or provisions of an ordinanCe-=: a plaintiff may challenge; ,<3he can only contest those which actually caused her injur.-y. Rather, the overbreadth doctrine simply allows a plaintiff to bring a facial challer;qe La a prov:i s i_on of law that caused her injury, regardless of wtlcthel t~]lC provision's regulation or ller conduct in particul.ar was constitlJtional. TrussvillE" 458 F. 3d at 1266~6'1 (inLernal clLaL ions omitt.ed) If plaintiff establishes that. it. has standing to challenge a specific portion of the Sign Code, "the overbreadLh doctrine allows that challerlge to that specific provision based on its impact on third parties." Yd. at 1?6~. Su~h a pl~iintiff carl m01Jnt nol: only an as applied challenge to i.he provlsLoJI, bIlt also a facial challenge 1:() -I Case 2:07-cv-00411...JES-DNF Document 45 Filecl 02/13/2008 Page 8 of 22 the provision. ld. i'lt 1267-68. See also Camp Leqal Def. Fund, Inc. v. City of Atlanta, 451 F.3cl 12~7, 1269-n (llth Cir. 2006); Tanner Adver. Group v. Fayette County, 451 F.3d 777, 791 (11th Cir. 2006) (en bane). Nonetheless, plaintiff Ci'ln only challenge those provisions that "affect its activities." ~:amp, 451 F.3d at 1273. B. The Collier County Siqn Code was enacted because "[i]ncreased numbers and sizes at signs, as we.;1l as certain types of lighting distrdct the atterltion 01 motorist.~ and p0dE~strians, and interfere with traffic safety." s~ 5.06.0J Add] tionall y, Collier County found that "[t] hE' indiscriminate erection of signs degrades the aesthetic atlractiveness of the natlJral and manmade attributes of the communi ty dnd thereby undermines the economic: value of touri~;m, visitation and permanent economic growth." 5 5.06.01. The intent and purpose of the Sign Code was tel Lmplement the County's growth management plan; to promote llcalth, safety, converlicflce, aesthetics and general welfare of the community by controJlinq signs which are intended to commurlicate to the pu11lic; and to authorize the use of signs which satisfy fivf~ identified criteria. ~ 5.06.01 (A). To accomplish t.hcsc goal::.;, t.he c' o.Lgn Code first identifiec; S1.gns whic:h are permitted. ~ 5.06.02. This section of the Sign Code addresses signs within resi.dential zoned districts arId residential designated portions uf PUD zoned pro-jects. It t,cts 21-\11 references are to the S i.qn Code atLdched to the Am(:'nded Complalnt, Doc. #[J, ;exhibit R. .[1 . Case 2:07-cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 9 of 22 forth general restrictions on al.l such slgns concerning maximum allowClble height and minimum setbClck, (i :).06.02 (A) (1) (a) and (b), and then imposes restrictions on real estate signs, model home signs, construction slgns, residential directional or identification signs, on-premises signs within residential districts, and condit~ional uses within residential and agricultural districts. C 3 5.06.02(A) (2)-(7). The section t.hen imposes requir"ements concerning signs withi.n non-residential districts. 5 5.06.02(8). The Sign Code therl addresses Development Standards for Signs, S 5.0E.03, which includes size limitation and struclure, the use of spot or floodlights, and signs wlth address numbers. The Sign Code then adciresE;cs Siqn Standard.L3 for Specific Situatlons. !~ 5.06.04. RestricL-_Lons ace pJiJ.ced on real estate signs, construction slgns, and on-premise slgn.:). The on-premisE:: slgn are restricted as to pol.e or ground s:igns; outparcels; directory signs; waLl, mansard, canopy or awnIng signs; menu boards; projecting signs; under-canopy S1.gns; signage for automobile servic~ stiltions; slgn.=; vIi t_hin pLlnned unit developments; flaqs; Conservatjon Collier signs; temporary ~)igns; specia 1 purpose SIgns (on-::3ite); commercial, bU;'31ness park and industrial directiorldl or identification signs; Oll--pr-emise SIgns w.LLhLn agricultllral districts; off .premj_ses directional signs; and illuminated signs. 'i 5.06.04 (e) (1)-(17). -9- Case 207-cv-00411-JES-DNlc Document 45 Flied 02/13/2008 Page 10 of 22 The nexL section of the Sign Code identifies 23 types of signs which are exempt from the otherwise applicable restriction. s' 5.06.05 (A) -(W). TIle exempted signs are ~lllowed in all districts, subject only to the limitations "et: forth in the exemption. The Sign Code then identifies prohibited sIgns. It is declared unlawful to erect or Elaintain any sign not expressly authorized by or exempted from the Sign Code. S 5.06.06. Thirty- seven (37) types ot sign" are expn:ssly prohibited. Bonita Media was found to be ill violation of ttiree provisions: (1 ) c') 5.06.06 (U) ("Any si.gn which employ,,,s motion, has visible movIng parts, or gives the illusion of motion (excludirlg time and temperature SIgns)"); (2) ~5.06.06(W) ("Any SIgn which constitutes a traffic hazard, or- detriment to traffic safety by reason of its size, location, r:10vemc~n t: , content, coLorinq, ot' method of illuminiJ.tion, or by obstructing OJ di:'3tracting the vision of drivers or pedestrians"); and (3) S 5.06.06(X) ("Signs mounted on a vellicle, be it the roof, hood, truck, bed, and so on, where said slgn -lS int_ended to attract or may di.:-;t-ract the attention of mo-torj sts tor the purpose of advertising a business, prociucl., serVlce, or the like, v./hether or not sajci vehicIe is parked, or driven, excluding emerqency vehicles, Laxi cab.:), and delivery vehicles, where a roof mounted E:iign does not excf?cd two squarf~ feeL. This sectioIl Slldll flot. appJ_y to magnetic type signs affixed to or slgns painted on a vphicle, provided ;::idici vehicle is used in the course of opey-alion of a business, arld which 1_s rIot otherwise -}(j Case 2:07-cv-00411-JES-DNf' Document 45 Filed 02/13/2008 Page 11 of 22 prohihited by this Code. It shall he considered nnlawful to park a vehicle and/or trailer wittl 8igr18 painted, mountpd or affixed, on site or sites other than that at which the firm, product, or service advertized on such signs 13 offered.") Finally, 5 5.06.07 provides for enforcement of the Sign Code and provides penalties for violation of the Sign Code. c. The Court corlcludes that the County's Vlew of standing in this case is Loo restrictiv(,: and plaintiff's view 15 too expansive. While plaintiff cert.ainly has standing t.o challenge those provisions of thE': Sign Code under :..vhich he was chilrgf_:d, standing is not lirnit:ed to those provisions. Trussville, 458 F. 3d at 1767. Rather, plaintiff has standlng to 'ha11enge those portions 01 the Sign Code which "provide the basic definitional structure for the terms used In [the violated secc:ions] and which more generally define the scope of signs allowed by [the violated sections] .. Id. This includes provisiorls discussing the purpose ~nd intent of the Sign Code and definitional sections. rd. The Court concludes that plaintiff has standing to challenge Sections 5.06.01, 5.06.05, 5.06.06, and .'1.06.07 h"c:ause these are the provisions of the Si.gn Code ttlat "affect its activities." This standing includes both facial challenges and as-appli.ed challenges. Trussville, 458 F.3d at 1267; Camp, 451 F.3d ilt 127J~7il. The Court also concludes that plaintiff lacKs standing t~o challerlue SectioI1S 5.06.02, 5.06.03 and -.]]. Case 207-cv-00411-JES-DNF Document 45 riled 02/13/2008 Page 12 of 22 5.06.04 because plaintiff lS not affected by these provisions, which have nothing to do with it" activiti"s. IV. Most of the disputes between the parties relate to plaintiff's lik"lihood of establishing that th" Sign Code is unconstitutional. Several steps are involved in this deterulination. A. Content-Based or Content-Neutral: The Court first determines whether tIle ordinance is content- neutral or content-based. Trussv!lle, lJ58 F.3d at 1268; Solantic, 410 F.3d at 1258; Messer v. City of Dooqlasvill", 975 F.2d 1505, 1509 (11th Cir. 1992). This determination 18 important because it will decide t.he level of scrut iny t.he Court we LJ utilize In reviewing the ordinance. Generally, a content-neutral ordinance will be reviewed under an intermediate leveL of scrutinyl, while a content-based ordirlance wilL be reviewed under strict scrutiny~. "As a generaJ rule, laws that: by their terms dist~inguish favored speech from disfavored speecll orl tile basis of the ideas or views expressed are content based." ~t!:.l1ssville, 458 F. 3d at 1269 (quoting Turn_er Broad. Sys. v. FCC, 512 U.S. 622, 643 (1994)). See 3Such an ordinance is constitlltional if it does not restrict speech substantially marc than necessary to further a legi.timatp government interest, and le~ves orlen adeqllate alternative channeJ_s or communication. Trussvil1e, 458 F.3d at 1268-69. ~Such t.he leas t interest. an ordinance is constitutional restrictive means of advancing Trussvillcc, 458 F. 3d at 1269. only if- it constitutes a compel.ling government - L;;- Case 2:07-cv-00411-JES-DNF' Document 45 Filed 02/13/2008 Page 13 of 22 also Dimmitt v. City of Clearwater, 985 F.2d 1.56.5 (11th Cir. 1993 ) This approach focuses on the law's terms, rather than the justification for the law's existence. Solantic, 410 F.3d at 1259 n.8.6 A content-neutraJ ordinarlce, on the other hand, is one that places no restrictions on either a parlicular viewpoint or any subject matter that may be discussed. Tlussville, 458 F. 3d at 1269; So.lant.ic, 410 F..3d at 12';9; Nesser, 97.5 F.2d at. 1.509. The Court. concludes that the portions of the Collier Count.y Sign Code under review in this case arc content-based. Bot.h exempti_ons and prohibitions in the Sign Code contain content-based provisions. 5l\ddi,tionally, a sign ordinallce has bEc~E'n found to be content- based where it favored commercial speech by allowing commercial messages to be displayed more prominent.ly (great"r size billboards) than those with noncommercia,] ided,':3, Cafi:~_Erotica of Fla., Inc. v. St. Johns County, 360 F'..3d 1274 (l1t.h CLI. 2004), ilnd where it favored commercial speech by allo'ltLi.ng comr:lercial billboards but no noncommerciil.l billhoilrds, Trussville, 458 F..3d ilt 1268. 6So1antic noted that the Supreme CourL had stat.ed in Ward v. Rock against. Racism, 491 U.S. /81 (19f39) t.hat the government's purpose if I enacting the ordinance was the controlJ.i.ng consideration in deciding whether the law was COlltent neutral. SoJ.antic stated that t.he Supreme Court~ had receded from the Ward formulation 1n Cinclnnati v. Discovery Network, 507 U.S. 410 (199.3). 410 F.3d at 1259 n.8. More recently, in discu~<-;Lng a First Amendment challenge to (l noise ordinance, the Eleventl1 Circuit cited 1'Jard and stated: "The government's purpose is the corltrolling consideration at ttlis stage of the inq1Jiry. [] Covernment regulation of expressive activity is content-neutral so It)ng as it is 'justified without reference to the content of the regulated speech.'" DA Nortg. , lnc. v. City of Niami Beach, 486 F. 3d 12.51, 1266 (11th Cir. 2007) (quot.ing Clark v. Community tor Cr"atlve Non-Violence, 468 !J.e;. 21l8, 293 (1984)). The Court follows Solilnt.lc as the earlier binding precedent. Unit"d Stat.es v. Hornilclay, .392 F.3d 1306, 1.316 (11th Cir. 2004), cert.. denied, S,j') U.S. 1134 (2005). -lJ- Case 207 -cv-00411-JES-DNF Document 45 Filed 02/13/2003 Page 14 of 22 Section 5.06.05 identifies 23 types of slgns WhlCh are exempt fro:n the permit requlrements and "shall be permitted" in all districts subject only to limitations related to that type of sign. Most of these exempted signs are content-based. Some signs are exempt~ if their content consists of name~3, addresses, profession, or speciality, while similarly located signs with other information would not be exempt. Thus, Subsection C (,xempts signs with the names and profession, speciality, or address for a professional office or business establishment, and Subsection N exempts signs with the name and address of a resident located at the entrance drive of residences of certain size lot~ Subsection D exempts slgns which are "[m]enlorial plaques, (~ornerstones, historical tablets, and similar types of commemorati've sign.')." A similar provision was found to be content:-based in Solantj_c, 410 f'.3d at 1265. Some of the exempLion,') are literally and cyvcrt,ly content~ based. Thus, Subsection F: exempts Ei_Lqns which say "No Trespassi.ng," "No Dumping," or are "otl1er prohibi.tory or safety type signs." Subsection F exempts signs that say "For Sale" or "f'or RelIt," or a "similar sigr1" for lots Jess than ten acres lI1 Slze. SubsectLon H exempts open llouse signs. Subsection V exempts signs concernlng a business's oc establishment's operational status. See Linmark As:)ocs., Inc. v. W:ilJinqboro, 1131 U.S. 85 (19-rl) (ban on "For Sale" signs is content-ba::;ed viCJ1Cltion of Fi yost Amendment) . ~11 Case 20T-cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 15 of 22 Subsection I exempts bulletin boards and identification signs for "pubLi.c, charitable, educational or reLigious institutions.1f Other organizations are not allowed such signs, a situation found to be content-based in Solantic, 410 F.3d at 1264. Exemptions which favor certain speech based on the speaker, rather than the content of the message, are also considered content-based. Solantic, 410 F.3d at 1265-66. Thus, Subsection J lS content-based because it_ exempts signs located on fences or walls surrounding athletic fields or within sports arenas, stadiums and the like, not sigrls on fences or walls by others. Subsection L is content-based because it exempts "wirldc)w merchandise displays which are changed on a regular basis," but does not allow window merchandisE.~ displays by otller users whi.ch do not change their displays. Subsection P exempts advertising and identifying slgns on taxicabs, buses, trailers, trucks, or vehicle bumper.::;. Thus, those opera ti og t~axicabs, buses, trailer s, and trucks may have slgns anywhere on the vehicles, while other veh.i.cles must limit their signs to the bumper. Subsection Q exempts religious displays "that do not constitllte advertising," but does not exempt secular displays that do not constitute advertising. Subsection 0 exempts flags or insignias of "governmental, religious, charitable, fraternal or other rlonprofit organizations" displayed on property owned or loa,;ed by the organizaLion. ^ similar provj.slon was fOllnd to be content-based in Solantic, 410 f'.3d at. 1264. -1~) - Case 207-cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 16 of 22 Subsection " " exempts copy changes for "shopping centers, theaters, billboards or marquees that have routine changes 1n copy, or are specifically designed for changes in copy." Copy changes for others is not exempt. Subsection T exempts a sign used as a construction sign by the general contractor of a development. Other signs, and even other construction signs, are not exempt. Subsection W exempts certain "internal directory signs" for institutional or governmental facilities, but similar 31gn3 for other types of facilities are not exempt. In addition to content-based exemptions, the Sign Code contains some content-based prohibitions. Section 5.06.06 identifies 37 types of signs which are "expressly prohibited." Two provisions exempt slgns which state thE? time and temperature, Subsections C and U, while two provisions exempt barber pole signs, Subsections C and E. Certain illuminated signs are prohibited, except "residentiaJ nameplat,es. U Subsection F. Any signs which "resemble any official sign or marker erected by any governmental agency" are prohibited. Subsect,ion M. Subsection Q prohibits signs depicting nudity, sexual conduct, or sexual excitement, which may regulate both protect.ed and unprot.ected conduct. Solomon v. City of GainsvilJ.e, '/63 F.2d 1212 (11th Cir. 1985). Subsection Y prohibits sj.gns containing certain words, such as '\~3top," "Look,u "Danger," and any other "'lords that interfere with, mislead, or confuse vehicular traffic. Subsection A!', excepts "U-Pic signs" and political 8igl1S from being a principal use on property. -ie. Case 2:07-cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 17 of 22 All three Sign Code sections involved in plaintiff's citation are content-based. Section 5.06.06(U) prohibits signs employing motions, visible parts, or the illusion of motion, but excludes time and temperatllre signs. This exclusion has been a component of sign ordinances found to be content-based. Solantic, 410 F.3d at 1252; Coral Springs St. Svs. v. City of Sunrise, .171 F.3d 1320, 1347 (lIth Cir. 2004) (time and temperature exemption "may be" unconstitutional) Section 5.06.06(W) prohibits signs which constitute a traffic hazard or detriment to traffic safety by reason of, among other things, "content." Section 5.06.06(X) contains double content-based provi sion.::;. It flrst applies to signs mounted on a vehic.Le intended to aLtract attention "for the purpose of advertising a business, product, service, or the like," but not for other purposes. The subsection then excludes certain prohibited sigrls based all the type of vehicle, including emergerlcy vehicles, taxi cabs, and delivery vehicles. Thus, under this subsection plaintiff's signs wouLd not be prohibitod if its business inclllded perfor:ming taxi ()r delivery serVlces. Favoring some commercial speech ove:r. other commercial speech lS a content- based provision. Solantic, 410 F.Jd at 1260. B. Commercial or Non-Commercial Speech: Having detennined that~ t~he rfd evant portions of the Sign Code are content-hased, the Court must determine whether the restrictions invo] ve commercial or noncommercial speech because the Supreme Court has afforded each difierenL treatment under tho First_ -1-/- Case 2:07 -cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 18 of 22 Amendment. See Metromedia, Inc. v. ell,! of San Dieqo, 453 U.S. 490, 506 (1981) (plurality opinlon). Content~based restrictions on noncommercial protected speech are analyzed under the \lstrict scrutiny" test. United States v. Playboy Fntm't Group, Inc., 529 U.S. 803, the 813 (2000); Boos v. Barry, 485 U.S. 312, 321~22 (1988). Under strict scrutiny standard, such an ordinance is constitutional only if it constitutes the least restrictive means of advancing a compelling government interest. Trussvi.lle, 458 F.3d at 1269. On the other hand, even content~based restrictions on commercial speech are analyzed under the four-part test first announced In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 55'7 (1980) Florida Bar v. Went For It, Inc., 515 U.S. 618, 623~24 (1995) This requires the Court to determine whether (1 ) the speech lS protected by the First Amendment, l. e., whether it is lawful and not misleading (2) the government interest is substanti;d, (3) the regulation directly advances the governmental interest asserted, and (4) the regulation is no more extensive than necessary to serve the governmental interest. Thompson v. Western States Med. Ctr., 535 U.S. 357, 367 (2002) . Generally, commercial speech is "expression related solely to the economic interests of the speaker and its audience" or "speech proposing a commercial transactioIl." Rubin v. Coors Brewinq Co., 514 U.S. 476, 482, 493 (1995). The Sign Code applies to both commercial and noncommercial speech, and pla inti ff engages in both -18 - Case 2:07 -cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 19 of 22 types of speech. In this situation, the Eleventh Circuit has applied the strict scrutiny test to eVallJate the ordinance. Trussville, 458 F.3d at 1271; Solantic, 410 F.3d at 1252, 1267; Cafe Erotica, 360 F.3d at 1291~92; Southlakes Prop. Assocs. v. City of Morrow, 112 F.3d 1114, 1116~17 (11th Clr. 1997) C. Constitutionality: Under the strict scrutiny standard, a content based ordinance impacting noncommercial speech J_ s consti tutional only if it constitutes the least restrictive means of advancing a compelling government interest, Trussvil1e, 458 F.3d at 1269. The County has the burden of proving t.he const.it.ut.iona1it.y of it.s conduct, and t.here LS a presumption t.hat. a content~based ordinance i.s not constitutional. Playboy, 529 U.S. at. 816-17. The Court finds that. the portlons of t.he Collier County Sign Code at issue here are not narrowly tailored to accomplish the County's asserted interests in aesthetics, traffic safety, and economj.c growth, and that such interests are not sufficiently compelling to justify the content~based restrictions. While aesthetics, traffic safety, and pconomic growth are substantial government. i.nterests, they have not. been found to be compelling governmental restrictions. interests when used t.o justify content~based Solantic, 410 F.3d at 1267; Dimmitt, 985 F.2d at 1569~70. The Sign Code's reliance on these fact.ors is superficial at best, and are not tailored to accomplish the County's asserted -19- CaSE; 2:07 -cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 20 of 22 int_erests. For example, it is at best unclear how allowing a taxicab or a delivery truck to have signs with moving parts contributes to safety and aesthet.ics but. disallowing plaintiff's vehicles furthers such concerns. Therefore, the Court concludes that plaintiff is substantially likely to prevail 1n its claim that the Collier County Sign Code provisions at issue in this case are unconstitutional.! v. The remalnlng three elements nece,:;sary for a preliminary injunction have also been satisfied by plaintiff. A. Substantial Threat of Irreparable Injury if Relief Denied: "The loss of First Amendment freedoms, for even minimal perj.ods of time, unquestionably constitutes irreparable injury." Trussville, 458 F.3d at 1272 (quoting Elrod v, Burns, 427 U.S. 347, 373 (1976) (plurality opinion)) . Despite this, a violation of the First Amendment does not automatically require a finding of irreparable injury entitling plaintiff to a preliminary injunction. Trussville, 4~8 F.3d at 1272. In this case, the inJury suffered by plaintiff constitutes a direct penalization, as opposed to incidental inhibition of First Amendment rights, and cannot be 7Plaintiff also asserts that the Sign Code is overbroad and vague. In light of the Court's findings above that plaintiff 1S substantially likely to prevail on at least one ground, it 1S unnecessary to address the other c:onstitutional challenges. -20- Case 2:07-cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 21 of 22 fully cured by the award of money damages. has satisfied this factor. According, plaintiff B. Injury Outweighs Potential Injury if Relief Granted: The injury to plaintiff outweighs whatever damage the preliminary injunction may cause the County. As noted in Trussville, 458 F. 3d at 1272, "even a temporary infringement of First Amendment rights constitutes a serious and substantial injury, and the city has no legitimate interest in enforcing an unconstitutional ordinance." The County is not left without rules of traffic safety, since state statutes cover that area. See, ~, FLA. STAT. SiSi 179.01, et seg., 316.077. satisfied this factor. C. Lack of harm or Disservice to Public Interest: PIa inti ff has The public has no interest in enforcing an unconstitutional ordinance, and thus a preliminary injunction is not adverse to the public interest. Trussville, 458 F. 3d a 1'. 1272. Thus, plaintiff has satisfied this factor. Accordingly, it is now ORDERED: Plaintiff's Motion for Preliminary Injunction (Doc. # 12) is GRANTED as to Sections 5.06.01, 5.06.05, 5.06.06, and 5.06.07, and -21- Case 2:07 -cv-00411-JES-DNF Document 45 Filed 02/13/2008 Page 22 of 22 1S DENIED as to Sections 5.06.02, 5.06.03, and 5.06.04. A preliminary injlJnction will enter by separate document. DONE AND ORDERED at Fort Myers, Florida, this 13th day of February, 2008. ,!; , , . , ,,~,_... JOHN E. STEELE Un~ted States District Judge Copies: Counsel of record -22- UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION BONITA MEDIA ENTERPRISES, LLC, Plaintiff, vs. Case No. 2:07-cv-41I-FtM-29DNF COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY, a political subdivision of the State of Florida, COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. PRELIMINARY INJUNCTION This matter comes before the Court on Plaintiffs' Motion for Preliminary Injunction (Doc. #12), filed on September 24, 2007. The Court has entered an Opinion and Order contemporaneously with this Preliminary Injunction setting forth its findings. The Court finds, as more fully set forth in that Opinion and Order, which is incorporated herein, the following: 1. Plaintiff has established that it is substantially likely to succeed on the merits of the First Amendment claims regarding the Collier County Sign Ordinance as to Sections 5.06.01, 5.06.05, 5.06.06, and 5.06.07. The Court further finds that plaintiff does not have standing to challenge the Sign Code as to Sections 5.06.02, 5.06.03, and 5.06.04, and is therefore not likely to succeed on the merits as to these portions of the Sign Code; 2. Plaintiff has established that there is a substantial threat of irreparable injury if a preliminary injunction is not granted which prohibits enforeement of Seetions 5.06.01, 5.06.05, 5.06.06, and 5.06.07 of the Sign Code as to plaintiff during the pendency of this case; 3. Plaintiff has established that its injury resulting from enforcement of Seetions 5.06.01, 5.06.05, 5.06.06, and 5.06.07 of the Sign Code during the pendency of this case outweighs the potential injury to defendants if the preliminary injunction is gran ted; and 4. Plaintiff has established that an in]llnction barring enforcement of Sections 5.06.01, 5.06.05, 5.06.06, and 5.06.07 of the Sign Code during the pendency of this case would not harm or do a disservice to the public interest. Accordingly, it is now ORDERED: 1. Defendants Collier County Code Enforcement Board, Collier County, and the Collier County Board of County Commissioners, whether acting alone or in concert with others, are enjoined from enforcing Sections 5.06.01, 5.06.05, 5.06.06, and 5.06.07 of the Collier County Sign Code as to Bonita Media Enterprises, LLC. during the pendency of this case. -2- 2. The Court finds that no surety bond need be posted by plaintiff. This Pre! i.minary InJunction shall become effective upon service upon defendants. DONE AND ORDERED at Fort Myers, Florida, this 13th day of February, 2008. ~,~_,_':':~-'--.___0~~~~.....L:~____~_~ Copies: Counsel of record - '3- .' LexisNexis' Page 1 LEXSEE 410 F3D 1250 SOLA1'!TIC, LLC, a foreign limited liability company, Plaintiff-Appellant, versus CITY OF NEPTUNE BEACH, a municipality, ENFORCEMENT BOARD OF THE CITY OF NEPTUNE BEACH, its local administrative governmental body, Defen- dants-Appellees. No. 04,12758 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 410 F.3d 1250; 2005 U.S. App. LEXIS 9883; 18 Fla. L. Weekly Fed. C 575 May 31, 2005, Decided May 31, 2005, Filed SUBSEQUENT HISTORY: Rehearing, en bane, denied by So/antic, LLC v, City oj Neptune Beach, 175 Fed, Appx, 328, 2006 US App. LEX1S 18632 (/1 th Cir, Fla" 2(06) Costs and fees proceeding at Solantic, LLe v. City of Neptune Beach, 2007 US, Dist. LEX1S 97840 (IvI,D, Fla, , Sept. 21,20(7) PRIOR HISTORY: [**1] Appeal from the United States Distnct Court for the Middle District of Florida, D, C. Docket No, 04-00040-CV-J-25-MMH, DISPOSITION: REVERSED and REMANDED, COUNSEL: For SOLANTIC, LLC, a foreign limited liability company, Plaintiff-Appellant: Cynthia L I-lain, Lawrence Hamilton, II, Michael G. Tanner, Holland & Knight, LLP, Jacksonville, FL; Stephen H. Grimes, Hol- land & Knight, LLP, Tallahassee, FL For CITY OF NEPTUNE BEACH, a muniClpality, De- fendant-Appellee: Ernest H. Kohlmyer, Ill, Ball, Leeper & Roper, P A, Orlando, FL For ENFORCEMENT BOARD OF THE CITY OF NEPTUNE BEACH, Defendant-Appellee: Christopher A. vVhite, Ponte Vedra, FL. JUDGES: Before MARCUS, FAY and SILER, . Circuit Judges. * Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by des- ignation. OPINION BV: MARCUS OPINION [*12521 MARCUS, Circuit Judge: At issue in this case is the constitutionality of the City of Neptune Beach's sign code, Appellant Solantic, LLC ("Solantic") argues that the sign code violates the First Amendment in at least two ways: first, it exempts from regulation certain categories of signs based on their content, without compelling justification for the disparate Heatment; [**2] and second, it contains no time limits for permitting decisions. We agree with Solaotic, and hold the sign code unconstitutional on both grounds. L Solantic is a business operating emergency medical care facilities in various locations, including the City of Neptune Beach ("the City" or "Neptune Beach"). In April 2003, Solantic installed in front of its Neptune Beach facility a large "Electronic Variable Message Cen- ter" (EVMC) sign. A videotape showing the sign was viewed by the dish-lct cOUli and is part of the record. The district court describes the EYMC sign as sitting in the middle or a pole, approximately 10 to 12 feet above the grollnd, and situated below a larger blue sign displaying Solantic's business name. Solantic states that the EVl'vlC sign "was used for, <Iud is intcnded to be used for, commercial messages, i.e. 410F,3d 1250, *: 2005U,S, App, LEXIS 9883, **; 18 Fla, L Weekly Fed, C 575 Page 2 to identify Solantic's business and to convey information about its products and services, and for noncommercial messages, i.e. to promote social and health ideas and causes." Br. at 4. As the City describes it, Solan tic's EVMC sign conveyed "electronically lit messages that flashed, blinked and scrolled across the surface of the sign." Br. at 1. Prior to erecting [**3 J the sign, Solantic obtained an electrical permit from the City to operate the sign. Solan- tic did not, however, submit to the City a sign applica- tion, despite the sign code's I general requirement that no sign be erected without first obtaining a permit. 1 References to the "sign code" are to Section 27, Article XV of the City of Neptune Beach Code of Ordinances. Consequently, on April 28, 2003, the City sent So- lantic a notice of violations of various sections of the sign code, including 9 27-579 (requiring a pennit to erect a sign); Ii 27-581(4) (prohibiting signs with any "visible movement achieved by electrical, electronic or mechani- cal means, except for traditional barber poles"); S 27- 581(5) (prohibiting signs "with thc optical illusion of movement by means of a design that presents a pattern capable of giving the illusion of motion or changing of copy"); and S 27-581(6) (prohibiting signs "with lights or illuminations that flash, move, rotate, scintillate, blink, flicker, or vary intensity Of color 1.**4J except for time- temperature-date signs"). The notice also informed So- lantie that violations of the sign code are punishable by fines of up to $ 250 a day, or $ 500 a day for repeat vio- lations. The City's Code Enforcement Board ("the Board") conducted a hearing on June 11, 2003, and determined that Solantic's sign violated the sign code. The Board subsequently directed Solantic, in an undated order, to cure the ,,'iolation by taking four steps: (1) obtaining a sign permit; (2) modifying the sign to change copy no more than once a day; (3) modifying the sign so that its copy would not blink, flash, or scroll, but rather would permanently glow; and (4) controlling the sign only from the premises on which it was located. Following the Board's June decision, Solantic ap- plied for a sign permit. The district court concluded, however, that Solantic [*1253J appeared to have contin- ued to operate its sign without modifying it in accor- dance with the City's order Thus, on September 24, 2003, the City sent Solantic another notice of alleged violation of the same sections of the sign code. The Board held another hearing on Oc- tober 8, 2003, after which it issued anotber undated order reiterating that Solantic [**5 J was in violation of the sign code In three ways: by allowing the sign to change copy more than once a day; by al!owing the sign to blink, flash, or scroll alternating messages; and by not control- ling the sign solely from the property on which it was located. The Board thus ordered that Solantic be assessed lInes totahng $ 75 per day ($ 25 for each of the three violations), running from September 3, 2003 C'the date of discovery or verification or violation(s)") until all vio- lations were cured. On October 28, 2003, Solantic filed an application for appeal from both the June and the October decisions of the Board, The City denied the appeal on November 3, 2003. Solantic then brought suit in the Circuit Court for the Fourth Judicial Circuit in Duval County, Florida, on January 5, 2004. Soon thereafter, the City removed the case to the United States District Court for the Middle District of Florida. In its second amended complaint (the operative pleading for purposes of this appeal), filed March 9, 2004, Solantic argued that the sign code violated the First Amendment in a variety of ways, including as a content-based regulation of speech and as an unlawful prior restraint. :' Solantic [**6J sought declaratory relief, in the form of a judgment declaring the City's sign code to he unconstitutional and unenforceable against Solan- tic, and absolving Solantic of any liability for accrued fines based un alleged violations of the sign code. In addition, Solantic sought preliminary and permanent injunctive relief enjoining enforcement of the sign code. 2 Solantic also argued that the sign code vio- lated analogolls provisions of the Florida Consti- hltion and raised a promissory estoppel claim, based on the City's grant of an electrical permit for Solantic's EVMC sign. These claims have been abandoned on appeal. On March 10, 2004, Solantic moved for a prelimi- nary injunction. The district court held a provisional hearing on April 2, 2004, and ruled on May 3, 2004, The district court denied the preliminary injunction solely on the ground that Solantic had not shown a likelihood of sLlccess on the merits, without reaching the other retevant factors. .\ The court reasoned that although the sign code's permit requirement [**71 was a prior restraint on speech, it \\,'as a content-neutral time, place, and manner restriction that did not place excessive discretion in the hands of licensing officials, and was therefore constitu- tional. 3 Preliminary injunctive relief may be granted if the moving party establishes: (1) a substantial likelihood of success on the merits of the under- lying case; (2) that he will suffer irreparable ham1 unless an injunction issues; (3) that the harm he WIll sufter without an injunction outweighs the 410 F,3d 1250, *; 2005 liS App, LEXIS 9883, **; 18 Fla. L Weekly Fed, C 575 Page 3 harm the injunction would cause the opposing party; and (4) that an injunction would not dis- serve the public interest. See, e.g., Horton v. Cif}' aISt. Augustine, 27] F3d 1318,1326 (11th Clr, 20(1); Johnson & Johnson Vision ('are, Inc. v. 1- 800 Contacts, lnc" 299 F3d /242,1246-47 (11th Cir, 2(02), It is from this order that Solantic took an interlocu- tory appeal, pursuant to 28 usc .9' l292(a)(/), 1L A. The decision to grant or deny a preliminary [**81 injunction "is within the sound discretion of the district court and will not be [* 1254 J disturbed absent a clear abuse of discretion." Palmer v. Braun, 287 P.3d 1325, 1329 (11th Clr, 20(2); see also, eg, Horton, 272 F3d at 1326; Siegel v LePore, 234 F3d 1163, 1178 (11th Cir. 2()()O). We review the district court's findings of fact for clear error, and its application of the law de novo, Hprem_ ised on the understanding that 'application of an im- proper legal standard. . is never within a district court's discretion.'" Johnson & Johnson, 299 F3d at 1246 (quoting Am. Ed of Psychiatry & Neurologv, Inc. v. Johnson-Powell, 129 F3d 1,3 (1st Cir 1997)): see also Horton, 272 F3d at i 326. ~ 4 The district court has substantial discretion in weighing the four relevant t~lctorS to determine whether preliminary injunctive relief 1S war- ranted. As we have explained previously: This limited [abuse of discre- tion] review is necessitated be- cause the grant or denial of a pre- liminary injunction is almost al- ways based on an abbreviated set of facts, requiring a delicate bal- ancing of the probabilities of ulti- mate success at final hearing with the consequences of immedia te ir- reparable injury which could pos- sibly flow from the denial of pre- liminary relief. Weighing these considerations is the responsibility of the district court Siegel, 234 F.3d at //78 (quoting Revelte v. in- ternational Asso_ of Bridge, etc., 74U F2d 892, 893 (11th Cil', 1984) (citation omitted)), How- ever, the district COUlt made no sllch calculus in this case. (**9j Solantic argues that the district court abused its discretion in denying preliminary injunctive relief, since Neptune Beach's sign code violates the First Amendment in three ways: first, the enumerated exemp- tions fi.om its regulations render it an unconstitutional content-based restriction on speech; second, its permit requirement is an unlawful prior restraint; and third, it is unconstitutionally vague as applied to Solantic. Because we agree with Solan tic as to the first two issues, we need not and do not reach the third. In determining whether the district court correctly concluded that Solantic \vas unlikely to succeed on the merits, we review the relevant provisions of the Neptune Beach sign code in some detail. The sign code regulates all signs erected within the City, other than those that are explicitly exempted from its regulations, See Ii 27-572 ("This article exempts certain signs from these regula- tions _ , ' ,"); Ii 27-573 ("This article applies to all signs, and other advertising devices, that are constmcted, erected, operated, used, maintained, enlarged, illumi- nated or substantially altered withll1 the city,"); Ii 27-580 (enumerating exempt signs). At the outset, [** 1 0] the sign code contains a num- ber of findings of fact, pertaining to the safety and aes- thetic harms that signs may cause. These findings state: (I) The manner of the erection, location and maintenance of signs affects the pub- lic health, safety, morals, and welfare of the people of this corrununity. (2) The safety of motorists, cyclists, pedestrians, [and) other users of the public streets is affected by the number, size, lo- cation, lighting and movement of slgns that divert the attention of drivers. (3) The size and location of signs may, if uncontrolled, constitute an obsta- cle to effective fin:-fightillg teclmiques. (4) The construction, erection and maintenance of large signs suspended from or placed on the tops of buildings, walls or other structures may constitute a direct danger to pedestrian and vehicular traffic below, especially during periods of strong winds. (5) Uncontrolled and unlimited signs may degrade the aesthetic attractiveness of the natural and rnanmade attributes of the conununity and thereby undermine the economic value (*1255j of tourism, visi- tation and permanent economic growth. 410 F,3d 1250, *; 2005 U.S. App, LEXIS 9883, **; 18 Fla, L Weekly Fed. C 575 Page 4 927-574, In hght of these findings of fact, the sign code [** 11] lays out the "intentions and purposes of the city council" in enacting it: (I) To create a comprehensive and bal- anced system of sign control that accom~ modates both the need for a weIl- maintained, safe and attractive commu- nity, and the need for effective business identification, advertising and communi- cation. (2) To permit signs that are: a. Compatible with their surroundings. b. Designed, con- structed, installed and maintained in a manner which does not endanger public safety or unduly dis- tract motorists. c, Appropriate to the type of activity to which they pertain. d, Large enough to convey sufficient informa- tion about particular prop- erty, the products or ser- VIces available on the property, or the activities conducted on the property, and small enough to satisfy the needs for regulation. e. Reflective of the identity and creativity of individual occupants. (3) To promote the economic health of the cormnunity through increased tour- ism and property values. 927-575, A Usign," as broadly defined by the code, "means any device which is used to annOUllce, direct attention to, identify, advertise or otherwise communicate informa- tion l**12] or make anything kncnvn. The term shall exclude architechlral features or art not intended to communicate information." S 27-576. Signs that arc regulated by the sign code are subject to a variety of regulations, two of which are particularly important here. First, S 27-579 requires that a permit be obtained before a sign may be erected. 5 Second, 9 27- 581 establishes numerous limitations on the form that signs may take, including that they may not contain any visible movement, 9 27-581(4); fhey may not create fhe optical illusion of movement, including by changing copy, 9 27-5S1(5); and they may not contain lights or illuminations that flash, move, rotate, scintillate, blink, flicker, or vary in intensity or color, except for time- temperature-date signs, S 27-581(6), among other things, 5 This section provides: (a) Except as otherwise provided in this article, no sign within the city shall be constructed, erected, operated, used, maintained, enlarged, illuminated, or substan- tially altered without first obtain- ing a permit as provided in this section. (b) A separate application for a permit shall be made for each separate advertising sign or adver- tising structure, on a form fur- nished by the city manager. (c) The application for a per- mit shall describe the size, shape, and natme of the proposed adver- tisement, advertising sign, or ad- vertising structure, and its actual or proposed locations with sufli.- cient accuracy to ensure Its proper identification. (d) The application for a per- Illit shall be signed by the appli- cant or his authorized agent and by the property owner, if different than the property owner, or his au- thorized agent. (e) For multiple occupancy complexes, individual occupants may apply for a sign permit, but they shall be issued in the name of the lot O\vncr or agent, rather than in the name of the individual oc- cupants. The lot owner, and not {he city, shall be responsible for 410 F,3d 1250, *; 2005 US, App, LEXJS 9883, **; 18 FIa. L Weekly Fed, C 575 Page 5 allocating allowable sign area to individual occupants. S 27-579, [** 13] However, the sign code expressly exempts from these regulations certain enumerated categories of signs. Two provisions [*1256] in particular arc signifi- cant here, First, S 27-580 provides: The following types of signs arc exempt from these regulations, provided they are not placed or constructed so as to create a hazard of any kind: (, [*1257] (1) Signs that are not de- signed or located so as to be visible from any street or adjoining property. (2) Signs of two (2) square feet or less and that include no letters, symbols, logos or designs in excess of two (2) inches in vertical or horizontal dimension, provided that such sign, or combination of such signs, does not constitute a sign pro- hibited by this Code, (3) Flags and insigma or any gov- ernment, religious, charitable, fraternal, or other organization, provided that: a. No more than three (3) such flags or insignia are displayed on anyone par- cel of land; and b. The vertical meas- urement of any flag does not exceed twenty (20) percent of the total helght of the flag pole, or in the absence of a flag pole, twenty (20) percent of the distance from the top of the flag or insignia to the ground. (4) Signs erected [**14J by, all be- half of, or pursuant to authorization of a governmental body, including, but not limited to the following: legal notices, identification signs, and informational, regulatory, or directional signs; (5) Integral decorative or architec- tural features of buddings, provided that such teatures do not contain letters, trademarks, moving pmis or lights. (6) Signs on private premises direct- ing and guiding traffic and parking on private property, but bearing no advertis- ing matter; (7) Signs painted or attached to tfllcks or other vehicles for identification pur- poses. (8) Official signs of a noncommercial nature erected by public utilities, provided that such signs do not exceed three (3) feet in height and the sign area does not exceed one-half( 1/2) square foot in area. (9) Decorative flags or bunting for a celebration, convention, or commemora- tion of significance to the entire commu~ nity when authorized by the city council for a prescflbed period of time. (10) Holiday lights and decorations, (11) Merchandise displays behind storefront windows so long as no part of the display moves or contains flashing lights, (12) Memorial slgns or tablets, [** 15] names of buildings and dates of erection when cut into any masonry sur- face or when constructed of bronze or other mcombustible materials and at- tached to the surface of a building. (13) Signs incorporated into machin- ery or equipment by a manufacturer or distributor, which identify or advertise only the product or service dispensed by the machine or equipment, such as signs cLlstomarily affixed to vending machines, newspaper racks, telephone booths, and gasoline pumps. (14) Public warning signs to indicate the dangers of trespassing, swimming, animals, or similar hazards. (IS) \\lorks of art that do not consti- tute advertising. (16) Signs carried by a person; and (17) Religious displays (e,g, nal1vlty scenes). 8 27 -580. 410 F,3d 1250, *; 2005 V,S, App, LEX IS 9883, **; 18 Fla, L Weekly Feci. C 575 Page 6 6 Neptune Beach suggested for the first time at oral argument that S 27~580 may create an ex- emption only from the sign code's permitting re- quirement, not from its other regulations. This ar- gument was never raised in the district court or in Neptune Beach's briefs to this Court, and there- fore it is waived. See, e.g., Chapman v. AI Transp" 229 F3d 1012, lIJ44 (11th Cir, 20(0) ("It is axiomatic that an argument not raised be- fore the trial court or on appeal has been waived."); Marek v. Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir, 1995) ("Issues not clearly raised in the briefs are considered abandoned,"). But even if this argument were properly be- fore lIS, we would reject it on the merits, since we find nothing ambiguous about the scope of the sign code's exemptions. Section 27-580 enumer- ates signs that "are exempt from these regula- tions," S 27-580, Although the sign code does not explicitly state that the exemption from "these regulations" extends to al! sign code regulations, we see no other plausible way to read the ordi- nance. We can discern no principled basis for de- termining that the signs ~ 27-580 declares "ex- empt from these regulations" arc exempt from some of the sign code\ regulations but not others. For one thing, the very first provision of the sign code states that the code "exempts certain signs from these regulations," S 27-572, Section 27-580 then enumerates the exempt signs referenced in ~ 27~572. The language "these regulations" at the beginmng of the sign code cannot be read as re- ferring to anything other than all regulations that follow. Moreover, a subsequent provision of the sign code enumerates certain other categories of signs that are exempt from the permit require- ment only, see S 27-583(b), reinforcing that S 27- 580's more broadly worded exemption applies to the permit requirement and to the sign code's other regulations, including ~ 27-581 's restric- tions on form. In addition, the fact that S 27-580 explicitly states that some of the exempt categories of signs are subject to some of * 27-581 's regulations sng- gests that those exempt categories that arc not explicitly subjected to these regulations are in- deed exempt from them. For example, ~ 27- 580(5) exempts "integral decorative or architec- tural features of buildings, provided that such fea- tures do not contain. . . 1l10Vll1g parts or lights." Moving parts and lights arc generally prohibited hy SS 27-581(4) and (6), respectively, Similarly. S 27-580(1 I) exempts mcrehandlse displays n1 storefront windows, I'SO long as no part of the display moves or contains flashing lights." Were these enumerated categories of signs exempt only from the sign code's permit requirement, includ- ing these explicit applications of other sign code regulations would be wholly unnecessary. Our practice is to "uphold a state statute against a facial challenge if the statute is readily susceptible to a narrowing construction that avoids constitutional infirmities. We 'will not, however, rewrite the clear teITIlS of a stahIte in order to reject a facial challenge,' and, as a tederal court, 'we must be particularly reluctant to rewrite the terms of a state statute.'" Fla. Right to Life. 1nc v, Lamar, 273 F,3d 1318, 1326 (11th Clr. 2()(J1) (quoting Dimmitt v. City of Clearwater, 985 F2d 1565, /572 (I lth Cir, 1993)) (citation and footnote omjtted). Because any narrowed reading of the sign code's exemptions would re- quire us to re'Nfite its basic tem1S by inserting our own limiting language into ~ 27-580, the sign code is not susceptihle to a narrO\ving constmc- tioll. Finally, even if the City were correct that 9 27-580's exemptions are from the permit re- quirement only, the sign code would still present exactly the same constihltional problem. Content- based exemptions from a permitting requirement raise serious qnestions of constitutionality that remain at the heart of this case. Reading the ex- emptions as applicable only to the sign code's permit requirement would render them no less content based than if they applied to all of the sign code's regulations. The problem is with the character of the enumerated categories, not with the scope of the exemption. Thus, if we find that the exemptions are content based and tail strict scrutiny, the sign code would be unconstitutional regardless of whether the exemptions are from all of its regulations or from the permit requirement only. The only type of narrowing construction that will save a statute from a constitutional chal- lenge is one "that avoids constitutional infirmi- ties, tt id. -- something that Neptune Beach's read- ing, even if correct, does not do. [**161 Second, S 27-583(b) exempts only from thc sign code1s permit requirement a variety of types of tem- porary slgns. ! Exempt signs include: (1) On-site for salc/rent/lcase sIgns; [*1258J (2) Grand opening signs; 410 F.3d ]250, *; 2005 US, App, LEXIS 9883, **; 18 Fla, L Weekly Fed, C 575 Page 7 (3) Constmction-sitc identification sIgns; (4) Signs to indicate the existence of a new business or business location; (5) On-site signs to announce or ad- vertise such temporary uses as fairs, car- nivals, circuses, revivals, sporting events, festivals or any public, charitable, educa- tional or religious event; and (6) Election or political campaign re- lated signs. 7 This section provides: "The following tempo- rary signs are permitted without a sign permit, provided that the sign conforms to the require- ments set forth below, , , ," ~ 27-583(b), The "re- quirements" referenced include limitations on size and display time, among other things. See id. B. Solantic says that the sign code is a facially uncOIl- stitutional content-based restriction on speech, since it exempts from [** 17] its regulations some categories of signs, based all their content, but not others. Because most (though not all) of the exemptions from the sign code arc based on the content -- rather than the time, place, or manner -- of the message, we are constrained to agree with Solantic that the sign code discriminates against certain types of speech based on content. In evaluating the constitutionality of an ordinance restraining or regulating speech, "we first inquire whether the Ordinance is content-neutral.tt Burk v. Au- gusta-Richmond County, 365 F]d /247, /251 (11th Cir. 2004); see also One World One Family N()'w v. City of Miami Bench, 175 F]d /282,1286 (11th Cir, 1999) ("It is only if we find the governmental action content neutral that \ve examine whether the action is a permissible time, place, and manner regulation. "). If the ordinance is a content-neutral time, place, and manner restriction, it is subject to intermediate scrutiny -- that is, it must not re- strict speech substantially morc than necessary to further a legitimate government interest, and it must leave open adequate altemative channels of communication. How- ever, if the ordinance is content [**18] based, it is sub- ject to strict scrutiny, meaning that it is constitutional only if it constitutes the least restrictive means of ad- vancing a compelling government interest. BlIrk, 365 F.3d at f 25/ (citations omitted). As the Supreme Court has explained: At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consid- eration, and adherence. Our political sys- tem and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message fa- vored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regula- tory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than per- suasion. These restrictions "raise the spec- ter thai the Government may effectively drive certain ideas or viewpoints from the marketplace. " For these reasons, the First Amend- ment, subject only to narrow and well- understood exceptions, does not cOlmte- nance governmental control [** 19] over the content of messages expressed by pri- vate individuals. Our precedents thus ap- ply the most exacting scrutiny to regula- tions that suppress, disadvantage, or im- pose differential burdens upon speech be- cause of its content. . . . In contrast, regu- lations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising cer- tain ideas or viewpoints from the public dialogue. limier Broad Sys., Inc, v, FCC, 512 US 622, 64l~42, 1/4 S Ct, 2445, 129 L. Ed 2d 497 (1994) (citations omitted) (quoting Simon & Schuster, Inc. v. Memhers oj State Cnme Victims Bd, 502 Us. 105, 116, /12 [*1259] SO, 501, 508, 1/6 L. Ed 2d 476 (1991)); see also Po- /ice Dep't of the City of Chicago v. i.4osley, 408 US 92, 95,92 S Ci. 2286, 3] LEd. 2d 212 (1972) ("Above all else, the First Amendment means that govcnlment has no power to restrict expression because of its message, its ideas, its subject matter, or its content."); R.A. V v. City of St. Pou/, 505 Us. 377, 382, 112 S Ci. 25]8, 120 L Ed 2d 305 (1992) ("Content-based regulations I **20J are presumptively invalid."). The Supreme Court has articulated and applied vari- ous standards f(H determining whether a law is content 410 F.3d 1250, *; 200511,S, App, LEXIS 9883, **; 18 Fla, L Weekly Fed, C 575 Page S based or content neuh"aL "As a general mle, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based," Turner, 512 US at 643, On the other hand, a content-neutral ordinance is onc that "places no restrictions on either a particular viewpoint or any subject matter that may be discussed." Hill v. Colorado, 530 US 703, 723, 120 S 0 2480, 147 LEd 2d 597 (2000); see also Burk, 365 F3d at 1254 (A content- neutral ordinance "applies equally to all, and not just to those with a particular message or subject matter in mind."). 8 8 The City also cites Ward v. Rock Against Ra- cism, 491 US 781, 109 S Ct. 2746, 105 L Ed 2d 661 (1989), in which the Supreme Court took a somewhat different approach to evaluating COD- tent neutrality, explaining: The principal inquiry in deter- mIllIng content neutrality, III speech cases generally and in time, place, or manner cases in particular, is whether the govern- ment has adopted a regulation of speech because of disagreement with the message it conveys. The govemmenes pUlpose is the con- trolling consideration. A regula- tion that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Gov- ernment regulation of expressive activity is content neutral so long as it is ':justijied without reference to the content of the regulated speech. " Id, at 791 (citations omitted) (quoting Clark v, Cmty. for Creative Non-Violence. 468 Us. 288, 293, 104 S Ct. 3065, 82 LEd. 2d 221 (/984)), However, more recently, the Court has re- ceded from this formulation, returning to its focus on the law's own terms, rather than its justifica- tion, in City of Cincinnati v. Discover}' Network, lnc., 507 US 410,113 S. 0.1505,123 LEd. 2d 99 (/993). In Discover}' Netlvork, the Court held that a city ordinance banning news racks contain- ing conunercial handbills but allowing news racks containing noncommercial ne\vspapers was an unconstitutional content-based restriction on speech. The city contended that its interests in safety and aesthetics (its proffered justifications for the ordinance) served an interest unrelated to the content of the prohibited publications, render- ing the ordinance content neutra1. The Court, however, found this argument "unpersuasive be- cause the very basis for the regulation is the dif- ference in content between ordinary newspapers and commercial speech. TlUe, there is no evi- dence that the city has acted with animus toward the ideas contained in respondents' publications, but just last Tenn we expressly rejected the ar- gument that 'discriminatory. treatment is sus- pect under the First Amendment only when the legislahue intends to suppress certain ideas.'" Id. at 429 (quoting Simon & Schuster, Inc. v. Mem- hers of the N. Y State Crime Victims Ed., 502 u.s. 105, 1/7, /12 S 0 501, 1/6 L. Ed 2d 476 (1991)), Accordingly, the Court held: "Under the city's newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by any conunonsense under- standing of the term, the ban in this case is 'con- tent ba~;ed.'" id. [**211 In detennining whether the Neptune Bcach SIgn code's series of enumerated exemptions render it content based, we are guided by the Supreme Court's plurality opimon in Metromedia, inc. v. City of San DieKo, 453 US, 490, 101 S 0,2882, 69 L Ed 2d 800 (/98/), and by our o\vn opinion in Dimmitt v City of Clearwater, 985 F.2d 1565 (11th Clr, 1993), " In Metromedia, [*1260J the Court addressed the constitu- tionality of a San Diego ordinance that banned outdoor signs generally (to promote tratTic safety and aesthetics), but exempted from the ban certain categories of signs. 9 In City oILadue v, Gilleo, 512 US 43, 114 S 0, 2038, 129 L. Fd. 2d 36 (/994), the Supremc Court "identified two analytically distinct grounds for challenging the constitutionality of a municipal ordinance regulating the display of signs. One is that the measure in effect restricts too little speech because its exemptions discrimi~ nate on the basis of the signs' messages." Id. at 50-51 (citing the tvfetromedia plurality opinion). "Alternatively, such provisions are subject to at- tack on the ground that they simply prohibit too much protected speech. II iel. ai 51 (citing the Metromedia concuning opinion). Ladue involved a chal1enge to a ban on all residential signs other than those falling within one of ten enumerated exemptions, brought by a homeO\vner seeking to display in her window a sign reading, "Say No to War in the Persian Gulf, 410 F.3d 1250, *; 2005 LJ,S App, LEXIS 9883, **; 18 Fla, I.. Weekly Fed, C 575 Page 9 Call Congress Now." Instead of looking first to whether the sign ordinance's exemptions were content based, the Court employed the following approach: We first ask whether Ladue may properly prohibit Gilleo from diS- playing her sign, and then, only if necessary, consider the separate question whether it was improper [or the City simultaneously to per- mit certain other signs_ In examin- ing the propriety of Ladue's near- total prohibition of residential signs, we will assume, arguendo, the validity of the City's submis- sion that the various exemptions are free of impennissible content or viewpoint discrimination. ld. at 53, The Court concluded that the city could not constitutionally prohibit the display of Gilleo's sign, reasoning that yard and window signs are "a venerable means of communication," id at 54, and "may have no practical substitute," ill. 57, The Court thereby aVOlded reaching the question of the constinttionality of the ordinance's exemptions. Here, we cannot avoid the second question. Neptune Beach has not sought to prohibit Solan- tic's sign, but rather to subject it to a variety of regulations. We have no doubt that a city may permissibly Impose permitting requirements, form restrictions, and other limitations on signs. Thus, we canIlot avoid proceeding to the next in- quiry -- that is, whether subjecting some signs but not others to these regulations amounts to imper- missible content discrimination. We must, there- fore, look beyond Ladue to the Court's approach in lv/etmmedia and our opinion in Dirnmil!. [**22] A majority of the Court agreed that the or- dinance was constitutional insofar as it banned otfsite cOllul1ercial advertising while continuing to allow onsite commercial advertising, since the city could permissibly distinguish between types of commercial speech. Metromedia, 453 US. at 50l./2 (plurality opinion); id. at 541 (Stevens, J., dissenting in part). However, both the four-Justice plurality opinion written by Justice \Vhite and the two-Justice concurrence written by Justice Bren- nan concluded that the ordinance's regulation of n()n~ commercial advertising was unconstitutional -- although for wholly different reasons. The plurality found the or- dinance unconstitutional in two ways. First, the ordi- nance continued to allow on-site commercial advertising, while banning on~site noncommercial advertising, which impermissibly favored commercial over noncommercial speech, fd. at 512-/3 (plurality opinion), Second -~ and most relevant to Solantic's case -- the plurality concluded that the ordinance's series of exemptions from its genera! sign ban amounted to impermissible content-based dis- crimination among types of noncommercial speech. [**23] Jd at 5/4, The ordinance exempted religious symbols, com- memorative plaques of recognized historical societies and organizations, signs carrying news items or tellmg the time or temperature, signs erected in discharge of any governmental function, and temporary political cam- paign signs. By exempting these categories of signs, the plurality reasoned, the ordinance "distinguishes in sev- eral ways bet\veen permissible and impermissible [*12611 signs at a particular location by reference to their content." Id. at 516. The plurality explained that "with respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: 'To allow a government the choice of perrnissible subjects for public debate would be to allow that government control over the search for pohtical truth.'" Id. at 515 (quoting Conso!. Edison Co. ofN Y. v. Pub. Servo Com- m'noJNY, 447 Us. 530, 538, 100S Ct 2326,65 LEd 2d 319 (J 980)). It thus found the ordinance iuvalid, Justice Brennan, writing for himself and Justice Blackmun, also concluded that the ordinance was uncon- stitutional, but not because of its exemptions. [**24 J Instead, the concurrence analyzed the ordinance as a total ban on signs, explaining that, in contrast to the plurality "my view is that the practical effect of the San Diego ordinance is to eliminate the billboard as an effective medium of communication for the speaker who wants to express the sorts of messages [not exempted], and that the exceptions do not alter the overall character of the ban." Id. at 525~26 (Brennan, J., concurring in the judg- ment). Accordingly, the concurrence applied "the tests this Court has developed to analyze content-neutral pro- hibitions of particular media of corrununication" to con- clude that the ban was invalid. Id. at 526-27. Because tbe Metromedia plurality's constitutional ra- tionale did not garner the support of a majority, it has no hinding application to Solantic's case. II! However, we subsequently adopted the same reasoning in Dimmil! v. City of Clearwater. In Dimmitt, a panel of this Court addressed! * 1262J an ordinance very similar to Neptune Beach's, striking it down as a facially unconstitutional content-based restriction on speech. The Clearwater or- dinance required a permit to erect or alter a sign, hut ex- empted from this requirement [**25] certain types of signs, including: flags representing a governmental unit or hody (limited to two per property), puhlic siglls posted 410 F.3d 1250, *; 2005 l),S, App, LEXIS 9883, **; 18 Fla, L Weekly Fed, C 575 Paoe 10 o by the government, temporary political signs, real estate signs, constmction signs, temporary window advcrtisc~ ments, occupant identification signs, street address signs, warning signs, directional signs, memorial signs, signs commemorating public service, stadium signs, certain signs displayed on vehicles, signs commemorating holi- days, menus posted outside restaurants, yard sale signs, and signs customarily attached to fIxtures such as news- paper machines and public telephones. 10 From the fractured decision in Mctromedia -- which contained a total of five separate opinions - - there emerges no controlling opinion as to the ordinance's regulation of noncommercial speech, and no subsequent majority of the Supreme COUl1 has ever explicitly adopted or rejected the reason- ing of any of the Metromedia opinions. The Su- preme Court has explained that "when a frag- mented Court decides a case and no single ration- ale explaining the result enjoys the assent of five Justices, 'the holding of the COllft may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.''' lvIarks v. United States, 430 US 188, 193, 97 S Ct 990, 993, 51 L Ed. 2d 260 (1977) (quotiug Gregg v. Georgia, 428 US 153, 169 n, 15, 96 S Ct, 2909, 2923 n,15, 49 LEd, 2d 859 (1976) (opinion of Stewart, Powell, and Stevens, 11.)). However, "the Supreme Court has not com- pelled us to find a 'holding' on each issue in each of its decisions. On the contrary, the Court has indicated that there may be situations where even the Marks inquiry does not yield any rule to be treated as binding in future cases." Johnson v. Bel oJ Regents oJ Univ, oJ Ga, 263 F3d 1234, 1248 n.12 (11th Cir, 20(1) (citmg Nichols v. United States, 5/1 US 738, JJ4 S. Ct 1921,128 LEd, 2d 745 (1994)). Mctrornedia presents Just such a case. Indeed, at least two of our sister Circuits have applied Marks analysis to Metromedia's noncommercial-speech holding and have found no controlling opinion. See Rappa v. New C'astle County, 18 F3d /043, 1056-61 (3d Or 1994); Discovery Network, inc. v. City of Cincinnati, 946 F2d 464, 470 n.9 (6th Cir. 1991). As the Third Circuit explained, "the plurality and the concurrence took sllch markedly different ap- proaches to the San Diego ordinance that thl.:re is no common denominator between them." Rappa v, New Castle County, 18 F3d /043, 1058 (3d Cir. 1994) (concluding that Metron/edia was not controlling in the case before it). Whereas the plurality concluded that the ordinance's exemp- tions rendered it a content-based speech restric- tion, the concurrence, in contrast, "did not think that the relevant issue was the constitutional ef- fect of the exceptions to the general prohibition," but rather "viewed the San Diego ordinance as a total ban on billboards because it believed that the ordinance would have the practical effect of eliminating the bi1\board industry in San Diego and thereby would eliminate bi1\boards as an ef- fecti ve medium of communication." Rappa, 18 F.3d at 1058, Because of these sharp differences, neither opinion has any controlling precedential force. [**26] The plaintiff -- an automobile dealership seeking to display twenty-three American flags -- brought facial and as-applied challenges to the ordi- nance. Focusing on the fact that the flag exemption ap- plied only to flags of a governmental body, we found that the ordinance "cannot be treated as a content neutral regulation," since "the display of the American flag or that of the State of Florida would be exempted from the permit process while a nag displaying the Greenpeace logo or a union affiliation would require a permit." Dim- mitt, 985 F2d at 1569, After finding that the ordinance was content based, we considered whether it was nevel1heless justified by a compelling state interest, conduding that the City's as- serted interest in aesthetics and traffic safety was "not a compelling state interest of the sort required to justify content based regulation of noncommercial speech." iel (It /569..70. Pinally, we concluded that even if aesthetics and traffic safety were compelling governmental inter- ests, the ordinance was not narrowly tailored to achieve those ends, since "these asserted interests clearly are not served by the distinction between government [**27J and other types of flags." ld. at 1570, We explained that "a municipality may not accomplish its purposes in pro- moting aesthetics and traffic safety by restricting speech depending upon the message expressed. r, Ill. Thus, we held "that by limiting the permit exemption to govem- ment flags, the City has unconstitutionally differentiated between speech based upon its content." Id. II 11 We note that the Dimmitt/J\;fetromedia~ plurality approach is consistent with the prevail- ing approach among other Circuits. See, e.g., Na- tiotlal Advertising Co. v. Niagara, 942 F.2d /45, /47 (2d Cir, 1991) (observing that the Second Circuit "has adopted the plurality decision in Metromcdia concerning billboard regulation"); National Advertising Co. v. Boh.vlan. YUU F.2d 55 I (2d Cir. 1990) (holding that an ordinance ex- empting certain signs from a general sign ban was an unconstitutional content-based restriction on speech); Gillc() F. City of Ladue, 986 F2d 410 F,3d 1250, *; 2005U,S, App, LEXIS 9883, **; 18 Fla, L Weekly Fed, C 575 Page 11 1180 (8th Cir, 1993), aJfd on other grounds,S 1 2 US 43, 114 S Ct 2038,1291. Ed. 2d 36 (1994) (same); Matthews v. Town oJ Needham, 764 F2d 58,60 (1st Or. 1985) (same) Indeed, in Dinunitt, we cited with approval the Ninth Circuit's decision in National Ad~'ertis- ing Co. v. CIty oj'Orange, 861 F2d 246 (9th Cir. 1988), which adopted the Metromedla plurality approach, See Dimmitt, 985 F2d at 1570, City of Orange involved a ban on signs, with a series of enumerated exemptions. The court concluded that "because the exceptions to the restriction. . . arc based on content, the restriction itself is based on content." ld at 249, Although the city's proffered interests in aesthetics and traffic safety were sub- stantial, they were not sufficient to justify the content-based ban, and thus the court struck it do\VIl. Subsequently, in Desert Outdoor Advertis- ing, lnc. v, City oflvloreno Valley, 103 F3d 814 (9th Cir, 1996), the Ninth Circuit used the rea- soning of City of Orange and the ftvfetromedia plurality to strike down a statute exempting cer- tain categories of billboards from a permitting re- quirement. The court explained: "Because the ex- emptions [for official notices and directional or informational signs, among other things] require City officials to examine the content of. . . signs to determine whether the exemption applies, the City's regulation. . . is content-basce!. " Ie!. at 820. Only the Third Circuit has taken a different approach. In Rappa v. New Castle Count.v. J 8 F3d 1U43, 1056-61 (3d CU". 1994), thc court ad- dressed an ordinance generally prohibiting place- ment of signs within a certain distance of a high- way, but exempting designated types of signs from this restriction. Drawing on Justice Bren- nan's concurrence in Metromedia, the court adopted a "context-sensitive" test for evaluating the constitutionality of content-based exemptions from sign regulations. Ill. at J 064. The test pro- vided that "when there is a significant relation- ship between the content of particular speech and a specific location, the state can exempt speech having that content from a general ban so long as the exemption is substantially related to serving an interest that is at least as important as that served by the ban." Id. at J066.We have found no cases applying the Rappa approach, and we are uncertain how it would work in practice. At all events, we are guided by our own precedent in Dimmitt. [*1263] 1**28] There is little to distinguish the Neptune Beach sign code from the ordinances at issue in Dimmitt and Jvfetromedia. 11 Like the exemptions from the Clearwater and San Diego sign regulations, the ex- emptions contained in Neptune Beach's sign code -- both 9 27-580's exemptions from all regulations, and 9 27583(b)'s exemptions [*1264J frum the pcrmit re- quirement -- are largely content based. II 12 Dimmitt is much morc closely on point than our prior decision in Messer v. City of" Douglas- ville, 975 F,2d 1505 (1992), in which a panel of this Court held that an ordinance exempting cer- taitl signs from a city permit requirement was not content based. The ordinance in Messer exempted "[rom permitting requirements and/or permit fees" the following signs: (1) one wall sign per building, attached to the side of the building, an- nouncing the business; (2) one real estate "for sale" sign per property; (3) one bulletin board lo- cated on religious, public, charitable or educa- tional premises; (4) one construction identifica- tion sign; (5) directional traffic signs containing no advertisements. Id. at /5 J J. The Messer Court acknowledged that Metromedia and the Ninth Circuit's decision in Cizr of Orange had invalidated ordinances ex- empting certain types of signs from a general ban on signs as unconstitutional content-based restric- tions on speech. However, Messer distinguished the DouglasvilJe ordinance on two bases. First, it stated that a permitting requirement was different from a ban in that it was simply a time, place, and manner regulation, reasoning that since "Messer has not challenged the permil process as an un- constitutional restriction on speech," "the Doug- lasvillc sign ordinance stands on a different foot- ing from the complete bans on speech in San Diego and the City of Orange." Ill. at /513. Sec- ond, the Messer Court observed that Douglas- villc's "exemptions arc mLlch more limited than those in the San Diego or City of Orange ordi- nances,'! and contained "no specific exemptions for political, historical, religious, or special event signs." Id. Solantic's case is much more closely analo- gous to Dimmitt than to Nfesser, and indeed is distinguishable by Nfesser's own terms. For one thing, Solantic has challenged the sign code's permit process as an unconstitutional restraint on speech. Moreover, unlike in Messer, at issue here is not just a permit requirement, but a whole array of restrictions on the form that nonexempt signs may' take. Exempt signs can convey their mes- sage in virtually any manner -- for example, using flashing lights, moving parts, or any of the other features generally prohibited by S 27-581 -- as 410 F,3d 1250, *; 2005 U,S, App, LEXIS 9883, **; 18 Fla L. Weekly Fed, C575 Page 12 long as they "are not placed or constructed so as to create a hazard of any kind." * 27-580. Nonex- empt signs, in contrast, are subject not only to the permit requirement, but also to all of the limita- tions enumerated in S 27-581. Thus, the regula- tions embodied in Neptune Beach's sign code reach substantially farther than those in the Doug- lasville ordinance. The Douglasville ordinance is fmiher distin- guishable because the exemptions from the Nep- tune Beach sign code are much more numerous and extensive than Douglasvillc's. In this regard, the content-based exemptions in this case arc more analogous to those in the San Diego and City of Orange ordinances the Messer Court dis- tmguished from Douglasvilk's, Section 27-580, for example, contains seventeen categories of ex- emptions, and S 27-583(b) contams another six, whereas Douglasvillc's ordinance contained a to- tal of rive narrow exceptions. In short, Dimmitt is much more closely on point than Messer. [**29 J 13 The fact that these content-based provisions take the form not of regulations but of exemptions from regulations is immaterial. As the First Cir- cuit has explained, "when a city's goal is to re- ward one type of speech, the necessary effect is that all other types of speech are penalized. A finding that the motive \vas to promote, r<.1ther than to penalize, a certain type of speeeh does not alter this fact." Ackerley Communications of Mass" lne, v. City afSomerville, 878 F2d 513, 521 (1st Or. 1989), For our purposes today, whether these content~based restrictions are cast as regulations or exemptions is simply a matter of semantics. Not all of the sign code's exemptions are content based. For example, exemption (1) for signs not visible from any street or adjoining property, and exemption (16) for signs carried by a person, are restrIctions on sign placement, not content. CI Members (?! the City Council of 1,0.1' Angeles v, Taxpayers jor Vincent, 466 US 789, 811, 104 S, Ct. 2118,80 L. Ed. 2d 772 (/984) (upholding a Los Angeles ordinance prohibiting [**30J posting of signs on public property, reasoning that "the private citi- zen's interest in controlling the use of his own property justifies the disparate treatment" of public and private property). Similarly, exemption (2) for signs smal1er than two square feet and containing no letters or symhols lar- ger than two inches pertains only to form, not to content. However, many of the sign code's exemptions are plainly content based. For example, exemption (3) ap- plies to flags and insignia only of a "government, reli- gious, charitable, fraternal, or other organization." Thus, a government or religious organization seeking to fly its tlag may do so freely, whereas an individual seeking to fly a flag bearing an emblem of his or her own choosing would have to apply for a permit to do so, and would have to abide by all of the restrictions enumerated in ~ 27-581. For example, the government tax collector's of- fice could display a flag reading, "Stop Tax Evasion," whereas an individual homeowner could not display a flag saying, "Stop Domestic Violence," since S 27- 581(13) prohibits the use of the word "stop" in any non- exempt, nongovernmentnl sign. Exemption (4) is also content based, permitting [**31J govermnental identification signs and infonl1a- tional signs to be freely posted, but requiring an individ- ual or private organization who wishes to post a sign identifying his office or home, for example, to obtain a pennit to do so. Moreover, pursuant to 9 27-581, an ex- empt governmental sign could contain features such as moving parts or flashing lights, whereas the sign code's general prohibitions on such features, see 9 27-581 (4), (6), bar the use of these devices by nonexempt individual and other private signs. Thus, the City government could display a ten-foot-tall slgn identifying "City Hall" in blinking lights, whereas ~ 27-581(6) would prohibit a homeowner from posting even a modestly sized sign lIsing flashing lights to identify "The Smith Residence," for example. Exemption (6) permits signs on private propeliy to be posted freely if they are for the purpose of "guiding traffic and parking" on the property. Thus, without a permit, a homeowner could post a sign reading, "Parking in Back" and bearing a flashing neon arrow pointing to- ward the rear of the property, but not a traditional yard sign -- which is recognized as "a venerable means of communication" that "may have [**321 no practical substitute," Ladue, 512 US at 54,57 -- with a political message like "Support Our Troops" or "Bring Our Troops Horne." Indeed, the only political signs exempt from any regulation arc those "related to elections, political cam- paigns, or a referendum," [*1265) and they arc exempt only from the sign code's permit requirement, are limited to four square feet in size in residential areas, and may not be displayed for more than fourteen days prior to and two days atlcr an election ~ 27-583(h)(6), Thus, while a "Re-Elect Mayor Smith" yard sign could be posted for a maximum of sixteen days, the illuminated parking sign may remain indefinitely. In other words, a large neon arrow receives more favorable treatment under the sign code than a political sign. Moreover, electioneering signs are the only form of political expressIon spared from the sign code's permit requirement. To express any political message not directly related to an IIpcoming election, a \vould-be speaker 11Iust comply \vith the sign code's pcr- 410 F,3d 1250, *; 2005 U.S, App, LEXIS 9883, **: 18 Fla, L Weekly Fed, c: 575 Page] 3 mitting rules and all of its other restrictions. Thus, a sign espousing a viewpoint on a salient political issue -- for example, "Reform Medicare," "Save Social [**331 Se- curity," "Abolish the Death Penalty," or !10vertum Roe v. Wade" -- would be subject to a permitting process and to numerous restrictions on form and placement from which other signs -- such as those "guiding traffic and parking" -- arc exempt. Exemption (10) allows holiday lights and decora- tions to be displayed freely. Thus, a homeowner could plant a giant illuminated Santa Claus or a jack-a-lantern in his front yard, but not a figure of, say, the President or the Mayor. An illuminated reindeer would be permissi- ble, whereas a less festive animal such as a dog would not. Moreover, an array of multicolored, tlashing holiday lights could cover a homeowner's roof year-round, whereas a simple political-campaign sign must, under 9 27-583(6), be posted no more than two weeks before the election and removed within two days after. Exemption (12) provides that certain "memorial" signs on buildings may be freely erected. A comparable sign identifying living occupants, however -- such as a plaque reading, "The BroV'/11 Family" -- could be dis- played only after obtaining a permit. Exemption (13) pennits signs incorporated into ma- chinery that advertise the service provided by the ma- chine, [**34 J but not comparable signs advertising the manufacturer or operator's favored causes, for example. Thus, a sign reading, "Mow Your Lawn \Vith A John Deere," may receive more protection than one that says, "Support Your Local Public Schools" or llSupport Your Local Police." Exemption (17) covers "religious displays (e.g. na- tivity scenes)." Thus, a homeowner could display year~ round, without a permit, a manger scene stretching across his entire front yard and bearing a sign reading, "Worship Our Savior." The scene could even include all of the features off-limits to nonexempt signs, such as moving parts, flashing lights, music, and even smoke. \Vhile that homeo\vner is free to employ limitless quanti- ties of religiously thcmcd figures, his neighbor could not freely display even a small, silent, stationary statue orthe President, the Mayor, or any other secular figure, since such a display docs not fall within any of the sign code's enumerated exemptions. Nor could he put up, for exam- ple, an image of a soldier bearing the sign, "Support Our Troops" or "Bring OUf Troops Home." Indeed, even to erect either sign alone, without the soldier figure, v.iould require a permit because of the nature of [**35] the message. Even those exemptions that favor certain speech based on the speaker, rather than the content of the mes- sage -- such as exemption (S) for "official signs of a nOll- commercial nature erected by public utilities," and ex- emption (4) for signs "erected by, or on behalf of, or pur- suant to the authorization of a governmental body" ~- are content based, Under these exemptions, [*1266J public utilities and goverrunent bodies may freely erect signs expressing their political preferences, their positions on public policy matters, and, indeed, their chosen messages on virtually any subject. Thus, while a public utility could post a sign proclaiming, for example, "Choose Electric Power," an individual homeowner or a private business could not display a sign reading, "Conserve Electricity: Use Solar Power." Similarly, while the city council could paper the cntire City of Neptune Beach with signs advancing its agenda -- for example, "Support School Vouchers," or "Enlist in the National Guard" -- an individual resident could not freely post even a single yard sign advocating the opposing position ~- for exam- ple, "Oppose School Vouchers," or "Abolish the National Guard." The Supreme Court [**361 has "frequently con- demned such discriminatlon among different users of the same medium for expression," which is another form of content-based speech regulation. Mosley, 408 US'. at 96; .\;ee also First Nat'l Bank of Boston v. Bellotti. 435 U.S 765, 784-85, 98 S Ct. 1407, 55 L Ed 2d 707 (1978) ("In the realm of protected speech, the legislature is constitu- tionally disqualified from dictatlllg the subjects about which persons may speak and the speakers who may address a /mhlic issue." (emphasis added)). Cf Ackerley Communications qf ~Iass., /ne. v. City of Somerville, 878 F.2d 513,518 (1st Or. 1989) (stnking down a sign ordi- nance whose "grandfather" clausc allowed certain speak- ers to use nonconforming signs, observing that "even if a complete b'-ill on nonconforming signs would be permis~ sible, we must consider carefully the government's dcci- sion to pick and choose among the speakers permitted to use such signs"). The sign code exemptions that pick and choose the speakers entitled to preferential treatment are no less content based than those that select among sub- jects or messages. Moreover, even insofar as S 27-581 simply [**37] allows some types of messages to be displayed in a more prominent manner than others -- for example, using flashing lights or moving parts -~ it constitutes content- based regulation of speech. S'ee Cafe Erotica of Fla. , Ine. v. St. Johns County, 360 F3d 1274, 1289 (Jlth Cir. 20(4) (holding that limitlllg signs displaying political messages to a smaller size than signs displaying other types of messages constituted content discrimination); Whitton v, City oJ Gladst""e, 54 F,3d 1400, 141 () (8th (,ir. /995) (holding that prohibiting extemal illumination of political signs while allowing it for other signs ""as an unconstitutional content-hased restriction, since "the 4]OF.3d 1250, *; 2005U,S, App, LEXIS 9883, **; 18 Fla, L Weekly Fed, c: 575 Page j 4 message on the sign determines whether or not it may be externally illuminated"), In short, bc:cause some types of signs are extensively regulated while others arc exempt from regulation based on the nature of the messages they seek to cOllvey, the sign code is undeniably a content-based restriction on speech. 14 14 Cf Unmark Assocs,, lnc, v. Twp. of' Wllling- bora, 431 Us. 85, 94, 97 S Ct 1614, 52 L Ed. 2d 155 (1977) (striking down as unconstitutional an ordinance seeking to prevent the flight of white homeowners from racially integrated com- munities by prohibiting the posting of "For Sale" or "Sold" signs on property, reasoning that the ordinance "proscribed particular types of signs based on their content," without a compelling reason for doing so); lvIosley, 4U8 US at 94-95 (striking down on equal protection grounds n which were "closely intcliwined with First Amendment interests" n an ordinance exempting peaceful labor picketing from a general prohIbi- tion on picketing near schools, observing that Uthe central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter," and that "the operative distinc- tion is the message on a picket sign"); Carey v. Brown, 447 US 455, 460-62, 100 S Ct 2286,65 L. Ed. 2d 263 (1980) (striking down, on equal protection grounds, a prohibition on picketing that exempted peaceful picketing of a place of employment involved in a labor dispute, since it discriminated "based upon the content of the demonstrator's communication," by according "preferential treatment to the expression of views on one particular subject"). [*1267J [**38J Accordingly, our second inquiry is whether the sign code survives strict scrutiny. A con- tent-based restriction on speech must be "necessary to serve a compelling state interest" and "narrowly drawn to achieve that end." Perry Educational Ass'n v. Perr.v Lo- cal Educators' Ass'n, 46U US 37, 45, 103 S Ct, 948, 74 L. Ed, 2d 794 (1983). The Neptune Beach sign code fails both aspects of this requirement: the sign code is not narrowly tailored to accomplish the City's asserted inter- ests in aesthetics and traffic safety, nor has our case Ia\-v recognized those interests as "compelling." Even if we were to assume that Neptune Deach's proffered interests in aesthetics or traffic safety were adequate justification for content-based sign regulations, the sign code cannot withstand strict scrutiny because it is not narrowly drawn to accomplish those ends. The problem is that the ordinance recites those interests only at the highest order of abstraction, without ever explain- ing how they arc served by the sign code's regulations generally, much less by its content-based exemptions from those regulations. In Dimmitt, we noted that even if the government's interest in aesthetics [**39] and traffic safety could be sufficient justification for content-based regulation of signs, those interests "clearly are not served hy the di.\'tinction between government and other types of flags; therefore, the regulation is not 'narrowly drawn' to achieve its asserted end." Dimmitt, 985 F.2d at /570 (emphasis added) (quoting Perry, 460 US at 45); see also, e,g" Gil/eo, 986 F2d at 1184 (holding that an ordi- nance was not narrowly drawn since it was not the "least restrictive alternative available"). The same is true here -- the sign code recites only the general purposes of aesthetics and traffic safety, of- fering no reason for applying its requirements to some types of signs but not others. As to traffic safety, the or- dinance states that motorists' safety "is affected by the number, size, location, lighting and movement of signs that divert the attention of drivers," S 27,574(2), The sign code therefore permits signs that are "designed, con- structed, installed and maintained in a manner which does not endanger puhlic safety or unduly distract motor- ists." ~ 27-575(2). The code does not, however, explain how these factors [**40] affect motorists' safety, or why a moving or illuminated sign of the permissible variety -- for example, a sign depicting a religious figure in flash- Ing lights, which would be permissible under ~ 27- 580(17)'s exemptIon for "religious displays" -- wonld be any less distTacting or hazardous to motorists than a moving or illuminated sign of the impermissible variety- - for example, one depicting the President in flashing lights, which falls within no exemption and is therefore categorically baITed by S 27-581(5)'s prohibition on signs containing "lights or illuminations that flash." Likewise, a homeowner could not erect a yard sign emitting an audio message saying, "Support Our Troops," since S 27- 581(9) generally hans signs that "emit any sound that is intended to attract attention,1I but the government would be free to erect an equally distracting n and presumably unsafe -- sign emitting the audio message, "Support Your City Council," since governmental signs are completely exempt from regulation under ~ 27-580(4). Regarding aesthetics, the sign code states that "un- controlled and unlimited signs may degrade the aesthetic attractiveness [*1268] of the natural and manmade at- tributes of the [**41] conununity," S 27,574(5), This provision similarly fails to explain how the sign code's content-based differentiatIOn among categories of signs furthers the City's asserted aesthetic interests. Por exam- ple, we arc llnpcrslladed that a flag bearing an individ- ual's logo (which is not exempt hom regulation), is any Jess aesthetically pleasing than, say, a flag bearing the logo of a fraternal organization (which is exempt from 410 F.3d 1250, *; 2005lJ_S App, LEXIS 9883, **; 18 Fla, L Weekly Fed, C 575 Page 15 regulatlOll under 9 27-580(3)), Nor is it clear to us that a government-authorized sign reading, "Support Your City Council" in flashing lights (which is exempt from regula- tion under 9 27-580(4)), or a religious sign reading, "Support Your Church" (which is exempt under 9 27- 580(17)), degrades the Clly's aesthctic attracl1veness any less than a yard sign reading, "Support Our Troops" in flashing lights, Although the sign code's regulations may generally promote aesthetics and traffic safety, the City has simply failed to demonstrate how these interests are served by the distinction it has drawn in the treatment of exempt and nonexempt categories of signs. Simply put, the sign code's exemptions are not narrowly tailored to accom- plish either the City's traflic safety I **42] or aesthel1e goals. Moreover, even if the sign code's regulations were narrowly tailored to promote aesthetics and traffic safety -- and this codification does no such thing -- the plurality opinion in Metromedia and our decision in Dimmitt have said that these interests arc not sufficiently "compelling" to sustain content-based restrictions 011 signs. In Metromedia, the plurality concluded that aesthetics and traffic safety constituted "substantial" but not "compel- ling" government interests, and thus were insufficient to justify the San Diego ordinance. A4etrumedia. 453 Us. at 507-08 (plurality opinIOn). Subsequently, in Dimmitt, we declared that "the deleterious effect of graphic com- munication upon visual aesthetics and traffic safdy . . . IS not a compelling state interest of the sort required to jus- tify content based regulation of noncommercial speech. I! Dimmitt, 985 F.2d at 1570. Thus, we found the city's interests in aesthetics and traffic safety inadequate to justify exempting certain types of flags but not others from the city's sign permit requirement. ld. at 1569-70. "As a practical matter," we observed, "only [**4JJ the most extraordinary circumstances will justify regulation of protected expression based on its content." Id. at 1570. Applying the Dimmitt analysis, we cannot reach a different conclusion in this case. The City has provided no justification, other than its general interests in aesthet- ics and traffic safety -- which are offered only at the highest order of abstraction and applied inconsistently ~- for exempting certain types of signs but not others. We do not foreclose the possibility that traffic safety may in some circumstances constitute a compelling government interest, but Neptune Beach has not even begun to dem- onstrate that it rises to that level in this case. Accord- ingly, we are constrained to conclude that Neptune Beach's sign code is not justified by a compelling gov- ernment purpose. Because its enumerated exemptions create a content- based scheme of speech regulation that is not nanowly tailored to serve a compelling government purpose, Nep- tune Beach's sign code necessarily fails to survive strict scrutiny. L' Moreover, these exemptions are not severable from the remainder of the ordinance; [*1269J we are therefore required to fme! the sign code unconstitutional. [**441 '" 15 Solantic also argues that the sign code is an impermissible regulation of corrunercial speech under the Central Hudson test, which lays out a framework for evaluating the constitutionality of restrictions on commercial speech. Commercial speech that is not misleading and does not advo- cate illegal activity may be regulated if the regu- lation directly advances a substantial govemmen- tal interest and reaches no further than necessary to accomplish that goal. Cent. Hudson Gas & Elec Corp_ v. Pub_ Scrv. Comm rn of N. Y, 447 US 557, 564, 100 S Ct 2343, 65 L Ed 2d 34 I (/980). Because the sign code does not regulate commercial speech as such, but rather applies without distinction to signs bearing commercial and noncommercial messages, the Central Hud- son test has no application here. 16 "Severability of a local ordinance is a ques- tion of state law. . . ." City of Lakew()od v. Plain Dealer Puh'g Co, 486 US 750, 772, 108 S Ct. 2138, 100 LEd 2d 771 (1988); see also Coral Springs 5'treet Sys_, Inc_ v. City of Sunrise, 371 F3d 1320, 1347 (11th Cir, 2(04), As we have previously explained: Florida law clearly favors (where possible) severance of the invalid portions of a law from the valid ones. According to the Flor- ida Supreme Court, "severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of leg- islative enactments where it is possible to strike only the uncon- stitutional portions. II Ray v. Martham, 742 So 2d 1276, 1280 (Fla, 1999) (citing State v. Cal- houn COlln(v, J 26 Fla. 376, 383, 170 So, 883 (1936)), The doctflnc of severability is "derived from lhe respect of the judiciary for the separation of powers, and is 'de- signed to show great deference to the legislative prerogative to enact laws.'" /d. (quoting Schmitt F. State, 590 So, 2d 404, 415 (Fla. 199/)). 410 F,3d 1250, *; 2005 US, App, LEXIS 9883, **; 18 Fla, L Weekly Fed, C 575 Page 16 Coral Springs, 37/ F3d at 1347, The Florida Supreme Court has articulated the following test for severability: When a part of a statute is de- clared unconstitutional the re- mainder of the act will be permit- ted to stand provided: (1) the un- constitutional provisions can be separated from the remaining valid provisions, (2) the legislative pur- pose expressed in the valid provi- sions can he accomplished inde- pendently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legisla- ture would have passed the onc without the other and, (4) an aet complete in itself remains after the invalid provisions arc stricken. !d. at 1348 (guotlllg Smith v. Dep't vJ Ins, 507 So. 2d 1080, 1089 (Fill 1962)), Applying this test, we find that the exemp- tIOns contained III g~ 27-580 and 27.583(b) arc not severable from the remainder of the sign code. These provisions can be separakd, since they are discrete sections of the statute, satisfying the first prong of Florida's severability test. Addi- tionally, the stated legislative purpose of improv- ing traffic safety and aesthetics can still bt: ac- complished without the exemptions, sat.isfying the second prong. The problem lies with the third prong. It is not clear that the legislature would have enacted the sign code, complete with its permit require- ment and restrictions on form, even without the exemptions. The legislature might have preferred not to impose these regulations on any signs if doing so meant that all signs would be subjected to these rules. for example, we cannot say with any certainty that the legislature would have cho- sen to adopt a potentially time-consuming permit- ting process if even signs displayed only on a short-term basis -- such as those advertising festi- vals, sporting events, and rehgious functions, among other things, which are exempt under S 27-583(b)(5) n were required to comply, since would-be advertisers might be unable to obtain permits in time for their events. Slmilarly, we are not persuaded that the legislature would have chosen to ban signs using the words "stop," "look," and "danger, I! see S 27-581(13), if this mlc applied even to governmental signs, which are exempt under ~ 27-580(4). Because the gen- eral regulations and the exemptions are not "so inseparable in substance that it can be said that the Legislature would have passed the one with- out the other," Coral Springs, 371 F3d at 1348, invalidating the scheme of exemptions requires us to invalidate the sign code in its entirety. [**45] c: Solantic also says that the sign code is unconstitu- tional for the wholly independent reason that its failure to impose time limits for permitting decisions makes it an invalid prior restraint on speech. We agree that the ab- sence of any time limits renders the sign code's permit- ting requirement unconstitutional. [*]270] Whether a licensing ordinance -- which constitutes a prior restraint on speech -- must contain a time limit within which to make licensing decisions de- pends on whether the ordinance is content based or con- tent neutral. As we have previously explained, see Gran- ite State Outdoor Adver., Inc. v. Ci(v 0./81. Petersburg, 348 F.3d 1278, 1281 (11th Ctr. 20(3), two Supreme Court cases establish the relevant framework. First, in Freedman v. Alaryland, 380 US. 51, 85 S. Ct, 734, 13 L Ed 2d 649 (1965), the Court Illvalidated a state law requiring motion pictures to be licensed prior to their release. The licensing board had discretion to deny licenses for films that \vere "obscene" or that "tended, in the judgment ofthe Board, to debase or corrupt morals or incite to crimes." ld. at 52 n.l. In response to the danger of censorship [**46] posed by this ordinance, the Court held that the licensing process was valid only if it con~ tained certain procedural safeguards, which the plurality opinion in FW/PBS, fnc. v. City vI Dill/liS, 493 Us. 215, 110 S Ct. 596, 107 LEd. 2d 603 (1990), described in these terms: (1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that de- cision must be available; and (3) the censor must bear the burden of go- ing to court to suppress the speech and must bear the burden of proof once in court. 410 F,3d 1250, *; 2005U.S, App, LEXlS 9883, **; 18 Fla L Weekly Fed, C 575 Page 17 Jd. at 227. Although the Court was fragmented as to the precise extent of Freedman's applicability in FWIPBS, a majority of Justices reaffinl1ed the continuing validity of the first requirement -- strict time limits for licensing decisions. See it!. at 227-28 (plurality opinion); id. at 238 (Brennan, J., concurring in the judgment). ]1 17 In FWIPBS, the Court applied Freedman's time-limit requirement to an ordinance regulating adult businesses through a scheme of zoning, li- censing, and inspections. A majority held that the ordinance violated the Fi".",t Amendment because it failed to impose strict adrnlnistrative time limits and to provide for prompt judicial review, as re- quired by Freedman, See FlnPBS, 493 US at 227-28 (plurality opinion); id at 238 (Brennan, J", concurring in the judgment). However, Justice O'Connor, \witing for herself and t\VO other Jus- tices, found that only two of Freedman's protec- tions -- strict administrative time limits and prompt judicial review -- applled to the licensing scheme. Id. at 228 (plurality opinion). Justice Brennan, writing for himself and t\VO other Jus- tices, would have applied all three of Freedman's safeguards, including the requirement that llthc would-be censor . bear both the burden of go- ing to court and the burden of proof 111 court." Id. at 239 (Brennan, J., concurring in the judgment). [**47] Subsequently, in Thomas v. Chicngo Park District, 534 Us. 316, 122 S Ct. 775, 1511, Ed 2d 783 (2002), the Court upheld an ordinance requiring a permit before conducting any event involving more than fifty people. The Court distinguished Freedman, explaining: "Freedman is inapposite here because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public fomm." It!. at 322. Because the Thoma,)' ordinance was content neutral, the Court helel that it was not subject to the Freedman requirements, explaining that "we have never required that a content-neutral per- mit scheme regulating speech in a public forum adhere to the procedural requirements set forth in Frt'cdman." lei. However, the Court helel that the ordinance }-\,as subject to the requirement that it contain "adequate standards to guide the licensing official's [*127 J] discretion and ren- der it subject to effective judicia! review." lei. at 323. Since Thomas, we have held that "time l101it5 arc not per se required when the licensing scheme at issue is content-neutral." [**48] City (~l St. Petersburg. 348 F.3d at 1282 n.6; see a/so Granite State Outdoor Adver., lnc. v. City ojCleanvater, 351 1-'.3d 1112,1118 (11th Cir. 20(3) ("Time limits are required when their lack could result in censorship of certain viewpoints or ideas, but are not categorically required when the permitting scheme is content-neutral." (emphasis and citation omit- ted)). We have explained that "whether Freedman or Thomas controls. . depends on whether the City's sign ordinance is content-based or content-neutral." City ofSt. Petersburg, 348 F3d at 128 I, Because Neptune Beach's sign code is content based, its permitting scheme is sub- ject to Freedman's time-limit requirement. See Burk, 365 F.3d at 1255 n.12 ("A content-based prior restraint must also satisfy the procedural requirements of Freedmnn v. Maryland." (citation omitted)); see also Cafe Erotica, 360 F3d at 1282-83 (applying Freedman's time-limit requirement to a sign permit requirement that was fa- cially content neutral, but contained "the potential for content-based decisionmaking," and finding the require- ment satisfied since [**491 the ordinance required per- mit applications to be approved or denied within 14 days of submission). To satisfy the time-limit requirement, an ordinance must "ensure that permitting decisions are made within a specified time period." Cafe Erotica, 360 F.3d at 1282. In Cafe Erotica, we found this requirement satlsfied by a sign permit requirement explicitly providing that licens- ing decisions had to be made within 14 days. In contrast, "an ordinance that permits public officials to effectively deny an application by sitting on it indefinitely is invalid," since "the opportunity for public otll.cials to delay is another form of discretion. I' Lady 1. Lingerie v City ofloc/mil/villc, 176 F3d 1358,1361-62 (11th Cir. 1999). We have repeatedly applied this requirement in the context of licensing schemes for adult businesses, interpreting it as requiring that the ordinance contain a specific provision explicitly limiting the period of time within which licensing officials must make permitting decisions. Thus, for example, in Lady 1. Lingerie v. City of Jacksonville, we struck down a requirement that adult businesses obtain a zoning exemption. [**501 Although the zoning board was required to conduct a hearing within 63 days of the business IS application, we held that "the ordinance's failure to require a deadline for decision renders it unconstitutional." Id. at 1363. In Redner v. Dean, 29 F. 3d 1495 (1994), we struck down a licensing requirement for adult entertainment establishments, even though the ordinance placed a 45-day time limit on the administrator's licensing decision, since the ordinance further provided that in the event the administrator cx- ceeded the 45-day limit, "the applicant may be permitted to begin operating the establishment for which a license i:-; sought, unless and until the County Administrator noti- fIes the applicant of a denial or the application." This provision, we held, rendcred the time limit "illusory" and I'risked the suppression of protected expression for an indefinite time period." Ie/. at 1500-01. 410 F,3d 1250, *; 2005 US App, LEXIS 9883, **; 18 Fla. L Weekly Fed, C 575 Page 18 Again, in Artistic Entertainment, Inc. v. Ci(v of War- ner Robins, 223 F3d 1306 (11th Ctr. 2(00), we struck down a licensing requirement for adult entertainment establishments even though it required the city council to approve or deny a [**51 J license application within 45 days. We reasoned that, "although [the ordinance) im- poses a deadline on the City to consider an adult business license application, it does not guarantee the adult busi- ness owner the right to [*1272] begin expressive activi- ties within a brief, fixed time frame," since it did not provide for what would happen if the city council, "be- cause of bad faith or innocent bureaucratic delays, fails to act on an application before the deadline." fd at j 3/ 0- 11. Neptune Beach's sign code contains no time limit of any sort for permitting decisions. Section 27-594, enti- tled "Permit application and approval procedures," pro- vidcs: "Within ten (10) days after receipt of an applica- tion, the building official shall determine that the infor- mation is complete or incomplete and inform the devel- oper of the deficiencies, if any," S 27-594(b), If the ap- plication is deemed incomplete, the applicant has ten days to conect the problem. If the application is com- plete, "the building official shall determine if the sign meets all provisions of this Code and shall issue the per- mit which states whether the application is approved, denied, or approved with conditions." 9 [**52] 27- 594(b)(2). However, no section of the sign code specifies any time period within which the building official must make this determination, thereby IIrisking the suppression of protected expression for an indefinite time period.!! Red- ner, 29 F.3d at 1500-01. The absence of lm)" decision- making deadline effectively vests building officials with unbridled discretion to pick and choose which signs may he displayed by enabling them to pocket veto the permit applications for those bearing disfavored messages. The sign code's permitting requirement is therefore precisely the type of prior restraint on speech that the First A mendment will not bear. III. Although this case is before us on appeal from the denial of a preliminary injunction, we do not think it necessary or prudent to confine our opinion to holding that Solantic has shown a likelihood of success on the merits, when it is altogether clear that Solantic ~vil/ suc- ceed on the merits of its First Amendment claims. \Ve recognize that, ordinarily, "when an appeal is taken from the grant or denial of a preliminary injunction, the re- viewing court will go no Curt her into the merits than is necessary to decide [**53] the interlocutory appeal." Callaway v, IJ/ock, 763 F2d 1283, 1287 II 6 (II Ih Cir. 1985). However, under certain circumstances, a judg- ment on the merits is appropriate. In Thornburgh v American College oj Obstetricians & Gynecologists, 476 US 747, 106 S Ct. 2169, 90 L Ed. 2d 779 (/986), overruled 011 other grounds by Planned Parenlhood v, Casey, 505 US 833, 112 S Ct. ]791, f20 LEd, 2d 674 (1992), the Supreme Court hcld that the court of appeals had jurisdiction, Oil an appeal from the district court's denial of a preliminary injunc- tion, to strike down as unconstitutional portions of a rennsyl vania abortion statute, and affirmed the judgment of the court of appeals on the merits. See id. at 755-57. Ibe Court observed that appeals courts' general approach of reviewing only the decision on whether to grant pre- liminary injunctive relief "is not inflexible," id. at 756, reasoning: "That a court of appeals ordinarily will limit its review in a case of this kind to abuse of discretion is a rule of orderly judicial administration, not a limit on ju- dicial poweL" ld. at 757; accord Callaway, 763 F.2d at 1287 n6 [**541 ("This rule is a rule of orderly judicial administratlOn only, Section l292(a)(1) oJ Title 28 0/ the United States Code, I~ \vhich governs appeals of inter- locutory orders denying/granting injunctions, [*12731 grants the courts jurisdiction to reach the merits, at least where there are no relevant facts at issue and the matters to be decided arc closely related to the interlocutory or- der being appealed,"); 16 Charles Alan Wright, Arthur R, Miller & Edward H. Cooper, Federal Practice and Proce- dure S 3921.1. at 28 (2d ed, 1996) ("Jurisdiction of the interlocutory appeal is in large measure jurisdiction to deal with all aspects of the case that have been suffi- ciently illuminated to enable decision by the court of appeals without further trial court development. "). 18 28 US C .1' l292(a) states, in pertinent palt, that "courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the dis- trict courts granting, continuing, modifying, refusing, or dissolving injunctions." [**55J We have, on a number of occaSIOns, reached the merits of cases before us on interlocutory appeal from the grant or denial of a preliminary injunc- tion. In Callaway v. Block, for example, we affirmed the district court's denial of a preliminary injunction and disposed of the plaintiffs' statutory constmction and due process claims on the merits, "since both sides' argu- ments go to the merits, no facts are at issue, and the questions raised are purely legal ones." Callaway, 763 F.2d at 1287. We observed: "Reaching the merits in cases such as these obviously serves judicial economy, as long as the facts arc not disputed and the parties have presented their arguments to the eOllrt." Ie!. at /287 fl. 6. More recently, In Hllrk v. Augusta-Richmond County, 365 F3d 1247 (II Ih Cif'. 2(04), a pand of this 410 F.3d 1250, *; 2005 US App, LEXIS 9883, **; 18 Fla. L Weekly Fed, c: 575 Paae 19 ~ Court proceeded to the merits of a case before us on in- terlocutory appeal from the district court's denial of a preliminary injunction, and struck down on First A mendment grounds the count is permitting requirement for public demonstrations. Reaching the merits was ap- propriate, we found, since the appeal presented pure questions of law, and [**56] since "our disposition dic- tates the outcome of the underlying claim." fd. at ! 250; see also, e,g, Clements Wire & /v1fg Co. v, NLRB, 589 F,2d 894, 897~98 (5th Cir. 1979) "(finding it "apparent that appellee will not succeed on the merits of its action" and thus vacating the preliminary injunction and remand- ing "with instructions to the district court to entef a judgment consistent with this opinion"); Siegel. 234 F.3d at If 71 n.4 (observing that the court has the authority to reach the merits on appeal [rom denial of preliminary injunctiOn, but declining to do so, since the factual record was "largely incomplete and vigorously disputed"); AIcr- cury fi';/olor Express, Inc. v. Brinke, 475 F2d /086, /09/ (5th Cir. 1973) (reviewing the district court's issuance of a stay order that was not independently appealable, rea- soning: "Because this case is properly before the court as an appeal from the denial of an injunction under 28 US CA. .*. l292(a)(l) our permissible scope of re- view extends to the stay order as well. A court of appeals normally will not consider the merits of a casr.; br.;[orr.; [**57] it on an interlocutory appeal except to the extent necessary to decide narrmvly the matter which supplies appellate jurisdiction, but this nile is one of orderly judi- cial administration and not a limit on jurisdictional power. 'Once a case is lawfully before a court of appeals, it does not lack pO\\/er to do what plainly ought to be done.'" (quoting 9 Moore's Federal Practice P 110.25[1] (2ded, 1972))). '" 19 The Eleventh Circuit has adopted as prece- dent the decisions of the former Fifth Circuit ren- dered pnor to October I, 1981. Bonner v. Ci~y of Pnchard, 661 F2d 1206,1209 (11th Cir, 1981). 20 Numerous other Circuits have also recog- nized the appropriateness, in limited circum- stances, of reaching the merits of a case before the court on interlocutory appeal from the grant or denial of a preliminary injunction. See, e.g., Hurwitz v. Directors Guild oIi/m., Inc., 364 F.2d 67, 69~70 (2d Cir, 1966) (reversing denial of pre- lirninary injunction ancl directing entry of judg- ment for plaintiffs on the merits, reasoning that doing so "served the obvious interest of economy of litigation" and was appropriate since the case "contained no triahle issue of f~lct"); Amando/a v 7(JWI1 oJ Bahylon, 251 F 3d 339, 343-44 (2d Cir. 2UUI) (reversing denial of preliminary injunction and striking down permitting requirement for LIse of town facilities on First Amendment grounds); United Parcel Serv-, lnc. v. United States Postal Serv, 615 F2d lIJ2, 106-07 (3d Cir 1980) (reaching the merits because the case involved "a pure question of law," the legal question was "in- timately related to the merits of the grant of pre- liminary injunctive relief," and the legal issue would not "be seen in any different light after fi- nal hearing than before"); Doe v, Sundquist, 106 F3d 702, 707-08 (6th Cir, 1997) (finding that reaching the merits \vas "in the interest of judicial economy," since "the legal issues have been briefed and the factual record does not need ex- pansion"); illinois Council On Long Term Care v. Bradley, 957 F2d 305, 310 (7th Cir. 1992) ("Smce plaintiffs cannot win on the merits, there is no point in remanding the case for further pro- ceedings. Therefore we affirm the district court's judgment and remand with instmctions to dismiss the case on the merits. "); Campaign for Fami~v Farms 1', GLickman, 200 F.3d 1180, 1185-87 (8th Clf". 2(}()0) (reaching the merits because "we afe bced with a purely legal issue on a fixed admin- istrative record"). [*1274[ [**581 As the Supreme Court has ex- plained, appellate review on the merits is properly con- ducted "if a district court's mling rests solely on a prem- ise as to the applicahlc rule of law, and the facts are es- tablished or of no controlling relevance." Thornburgh, 476 US'. lit 757. "A different situation is presented, of course, when there is no disagreement as to the law, but the probability of success on the merits depends on facts that are likely to emerge at triaL" Id. at 757 n.8. Because the case before us falls into the first cate- gory, reaching a decision on the merits is the wiser course. The facts of the case are simple and straightfor- ward, and the record needs no expansion. The First Amendment questions u which are the only issues before us -- are purely legal; indeed, Solantic's constitutional challenge to the sign code is facial rather than as applied. so that our resolution of the legal questions is only lninimally intertwined with the facts. Moreover, the par- ties have fully briefed the legal issues and cogently pre- sented them to both tbe district court and this Court. In addition, resolving the legal questions finally will substantially further r**59J the interests of judicial economy. Determining, de novo, whether the district court correctly fOllnd Solantic unlikely to succeed on the merits requires us to address complex and purely legal First Amendment issues that the district court has alrC"ady fully considered once. Accordingly, "there is no point in remanding the case" for the district court to go through the motions of deciding the merits of Solantic's First A mendmcnt cluims yet again, \vhen our opinion compels 410 F.3d 1250, *; 2005 US, App, LEXIS 9883, **; 18 Fla, L Weekly Fed. C 575 Page 20 the result to be reached. Illinois Council, 957 F.2d at 310, 'VVe therefore hold that Solan tic prevails on the mer- its of these First Amendment claims, since the exemp- tions from Neptune Beach's sign code render it an uncon- stitutional content-based scheme of speech regulation, and since the sign code's lack of any time limits for per- mitting decisions make it an unla wful prior restraint on speech. Vole underscore that we express no opinion on -- and leave it to the district court to consider on remand -- 801aotic'$ requests for pennanent injunctive relief and for a declaration that it is not liable for accmed [**601 fines. REVERSED and REMANDED. Time of Request: Thursday, February 05, 2009 09:09:37 EST Client ID/project Name: Number of Lines: 2210 Job Number: 2861:138623037 11 7 QVC Research Information Service: LEXSEE(R) Feature Print Request: Current Document: 1 Source: Get by LEXSEE(R) Search Terms: 453 us 490 Send to: WRIGHT, JEFF COLLIER COUNTY ATTY OFFICE 3301 TAMIAMI TRL E NAPLES, FL 34112-3969 .'LexisNexis' Page I LEXSEE 453 US 490 METROMEDIA, INC., ET AL. v. CITV OF SAN DIEGO, ET AL. No. 80-195 SUPREME COURT OF THE UNITED STATES 453 U,S, 490; 101 S. Ct. 2882; 69 L. Ed. 2d 800; 1981 U,S. LEXlS 50; 49 U,S.L.w. 4925; 16 ERe (BNA) 1057; 11 ELR 20600 February 25, 1981, Argued .July 2, 1981, Decided PRIOR HISTORV: APPEAL FROM THE SU- PREME COURT OF CALIFORNIA. DISPOSITION: 26 Cal. 3d 848, 61IJ P. 2d 407, re- versed and remanded. DECISION: Municipal ordinance imposing substantial prohibi- tions on erection of outdoor advertising displays within city, held violative of First Amendment. SUMMARV: The city of San Diego, California, enacted an ordi- nance imposing substantial prohibitions on the erection of outdoor advertising displays within the city, the ordi- nance permitting on-site commercial advertising, but forbidding other commercial advertising and noncom- mercial communications using fixed-structure signs eve- rywhere unless pennitted by one of several specified exceptions. Several companies that were engaged in the outdoor advertising business in the city at the time the ordinance was passed brought suit in California state court to enjoin enforcement of the ordinance. After ex- tensive discovery, the parties stipulated, among other things, that if enforced as written the ordinance would eliminate the advertising business in the city and that outdoor advertising increases the sales of products and produces numerous direct and indirect benefits to the public, valuable commercial, political, and social infor- mation being communicated to the public through the use of outdoor advertising and many businesses and poli- ticians and other persons relying upon outdoor advertis- ing because other forms of advertising are insufficIent, inappropriate, and prohibitively expensive. On cross- motions for summary judgment, the trial court held that -"'.-~-'-'-"'-"'-~'--"-------~'''----< -"--.._,,-~~-_. the ordinance was an unconstitutional exercise of the city's police power and an abridgement of the companies' First Amendment rights, The California Court of Appeal affirmed on the first ground alone and did not reach the First Amendment argument. The Supreme Court of Cali- fornia reversed, holding that the two purposes of the or- dinance~-to eliminate hazards to pedestrians and motor- ists brought about by distracting sign displays, and to preserve and improve the appearance of the city--were within the city's legitimate interests and that the ordi- nance was a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfare, the court rejecting the companies' argument that the ordinance was facially in- valid under the First Amendment. On appeal, the United States Supreme Court re- versed and remanded. Although unable to agree on an opinion, six members of the court agreed that the ordi- nance was invalid under the First Amendment. White, J" announced the judgment of the eourt aud, in an opinion joined by Stewart, Marshall, and Powell, 11., expressed the view that while the ordinance, insofar as it regulated commercial speech, met the constihltional requirements established in prior Supreme Court cases for determining the validity of govenunental regulation of cormnereial speech, the ordinance was unconstitu- tional on its face because it reached too far into the realm of protected speech by distinguishing, through the use of its statutory exceptions, in several ways between permis- sihle and impermissible signs at a particular location by reference to their content. Brennan, 1., joined by Blackmun, J., concurring in the judgment, expressed the view that the ordinance pre- sented a total prohibition of outdoor advertising, and was invalid under the First Amendment, since the city failed 453 U,S, 490, *; 101 S. Ct. 2882, **; 69 LEd. 2d 800, ***; 1981 U,S, LEXrS 50 Page 2 to show that it had a sufficiently substantial governmen- tal interest directly furthered by the total ban, that any more narrowly drawn restriction would promote less well the achievement of that goal, and that an ordinance to- tally banning commercial billboards but allowing non- commercial billboards would not be constitutional. Stevens, 1., dissenting, joined that portion of the opinion of Justice White holding that a total prohibition of the use of outdoor advertising display signs for com- mercial messages, other than those identifying or pro- moting a business located on the same premises as the sign, is permissible, but expressed the view that the ordi- nance did not violate the First Amendment, since a wholly impartial ban on billboards would be permissible and since the exceptions in the city's ordinance did not present any additional threat to the interests protected by the First Amendment. Burger, Ch. J., dissenting, expressed the view that, consistent with the First Amendment, the city may, and perhaps must, take an all-or-nothing approach with non- commercial speech yet remain free to adopt selective exceptions for commercial speech, as long as the latter advance legitimate govenunental interests, and that the city's ordinance did not infringe on freedom of expres- sion given the wide range of alternative means available to convey the messages banned trom billboards by the ordinance. Relmquist, J., dissenting, agreed substantially with the views expressed in the opinions of Chief Justice Bur- ger and Justice Stevens, and expressed the view that aes- thetic justification alone is sufficient to sustain a total prohibition of billboards within a conmlunity, regardless of whether the particular community is a historic com- munity such as Williamsburg or one as unsightly as the older parts of many major metropolitan areas in the United States, and that the limited exceptions contained in the city's ordinance were not the type v,.'hich would render the ordinance unconstitutional. LAWVERS' EDITION HEADNOTES: [***LEdHNI] LAW &954 First Amendment -- ordinance prohibiting billboards Headnote:[ IA][ IB][IC] A municipal ordinance imposing substantial prohibi- tions on the erection of outdoor advertising displays within the city, by permitting on-site commercial adver- tising, but forbidding other commercial advertising and noncommercial communications using fixed-structure signs everywhere unless permitted by one of several specified exceptions, is invalid under the First Amend- ment. [Per \Vhite, Stewart, Marshatl, Powell, Brennan, and Blackmun, JJ. Dissenting: Stevens, J., Burger, Ch. J., and Rehnquist. J,] [***LEdHN2] COURTS &766 summary dispositions by Supreme Court -- limiting to precise issues presented -- Headnote:[2A ][2B] Although summary dispositions are decisions on the merits, the decisions extend only to the precise issues presented and necessarily decided by those actions. [Per White, Stewart, Marshall, Powell, and Stevens, JJ,] [***LEdHN3] COURTS &766 Supreme Court -- summary actions -- precedential value -- Headnote:[3A][3B] Summary actions do not have the same authority in the United States Supreme Court as do decisions ren- dered after plenary consideration, since they do not pre- sent the same justification for declining to reconsider a prior decision as do decisions rendered after argument and with full opinion, [Per White, Stewart, Marshall, Powell, and Stcvens, JJ.] [***LEdHN4] LAW &926 First Amendment -- method of communicating ideas Headnote:[4A ][4B][4C][ 4D] At times First Amendment values must yield to other societal interests, each method of communicating ideas being a law unto itself, and that law must reflect the dif- fering natures, values, abuses, and dangers of each method, [Per White, Stewart, Marshall, Powell, Brennan, Blackmun and Stevens, Jl, and Burger, Ch, J.] [***LEdHNS] LAW &925 First Amendment -- governmental interest in regula- tion -- communicative and nonconIDmnicative aspects of billboards -- Headnotc:[ SA ][5B] 453 U,S. 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 US LEXIS 50 Page 3 As with other media, the government has legitimate interests in controlling the noncommunicative aspects of billboards, but the First and f'ourteenth Amendments foreclose a similar interest in controlling the commllnica~ tive aspects, [Per White, Stewart, Marshall, Powell, and Stevens, H] [***LEdHN6] LAW 9931 First Amendment -- weighing conflicting interests -- Headnote:[6A][6B] A court may not escape the task of assessing the First Amendment interest at stake in the regulation of noncommunicative aspects of a medium and weighing it against the public interest allegedly served by the regula- tion; performance of this task requires a particularized inquiry into the nature of the conflicting interests at stake in the regulation, [Per White, StewaIt, Marshall, Powell, and Stevens, JJ,] [***I.EdHN7] LAW 9954 First Amendment -- billboard regulation -- restric- tion on commercial speech -- Headnote:[7 A ][78J Insofar as it regulates commercial speech, a munici- pal ordinance imposing substantial prohibitions on the erection of outdoor advertising displays within the city, by permitting on-site commercial advertising, but forbid- ding other commercial advertising and nonconmlcrcial communications using fixed-structure signs everywhere unless permitted by one of several specified exceptions, meets the constitutional requirements of the First Amendment, the ordinance directly advancing govern- mental interests in traffic safety and the appearance of the city and the city not denigrating its interest in traffic safety and beauty and defeating its own case by permit- ting on-site advertising and other specified signs, since a city can reasonably conclude that a commercial enter- prise has a stronger interest in identifying its place of business and advertising the products or services avail- able there than it has in using or leasing its available space for the purpose of advertising commercial enter- prises elsewhere. (Per White, Stewart, Marshall, Powell, and Stevens, JJ. Dissenting: Brennan and Marshall, JJ.] [***LEdHN8] CORPORATIONS 937,5 ordinance banning billboards -- validity under First Amendment u standing to challenge -- Headnote:[8A][8B] Companies that are engaged in the outdoor advertis- ing bUSiness in a city when the city passes an ordinance imposing substantial prohibitions on the erection of out- door advertising displays within the city have standing to raise in their own behalf the arguments both that the First and Fourteenth Amendments prohibit the elimina- tion of outdoor advertising business in the city which would result from the ordinance and that the city may bar neither all off.--site commercial signs nor all commercial advertisements and that even if it may bar the former, it may not bar the latter, because although the bulk of their business consists of off--site signs carrYlng commercial advertlsements, their billboards also convey a substantial amount of noncommercial advertisements. [Per White, Stewart, Marshall, Powell, and Stevens, J],] [***I.EdHN9] LA W 9925,7 First Amendment -- paid advertisements -- solicita- tions -- Headnote:[9A j[9B][9C] The Firs! Amendment protects speech even though it is in the form of a paid advertisement, in a form that is sold for profit, or in the form of a solicitation to payor contribute money. [Per White, Stewart, Marshall, Powell, and Stevens, JJ,] 1***LEdHNIO] LA W 9925 commercial speech -- government restrictions -- test for validity n Heaclnotc:[ 10A][1 OB] The validity of government restrictions on commer- cial speech, as distinguished from more fully protected speech, is to be determined by a four-part test: (I) The First A mendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial gov- ernmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective. [Per White, Stewart, Marshall, Powell, and Stevens, Jl) SYLLABUS Appeltee city of San Diego enacted an ordinance which imposes substantial prohibitions on the erection of outdoor advertising displays within the city. The stated purpose of the ordinance is "to eliminate hazards to pe- 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd. 2d 800, ***; 1981 U,S. LEXIS 50 Page 4 destrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City. II The ordinance permits onsite commercial ad- vertising (a sign advertising goods or services available on the property where the sign is located), but forbids other commercial advertising and noncommercial adver- tising using fixecl-stmcture signs, unless permitted by 1 of the ordinance's 12 specified exceptions, such as tem- porary political campaign signs. Appellants, companies that were engaged in the outdoor advertising business in the city when the ordinance was passed, brought suit in state court to enjoin enforcement of the ordinance. The trial court held that the ordinance was an unconstitutional exercise of the city's police power and an abridgment of appellants' First Amendment rights. The California Court of Appeal affirmed on the first ground alone, but the California Supreme Court reversed, holding, inter alia, that the ordinance was not facially invalid under the First Amendment. Held: The judgment is reversed, and the case is re- manded, Pp, 498-521; 527-540, JUSTICE WHlTE, Joined by JUST1CE STEWART, JUSTICE MARSHALL, and JUSTICE POWELL, con- cluded that the ordinance is unconstitutional on its face. Pp, 498-521, (a) As with other media of communication, the gov- ernment has legitimate interests in controlling the non- communicative aspects of billboards, but the Fin;t and Fourteenth Amendments foreclose similar interests in controlling the communicative aspects of billboards. Because regulation of the noncommunicative aspects ofa medium often impinges to some degree on the communi- cative aspects, the courts must reconcile the govern- ment's regulatory interests with the individual's right to expression, Pp,500-503, (b) Insofar as it regulates commercial speech, the ordinance meets the constitutional requirements of Cen- tra/ Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 US 557, Improving traf1ic safety and the appearance of the city are substantial governmental goals. The ordinance directly serves these goals and is no broader than necessary to accomplish such ends. Pp. 503-512, (c) However, the city's general ban on signs carrying noncommercial advertising is invalid under the First and Fourteenth Amendments. The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying his own ideas or those of others. Furthermore, because under the ordi- nance's specified exceptions some noncommercial mes- sages may be conveyed on billboards throughout the commercial and industrial zones, the city must allow billboards conveying other noncommercial messages throughout those zones. The ordinance cannot be char- acterized as a reasonable "time, place, and manner" re- striction, Pp,512.517, (d) Govemment restrictions on protected speech are not permissible merely because the government does not favor one side over another on a subject of public con- troversy. Nor can a prohibition of all messages carried by a particular mode of communication be upheld merely because the prohibition is rationally related to a nOTI- speech interest. Courts must protect First Amendment interests against legislative intrusion, rather than defer to merely rational legislative judgments in this area. Since the city has concluded that its official interests are not as strong as private interests in onsite commercial advertis- ing, it may not claim that those same official interests outweigh private interests in noncommercial communi- cations, Pp,517-521. JUSTICE BRENNAN, Joined by JUSTICE BLACKMlfN, concluded that in practical effect the city's ordinance constitutes a total ban on the use of bill- boards to communicate to the public messages of general applicability, whether commercial or noncommercial, and that under the appropriate First Amendment analysis a eity may totally ban billboards only if it can show that a sufficiently substantial governmental interest is directly furthered thereby and that any more narrowly drawn rc- striction would promote lcss well the achievement of that goal. Under this test, San Diego's ordinance is invalid since (1) the city failed to producc evidence demonstrat- ing that billboards actually impair traffic safety in San Diego, (2) the ordinance is not narrowly dra\\m to ac- complish the traffic safety goal, and (3) the cIty failed to show that its asserted interest in esthetics was suffi- ciently substantial in its commercial and industrial areas. Nor would an ordinance totally banning commercial bill- boards but allowing noncommercial billboards be consti- tutional, since it would give city officials the discretion to detennine in the first instance whether a proposed message is "conllilercial" or "noncommercia1." Pp. 527- 540, COUNSEL: Floyd Abrams argued the cause for appel- lants. 'With him on the briefs were Theodore B. Olson, Dean Ringel, and Wayne W. Smith. C. Alan Sumption argued the cause for appellees. With him on the brier was John W, Wilt, . * Briefs of amici curiae urging reversal were filed by Nadine Strossen and Bruce 1. Ennis, Jr., for the American Civil Liberties Union; by Ar- thur B. Hanson, Frank M. Northam, and Mitchell 453 U,S, 490, *; 10 I S, Ct. 2882, **; 69 L I'd. 2d 800, ***; 1981 U.S. LEXIS 50 Page 5 W. Dale for the American Newspaper Publishers Association; by Eric M. Rubin for the Outdoor Advertising Association of America; by Ronald A. Zumbrun, Thomas E. Hookano, and Raymond M. Momboisse for the Pacific Legal Foundation; and by Kip Pope for Robell p, Pope ct at. Briefs of amici curiae urging affi.rmance were filed for the United States by Solicitor Gen- eral McCree, Assistant Attorney General Moorman, Deputy Solicltor General Claiborne, Edwin S, Kneedler, F, Kaid Benfield, and Ed- ward J, Shawaker; for the State of Hawaii et at. by Wayne Minami, Attorney General of Hawaii, and Laurence Lau, Deputy Attorney General, Richard S. Cohen, Attorney General of Maine, and Cabanne Howard, Assistant Attorney Gen- eral, and M. Jerome Diamond, Attorney General of Vermont, and Benson D. Scotch, Assistant At- torney General; for the City of Alameda et a1. by Carter J. Stroud, David E. Schricker, and John Powers; for the City and County of San Francisco by George Agnost. Burk E. Delventhal, Diane L Hermann, and Alice Suet Yee Barkley; and for the National Institute of MUlllcipal Law Officers by Aaron A, Wilson, 1. LaMa, Shelley, Benjamin L Brown, John Dekker, James B. Brennan, Henry W. Underhill, Jr., William R, Quinlan, George 1', Knox, Jr., Max p, Zall, Allen G, Schwartz, Lee E. Holt, BUli Pines, Walter M. Powell, Roger F. Cutler, Conrad B. Mattox, Jr., Charles S, Rhyne, and William S, Rhyne, JUDGES: WHITE, J., announced the judgment of the Court and delivered an opinion, in which STEW ART, MARSHALL, and POWELL, JJ" joined, BRENNAN, 1., filed an opinion concurring in the judgment, in which BLACKMUN, J" joined, post, p, 521. STEVENS, J" while concurring in Parts I-IV of the plurality opinion, filed an opinion dissenting from Parts V-VII of the plu- rality opinion and from the judgment, post, p. 540. BURGER, C. J" post, p, 555, and REHNQUIST, 1., post, p. 569, filed dissenting opinions. OPINION BV: WHITE OPINION [*493] [***805] [**2885] JUSTICE WHfTE announced the judgment of the Court and delivered an opinion, in which JUSTICE STEW ART, JUSTICE MARSHALL, and JUSTICE POWELL Joined, [***LEdHRlAI [lA/This case involves the valid- ity of an ordinance of the city of San Diego, Cal., impos- ing substantial prohibitions on the erection of outdoor advertising displays within the city, [***806] I Stating that its purpose was "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appear- ance of the City," San Diego enacted an ordinance to prohibit "outdoor advertising display signs. II 1 The Cali- fornia Supreme Court subsequently defined the term lIadvertising display sign" as "a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advetiisement to the public." 26 Cat. 3d 848, 856, n. 2, 610 p, 2d 407, 410, n, 2 [*494] (1980). "Advertising displays signs" include any sign that "directs attention to a product, service or activ- ity, event, person, institution or business." 2 I San Diegu Ordinance No, 10795 (New Se- ries), enacted March 14, 1972, The general pro- hibition of the ordinance reads as follows: "8. OFF-PREMISE OUTDOOR ADVER- TISING DlSPLA Y SIGNS PROHIBITED "Only those outdoor advertising display signs, hereinafter referred to as signs in this Divi- sion, which are either signs designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufac- tured or produced or services rendered on the premises upon which such signs are placed shall be pernlitted. The following signs shall be pro- hibited: "1. Any sign identifying a use, facility or service which is not located on the premises. "2, Any sign Identifying a prodnct which is not produced, sold or manufactured on the prem- Ises. "3. Any sign which advertises or otherwise directs attention to a product, service or activity, event, person, institution or business which may or may not be identified by a brand name and which occurs or is generally conducted, sold, manufactured, produced or offered elsewhere than on the premises where such sign is located." 2 The California Supreme Court noted that the ordinance as written might be interpreted "to ap- ply to signs of a character very different from commercial billboards u for example, to a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political 453U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 V.S, LEXIS 50 Page 6 or religious message," 26 Cat. 3d. at 856, n, 2, 610 P. 2d, at 410, n. 2, For this reason the court adopted the narrowing definition (quoted in the text). That definition, however, focused on the structure not the content of the billboard: It ex- cluded "picket signs" but not billboards used to convey a noncommercial message. Cf. State ex rei. Dept, oJ TransportatIOn v, Pile, 603 f'. 2d 337 (/979) (Oklahoma Supreme Court construed a state statute prohibiting outdoor advertising signs as not covering noncommercial speech in order to avoid constitutional problems). The court explicitly recognized this continuing burden on noncommercial speech: "The relatively few non-commercial advertisers who would be re- stricted by the San Diego ordinance. . . possess a great variety of alternative means of communica- tion" 26 Cat. 3d, at 869, 610 p, 2d, at 418-419, Furthermore, the city continues to contend that the ordinance prohibits the lise of billboards to convey a nonconunercial message, unless that message falls within one of the specified exemp- tions contained in the ordinance. Brief for Appel- lees 6, The ordinance provides two kinds of exceptions to the general prohibition: onsite signs and signs falling within 12 specified (**2886J categories. Onsite signs are defined as those "designating the name of the owner or occupant of the premises upon which such signs are placed, or identi- fying such premises; or signs advertising goods manufac- tured or produced or services rendered on the premises upon which such signs are placed." The specific categories exempted from the prohibi- tion include: government signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, if [***807J not nsed for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial [*495] ve- hicles; signs depicting time, temperature, and news; ap- proved temporary, off-premises, subdivision directional signs; and "[temporaryJ political campaign signs." ) Un- der this scheme, onsite commercial advertising is permit- ted, (*496J but other commercial advertising and non- commercial communications using fixed-structure signs are everywhere forbidden unless permitted by one of the specified exceptions. 3 Section 101.0700 (F) provides as follows: "The following types of signs shall be ex- empt from the provisions oUhese regulations: "I. Any sign erected and maintained pursu- ant to and in discharge of any governmental func- tion or required by any law, ordinance or gov- ernmental regulation. "2, Bench signs located at designated public transit bus stops; provided, however, that such signs shall have any necessary pennits required by Sections 62,0501 and 62,0502 of this Code, 1t3. Signs being manufactured, transported and/or stored within the City limits of the City of San Diego shall be exempt; provided, however, that such signs are not used, in any manner or form, for purposes of advertising at the place or places of manufacnlfe or storage. "4. Commemorative plaques of recognized historical societies and organizations. "5. Religious symbols, legal holiday decora- tions and identification emblems of religious or- ders or historical societies. "6. Signs located within malls, courts, ar- cades, porches, patios and similar areas where such signs are not visible from any point on the boundary of the premises, "7. Signs designating the premises for sale, rent or lease; provided, however, that any such sign shall conform to all regulations of the par- ticular zone in which it is located. "8. Public service signs limited to the depic- tion of time, temperature or news; provided, however, that any such sign shall conform to all regulations of the particular zone in which it is located. "9. Signs on vehicles regulated by the City that provide public transportation including, but not limited to, buses and taxicabs. "10. Signs on licensed commercial vehicles, including trailers; provided, however, that such vehicles shall not be utilized as parked or station- ary outdoor display signs. "11. Temporary off-premise subdIvision di- rectional signs if permitted by a conditional use pennit granted by the Zoning Administrator. "12. Temporary political campaign signs, in- cluding their supporting structures, which are erected or maintained for no longer than 90 days and which are removed within 10 days after elec- tion to which they pertain." Appellants arc companies that were engaged in the outdoor advertising business in San Diego at the time the 453 U,S, 490, *; 101 $, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U.S, LEXIS 50 Page 7 ordinance was passed. Each owns a substantial number of outdoor advertising displays (approxllnately 500 to 800) within the city. These signs are all located in areas zoned for commercial and industrial purposes, most of them on property leased by the owners to appellants for the purpose of maintaining billboards. Each sign has a remaining useful income-producing life of over 25 years, and each sign has a fair market value of between $ 2,500 and $ 25,000, Space on the signs was made available to "all comers" and the copy on each sign changed regu- larly, usually monthly. ~ The nature of the outdoor adver~ tising business was described by the parties as follows: "Outdoor advertising is customarily purchased on the basis of a presentation or campaign requiring multi- ple exposure. Usually a large number of signs in a vari- ety (***808] of locations are utilized to communicate a particular advertiser's message. An advertiser will gener- ally purchase [**2887J a 'showing' which would in- volve the utilization of a specific number of signs adver- tising the same message in a variety of locations throughout a metropolitan area." ) Although the purchasers of advertising space on ap- pellants' signs usually seek to convey a commercial mes- sage, their billboards have also been used to convey a broad range of noncommercial political and social mes- sages. 4 This account of appellants' businesses is taken from the joint stipulation of facts entered into by the parties and filed with their cross-motions for summary judgment in the California Superior Court. See Joint Stipulation of Facts Nos, 12-20, App, 44a-45a, 5 Joint Stipulation of Facts No. 24, App, 47a, [*497J Appellants brought suit in state court to en- join enforcement of the ordinance. After extensive dis- covery, the parties filed a stipulation of facts, including: "2. If enforced as wTitten, Ordinance No. 10795 will eliminate the outdoor advertising business in the City of San Diego, "28. Outdoor advertising increases the sales of prod- ucts and produces numerous direct and indirect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertising. Many businesses and politi- cians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inap- propriate and prohibitively expcnsive." Joint Stipulation of Facts Nos, 2, 28, App, 42a, 4Sa. On cross-motions for summary judgment, the h-ial court held that the ordinance was an unconstitntlOnal exercise of the city's police power and an abridgment of appellants' First Amendment rights. The California Court of Appeal affirmed on the first ground alone and did not reach the First Amendment argument. Without questioning any of the stipulated facts, including the fact that enforcement of the ordinance would "eliminate the outdoor advertising business in the City of San Diego," the California Supreme Court reversed, It held that the two purposes of the ordinance were within the city's le- gitimate interests and that the ordinance was "a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfarc" 26 Ca!. 3d, at 858,610 p, 2d, at 411 (footnote omitted). The court rejected appellants' argument that the ordinance was facially invalid under the First Amendment. It relied on certain surrunary actions of this Court, dismissing for want of a substantial federal ques- tion appeals from several state-court decisions sustaining governmental restrictions [*498J on outdoor sign dis- plays. 6 Appellants sought review in this Court, arguing that the ordinance was facially invalid on First Amend- ment grounds and that the city's threatened destmction of the outdoor advertising business was prohibited by the Due Process Clause oj the Fourteenth Amendment. We noted probable jurisdiction, 449 US 897, 6 SujjiJlk Outdoor Advertising Co, v, Hulse, 439 US 808 (/978); Newman Signs, 1nc. v, Hjelle, 440 US 901 (1979); Lotze v, Washington, 444 US 92/ (/979), 11 [***809] Early cases in this Court sustaining regu- lation of and prohibitions aimed at billboards did not involve First Amendment considerations. See Packer Corp. v, Utah, 285 US 105 (/932); St, Louis Poster Advertising Cu, v, St. Louis, 249 US, 269 (1919); 1110- mas Cusack Co, v, City oj Chicago. 242 US 526 (/917). 7 Since those decisions, we have not gi ven plenary con- sideration to [**28881 cases involving First Amendment challe~ges to statutes or ordinances limiting the use of hillboards, pre ferring on several occasions summarily to affirm decisions sustaining state or local legislation di- rected at billboards, 7 These cases primarily involved due process and equal protection challenges to municipal regulations directed at billboards. The plaintiffs claimed that their method of advertising was im- properly distinguished from other methods that were not similarly regulated and that the ordi- nances resulted in takings of property without due process. The Court rejected these claims, holding that the regulation of billboards fell within the le- gitimate police powers of local government. 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U.S, LEXIS 50 Page 8 [***LEdHR2A] [2A]Suffolk Outdoor Advertising Co, v, Hulse, 439 US 808 (/978), involved a municipal or- dinance that distinguished between offsite and ensite billboard advertising prohibiting the former and permit- ting the latter. We summarily dismissed as not present- ing a substantial federal question an appeal from a judg- ment sustaining the ordinance, thereby rejecting the submission, repeated in this case, that prohibiting [*499] offsite commercial advertising violates the First Amend- ment. The definition of "billboard," however, was con- siderably narrower in Suffolk than it is here: "A sign which directs attention to a business, commodity, ser- vice, entertainment, or attraction sold, offered or existing elsewhere than upon the same lot where such sign is dis- played." This definition did not sweep within its scope the broad range of noncommercial speech admittedly prohibited by the San Diego ordinance. Furthermore, the Southampton, N. Y., ordinance, unlike that in San Diego, contained a provision permitting the establishment of public information centers in which approved directional signs for businesses could be located. This Court has repeatedly stated that although summary dispositions arc decisions on the merits, the decisions extend only to "the precise issues presented and necessarily decided by those actlOns," lvIandel v, Bradley, 432 US 173, /76 (1977); see also Hicks v, Miranda, 422 US, 332, 345, n, 14 (1975); Edelman v. Jordan, 415 US 651, 671 (/974). Insofar as the San Diego ordinance is challenged on the ground that it prohibits noncommercial speech, the Sl~r folk case docs not directly support the decision below. The Court has summarily disposed of appeals from state-court decisions upholding state restrictions on bill- boards on several other occasions. Markham Advertising Co, v, Washington. 393 Us. 316 (1969), and Newman S.gns, Inc, v, Iljelle, 440 US 901 (/979), both lllvolved the facial validity of state billboard prohibitions that ex- tended only to certain designated roadways or to areas zoned for cel1ain [***810J uses. The statutes in both instances distinguished between onsite commercial bill- boards and offsite billboards within the protected areas. Our most recent summary action was Lotze v. Washing.. ton, 444 Us. 921 (1979), which involved an "as ap- plied" challenge to a Washington prohibition on off.':iite slgns. In that case, appellants erected, on their own property, billboards expressing their political and social views. Although billboards conveying infonnation relat- ing to the commercial [*500] use of the property would have been permitted, appellants' billboards were prohib- ited, and the state courts ordered their removal. We dis- missed as not raising a substantial federal question an appeal from a judgment rejecting the Fir,'}.t Amendment challenge to the statute. [***LEdIIR3A] [3A]Insofar as our holdings were per- tinent, the California Supreme Court was quite right in relying on our summary decisions as authority for sus- taining the San Diego ordinance against First Amend- ment attack. Hicks v. Jvfiranda, supra.As we have pointed out, however, summary actions do not have the same authority in this Court as do decisions rendered after plenary consideration, Illinois State Board ofElec- tions v, Sociahst Workers Party, 440 US, 173, 180-181 (1979); Edelman v. Jordan, supra, at 671; see also Fusari v Steinberg, 419 US 379, 392 (/975) (BUR- GER, C. J., concurring). They do not present the same justification for decbning to reconsider a prior decision as do decisions rendered after argument and with full opinion. ''It is not at all unusual for the Court to find it appropriate to give full [**2889J consideration to a question that has been the subject of previous summary action." Washington v. Yakima indian Nation, 439 US 463,477, n, 20 (1979); see also Tully v, Griffin, Inc., 429 US 68, 74-75 (/976); Usery v, Turner Elkhorn lvIining Co" 428 US I, 14 (/976), Probable jurisdiction having been noted to consider the constitutionality of the San Diego ordinance, we proceed to do so. III [***LEdHR4A] [4A]This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e. g, Consolidated Edison Co. v. Public Service Comm'n, 447 US 530 (/980) (billing cnvelope inserts); Carey v. Brown, 447 US 455 (1980) (picketing in residential areas); .s'chaumburg v. Citizens for a Better Environment, 444 US 620 (/980) (door-to-door and on-street [*5011 solicitation); Greer v Spock, 424 US 828 (1976) (Army hases); Erznoznik v City oJ Jacksonville, 422 US 205 (1975) (outdoor movie theaters); Lehman v, City oJ Shaker Heights, 418 US 298 (1974) (advertising space within city-owned transit system). Even a cursory read- ing of these opinions reveals that at times First A mend- ment values mllst yield to other societal interests. These cases support the cogency of Justice Jackson's remark in Kovacs v, Cooper, 336 US 77. 97 [***811] (/949): Each method of communicating ideas is "a law unto it- self" and that law must reflect the "differing natures, values, abuses and dangers" of each method. 8 We deal here with the law of billboards, 8 The uniqueness of each medium of expression has been a frequent refrain: See, e. g, Southeast- ern Promotions, Ltd. v. Conrad, 420 US 546, 557 (/975) ('tEach medium of expression must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems"); FCC v. p([c~fic([ Foundation, 438 US 726, 748 (/978) ("We havc long recog- 453 U,S, 490, *; 101 S, Ct 2882, **; 69 LEd. 2d 800, ***; 1981 V,S. LEXlS 50 Page 9 nized that each medium of expression presents special First Amendment problems"); Joseph Burstyn, Inc, v, Wilson, 343 Us. 495, 503 (1952) ("Each method tends to present its own peculiar problems"), Billboards are a well-established medium of com- munication, used to convey a broad range of different kinds of messages. 9 As Justice Clark noted in his dissent below: "The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or 'broadside' to the billboard, outdoor signs have played a prominent role throughout American history, rallying support for political and social causes. I! 26 Cat. 3d, at 888, 610 p, 2d, at 430-43/. [*502] The record in this case indicates that besides the typical commercial uses, San Diego billboards have been used "to publicize the 'City in motion' campaign of the City of San Diego, to communicate messages from can- didates for municipal, state and national offices, includ- ing candidates for judicial office, to propose marriage, to seek employment, to encourage the use of seat belts, to denounce the United Nations, to seek SUPPOIt for Prison- ers ofvVar and Missing in Action, to promote the United Crusade and a variety of other charitable and soclally- related endeavors and to provide directions to the travel- ing public." II! 9 For a description of the history of the use of outdoor advertising in this country and the use of billboards within that history, see 1', Presbrey, The History and Development of Advertising 497-511 (1929); Tocker, Standardized Outdoor Advertising: History, Economics and Self- Regulation, in Outdoor Advertising: History and Regulation 11, 29 (J. Houck ed, 1969), 10 Joint Stipulation of Facts No, 23, App, 46a- 47a, But whatever its communicative function, the bill- board remains a "large, immobile, (**2890] and perma- nent structure which like other structures is subject to . regulation," ld., at 870, 610 P 2d, at 4/9, Moreover, because it is designed to stand out and apart from its sur- roundings, the hill board creates a unique set of probiems for land-use planning and development. [***LEdHR5A] [SA] [***LErlHR6Aj [6A IBillboards, then, like other media of communication, combine com- municative and noncommunicative aspects. As with other media, the government has legitimate interesTS in controlling the noncommunicative aspects of the mc- dium, Kovacs v. Couper, supra, but the First and Four- teenth Amendments foreclose a similar interest in con- trolling the communicative aspects. Because regulation of the noncommunicative aspects of a medium often im- pinges to some degree on the communicative aspects, it has been necessary for the courts to reconcile the gov- ernment's regulatory interests with the individual's right to expression, ,,, [***812] [Aj court may not escape the task of assessing the First Amendment interest at stake and welgbing it against the public interest allegedly served by the regulation.'" Unmark Associates, inc. v. Willingboro, 431 US 85, 9/ (1977), quoting Bigelow v, 1*503] Virginia, 421 US 809, 826 (1975), Performance of this task requires a particularized inquiry into the na- lure of the conflicting interests at stake here, beginning with a precise appraisal of the character of the ordinance as it affects communication. As construed by the California Supreme Court, the ordinance restricts the use of certain kinds of outdoor signs. That restriction is defined in two ways: first, by reference to the structural characteristics of the sign; sec- ond, by reference to the content, or message, of the sign. Thus, the regulation only applies to a ltpermanent struc- ture constituting, or used for the display of, a commercial or other advertisement to the public." 26 Car 3d, at 856, n,2, 610 P 2d, at 410, n. ], Within that class, the only pennitted signs are those (l) identifying the premises on which the sign is located, or its owner or occupant, or advertising the goods produced or services rendered on such property and (2) those within one of the specified exemptions to the general prohibition, slIch as temporary pohtical campaign signs. To determine if any billboard is prohibited by the ordinance, one must determine how it is constructed, where it is located, and what message it carnes. Thus, under the ordinance (I) a sign advertising goods or services available on the property where the sign is located is allowed; (2) a sign on a building or other property advertising goods or services produced or offered elsewhere is barred; (3) noncommercial advertis- ing, unless withm one of the specific exceptions, is eve- rywhere prohibited. The occupant of property may ad- vertise his own goods or services; he may not advertise the goods or services of others, nor may he display most noncommercial messages. IV [***LEdHR7A] [7A] [***LEdHR8AI [8A] [***LEdHR9A) [9A]Appellants' principal submission is that enforcement of the ordinance will eliminate the out- door advertising business in San Diego and that the First and Fourteenth Amendments r*504] prohibit the elimi- nation of this medium of communication. Appellants contend that the city may bar neither all ot1site commer- 453 U.S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 D,S, J.EXIS 50 Page 10 cial signs nor all noncommercial advertisements and that even if it may bar the former, it may not bar the latter. Appellants may raise both arguments in their own right because, although the bulk of their business consists of offsite signs carrying commercial advertisements, their billboards also convey a substantial amount of noncom- mercial advertising. II Because [**2891] our cases [***8131 have consistently distinguished between the constitutional protection afforded commercial as [*505J opposed to noncommercial speech, in evaluating appel- lants' contention we consider separately the effect of the ordinance on commercial and noncommercial speech. [***LEdHR9B] [9B] 11 The California Supreme Court suggested that appellants, owners of billboard businesses, did not have standing to raise the argument that bill- boards may, for some individuals or groups, be the only affordable method of communicating to a large audience. 26 Ca/. 3d, at 869, n 14, 610 P 2d, at 419, n. 14. In so holding, the Califomia court seems to have confused the category of "conunercial speech" with the category of indi- viduals who have a "commercial interest" in pro- tected speech. We have held that the overbreadth doctrine, under which a party whose 0\VIl activi- ties are unprotected may challenge a statute by showing that it substantially abridges the First Amendment rights of parties not before the court, will not be applied in cases involving "commer- cial speech." Bates v. State Bar of Arizona. 433 US, 350, 38/. (1977), However, we have never held that one with a "conmlcrcial interest" in speech also cannot challenge the facial validity of a statute on the grounds of its substantial in- fringement of the First Amendment interests of others. Were it otherwise, newspapers, radio sta- tions, movie theaters and producers -- often those with the highest interest and the largest stake in a First Amendment controversy -- would not be able to challenge government limitations on speech as substantially overbroad. As the opin- ion in Bates observed, id, at 363: "[Our] cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 US, I (1976); New York rimes Co, v, Sullivan, 376 US 254 (1964); ill a form that is sold for profit, Smith v. CalljiH"fIia. 361 US'. 147 (1959); Murdock v. Pennsylvania, 319 US 105 (1943); or in the form of a solicita- tion to payor contribute money, New York Times Co. v. 5,'ullivan, supra, Cantwell v. Connecticllt, 310 US 296 (1940) If commercial speech is to be distinguished, it 'must be distinguished by its content' 425 U,S" at 761." See also Virginia Pharmacy Board v. Vir- ginia Citizens Consumer Council, 425 u.s. 748, 761 (1976), The extension of First Amendment protections to purely commercial speech is a relatively recent develop- ment in First Amendment jurisprudence. Prior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the First Amendment. Valentine v. Chrestensen, 316 Us. 52 (1942). That construction of the First Amendment was severely cut back in Bigelow v. Virginia, supra. In Vir- ginia Pharmacy Board v_ Virginia Citizens Consumer Cauncil, 425 US 748 (1976), we plainly held that speech proposing no more than a commercial transaction enjoys a substantial degree of First Amendment protec- tion: A State may not completely suppress the dissemina- tion of truthful information about an entirely lawful ac- tivity merely because it is fearful of that information's effect upon its disseminators and its recipients. That decision, however, did not equate commercial and non- conunercial speech for First Amendment purposes; in- deed, it expressly indicated the contrary. See id., at 770- 773, and 11, 24, See also it!., at 779-781 (STEWART, J" concuning). i! 12 JUSTICE STEW ART's conunents ill Vir- ginw Pharmacy Board are worth quoting here; "The Court's determination that commercial advertising of the kind at issue here is not 'wholly outside the protection of the First Amendment indicates by its very phrasing that there are im- portant differences between commercial price and product advertising, on the one hand, and ideo- logical communication on the other. Ideological expression, be it oral, literary, pictorial, or theat- rical, is integrally related to the exposition of thought -- thought that may shape our concepts of the whole universe of man. Although such ex- pression may convey factual information relevant to social and individual decisionmaking, it is pro- tectcd by the Constitution, whether or not it con- tains factual representations and even if it in- cludes inaccurate assertions of fact. "Commercial price and product advertising differs markedly from ideological expression be- cause it is confined to the promotion of specific goods or services. The First Amendment protects the advertisement because of the 'information of potential interest and value' conveyed, rather than because of any direct contribution to the inter- 453 lI,S, 490, *; 101 S, Ct. 2882, **; 69 L. Ed, 2d 800, ***; 1981U.S, LEXIS 50 Page II change of ideas," 1d, at 779-780 (references and footnotes omitted), [*506] Alfhough the protection extended to com- mercial speech has continued to develop, commercial and noncommercial conullunications, [**2892J in the context of the First Amendment, have been treated dif- ferently, Bates v. State Bar of Anzona, 433 US 350 (1977), held that advertising by attomeys may not be subjected to blanket suppression and that the specific advertisement at issue there was constitutionally pro- tected. However, we continued to observe the distinction between commercial and noncommercial speech, indicat- ing that the former could be forbidden and regulated in situations where the latter [***8]4] could not be. Id, at 379-381, 383-384, In Ohralik v. Ohio State Bar Assn, 436 US 447 (1978), the Court refused to invalidate on First Amendment grounds a lawyer's suspension from practice for face-ta-face solicitation of business for pe- cuniary gain. In the course of doing so, \ve again recog- nized the common-sense and legal distinction between speech proposing a commercial transaction and other varieties of speech: "To require a parity of constitutional protection for commercial and noncommercial speech alike could in~ vite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a de vitalization, we instead have aiIordcd com- mercial speech a limited measure of protection, com- mensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regu~ lation that might be impennlssible in the realm of non- commercial expression." lei.. at 456. In Young v. American /i.1ini Theatres. Inc., 427 US. 50, 69, n 32 [*507] (1976), JUSTICE STEVENS stated that the difference between conmlercial price and prod- uct advertising and ideological cOnIDmnication permits regulation of the fonner "that the First Amendment would not tolerate with respect to the latter." See also Linmark Associates, Inc. v. Willingham, 431 US'., at 91- 92, and Friedman v, Rogers, 440 Us. 1.8-10 (1979). [***LEdHRIOA] [lOAIFmally,111 Central Hudson Gas & Electric Corp. v. Public Service Comnl'n, 447 US. 557 (1980), we held: "The Consl1tutlOn accords a lesser protection to commercial speech than to other con- stitutionally guaranteed expression. The protection available for a particular conunercial expressIOn turns on the nature both of the expression and of the governmen- tal interests served by its regulatIOn," lei.. al 562~563 (citation omitted). \Ve then adopted a four~part test for determinmg the [***815] validity of government re- strictions on commercial speech as distinguished from more fully protected speech. (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental inter- est, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective. [d" at 563-566, Appellants agree that the proper approach to be taken in determining the validity of the restrictions on commercial speech is that which was articulated in Cen~ tral Hudson, but assert that the San Diego ordinance fails that test. We do not agree. There can be little controversy over the application of the first, second, and fourth criteria. There is no sug- gestion that the corrunercial advertising at issue here in- volves unlawful activity or is misleading. Nor can there be substantial doubt that the twin goals that the ordinance seeks to further -- traffic safety and the appearance of the city ~- are substantial [*508] governmental goals. jJ It is far too late to contend otherwise [**2893] with respect to either traffic safety, RailwaJ' Express Agency, Inc. v. New York, 336 US 106 (1949), or esthetics, see Penn Central Transportation Co. v. New York City, 438 US. /04 (/978); Village oJ Belle Terre v. BOlon"" 416 US 1 (1974); Berman v, Parker, 348 US 26, 33 (/954), Simi- larly, we reject appellants' claim that the ordinance is broader than necessary and, therefore, fails the fourth part of the Central Hudson test. If the city has a suffi- cient basis for believing that billboards are traffic haz- ards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends, Indeed, it has stopped short of fully accomplishing its ends: It has not prohihited all billboards, but allows onsite advertising and some other specifically exempted signs. 13 The California Supreme Court had held in Varney & Creen v, Williams, 155 Cal. 318, 100 p, 867 (1909), that a municipal ordinance prohib- iting all advertising billboards purely for esthetic reasons was an unconstitutional exercIse of mu- nicipal police power. The court specifically over- mled Varney in upholding the San Diego ordi- nance at issue here. California's current position is in accord with that of most other jurisdictions. See n. 15, it~fra. The more serious question, then, concerns the third of the Central Hudson criteria: Does the ordinance "di- rectly advance" governmental interests in traffic safety 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 L. Ed, 2d 800, ***; 1981U.s, LEXIS 50 Page 12 and in the appearance of the city? It is asserted that the record is inadequate to show any connection between billboards and traffIc safety, The California Supreme Court noted the meager record on this point but held "as a matter of law that an ordinance which eliminates bill- boards designed to be viewed from streets and highways reasonably relates to traffic safety," 26 Cat. 3d, at 859, 610 p, 2d, at 412, Noting that "[billboards] are intended to, and undoubtedly do, divert a driver1s attention from the roadway," ibid" and that [*509] whether the "dis- tracting effect contributes to [***816J traffic accidents invokes an issue of continuing controversy," ibid., the California Supreme Court agreed with many other courts that a legislative Judgment that billboards are traffic haz- ards is not manifestly unreasonable and should not be set aside. We likewise hesitate to disagree with the accumu- lated, commonsense judgments of lucal lawmakers and of the many reviewing courts thaI billboards are real and substantial hazards to traffic safety. 14 There is nothing here to suggest that these judgments are unreasonable. As we said in a different context, Railway Express Agency, inc. v. New York, supra, at 109: "We would be trespassing on one of the most in- tensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City, It IS the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be pal- pably false," 14 See E. B, Elliott Adverrismg Co, v, lvIetro- politan Dade County, 425 F2d 1141, 1152 (CAS 1970); Markham Advertising Cu, v, Washington, 73 Wash, 2d 405, 420-42 I, 439 P 2d 248, 258 (1968); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N Y 2d 151, 155- 156, 176 N E. 2d 566, 568 (196/); Ghaster Properties, Ine, v, Preston, 176 Ohio St, 425, 438, 200 N E 2d 328, 337 (1964); Newmun Signs, lnc, v, Hjelle, 268 N W 2d 741, 757 (N D, 1978); Lubbock Poster Co, v, City oJ Lubhock, 569 S W 2d 935, 939 (Tex. Civ. App 1978); State v, Lotze, 92 Wash, 2d 52, 59, 593 P 2d 811, 814 (1979); Inhabitants, Town oJ Boothbay v Na- tional Advertismg Co" 347 A 2d 419, 422 (lvIe, 1975); Stuckey:" Stores, lnr, v, O'Cheskey, 93 N Iv/. 312, 321, 600 P 2d 258, 267 (1979); In re Opinion oJ the Justices, 103 N 11 268,270, 169 A, 2d 762, 764 (196/); General Outdoor Adver- tising Co. v. Department (~r Public Works, 289 Moss 149, 180-181, 193 N E 799, 813-814 (1935). But see John Donnelly & c)'()JJs v. Camp- bell, 639 F2d 6, II (CA / 1980); State ex rei. Dept. ojTrafl.\portation v. Pile, 603 P 2e1, at 343; Metromedia, 1nc, v, City oJ Des Ploines, 26 J//, App. 3d 942, 946, 326 N E 2d 59, 62 (1975). [*510] We reach a similar result with respect to the second asserted justification for the ordinance -- ad- vancement of the city's esthetic interests. It is not specu- lative to recognize that billboards by their very nature, [**2894] wherever located and however constructed, can be perceived as an "esthetic harm." I' San Diego, like many States and other municipalities, has chosen to minimize the presence of such structures. 16 Such esthetic judgments are necessarily subjective, defying objective evaluation, and for that reason must be carefulty scruti- nized to determine if they are only a [***817] public rationalization of an impermissible purpose. But there is no claim in this case that San Diego has as an ulterior motive the suppression of speech, and the judgment in- volved here is not so unusual as to raise suspicions in itself 15 See John Donnelly & Sons v. Compbell, su- pra, at 11-12; E. B. Elliott Advertising Co. v. Metropolitan Dade County, supra, at 1 j 52; Newman Signs, Inc. v. Hjelle, supra, at 757; Markham Advertising Co. v. Washington, supra, at 422-423, 439 P 2d, ot 259; Stuckey's Stores, t.nc, v, O'Cheskey, supra, ot 321, 600 I'. 2d, at 267; Suffolk Outdoor Advertising Co, v, Hulse, 43 N Y 2d 483, 489, 373 N E. 2d 263, 265 (1977); John Donnelly & Sons, lnc, v. Outdoor Advertising Bd, 369 Mass 206, 219, 339 N F:. 2d 709,717 (1975); Cromwell v. Ferrier, 19 NY 2d 263, 269, 225 N E 2d 749, 753 (/967); State v. Diamond Motors, Inc.. 50 Haw. 33, 35-36, 429 1'. 2d 825, 827 (/967); United Advertising Corp, v, Metuchen, 42 N J I, 6, 198 A, 2d 447, 449 (1964); In re Opinion of the Justices, supra, at 270-271, 169 A, 2d, at 764, But see State ex rei. Dept. oj Transportation v. Pile, supra, at 342; Sunad. inc. v. Sarasota, 122 So. 2d 611,6/4-615 (Fla. 1960), 16 The federal Highway Beautification Act of 1965, Pub, L 89-285, 79 Stat. 1028, as amended, 23 U S C 5 131 (1976 cd and Supp. Ill), re- quires that States eliminate billboards from areas adjacent to certain highways constmcted with federal funds. The Federal Government also pro- hibits billboards on federal lands, 43 CFR Ii 2921.0-6 (a) (1980), Three States have enacted statewide bans on billboards. Maine, Me. Rev. Stat. Ann, TIt. 23, Ii 1901 et seq. (1980); lIawaii, Haw Rev. Stot. 5264-71 et seq" Ii 445-111 et seq, (1976); Vemlont, Vt. St.at. Ann, Tit. 10, ,9' 488 et seq. (1973), 453 V,S. 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U,S, LEXIS 50 Page 13 It is nevertheless argued that the city denigrates its interest [* 511] in traffic safety and beauty and defeats its own case by permitting onsite advertising and other specified signs. Appellants question whether the distinc- tion between onsite and offsite advertising on the same property is justifiable in terms of either esthetics or traf- fic safety. The ordinance pemlits the occupant of prop- erty to use billboards located on that property to adver- tise goods and services offered at that location; identical billboards, equally distracting and unattractive, that ad- vertise goods or services available elsewhere arc prohib- ited even if permitting the latter would not multiply the number of billboards. Despite the apparent incongruity, this argument has been rejected, at least implicitly, in all of the cases sustaining the distinction between otTsite and onsite commercial advertising. 17 We agree with those cases and with our O\VIl decisions in Suffolk Outdoor Advertising Cu, v, Hulse, 439 US 808 (1978); lvIarkham Advertising Co, v, Washington, 393 US 316 (1969); and Newman Signs, Inc, v, Hjelle, 440 US 91!1 (1979). 17 See Howard v. State Department of High- ways of Colorado, 478 F2d 581 (CA II! 1973); John Donnelly & Sons v, Campbell, supra; John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra; Donnelly Advertising Corp. v. City of Baltimore, 279 Md, 660, 668, 371! A, 2d If 27, I 132 (1977); Modjeska Sign Studios, Inc, v, Berle, 43 N. Y 2d 468,373 N. E 2d 255 (1977); Suffolk Outdoor AdvertIsing Co. v. Hulse, supra; Ghaster Properties, lnc. v. Preston, supra; New- man Signs, lnc. v. Hjelle, supra: United Advertis- mg Corp. v, Borough oJ Raritan, II N. J 144, 93 A, 2d 362 (1952) (Brennan, J,); United Advertis- ing Corp. v. Metuchen, supra: Stuckey's Stores, Inc. v. O'Cheskey, supra. In the first place, whether onsite advertising is per- mitted or not, the prohibition of uffsite advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordi- nance is underinclusive because it permits onsite adver- tising. Second, the city may believe that offsite advertis- ing, with its periodically changing content, presents a more acute problem than does onsite advertising. See Railway Express, 336 U,S" at 110, [*512] Third, San Diego has obviously chosen to value one kind of com- mercial [**2895] speech -- onslte advertising -- more than another kind of commercial speech -- offsite adver- tising. The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city's interests in tTaffic safety and esthetics. The city has decided that in a limited instance -- onsite commercial advertising -- its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise -- as well as the interested public -- has a stronger interest in identifying its place of business and advertising the products or ser- vices available there than it has in using or leasing its available space for the purpose of advertising commer- cial enterprises located elsewhere. See Railway Express, supra, at 116 (Jackson, J., concurring); Bradley v. Public Utzlities Comm'n, 289 US 92, 97 [***818J (/933), It does not follow from the tact that the city has concluded that some commercial interests ouhveigh its municipal interests in this context that it must give similar weight to all other commercial advertising. Thus, offsite commer- cial billboards may be prohibited while onsite commer- cia billboards arc permitted. The constitutional problem in this area requires reso- lution of the conflict between the city's land-use interests and the commercial interests of those seeking to purvey goods and services within the city. In light of the above analysis, we cannot conclude that the city has dra\VIl an ordinance hroader than is necessary to meet its interests, or that it fails directly to advance substantial government interests. In sum, insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of Central Hudson, supra v [***LEdHRIB] [IB]1t does not follow, however, that San Diego's general ban on signs carrying noncom- mercial advertising is also valid [*513] under the First and Fourteenth Amendments. The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others. As ind icated above, our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively inverts this judgment, by affording a greater degree of protection to commercial than to non- commercial speech. There is a broad exception for onsite conunercial advertisements, but there is no similar ex- ception for noncommercial speech. The use of onsite billboards to carry conunercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry non- conunercial messages is generally prohibited. The city does not explain how or why nonconuncrcial billboards located in places where commercial billboards are per- mitted would be more threatening to safe driving or would detract more from the beauty of the city. Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conducle that the communication of commercial in- formation concerning goods and services connected with 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U,S. LEXIS 50 Page 14 a particular site is of greater value than the communica- tion of noncommercial messages. I~ 18 1n John Donnelly & Sons v, Campbell, 639 F,2d 6 (1980), the Court of Appeals for the First Circuit considered a statewide limitation on bill- boards, which similarly afforded a greater degree of protection to commercial than to noncommer- cial messages. That court took a position very similar to the one that we take today: it sustained the regulation insofar as it restricted conunercial advertising, but held unconstitutional its more in- trusive restrictions on noncommercial speech. The court stated; "The law thus impacts more heavily on ideological than on commercial speech -- a peculiar inversion of First Amendment values. The statute . provides greater restric- tions -- and fewer alternatives, the other side of thc coin -- for ideological than for corrunercial speech. In short, the statute's impositions are both legally and practically the most burdensome on ideological speech, where they should be the least." 639 F2d, at 15-16, Other courts, however, have failed to give adequate weight to the distinc- tion between conunercial and nonconmlCTcial speech and to the higher level of protection to be afforded the latter. See Donnelly Advertising COIl), v, City oJ Baltimore, 279 Md, 660, 370 A. 2d 1127 (1977); State v Lotze, 92 Wash. 2d 52, 593 p, 2d 811 (/979), To the extent that thiS de~ cision is not consistent with the conclusion reached in Lotze, we overrule our prior summary approval of that decision in 444 US 921 (/979), [*514] [***819] [**2896] Furthennore, the or- dinance contains exceptions that permit various kinds of noncommercial signs, whether on property where goods and services arc offered or not, that would otherwise be within the general ban. A fixed sign may be used to iden- tify any piece of property and its owner. Any piece of property may carry or display religious symbols, com- memorative plaques of recognized historical societies and organizations, signs carrying news items or telling the time or temperature, signs erected in discharge of any governmental function, or temporary political campaign signs. 19 No other noncommercial or ideological slgns meeting the structural definition are permitted, regardless of their effect on tratli.c safety or esthetics. 19 In this sense, this case presents the opposite situation from that in Lehman v. City of Shaker Heights, 418 US 298 (/974), and Creer v. Spack, 424 US 828 (/976), In both of those cases a government agency had chosen to pro- hibit from a certain forum speech relating to po- litical campaigns, while other kinds of speech were permitted. In both cases this Court upheld the prohibition, but both cases turned on unique fact situations involving government-created fo- rums and have no application here. Although the city may distingUlsh between the rela- tive value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of~ or distinguish between, various communicative inter- ests, See Carey v Brown, 447 US, at 462; Police Dept, oJ Chicago v, lvIosley, 408 US 92, 96 [*515J (1972), With respect to nonconnnercial speech, the city may not choose the appropriate subjects for public discourse: "To allow a government the choice of pennissible subjects for public debate would be to allow that government control over the search for political truth." Consolidated Edison Co., 447 U.S., at 538. Because some noncom- mercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones. 20 20 Because a total prohibition of outdoor adver- tising is not before us, we do not indicate whether such a ban would be consistent with the First Amendment. But see Schad v. Mount Ephraim, 452 US 61 (1981), on the constitutional prob- lems created by a total prohibition of a particular expressive forum, live entertainment in that case. Despite JUSTICE STEVENS' insistence to the contrary, post, at 540, 541, and 548, n. 16, we do not imply that the ordinance is unconstitutional because it "docs not abridge enough speech." Similarly, we need not reach any decision in this case as to the constitutionality of the federal Highway Beautification Act of 1965, That Act, like the San Diego ordinance, permits onsite commercial billboards in areas in which it does not permit billboards with noncommercial mes- sages, 23 11. S C .11' 131 (c) (1976 ed, Supp, ffl). However, unhke the San Diego ordinance, which prohibits billboards conveying noncommercial messages throughout the city, the federal law does not contain a total prohibition of such bill- boards in areas adjacent to the interstate and pri- mary highway systems. As far as the Federal Government is concerned, such billboards arc permitted adjacent to the highways in areas zoned industrial or commercial under state law or in UIl- zoned commercial or indush.ial areas. 23 U. .)'. c ,<$ 13/ (d). Regulation of billboards in those areas is left primarily to the States. For this reason, the decision today docs not determine the constitu- 453 U,S, 490, *; 101 S, Ct. 2882, **; 691.. Ed, 2d 800, ***; 1981U.S, LEXIS 50 Page 15 tionality of the federal statute, Whether, in fact, the distinction is constitutionally significant can only be determined on the basis of a record estab- lishing the actual effect of the Act on billboards conveying noncommercial messages. Finally, [***820] we reject appellees' suggestion that the ordinance may be appropriately characterized as a reasonable "time, place, [**2897J and manner" re- striction. The ordinance does not generally [*516] ban billboard advertising as an unacceptable "manner" of communicating information or ideas; rather, it permits various kinds of signs. Signs that are banned are banned everywhere and at all times. We have observed that time, place, and manner restrictions arc pcnnissible if "they arc justified without reference to the content of the regulated speech,. serve a significant governmental interest, and. leave open ample alternative channels for communication of the information." Virginia Phar- macy Board v. Virginia Citizens Consumer Council, 425 u.s., at 77/. Here, it cannot be assumed that "alternative channels" are available, for the parties stipulated to just the opposite: "Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." 21 ^ similar argument was made with respect to a prohibition on real estate "For Sale" signs in Unmark Associates, Inc. v. Willingharo. 431 US 85 (1977), and what we said there is equally applicable here: "Although in theory sellers remain free to employ a number of different alternatives, in practice [certain products are J not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated . involve more cost and less autonomy then. . signs[,] . . . are less likely to reach persons not deliberately seeking sales informa- tion(,J . . . and may be less effective media for communi- cating the message that is conveyed by a. . sign. The alternatives, then, are far from satisfactory." Id., at 93, It is apparent as well that the ordinance distinguishes in several ways between permissible and irnpennissible signs at a particular location by reference to their con- tent. [*517J Whether or not these distinctions are them- selves constitutional, they take the regulation out of the domain of time, place, and manner restrictions. See Consolidated Edison Cu. v. Public Service Comm'n, Sll- pra. 21 See Joint Stipulation of Facts No. 28, App. 48a, VI Despite the rhetorical hyperbole of THE CHIEF JUSTICE's dissent, there is a considerable amount of common ground between the approach taken in this opinion and that suggested by his dissent. Both recog- nize that each medium of communication creates a unique set of First Amendment problems, both recognize that the city has a legitimate interest in regulating [***821] the noncommunicative aspects of a medium of expression, and both recognize that the proper judicial role is to conduct '''a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression.'" Post, at 556. Our princi- pal difference with his dissent is that it gives so little weight to the latter half of this inquiry. 22 22 JUSTICE STEVENS' suggested standard seems to go even further than THE CHIEF JUS- TICE in ignoring the private interests protected by the First Amendment. He suggests that regula- tion of speech is permissible so long as it is not biased in favor of a particular position and leaves open "ample" means of communication. Post, at 552, Nowhere cloes he suggest that the sh'ength or weakness of the government's interests is a factor in the analysis. TilE CllIEF JUSTICE writes that "[althoughJ we must ensure that any regulation of speech '[furthersJ a sufficiently substantial government interest'. . given a reasonable approach to a perceived problem, this Court's duty. . . is to determine whether the legislative approach is essentially neutral to the messages conveyed and leaves open other adequate means of con- veying those messages." Post, at 561. 11 [*518] [**28981 Despite his belief that this is "the essence of. . democracy," this has never been the ap- proach of this Court when a legislative judgment is chal- lenged as an unconstitutional infringement of First Amendment rights. N 23 THE CHIEF JUSTICE correctly notes that traditional labels should not be substituted for analysis and, therefore, he correctly rejects any simple classification of the San Diego ordinance as either a "prohihition" or a "time, place, and manner restriction." These "Jabels" or "catego- ries," however, have played an important role in this Court's analysis of First Amendment prob- lems in the past. The standard THE CHIEF JUSTfCE himself adopts appears to be based al- most exclusively on prior discussions of time, place, and manner restrictions. See Heffron v. In- ternational 5'ocie~y J(Jr Krishna Consciousness, 453 U,S, 490, *; 101 S. Ct. 2882, **; 69 LEd, 2d 800, ***; 1981U,S, LEXIS 50 Page 16 lac" 452 US 640 (198/); Consolidated Edison Co, v, Public Service Comm'n, 447 US 530, 535 (1980); Calljornia v, LaRue, 409 US 109, 117, n. 4 (1972); Adderley v Florida, 385 US, 39 (1966); Kovacs v Cooper, 336 US 77 (1949). But this Court has never held that the Jess strict standard of review applied to time, place, and manner restrictions is appropriately used in every First Amendment case, or that it is the most that the First Amendment requires of govemment leg- islation which infringes on protected speech. If this were the case, there would be no need for the detailed inquiry this Court consistently pursues in order to answer the question of whether a chal- lenged restriction is in fact a time, place, and manner restriction -- the same standard of review would apply regardless of the outcome of that in- quiry. As we demonstrated above, the San Diego ordinance is not such a restriction and there is, therefore, no excuse for applying a lower stan- dard of First Amendment review to that ordi- nance. 24 Nor has this Court ever accepted the Vlew that it must defer to a legislative judgment that a particular medium of communication is "offen- sive" and "intrusive," merely because "other means [of conununication] are available." P05-;t, at 561. By "essentially neutral," THE CHIEF JUSTICE may mean either or both of two things. He may mean that government restrictions on protected speech arc permis- sible so long as the government docs not favor one side over another on a subject of public controversy. This concept of neutrality was specifically rejected by the Cour1 last Term in Consulidated Edison Cu. v. Public Service Comm'n, 447 U.S'.. at 537. There, the Court [***822J dismissed the Commission's contention that a prohibition of all discussion, regardless of the viewpoint expressed, on controversial issues of public policy docs not [*519) unconstihttionally suppress freedom of speech. "The First Amendment's hostility to content- based regulation extends not only to restrictions on par- ticular viewpoints, but also to prohibition of public dis- cussion of an entire topic." Ibid. On the other hand, THE CHIEF JUSTICE may mean by neutrality that go v- enunent restrictions on speech cannot favor certain communicative contents over others. As a general rule, this, of course, is correct, see, e, g., Police Dept. of Chi- cago, v, /,[osley. 408 US 92 (1972); Corey v. Brown, 447 Us. 455 (1980), The general rule, III tact, is applica- ble to the facts of this case: San Diego has chosen to fa- vor certain kinds of messages -- such as onsite commer- cial advertising, and temporary political campaign adver- tisements -- over others. Except to imply that the fa- vored categories are for some reason de minimis in a constitutional sense, his dissent fails to explain why San Diego should not be held to have violated this concept of First Amendment neutrality. Taken literally THE CHIEF JUSTICE's approach would require reversal of the many cases striking down antisolicitation statutes on First Amendment grounds: In each of them the city would argue that preventing distri- bution of leaflets rationally furthered the city's interest in limiting litter, applied to all kinds of leaflets and hence did not violate the principle of government neutrality, and left open alternative means of communication. See, e, g, Martin v, Struthers, 319 US 141 (1943); Schneider v, State. 308 US 147 (1939), Despite the dissent's asser- tion to the contrary, however, it has been this Court's consistent position that democracy stands on a stronger footing when courts protect First A mendment interests against legislative intrusion, rather than deferring to merely rational legislative judgments in this area: [**2899) "Mere legislative preferences or beliefs re- specting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so [*520J vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and dif- ficult task falls upon the courts to weigh the circum- stances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoy- ment of the rights," 1<1" at 161, Because THE CHIEF JUSTICE misconceives the nature of the judicial function in this situation, he misun- derstands the significance of the city's extensive excep- tions to its billboard prohibition. He characterizes these exceptions as "essentially negligible," post, at 562, and then opines that it borders on the frivolous to suggest that in "allowing such signs but forbidding noncommercial billboards, the city has infringed freedom of speech." Post, at 565. That, of course, is not the nahlre of this argument. There can be no question that a prohibition on the erection of billboards infringes freedom of speech: [***823) The exceptions do not create the infringement, rather the general prohibition does. But the exceptions to the general prohibition are of great significance in as- sessing the strength of the city's interest in prohibiting billboards. We conclude that by allowing commercial establishments to use billboards to advertise the products and services they offer, the city necessarily has conceded that some communicative interests, e. g., onsite commer- cial advertising, arc stronger than its competing interests in esthetics and traffic safety. It has nevertheless banned Page 17 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 L. Ed. 2d 800, ***; 1981 U,S. LEXIS 50 all noncom:mercial signs except thosc specifically ex- cepted, THE CHIEF JUSTICE agrees that in allowing the exceptions to the rule the city has balanced the compet- ing interests, but he argues that we transgress the judicial role by independently reviewing the relative values the city has assigned to various communicative interests. He seems to argue that although the Constitution affords a greater degree of protection to noncommercial than to commercial speech, a legislature [*521] need not make the same choices. Post, at 567. This position makes little sense even abstractly, and it surely is not consistent with our cases or with THE CHIEF JUSTICE's own ar- gument that statutes challenged on First Amendment grounds must be evaluated in light of the unique facts and circumstances of the case. Governmental interests are only revealed and given concrete force by the steps taken to meet those interests. If the city has concluded that its official interests are not as strong as private inter- ests in commercial communications, may it nevertheless claim that those same official interests outweigh pnvate interests in noncommercial communications? Our an- swer, which is conslstcnt with our cases, is in the nega.. tive. VII Because the San Diego ordinance reaches too far into the realm of protected speech, we conclude that it is unconstitutional on its face. )j The judgment of the Cali- fornia Supreme Court is reversed, and the case is re- manded to that court. 2~ 25 Appellants contend that the ordinance will effectively eliminate their businesses and that this violates the Due Process Clause. We do not know, however, what kind of ordinance, if any, San Diego will seek to enforce in place of that which we invalidate today. In any case, any question of unconstitutional "takings" aside, the Due Process Clause does not afford a greater de- gree of protection to appellants' business than docs the Firs! Amendment. Since we hold that the First A mendment interests in commercial speech are not sufficient to prevent the city from prohib- iting offslte commercial advertisements, no dif- ferent result should be reached under the Dul' Process Clause. 26 Although the ordinance contains a severabil- ity clause, determining the meaning and applica- tion of that clause is properly the responsibility of the state courts. See Domhrowski v. Pfister, 380 US 479,497 (/965) ("The record suffices, , , to pennit this Court to hold that, \vithout the benefit of limiting constmction, the statutory provisions on which the indictments are founded are vOId on their face; until an acceptable limiting construc- tion is obtained, the provisions cannot be ap- plied"); Liggett Co, v, Lee, 288 Us. 517, 54! (1933) ("The operation of this [sevcrability clause] consequent on our decision is a matter of state law. While we have jurisdiction of the is- sue, we deem it appropriate that we should leave the determination of the question to the state court"); Dorchy v, Kansas, 264 US 286, 291 ("In cases coming from the state courts, this Court, in the absence of a controlling state decision may, in passing upon the claim under the federal law, de- cide, also, the question of severability. But it is not obliged to do so. The situation may be such as to make it appropriate to leave the determina- tion of the question to the state court"). This rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes infringing on protected speech. Compare United States v Thirty-seven Photo- graphs, 402 US 363 (197/), With Freedman v. Marvland, 380 us. 51, 60 (/965), Since our judgment is based essentially 011 the inclusion of noncommercial speech within the prohibitions of the ordinance, the California courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptible to this treatmcnt. It is so ordered. CONCUR BV: BRENNAN CONCUR [***824] [**2900] JUSTICE BRENNAN, with whom JUSTICE BLACKMIIN joins, concurring in the judgment. [***LEdHRIC] [ICjBelieving that "a total prohi- bition of outdoor advertising is not before us," ante, at 515, n, 20, the plurality does not decide [*522] "whether such a ban would be consistent with the First Amendment," ihid. Instead, it concludes that San Diego may ban all billboards containing commercial speech messages without violating the First Amendment, thereby sending the signal to municipalities that bifurcated bill- board regulations prohibiting commercial messages but allowing noncommercial messages would pass constitu- tional muster. Ante, at 521, n. 25. I \\'Tite separately because I believe this case in effect presents the total ban question, and because I believe the plurality's bifurcated approach itself raises serious First Amendment problems and relies on a distinction between commercial and non- commercial speech unanticipated by our prior cases. Page 18 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U,S, LEXIS 50 As construed by the California Supreme Court, a billboard subject to San Diego's regulation is "a rigidly assembled sign, [*523] display, or device pcrmanently affixed to the ground or permanently attached to a build- ing or other inherently permanent structure constituting, or used for the display of, a commercial or other adver- tisement to thc public." 26 eal, 3d 848, 856, n 2, 610 P 2d 407,410, n, 2 (/980), quoting Cal Rev, & Tax, Code Ann. Ij 18090,2 (West Supp, 1970-1980), ' San Diego's billboard regulation bans all commercial and noncom- mercial billboard advertising 2 with a few limited excep- tions. The largest of these exceptlOlls 15 for on-premises identification signs, defined as "signs designating the name of the owner or occu- pant of the premises upon which such signs are placed, [***825] or identifying such premises; or signs advertis- ing goods manufactured or produced or services [**290 I J rendered on the premises upon which such signs are placed." App. to Juris. Statement 107a. Other exceptions permit signs for governmental functions, signs on benches at bus stops, commemorative plaques for [*5241 historical sites, religious symbol signs, for sale signs, time/weather/news public service signs, and temporary political campaign signs erected for no longer than 90 days and removed within lO days after the election to which they pertain, ld, at llla-112a; ante, at 495, n. 3.3 I According to Joint Stipulation of Facts No, 25 entered into by the parties for purposes of cross- motions for summary judgment: "Outdoor advertising is presented in two ba- sic standardized forms. A 'poster panel' is a 12- foot by 24-foot sign on which a pre-printed mes- sage is posted, in sheets. A lpainted bulletin' is generally a 14-j(lOt by 48-foot sign which con- tains a hand painted message. 'fhe message will remain in one place for a period of time, usually a month, and will then be disassembled and re- placed by another message while the first mes- sage is moved to another sign. In this way, the same hand painted message will be moved throughout a metropolitan area over a six-month or twelve-month period," App, 47a, The ordinance docs not apply to such signs as lla picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message." 26 car 3d 848. 856, n, 2, 6/0 P 2d 407,410, /1, 2 (/980), 2 1 will sometimes refer to billboards containing commercial speech messages as "commercial billboards,!! and billboards containing 1l01lCOm- mercial speech messages as Ilnoncommercial billboards, " 3 Additional exceptions include signs manufac- tured, transported, or stored in San Diego so long as they are not used for advertising purposes; signs located within areas where such signs are not visible from the boundary of the premises; signs on vehicles such as buses and taxicabs; signs on other licensed cormnercial vehicles; and temporary off-premises subdivision directional signs, App, to Juris, Statement Illa-112a, II Let me first state the common ground that I share with the plurality, The plurality and I agree that bill- boards are a medium of communication warranting First Amendment protection. The plurality observes that "[billboards] are a well-established medium of commu- nication, used to convey a broad range of different kinds of messages." Ante, at 501. See generally Tocker, Stan- dardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation II, 11-56 (J, Houck ed, 1969); 1', Presbrey, The History and Development of Advertising 497-511 (1929), As the parties have stipulated, billboards in San Diego have been used "to advertise national and local products, goods and ser- vices, new products being introduced to the consuming public, to publicize fhe 'City in Motion' campaign of the City of San Diego, to communicate messages from can- didates for municipal, state and national offices, includ- ing candidates for judicial office, to propose marriage, to seek employment, to encourage the use of seat belts, to denounce the United Nations, to seek support for Prison- ers of War and Missing in Action, to promote the United Crusade and a variety of other charitable and [*525] socially-related endeavors and to provide directions to the traveling public." Joint Stipulation of Facts No. 23, App, 46a-47a, , Although there are alternative channels for communica- tion of messages appearing on billboards, such as news- papers, television, and radio, these alternatives have never dissuaded active and continued use of billboards as a medium of expression and appear to be less satisfac- tory. See Unmark Associates, Inc. v_ Willingboro, 431 US 85, 93 (1977), Indeed the parties expressly stipu- lated that "(many] businesses and politicians and other persons [***826] rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." Joint Stipulation of Facts No, 28, App, 48a, Justice Black said it well when he stated the First Amendment's pref;umption that "all prc- 453 U,S, 490, *; 101 S, Ct 2882, **; 69 LEd. 2d 800, ***; 198IU.S, LEX IS 50 Page 19 sent instruments of communication, as well as others that inventive gcmus may bring into being, shall be free from governmental censorship or prohibition." Kovacs v. Coo- per, 336 US, 77, 102 (1949) (dissenting opinion), 4 Pemsal of the photographs of b1l1boards In- cluded in the appendix to the jurisdictional state- ment filed in this Court reveals the wide range of noncommercial messages communicated through billboards, including the following: "Welcome to San Diego[:] Home of 1,100 Underpaid Cops"; "Support San Diego's No-Growth Pohcy[:J Spend Your Money in Los Angeles!"; "Voluntary Inte- gration. Better Education By Choice"; "Support America's First Environment Strike. Don't Buy Shell'''; and "Get US out' of the United Nations," Where the plurality and I disagree is in the charac- terization of the San Diego ordinance and thus in the appropriate analytical framework to apply, The plurality believes that the question of a total ban is not presented in this case, ante, at 515, n. 20, because the ordinance contains exceptions to its general prohibition. In con- trast, my [**2902J view is that the practical effect of the San Diego ordinance is to eliminate the billboard as an effective medium of communication for the [*526] speaker who wants to express the sorts of messages de- scribed in Joint Stipulation of Facts No, 23, and that the exceptions do not alter the overall character of the ban. Unlike the on-premises sign, the off-premises billboard "is, generally speaking, made available to tall-comers', in a fashion similar to newspaper or broadcasting advertis- ing. It is a fomm for the conununication of messages to the public," Joint Stipulation of Facts No, 22 (c), App, 46a. '; Speakers in San Diego no longer have the oppor- tunity to communicate their messages of general applica- bility to the public through billboards, None of the ex- ceptions provides a practical altemative for the general conunercial or noncommercial billboard advertiser. Indeed, unless the advertiser chooses to buy or lease premises in the city, or unless his message talls within one of the narrow exempted categories, he is foreclosed from announcing either commercial or noncommercial ideas through a billboard, 5 Outdoor advertising traditionally has been classified into two categories: "on-premisest! and "off-premises." One commentator describes: t'The on-premise classification of outdoor advertising is referred to as the sign industry, in that signs are custom-made and are manufactured by a sign contractor on premises not owned, leased or controlled by the sign contractor or his agent. Such signs are used primarily for the pur- pose of identifying a business, its products or its services at the point of manufacture, distribution or sale, hence on~premjse. "Off-premise advertising is an advertising service for others which erects and maintains outdoor advertising displays on premises o'Mled, leased or controlled by the producer of the adver- tising service." Tocker, Standardized Outdoor Advertising: History, Economics and Self- Regulation, in Outdoor Advertising: History and Regulation 11, 15, 18 (J, Houck ed, 1969), The characterization of the San Diego regulation as a total ban of a medium of communication has more than semantic implications, for it suggests a Finit Amendment analysis quite different from the plurality's. Instead of relying on the exceptions to the ban to invalidate the or- dinance, I would apply the tests this Court has developed to analyze content-neutral [*527] prohibitions of par- ticular media of communication. ~ Most recently, in Schad v Mount Ephraim, 452 US 61 [***827j (/981), this Court assessed "the substantiality of the governmen- tal interests asserted" and "whether those interests could be served by means that would be less intmsive on activ- ity protected by the First Amendment," in striking down the borough's total ban on live commercial entertain- ment. Jd., at 70. Schad merely articulated an analysis applied in previous cases concerning total bans of media of expression. For example, in Schneider v. State, 308 Us. 147 (/939), the Court struck down total bans on handbill leafletting because there were less restrictive alternatives to achieve the goal of prevention of litter, in fact alternatives that did not infringe at all on that impor- tant First Amendment privilege. Ill., at 162. In Martin v. City oJStruthers, 319 US 141 (1943), the Court invali- dated a municipal ordinance that forbade persons from engaging in the time-honored activity of door-to-door solicitation. See also Jamison v. Texas, 318 u.s. 413, 416-417 (/943) (distributlOn of handbills); Hague v, CIO, 307 US 496, 518 (1939) (opmion of Roberts, 1.) (distribution of pamphlets), See generally Ely, Legisla- tive and Administrative Motivation in Constitutional Law, 79 Yale L J. 1205, 1335-1336 (1970). 6 Different factors come into play when the challenged legislation is simply a time, place, or manner regulation rather than a total ban ofa par- ticular medium of expression. [***LEdHR4B] [4B]Of course, as the plurality notes, "[each] method of communicating ideas is la law unto itself and that law must reflect the 'differing nahlres, values, abuses and dangers' [**2903] of each method." Ante, at 501, quoting Kovacs v. Cuoper, supra, at 97 Page 20 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U,S, LEXIS 50 (Jackson, J., concurring). Similarly, in Southeastern Promotions, Ltd, v, Conrad, 420 US 546, 557 (1975), this Court observed: "Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited [*528] to it, for each may prescnt its own problems." It is obvious that billboards do present their own unique problems: they are large immobile structures that depend on eye-catching visibility for their value. At the same time, the special problems associated with billboards arc not of a different genus than those associated with commercial live entertainment in the borough of Mount Ephraim, or with door-ta-door lItera- ture distribution in the city of Struthers. In the case of billboards, I would hold that a city may totally ban them if it can show that a sufficiently substantial governmental interest is directly furthered by the total ban, and that any more narrowly drawn restriction, i. e., anything less than a total ban, would promote less well the achievement of that goal. Applying that test to the instant case, I would invali- date the San Diego ordinance. The city has failed to pro- vide adequate justification for its substantial restriction on protected activity. See Schad v. Mount E'phraim, su- pra, at 72. First, although I have no quarrel with the sub- stantiality of the city's interest in traffic safety, the city has failed to come forward with evidence demonstrating that billboards actually impair traffic safety in San Diego. Indeed, the joint stipulation of facts is completely silent on this issue. Although the plurality hesitates "to [***8281 disagree with the accumulated, common-sense judgments of 10cal1awmakers and of the many reviewing courts that billhoards are real and substantial hazards to traffic safety," ante, at 509, I would not be so quick to accept legal conclusions in other cases as an adequate substitute for evidence in this case that banning bill- boards directly furthers traffic safety. 7 Moreover, the ordinance is not [*529] [**2904] narrowly drawn to accomplish the traffic safety goal. Although it contains an exception for signs "not visible from any point on the boundary of the premises, [***829] " App. to Juris, [*530] Statement IlIa, billboards not visiblc from the street but nevertheless visible from the "boundary of the premises" are not exempted from the regulation's prohi- bition. Thruway Authority v. Ashley Motor Court, Inc., 10 N Y 2d /51, 156, 176 N E. 2d 566. 568 (I 96/). the court held: "There are some, perhaps, who may dispute whether billboards and other advertising devices interfere with safe driving and constitute a traffic hazard. . . , but mere disagreement may not cast doubt on the statute's validity. Matters such as these are reserved for legislative judgment, and the legislative determination, here expressly an- nounced, will not be disturbed unless manifestly unreasonable. " 7 Not 1 of the 1 1 cases cited by the plurality in its footnote 14 stands for the proposition that re- viewing courts have determined that "billboards are real and substantial hazards to traffic safety." These 11 cases merely apply the minimal scmtiny rational relationship test and the presumption of legislative validity to hold that it would not be unreasonable or inconceivable for a legislature or city government to conclude that billboards arc traffic hazards. For example, in Nnv York S'tate Only 5 of the 11 cases even discuss the First Amendment. See Stuckey's Stores, Inc. v. O'Ches~ key, 93 N M 312, 600 p, 2d 258 (1979), appeal dism'd, 446 Us. 930 (1980); State v, Lotze, 92 Wash. 2d 52, 593 p, 2d 8/1, appeal dism'd, 444 US 92/ (1979); Lubbock Poster Co, v, City oJ Lubbock, 569 S W 2d 935 (Tex, Civ, App, 1978), cert. denied, 444 US 833 (1979); Newman Signs. lnc. v, 1fjel/e, 268 N W 2d 741 (N D, 1978), ap- peal dism'd, 440 US, 901 (1979); Markham Ad- vertising Co. v. Washington, 73 Wash. 2d 405, 439 p, 2d 248 (1 968}, appcal dism'd, 393 US 316 (1969), Therefore, when the plurality states that" [there] is nothing here to suggest that these judgments are unreasonable," ante, at 509, it is really saying that there is nothing unreasonable about other courts finding that there is nothing unreasonable about a legislative judgment. This is hardly a sufficient finding under the heightened scrutiny appropriate for this case. It is not sur- prising that, of the three cases cited in the plural- ity's footnote 14 that declined to accept the traffic safety rationale, two were decided under height- ened scrutiny. There is another reason why J would hesitate to accept the purported judgment of lawmakers that billboards are traffic hazards, Until recently, it was thought that aesthetics alone could never be a sufficient justification to support an exercise of the police power, and that aesthetics would have to be accompanied by a more traditional health, safety, morals, or welfare justification. Indeed, the California Supreme Court decision below explicitly repudiated the holding of a prior case, Varney & Green v. Williams, 155 Ca!. 318, /00 P 867 (/909), that held aesthetics to be an insufficient predicate for police power action. 26 Ca/. 3d, lit 860-861,610 p, 2d. at 413, Therefore, in the case of billboard regulations, many cities may have used thc justification of traffic safety in order to sustain ordinances where their true moti- vation was aesthetics. As the I-Iawaii Supreme 453 V,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U,S. LEXIS 50 Page 2] Court conunented in State v. Diamond Motors, lnc, 50 Haw. 33, 36, 429 P 2d 825,827 (/967), in upholding a comprehensive sign ordinance: "[The City's] answering brief admittedly 'does not extend to supporting the proposition that aesthetics alone is a proper objective for the exer~ cise of the City's police power.' Perhaps, the 'weight of authority' in other jurisdictions per- suaded the City to present the more traditional arguments because it felt that it was safer to do so. However, the brief of The Outdoor Circle as amicus curiae presents, as we think, a more mod- ern and forthright position, " .. We are mindful oftlle reasoning of most courts that have upheld the validity of ordinances regulating outdoor advertising and of the need felt by them to find some basis in economics, health, safety, or even morality. We do not feel so constrained." (Footnote omitted.) Sec also C. Haar, Land-Use Planning 403- 408 (3d ed. 1976). Second, I think that the city has tailed to show that its asserted interest in aesthetics is sufficiently substantial in the commercial and industrial areas of San Diego. I do not doubt that "[it] is within the power of the [city] to determine that the community should be beautiful," Ber~ man v. Parker, 348 US 26, 33 (/954), but that powcr may not be exercised in contravention of the First Amendment, 1bis Court noted in Schad that "lthe]lcity] has presented no evidence, and it is not inm1ediately ap~ parent as a matter of experience, that live enlertainment poses problems more significant than those associ~ ated with various permitted uses; nor does it appear that the [city] has arrived at a defensible conclusion that un- usual problems are presented by live entertainment." 452 Us., at 73. Substitute the word "billboards" for the words "live entertainment," and that sentence would equally apply to this case. It is no doubt true that the appearance of certain ar- eas of the city would be enhanced by the elimination of billboards, but "it is not inunediately apparent as a matter of experience" that their elimination in all other areas as well would [*531 J have more than a negligible impact on aesthetics. See John Donnelly & Sons v. Campbell. 639 F2d 6, 23 (eAl 1980) (Pettine, J" concurring in judgment), summarily afrd, post, p. 916. g The ,ioint stipulation reveals that "[some] sections or the City of San Diego are scenic, some blighted, some containing strips of vehicle related commercial uses, some contain new and attractive office buildings, some functional industrial development and some areas contain older but useful commercial estab- lishments," Joint Stipulation of I' acts No, 8, App, 43a, A b1l1board is not necessarily inconsistent with oil storage tanks, blighted areas, or strip development. Of course, it is not for a court to impose its own notion of bcautyon [**2905] San Diego, But before deferring to a city's judgment, a court must be convinced that the city is seriously and comprehensively addressing aesthetic concerns with respect to its environment. Here, San Diego has failed to demonstrate a comprehensive coordi- nated effort in its commercial and industrial areas to ad- dress [***830] other obvious contributors to an unat- tractive environment. In this sense the ordinance is Ull- derinclusive. See Erznoznik v. City of Jacksonville, 422 US 205, 214 (/975), Of course, this is not to say that the city must address all aesthetic problems at the same time, or none at all. Indeed, from a planning point of view, attacking the problem [*532] incrementally and sequen- tially may represent the most sensible solution. On the other hand, if billboards alone are banned and no further steps are contemplated or likely, the commitment of the city to improving its physical environment is placed in doubt. By showing a comprehensive commitment to making its physical environment in commercial and in~ dustrial areas more attracti ve, 9 and by allowing only nanowly tailored exceptions, if any, 10 San Diego could demonstrate [*533] [***831] that its interest in [**2906J creating an aesthetically pleasing environment is genuine and substantial. This is a requirement where, as here, there is an infringement of important constitu- tional consequence. 8 Judge Pettine comments on Maine's statewide ban: "Even assuming that a total ban on billboards will produce some aesthetic gain in all highway areas, the quanhm1 of improvement will obvi- ously vary with the site involved. In undeveloped areas, it may very well be that signs and bill- boards are the principal eyesores; here, the bene- fit will be great, for their removal would return the landscape to its pristine beauty. In industrial and commercial areas, however, signs and bill- boards are but one of countless types of man made intrusions on the natural landscape. Without dc~ nying that some perceptible change for the better would occur even here, I question whether the margin of improvement obtaincd in these areas can really justify the state's decision to virtually eradicate commercial specch by sign and bill- board," 639 F2d, at 23, 9 ror example, Williamsburg, Va., requires that any building newly constructed or altered in the city "shall have such design and character as not 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 V,S, LEXIS 50 Page 22 to detract from the value and general harmony of design of buildings already existing in the sur- rounding area in which the building is located or is to bc located," Williamsburg City Code Ii 30- 80 (1979) 10 Appellants argue that the exceptions to the total ban, such as for on-premises signs, undercut the very goals of traffic safety and aesthetics that the city claims as paramount and therefore in- validate the whole ordinance. Brief for Appel- lants 42-43. But obviously, a city can have spe- cial goals the accomplishment of which \vould conflict with the overall goals addressed by the total billboard ban, It would make little scnse to say that a city has an all-or-nothing proposition -- either ban all billboards or none at all. Because I conclude that the San Diego ordinance impermis- sibly infnngcs Firs! Amendment rights in that the city has failed to justify the ordinance sufficiently in light of substantial governmental interests, I need not decide, as the plurality does in Part V of its opinion, whether the exceptions to the total ban constitute independent grounds for invalidat- ing the regulation. However, if a city can justify a total ban, I would allow an exception only if it di- rectly furthers an interest that is at least as impor- tant as the interest underlying the total ban, if the exception is no broader than necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge as little as possible on the overall goal. To the extent that exceptions rely on content-based distinctions, they must he scru- tinized with special care. The San Diego billboard ordinance is a clas- sic example of conflicting interests. In its section entitled "Purpose and Intent," the ordinance states: "It is the purpose of these regulations to eliminate excessive and confusing sign displays which do not relate to the premises on which they are located; to eliminate hazards to pedestrians and motorists brought about by distracting sign displays; to ensure that signing is used as identi- fication and not as advertisement; and to rreserve and improve the appearance of the City as a place in which to live and work. "It is the intent of these regulations to protect an important aspect of the economic base of the City by preventing the destmction of the natural beauty ,lOd environment of the City, which is in- strumental in attracting nonresidents \vho come to visit, trade, vacation or attend conventions; to safeguard and enhance property values; to protect public and private investment in buildings and open spaces; and to protect the public health, safety and general welfare.ll App. to Juris. State- ment 106a-107a, To achieve these purposes, the ordinance ef- fects a general ban on billboards, but with an ex- ception for on-premises identification signs. Of course, each on-premises sign detracts from achieving the city's goals of traffic safety and aes- thetics, but contributes to the alternative goal of identification. In this way San Diego seeks to achieve the best compromise between the goals of traffic safety and aesthetics on the one hand, and convenience for the public on the other. San Diego has shown itself fully capable of drafting narrow exceptions to the general ban. For example, the city has promulgated special regulations for sign control in the La Jolla sign control district "The Sign Control District is intended to maintain the unique, distinctive character and economic value of the La Jolla area in the City of San Diego and to regulate advertising of com- mercial enterprises. "One sign shall be permitted on each lot or parcel of real estate, . . . provided. . . . "Such sign shall not exceed 5' x 8' in size and no part of such sign shall extend more than four feet above the surface of the ground upon which it is erected." ld, at 113a-115a. My views in this case make it unnecessary to decide the permissibility of the on-premises ex- ception, but it is not inconceivable that San Diego could incorporate an exception to its overall ban to serve the identification interest without violat- ing the Constitution. I also do not decide the va- lidity of the other exceptions to the San Diego regulation. I have little doubt that some jurisdictions will easily carry the burden of proving the substantiality of their interest in [*534} aesthetics. For example, the parties acknowledge that a historical eonununity such as Wil- liamsburg, Va., should be able to prove that its interests in aesthetics and historical authenticity are sufficiently important that the First Amendment value attached to billboards must yield, See Tr. of Oral Arg, 22-25, And 1 \votlld be surprised if the Federal Government had much trouble making the argument that billboards could be entirely banned in Yellowstone National Park, where their very existence would so obviously be inconsistent 453 U,S, 490, *; ]01 S. Ct. 2882, **; 69 L. Ed, 2d 800, ***; 1981 U,S, LEXIS 50 Page 23 with the surrounding landscape. I express no view on whether San Diego or other large urban areas will be able to meet the burden. II See Schad v. Mount Ephraim. 452 u.s., at 77 (BLACKMUN, J" concurring), But San Diego failed to do so here, and for that reason I would strike down its ordinance. 11 Likewise, I express no view on the constitu- tionality of the Highway Beautification Act of 1965,2J U. S CJ 131 (/976 ed, and Supp lff). 11I The plurality's treatment of the commercial- noncommercial distinction in this case is mistaken in its factual analysis of the San Diego ordinance, and depal1s from this Court's precedents. In Part IV of its opinion, the plurality concludes that the San Diego ordinance is constitutional insofar as it regulates commercial speech. Under its view, a city with merely a reasonable justifica- tion could pick and choose between those commercial billboards it would allow and those it would not, or could totally ban all commercial billboards. L' In Part V, [*535] the plurality [***832 J concludes, however, that the San Diego ordinance as a whole is lmconstitutional because, inter alia, it atTords a greater degree of protec- tion to commercial than to noncommercial speech: "The use of onsite billboards to carry commercial messages related to the conunercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry noncommercial messages is generally prohibited. . .. Insofar as the city tolerates hillboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communi- cation of commercial information concerning goods and services connected with a pal1icular site is of greater value than the conununication of nonconm1ercial mes- sages," Ante, at 513, 12 The plurality comments that "the city could reasonably conclude that a commercial enterprise -- as well as the interested public -- has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere." Ante, at 512 (em- phasis added). But Central Hudson Gas & Elec~ tric CO/po v. Puhlic Service Comm'n. 447 U.S. 557 (/980), demands more than a rational basis for preferring one kmd of commercial speech over another. Moreover, this case docs not pre- sent legislation implicating the "commonsense differences" between commercial and nonCOlll- mercial speech that "'suggest that a different de- gree of protection is necessary to insure that the flow of tmthful and legitimate commercial in- fonnation is uIllmpaired.'" Linmark Associates, lnc. v. Willingboro, 431 US 85, 98 (/977), quot- ing Virginia Pharm(/(y Board v. Virginia Citizens Consumers Council, Inc., 425 U.S 748. 771-772, /I, 24 (/976). There is no suggestion that San Diego's billboard ordinance is designed to deal with "false or misleading signs." Unmark Associ- ates. Inc. v. Willingboro, supra, at 98. The plurality apparently reads the onsite premises exception as limited solely to commercial [**2907] speech. I find no such limitation in the ordinance. As noted supra, the onsite exception allows "signs designat- ing the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed." App. to Juris. Statement 107a. As I read the ordinance, the content of the sign depends strictly on the identity of the owner or occupant of the premises. If the occupant is a commercial enter- prise, the substance of a pennissible identifying sign would be commercial. [*536] If the occupant is an en- terprise usually associated with noncommercial speech, the substance of the identifying sign would be noncom- mercial. Just as a supermarket or barbershop could iden- tify itself by name, so too could a pohtical campaign headquarters or a public interest group. I would also presume that, if a barbershop could advertise haircuts, a political campaign headquarters could advertise "Vote for Brown," or "Vote for Proposition 13." More importantly, I cannot agree with the plurality's view that an ordinance totally banning commercial bill- boards but allowing noncommercial billboards would be constitutional. 13 For me, such an ordinance raises First Amendment problems at least as serious as those raised by a total ban, for it gives city officials the right -- before approving a billboard -- to determine whether the pro- posed message is "commercial" or tlnoncommercial." Of course the plurality [***833] is correct when it ob- serves that "our cases have consistently distinguished bet\.vccn the constitutional protection afforded commer- cial as opposed to noncommercial speech," ante, at 504- 505, but it ens in assuming that a governmental unit may be put in the position in the first instance of deciding whether the proposed speech is commercial or noncom- mercial. In individual cases, this distinction is anything but clear. Because making such determinations would entail a substantial exercise of discretion by a city's olli- cial, it presents a real danger of curtailing [*537J non- commercial speech in the guise of regulating commercial speech. 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 L. Ed, 2d 800, ***; 198IU,S, LEXIS 50 Page 24 13 Of course, as a matter of marketplace eco- nomics, such an ordinance may prove the undo- ing of all billboard advertising, both commercial and noncommercial. It may well be that no com- pany would be able to make a profit maintaining billboards used solely for noncommercial mes~ sages. Although the record does not indicate how much of appellants' income is produced by non- commercial communicators, it would not be un- reasonable to assume that the bulk of their cus- tomers advertise commercial messages. There- fore, noncommercial users may represent such a small percentage of the billboard business that it would be impossible to stay in business based upon their patronage alone. Therefore, the plural- ity's prescription may represent a de facto ban on both commercial and noncommercial billboards. This is another reason to analyze this case as a "total ban" case. In Cantwell v, Connecticut, 310 US 296 (1940), the Court reviewed a statute prohibiting solicitation of money by religious groups unless such solicitation was approved in advance by the Secretary of the Public Wel- fare Council. The statute provided in relevant part "Upon application of any person in behalf of such [so- licitation], the secretary shall determine whether such cause is a religious one. . and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect." lei, ilt 302 The Court held that conditioning the ability to solicit on a license, "the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitntion," ld, ilt 307, Spe- cifically rejecting the State's argument that arbitrary and capricious acts of a state officer would be suhject to judi- cial review, the Court observed: "Upon [the state official's] decision as to the nature of the cause, the right to solicit funds depends, [The] avail- ability of a judicial remedy for abuses in [**2908] the system of licensing still leaves that system one of previ- ous restraint which, in the field of free speech and press, we have held inadmissible." lei., at 3U6. See Saiil v, New York, 334 US 558, 560 (1948J, As Jus- tice Frankfurter subsequently characterized Cantwell: 111'0 determine whether a cause is, or is not, 'religious' opens too wide a field of personal judgment to be Ie ft to the mere discretion of an official." 334 US, at 564 (dis- senting opinion). According such wide discretion to city officials to control the free exercise of First Amendment rights is precisely what [*538] has consistently troubled this Court in a long line of cases starting with Lovell v. Grif- fin, 303 Us. 444, 451 (1938), See, e, g" Southeastern Promotions, Ltd, v, Conrad, 420 Us., at 552-553 (theat- rical perfOlmance in city-owned auditorium); Shut- tlesworth v Birmingham, 394 Us. 147, 150-153 (1969) (picketing and parading); Staub v, City oJ Baxley, 355 US 313, 321-325 (1958) (solicitation); Kunz v New York, 340 Us. 290, 294 (1951) [***834J (public meet- ings); Soia v, New York, supra, at 560-562 (sound tmcks); Cant~vell v. Connecticut, supra, at 307 (solicita- tion); Schneider v, State, 308 US, at 163-164 (hand- hills); Hague v, C10, 307 US, at 516 (handbills), See also Young v. American Mini Theatres, Inc., 427 Us. 50. 93 (1976) (BLACKMUN, J" dissenting); Hynes v, lvIuyor and Council oJ Oradell, 425 US 610, 617 (1976); Police Dept oJChicago v, Mosley, 408 US 92, 97 (1972), The plurality's bifurcated approach, I fear, will generate billboard ordinances providing the grist for future additions to this list, for it creates discretion where none previously existed. It is one thing for a court to classify in specific cases whether commercial or noncommercial speech is in- volved, but quite another n and for me dispositively so -- for a city to do so regularly for the purpose of deciding what messages may be corrununicated by way of bill- boards. Cities are equipped to make traditional police pov,ier decisions, see Saia v. New York, supra, at 564-565 (Frankfurter, J., dissenting), not decisions based on the content of speech. I would be unhappy to see city offi- cials dealing with the following series of billboards and deciding which ones to permit: the first billboard con- tains the message "Visit Joe's Ice Cream Shoppe"; the second, "Joe's lee Cream Shoppe uses only the highest quality dairy products"; the third, "Because Joe thinks that dairy products are good for you, please shop at Joe's Shoppe"; and the fourth, "Joe says to support dairy price supports: they mean lower prices for you at his Shoppe." Or how about some San Diego Padres baseball fans -- with no connection to [*539] the team -- who together rent a billboard and communicate the message HSupport the San Diego Padres, a great baseball team." May the CIty decide that a United Automobile Workers billboard with the message "Be a patriot -- do not buy Japanese- manufactured cars" is "commercial" and therefore forbid It? What if the same sign is placed by Chrysler'! 14 14 These arc not mere hypotheticals that can never occur. The Oil, Chemical and Atomic \Vorkcrs International Union, AFL-CIO, actually 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U,S. LEXIS 50 Page 25 placed a billboard advertisement stating: "Sur~ port America's First Environment Strike. Don't Buy SheW" App. to Juris. Statement; see, n. 4. supra. What if Exxon had placed the advertise~ ment" Could Shell respond in kine!" I do not read our recent line of commercial cases as authorizing this sort of regular and immediate line- drawing by governmental entities. If anything, our cases recognize the difficulty in making a determination that speech is either "commercial!! or "nonconmlercial." In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, [**2909] [nc" 425 US 748. 764 (1976), after noting that "not all commercial messages contain. . . a very great public interest element," the Court suggested that "[there] are few to which such an element, however, could not be added." The Court continued: "Our pharma- cist, for example, could cast himself as a commentator on storc-to-store disparities in drug prices, giving his own a.nd tho~e of a competitor as proof. We [***S35) see little pomt in requiring him to do so, and little difference ifhe does not." fd, at 764-765, Cf Murdock v. Penf1.\yl- vania, 319 U.S. 105, 111 (1943). In Bigelow v Virginia, 421 US 809, 822 (1975), the Court observed t1wt the advertisement of abortion services placed by a New York clinic in a Virginia weekly newspaper -- although in part a commercial advertisement -- was far more than that: . "Vi~wed in its entirety, the advertisement conveyed mformatIOn of potential interest and value to a diverse audience -- not only to readers possibly in need of the services offered, but also to those with a general curios- ity [*540] about, or genuine interest in, the subject mat- ter or the law of another State and its development, and to readers seeking reform in Virginia. The mere exis- tence of the Women's Pavilion in New York City, with the possibility of its being typical of other organizations there, and the availability of the services offered, were not unnewsworthy." "T~e line .between ideological and nonideological speech IS ImpossIble to draw with accuracy." Lehman v. City of Shaker Heights, 418 US 298, 319 (1974) (BRENNAN, J" dissenting), I have no doubt that those who seek to convey commercial messages will engage in the most Imaginative of exercises to place themselves within the safe haven of noncommercial speech, while at the same time conveying their commercial message. Encouraging such behavior can only make the job of city officials -- who already are inclined to ban hillboards -- that much more difficult and potentially intrusive upon legitimate noncommercial expression. Accordingly, I would reverse the decision of the California. Supreme Court upholding the San Diego bill- board ordmance. DISSENT !lV: STEVENS (In Part); BURGER; REHNQUIST DISSENT JUSTICE STEVENS, dissenting in part, If enforced as written, the ordinance at issue in this case will eliminate the outdoor advertising business in ~he city of San Diego. j The principal question presented IS, therefore, whether a city may prohibit this medium of comm.unication. Instead of answering that question, the plurahty focuses its attention on the exceptions from the total ban and, somewhat ironically, concludes that the ordinanc~ is an unconstitutional abridgment of speech because It does not abridge enough speech. 2 1 The parties so stipulated. See Joint Stipulation of Facts No.2, App. 42a, quoted in n. 8, infra. 2 That is the effect of both JUSTICE WHITE's reaction to the exceptions from a total ban and JUSTICE BRENNAN's concern about the city's attempt to di fferentiate between cOITllnercial and noncommercial messages, although both of their conclusions purportedly rest on the character of the abridgment rather than simply its quantity. [*54IJ [***LEdHR2B] [2B] [***LEdHR3B] [3B] 1***LEclHR4Cj [4C] [***LEdHR5B] [5B] [***LEclHR6B J [6B] [***LEdHR7B] [7B] 1***_LEdHR9Cj [9C] [***l.EdHRIOB] [IOB]The plural- Ity hrst holds that a total prohibition of the use of "out- door advertising display signs" ) for commercial 1**~836J messages, other than those identifying or pro- motlllg a business located on the same premises as the sign, is permissible. I agree with the conclusion that the con~titu.tionality of this prohibition is not undercut by the dlstlllctlOn l **2910] San Diego has dra\VIl between onsite and offsite commercial signs, see ante, at 512 (plurality opinion), and I therefore join Parts J through IV of JUSTICE WHITE's opinion, J do not, however agree with the reasoning which leads the plurality to in~ validate the ordinance because San Diego failed to in- clude a total ban on the use of billboards for both com- mCI"l~ial and noncommercial messages. While leaving open the possibility that a total ban on billboards would ~e permissible, .see ante, at 515, n. 20, ~ the plurality ftnds two flaws III the ordinance. First, because the ordi- nance permits commercial, but not noncommercial, use of: onsite signs, it improperly "[affords] a greater degree ot protectlOn to commercial than to noncommercial speech." Ante, at 513. And, second, because the ordi- nance excepts certain limited categories of noncommer- cial signs from the prohibition, the city is guilty of 453U,S, 490, *; 101 S, Ct 2882, **; 69 LEd, 2d 800, ***; 198IU.S, LEXIS 50 Page 26 "[choosing] the appropriate subjects for public dis- course." Ante, at 515. 3 The ordinance does not define the term "out- door advertising display signs." The California Supreme Court adopted the following definition to avoid overbreadth problems: '''[ A] rigidly assembled sign, display, or de- vice permanently affixed to the ground or perrna- nently attached to a building or other inherently permanent stnlcture constituting, or used for the display of, a commercial or other advertisement to the public,'" 26 Co/. 3d 848, 856, n, 2, 610 P 2d 407,410, n 2 (1980). 4 As a practical matter, the plurality may well be approving a total ban on billboards, or at least on offsite billboards. For it seems unlikely that the outdoor advertising industry will be able to survive if its only customers are those persons and organizations who wish to use billboards to convey noncommercial messages. See ante, at 536, n, 13 (BRENNAN, J., concurring in judg- ment). [*542] Although it is possible that some future ap- plications of the San Diego ordinance may violate the First Amendment, ! am satisfied that the ordinance sur- vives the challenges that these appellants have standing to raise. Unlike the plurality, I do not believe that this case requires us to decide any question concerning the kind of signs a property owner may display OIl his own premises. I do, however, believe that it is necessary to confront the important question, reserved by the plural- ity, whether a city may entirely ban one medium of cOllnllunication. My affirmative answer to that question leads me to the conclusion that the San Diego ordinance should be upheld; that conclusion is not affected by the content-neutral exceptions that arc the principal subject of the debate between thc plurality and THE CIIlEF JUSTICE, Appellants are engaged in the outdoor advertising business. The parties stipulated that there are critical differences between that business and so-called "onsite" or business signs. 3 [*543J Outdoor advertising is pre- sented [***837] on large, standardized billboards which display a variety of commercial and noncommercial messages that change periodically. i> The only informa- tion in the record [**2911J about ensite signs is that they "advertise businesses, goods or services available on the property on which the sign is located." Joint Stipula- tion of Facts No. 22, App. 45a. There is no evidence that any onsite signs in San Diego of the permanent character covered by the ordinance 7 have ever been used for non- commercial messages. 5 The parties' stipulation described these differ- ences: "There is a difference between the outdoor advertising business and 'on-site' or business signs. On-site signs advertise businesses, goods or services available on the property on which the sign is located, On the other hand, the outdoor advertising businesses lease real property and erect signs thereon which are made available to national and local advertisers for commercial, po- litical and social messages. Outdoor advertising is different from on-site advertising in that: "(a) The outdoor advertising sign seldom ad- vertises goods or services sold or made available on the premises on which the sign is located. "(b) The outdoor advertising sign seldom ad- vertises products or services sold or made avail- able by the owner of the sign. "(c) The outdoor advertising sign is, gener- ally speaking, made available to 'all-comers', in a fashion similar to newspaper or broadcasting ad- \/ertising. It is a fomrn for the communication of messages to the public. "(d) The copy of the outdoor advertising sign changes, usually monthly. For example, a par- ticular sign may advertise a local savings and loan association one month, a candidate for mayor the next month, the San Diego Zoo the third month, a new car the fourth month, and a union grievance the fi fth month." Joint Stipula- tion of Facts No, 22, App, 45a-46a, The importance of the distinction between the outdoor advertising business in which appel- lants are engaged and the use of "onsite" signs is supported by the fact that the respective kinds of signs arc produced by different manufacturers. See JUSTICE BRENNAN's opinion concurring in the judgment, ante, at 526, .ll. 5. 6 The physical characteristics of outdoor adver- tising signs were established by stipulation: "Outdoor advertising is presented in two ba- sic standardized forms. A 'poster panel' is a 12- foot by 24-1'oot sign on which a pre-printed mes- sage is posted, in sheets. A 'painted bulletin' is generally a 14-foot by 48-foot sign which con- tains a hand painted message." Joint Stipulation of Facts No, 25, App, 47a, 7 The California Supreme Court's narrowing construction of the ordinance, see n. 3, supra, 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 L. Ed, 2d 800, ***; 1981 U,S, LEXIS 50 Page 27 makes it applicable only to rigidly assembled pClmanent signs. For that rcason, the plurality is able to state that it deals only "with the law of billboards," Ante, at SOL If the ordinance is enforced, two consequences are predictable, Appellants' large and profitable outdoor advertising businesses will be destroyed. g Moreover, many persons who [*544] now rent billboards to con- vey both conunercial and noncommercial messages to the public will not have access to an equally effective means of communication. 9 There is no evidence, how- ever, that enforcement of the ordinance will have any effect whatsoever upon any property owner's use of an- site advertising signs. 10 Nor is there anything in the rc- cord (***838-1 to suggest that the use of onsite signs has had any effect on the outdoor advertising business or on any of the consumers of offsite billboard space. 8 The parties stipulated to the economic effects of the ordinance: "If enforced as written, Ordinance No, 10795 will eliminate the outdoor advertising business in the City of San Diego, "Plaintiffs' outdoor advertising displays pro~ duce substantial gross annual income. "Enforcement of Ordinance No. 10795 will prevent plaintiffs from engaging in the outdoor advertising business in the City of San Diego and will calise plaintiffs to suffer substantial mone- tary losses." Joint Stipulation of Facts Nos. 2, 26, 32, App, 42a, 48a, 49a, 9 By stipulation, the parties agreed that the San Diego ordinance will limit the ability of some billboard users to conmmnicate their messages to the public: "Outdoor advertising increases the sales of products and produces numerous direct and indi- rect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertis- ing. Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, map- propriate and prohibitively expensive." Joint Stipulation of Facts No, 28, App, 48a, 10 Nor is there any evidence that the total elimi- nation of the outdoor advertising business will have any economic eHect on manufacturers of onsite signs. See JUSTICE BRENNAN's opinion concurring in the judgment, ante, at 526, n. 5. [***LEdHR8B] [8B]Appellants, of course, have standing to challenge the ordinance because of its impact on their own commercial operations. Because this chal~ lenge is predicated in part on the First Amendment, I agree with the plurality and JUSTICE BRENNAN that they also have standing to argue that the ordinance is invalid because of its impact on their customers -- the persons who use their billboards to communicate with the public. See ante, at 504, u, II (plurality opinion), 1 do not agree, however, that they have any standing to assert the purely hypothetical claims of property owners whose onstte advertising is entirely unaffected by the application of the ordinance at issue in this case. [*545J This case involves only the use of perma- nent signs in areas zoned for commercial and industrial purposes. II It is conceivable that some public-spirited or eccentric businessman [**2912J might want to use a permanent sign on his commercial property to display a noncommercial message. The record, however, discloses no such llse in the past, and it seems sate to assume that such uses in the future will be at best infrequent. Rather than speculate about hypothetical cases that may be pre- sented by property owners not now before the Court, I would judge this ordinance on the basis of its effect on the outdoor ad vertising market and save for another day any questions concerning its possible effect in an entirely separate market. II Appellants each own between 500 and 800 outdoor advertising displays in San Diego. See Joint Sl1pulation of Facts No, 13, App, 44a, All of their signs are located in areas zoned for com- mercial and industrial uses. Joint Stipulation of Facts No. 20, App, 45a, The California Supreme Court's narrowing constlUction of the ordinance was specifically in~ tended to exclude from the coverage of the ordi- nance signs very different from commercial bill- boards, such as "a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message." 26 Cat. 3d, at 856, n, 2, 61.0 P. 2d, at 410, n, 2, The few situations in which constitutional rights may be asserted vicariously represent exceptions from one of the Court's most fundamental principles of consti- tutional adjudication. I, Our explanation of that principle III Broadrick v, Oklahoma, 413 US 601, filO-fill (foot- note omitted), merits emphasis and repetition: "Embedded in the traditional mlcs governing consti- tutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, 453 V,S, 490, *; 10] S, Ct. 2882, **; 69 L. Ed, 2d 800, ***; 1981U,S, LEXIS 50 Page 28 [*546] in other situations not before the Court. See, e g" Austin v. The Aldermen, 7 Wall. 694, 698-699 (/869); Supervisors v. Stanley, 105 US 305, 311-315 (1882); Hatch v, Reardon, 204 US 152, 160-161 [***839] (1907); Yazoo & AJ. V R. Co, 'Ii'. Jackson Vinegar Co., 226 US 217, 219-220 (/912); United States v, Wurz- bach, [280 U,S,], at 399; Carmichael v. Southern Coal & Coke Co" 301 US 495, 513 (/937); United States v, Raines, 362 US 17 (/960), A closely related principle is that constitutional rights are personal and may not be asserted vicariously. See McGowan v. Maryland, 366 US 420, 429-430 (/961). These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws. See Younger v. Harris, 401 US. 37, 52 (1971), Constitutional Judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights III particular cases be- tween the litigants brought before the Court: '''So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case con- formably to the law, disregarding the constitution; or conformably to the constitution, dIsregarding the law; the court must determine which of these conflicting rules governs the case. This is of the ,...cry essence of judicial duty.' Marbury v. IvIndison, 1 Cranch 137, 178 (/803), "In the past, the Court has recognized some limited exceptions to these principles, but only because of the most 'weighty countervailing pohcies.' United States v. Raines, 362 US, at 22-23." 12 See, e g., IvIcGowan v. lvIaryland, 366 Us. 420, 429: "[The] general mle IS that 'a litigant may only assert his own constitutional rights or immunities'. The most important exception to this standing doc- trine permits some litigants to challenge on First Amendment grounds laws that may validly be applied against them but [*547] which may, because of their unnecessarily broad reach, inhibit the protected speech of third parties. That exception plays a vital role in our First Amendment jurisprudence. I) But it is nonetheless a limited [**2913} exception. Because "[application] of the overbreadth doctrine. . is, manifestly, strong medi- cine," it is employed "sparingly and only as a last resort." Broadrick, 4/3 US., at 6/3. As the Court explained in Broadrick, the doctrine will be applied only if the over- breadth of a statute is substantial in relation to its "plainly legitimate sweep": "Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect -- at best a prediction n cannot, with confidence, justi fy invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct [***840] that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 US 165, 174-175 (/969), To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that S 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by--case analysis of the fact situations to which its sanctions, asscrtedly, may not be applied." Id., at 615- 6/6 (footnote omitted). 14 13 See, e, g, Dombrowski v. Pfister, 380 US, 479; Gooding v Wilson, 405 US, 518; Keyishian "- Board of Regents, 385 lIS. 589; Shuttlesworth v, Birmingham, 394 US 147, 14 Even the dissenting Justices in Broadrick, al- though they disagreed with the Court's refusal to apply the overbreadth doctrine in that case, ac- knowledged that an overbreadth challenge should not be entertained in every case raising First Amendment issues: "'Ne have never held that a stahlte should be held invalid on its face merely because it is pos- sible to conceive of a single impermissible appli- cation, and in that sense a requirement of substan- tial overbreadth is already implicit in the doc- trine," 413 US, at 630 (BRENNAN, J" Joined by STEW ART and MARSHALL, JJ., dissent- ing). [*548] In my Judgment, the likelihood that the San Diego ordinance will have a significant adverse impact on the users of onsite signs is sufficiently speculative and remote that I would not attempt to adjudicate the hypo- thetical claims of such parties on this record. Surely the interests of such parties do not necessarily parallel the interests of these appellants. I' Moreover, changes in the provisions of the ordinance concerning onsite advertising would not avoid the central question that is presented by appellants' frontal attack on the application of the ordi- nance to their own businesses and to their customers. 16 I believe the Court should decide that question and put the hypothetical claims of ansite advertisers entirely to one side. IS Indeed, the parties stipulated that onsite ad- vertising differs in significant respects from the 453 U.S, 490, *; 101 S, Ct 2882, **; 69 LEd, 2d 800, ***; 1981 D,S, LEXIS 50 Pagc 29 outdoor advertising business in which appellants are engaged. See II. 5, supra. 16 lronically, today the plurality invalidates this ordinance n not because it is too broad -- but rather because it is not broad enough. It assumes for the purpose of decision that a repeal of all ex- ceptions, including the exception for ansite ad- vertising, would cure the defects it finds in the present ordinance. See ante, at 515, ll. 20. How- ever, because neither the appellants nor the ausite advertisers would derive any benefits from a re- peal of the exception for onsite commercial signs, the plurality's reliance on the overbreadth doc- trine to support vicarious standing in this case is curious indeed. II Just as the regulation of an economic market may ei- ther enhance or curtail the free exchange of goods and services, 17 so may regulation of the communications market sometimes facilitate and sometimes inhibit the exchange of information, ideas, and impressions. Proce- dural rules in a deliberative body are designed to im- prove the quahty of debate, Our [*549J cases uphold- ing regulation of the time, place, or manner of communi- cation have been decided on the [**29141 implicit as- sumption that the net effect of the regulation on free ex- pression would not be adverse. In this case, however, that assumption cannot be indulged. 17 Compare Chicago Board of 'Trade v United States, 246 US 23 J, with United States 1', noen- ton Potteries Co" 273 US 392, The parties have stipulated, correctly [***8411 in my view, 18 that the net effect of the city's ban on bill- boards will be a reduction in the total quantity of com- munication in San Diego. If the han is enforced, some present users of billboards will not be able to communi- cate in the future as effectively as they do now. 19 This ordinance cannot, therefore, be sustained on the assump- tion that the remaining channels of communication will be just as effective for all persons as a communications marketplace which includes a thousand or more large billboards available for hire, 18 Because the record makes it clear that the business of operating billboards has prospered in San Diego, it is obvious that this medium is more effective than others for some forms of commu- nication. See n. 8, supra. 19 See nn. 8, 9, sup/'([. The unequivocal language of the First Amendment prohibits any law "abridging the freedom of speech." That language could surely be read to foreclose any law reducing the quantity of communication within a juris- dictioll. I am convinced, however, that such a reading would be incorrect. My conviction is supported by a hypothetical example, by the Court's prior cases, and by an appraisal of the healthy character of the cOl11munica- hons market. Archaeologists use the term "graffiti" to describe in- formal inscriptions on tombs and ancient monuments. The graffito was familiar in the culture of Egypt and Greece, in the Italian decorative art of the 15th century, and it survives today in some subways and on the walls of public buildings. 20 It is [*550] an inexpensive means of communicating political, commercial, and ffivolous messages to large numbers of people; some creators of graffiti have no effective alternative means of publicly expressing themselves. Nevertheless, I believe a com- munity has the right to decide that its interests in protect- ing property from damaging trespasses and in securing beautiful surroundings outweigh the countervailing inter- est in uninhibited expression by means of words and pictures in public places. If the FirSl Amendment cate- gorically protected the marketplace of ideas from any quantitative restraint, a municipality could not outlaw graftlti, 20 See generally ^. Read, Classic American Graftlti (1977); R, Reisner, Graffil1: Two Thou- sand Years of Wall Writing (1971); V, Pritchard, English Medieval Graffiti (1967), Our prior decisions are not inconsistent with this proposition. Whether one interprets the Court's decision in Kovacs ~'. Cooper, 336 US. 77, as upholding a total ban on the use of sound trucks, or merely a ban on the "loud and raucous" use of amplifiers, the case at least stands for the proposition that a municipality may en- force a rule that curtails the effectiveness of a particular means of communication. 21 Even the dissenting Justices in that case thought it obvious that "cities may restrict or absolutely ban the use of amplifiers on busy streets in the business area," Iii, at [***8421 104 (Black, J" Joined by Douglas and Rutledge, JJ., dissenting). n Kovacs, I believe, [*55IJ forecloses any claim that a prohibition of billboards [**2915] must Iall simply because it has some limiting effect on the communications market. n 21 In his opinion announcing the judgment of the Court, Justice Reed wrote: "That more people may be more easily and cheaply reached hy sound trucks, perhaps bor- rowed \\'ithout cost from some zealous supporter, is not enough to call forth constitutional protec- tion for what those charged with public welfare reasonably think is a nuisance when easy means ofpuhlicity are open." 336 US., at 88-89. 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U.S, LEX IS 50 Pagc 30 22 That excerpt from Justice Black's dissent is not, of course, sufficient evidence to tell us whether or not he would have upheld a city's total ban on billboards. It does seem clear, however, that he did not adopt the absolute position that any reduction in the quantity of efTective com- munication is categorically prohibited by the First Amendment, The full paragraph in which the quoted phrase appears reads: "I am aware that the 'blare' of this new method of carrying ideas is susceptible of abuse and may under certain circumstances constitute an intolerable nuisance. But ordinances can be drawn which adequately protect a community from unreasonable use of public speaking devices without absolutely denying to the community's citizens all information that may be disseminated or received through this new avenue for trade in ideas. I would agree without reservation to the sentiment that 'unrestrained use throughout a mu- nicipality of all sound amplifying devices would be intolerable.' And of course cities may restrict or absolutely ban the use of amplifiers on busy streets in the business area. A city ordinance that reasonably restricts the volume of sound, or the hours during which an amplifier may be used, does not, in my mind, infringe the constitution~ ally protected area of free speech. It is because this ordinance does none of these things, but is instead an absolute prohibition of all uses of an amplifier on any of the streets of Trenton at any time that 1 must dissent." ld., at 104. 23 Our decisions invalidating ordinances pro- hibiting or regulating door~to~door solicitation and leafletting are not to the contrary. In those cases, the state interests the ordinances purported to serve -- for instance, the prevention of littering or fraud n were only indirectly furthered by the regulation of communicative activity. See, e. g., Schneider v, State, 308 US /47, 162, 164; Mar- tin v, City oJ Struthers, 3lY us. 141, /47.148; Cantwell v, Connecticut, 310 US 296, 306; Schaumburg v. Citizensjc)r II Better Environment, 444 US 620, 636-639, In many of the cases, the ordinances provided for a licensing scheme, rather than a blanket prohibition. The discretion thus placed in the hands of municipal officials was found constitutionally offensive because of the risk of censorship. See, e. g., Schneider. su~ pro, at 163-164; J/ague v, C/O, 307 US 496, 516 (opinion of Roberts, J.); Lovell v, Gnj}in, 303 US 444, 451-452; Cantwell, supra, at 305-307, In addition, because many of these cases involved the solicitation efforts of the Jehovah's Witnesses, see, e. g., Lovell, supra, at 448; Jamison v. TL'~\'(lS, 3/8 US 413, 413-414; Schneider, supra, at 158; Martin. supra, at /42; Cantwell, supra, at 300, the Court was properly sensitive to the risk that the ordinances could be used to suppress unpopll~ lar viewpoints. In this case, as the plurality acknowledges, the ban on billboards directly serves, and indeed is necessary to further, the city's legitimate intcr ~ ests in traffic safety and aesthetics. See ante, at 507-510,511. San Diego's ordinance places no discretion in any municipal officials, and there is no reason to suspect that the ordinance was de- signed or is being applied to suppress unpopular viewpoints. [*552] I therefore assume that some total prohibi. tions may be permissible. It seems to be accepted by all that a zoning regulation excluding billboards from resi- dential neighborhoods is justified by the interest in main- taining pleasant surroundings and enhancing property values. lbc same interests arc at work in commercial and industrial zones. Reasonable men may assign differ- ent weights to the conflicting interests, but in constitu- tional terms I believe the essential inquiry is the same throughout the city, For whether the ban is limited to residential areas, to the entire city except its most un~ sightly [***843] sections, or is citywide, it unques- tionably will limit the quantity of communication. Moreover, the interests served by the ban are equally legitimate and substantial in all parts of the city. Those interests are both psychological and economic. The character of the environment affects property values and the quality of life not only for the suburban resident but equally so for the individual who toils in a factory or invests his capital in industrial properties. Because the legitimacy of the interests supporting a city-wide zoning plan designed to improve the entire municipality are beyond dispute, in my judgment the constitutionality of the prohibition of outdoor advertising involves t\VO separate questions. First, is there any rea~ son to believe that the regulation is biased in favor of one point of view or another, or that it is a subtle method of regulating the controversial subjects that may be placed on the agenda for public debate? Second, is it fair to conclude that the market which remains open for the communication of both popular and unpopular ideas is ample and not threatened with gradually increasing re~ straints? In this case, there is not even a hint of bias or cen- sorship in the city's actions. Nor [**2916J is there any reason to believe that the overall communications market in San Diego is inadequate. [*553] [ndeed, it may well be true in San Diego as in other metropolitan areas that the volume of conmmnication is excessive and that the 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 198IU,S, LEXIS 50 Page 31 public is presented with too many words and pictures to recognize those that are most worthy of attention. In any event, I agree with THE CHIEF JUSTICE that nothing III this record suggests that the ordinance poses a threat to the interests protected by the First Amendment. III If one is persuaded, as I am, that a wholly impartial total ban on billboards would be permissible, " it is difti~ cult to understand why the exceptions in San Diego's ordinance present any additional threat to the interests protected by the First Amendment. The plurality suggests that, because the exceptions are based in part on the sub~ jeet matter of noncommercial speech, the city somehow is choosing the permissible subjects for pubhc debate. See ante, at 515. While this suggestion is consistent with some of the broad dictum in Consolidated Edison Co. v. Public Service Comm'n, 447 US. 530, it does not with- stand analysis in this case. 24 It seems fair to infer that Justice Douglas, who cast the deciding vote in Lehman v. City of Shaker Heights, 418 US 298, would have ap- proved of a prohibition on billboards. See his opinion concurring in the judgment, id., at 306- 308, After drawing an analogy between hill- boards and adveliising on municipal vehicles, Justice Douglas noted: "In my view the right of the commuters to be free from forced intmsions on their privacy pre- cludes the city from transforming its vehicles of public transportation into fomms for the dissemi- nation of ideas upon this captive audience." It!., at 307, The essential concern embodied in the First Amendment is that government not impose its viewpoint on the public or select the topics on which public debate is permissible. [***844 J The San Diego ordinance simply does not implicate this concern. Although Con- solidated Edison broadly identified regulations based on the subject matter of speech as impermissible content- based regulations, essential Firs! A mendment concerns [*554] were implicated in that case because the govern- ment was attempting to limit discussion of controversial topics, see id., at 533, and thus was shaping the agenda for public debate. The neutral exceptions in the San Diego ordinance do not present this danger. To the extent that the exceptions relate to subject matter at aU, H I can find no suggestion 011 the face or the ordinance that San Diego is attempting to influence pub- lic opinion or to limit public debate on particular issues. Except for the provision allowing signs to he used for political campaign purposes for limited periods, see 9 101.0700 (F)(12), none of the exceptions even arguably relates to any controversial subject matter. As a whole they allow a greater dissemination of information than could occur under a total han. Moreover, it was surely reasonable for the city to conclude that exceptions for clocks, thermometers, historic plaques, and the like, would have a [**2917J lesser impact on the appearance of the city than the typical large billboards, 25 Most of the ordinance's 12 exceptions, quoted ante, at 495, n, 3 (opinion of WHITE, J,), are not based on the subject matter of speech. Several exceptions can be disregarded because they pertain to signs that are not within the cover- age of the ordinance at any rate, in light of the California Supreme Court's limiting construction. See n. 3, supra. The exceptions relating to ve- hicular signs fall into this category, see 99 101.0700 (1')(9), (10), as do the exceptions for signs in transit and storage, see 9 101.0700 (1')(3), and for tcmporary subdivislOn directional signs, see 9 101.0700 (F)(lI), The exception for "for sale" signs also appears to describe signs not covered by the ordinance since such signs ordi- narily are not "permanently affixed to the ground or permanently attached to a building." Of the remaining exceptions, two are based on the loca- tion, rather than content, of the signs, see 99 101,0700 (1')(2), (6), and a third permits signs re- quired by law or otherwise erected in discharge nf governmental functions, see S 101.0700 (1')( I), Thus, only four exceptions are actually based in any way on the subject matter of the signs at is~ sue. See SS 101.0700 (F)(4), (5), (8), (12), The exception for political campaign signs presents a different question. For 1 must assume that these signs may be [*555) just as unsightly and hazardous as other offsite billboards. Nevertheless, the fact that the commu- nity places a special value on allowing additional com- munication to occur during political campaigns is surely consistent with the interests the First Amendment was designed to protect. Of course, if there were reason to helieve that billboards were especially useful to one po- litical party or candidate, this exception would be sus- pect. But nothing of that sort is suggested by this record. In the aggregate, therefore, it seems to me that the excep- tions in this ordinance cause it to have a less serious ef- fect on the communications market than would a total ban. In sum, I agree with THE CHIEF JUSTICE that nothing more than a rather doctrinaire application of broad statements that were made in other contexts may support a conclusion that this ordinance is unconstitu- tional hecause it includes a limited group of exceptions that neither separately nor in the aggregate compromise 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U.S, LEX IS 50 Page 32 "our zealous adherence to the principle that the govern- ment may [***845J not tell the citizen what he mayor may not say." Young v. American Alini Theatres. Inc., 427 Us. 50, 63 (opinion of STEVENS, J,), None of the exceptions is even arguably "conditioned upon the sov- ereign's agreement with what a speaker may intend to say." Ibid. Accordingly, and for the reasons stated in greater detail by THE CHIEF TIJSTICE, I respectfully dissent. CHIEF JUSTICE BURGER, dissenting, Today the Court takes an extraordinary -- even a bi- zarre -- step by severely limiting the power of a city to act on risks it perceives to h"affic safety and the environ- ment posed by large, permanent billboards. Those join- ing the plurality opinion invalidate a city's effort to minimize these traffic hazards and eyesores simply be- cause, in exercising rational legislative judgment, It has chosen to pennit a nan-ow class of signs that serve spe- cial needs. Relying on simplistic platitudes about content, sub- ject matter, and the dearth of other means to communi- cate, the [*556 J billboard industry attempts to escape the real and growing problems every municipality faces in protecting safety and preserving the environment in an urban area. The Court's disposition of the seriolls issues involved exhibits insensitivity to the impact of these bill- boards on those who must live with them and the deli- cacy of the legislative judgments involved in regulating them. American cities desiring to mitigate the dangers mentioned must, as a matter of federal constitutional Imv, elect between two unsatisfactory options: (3) allow- ing all "noncommercial" signs, no matter how many, how dangerous, or how damaging to the environment; or (b) forbidding signs altogether. Indeed, lurking in the recesses of today's opinions is a not-so-veiled threat that the second option, too, may soon be withdrawn. This is the long arm and voracious appetite of federal power -- this time judicial power -- with a vengeance, reaching and absorbing traditional concepts of local authority. (1) This case presents the Court with its first occasion to address the constitutionality of billboard regulation by local government. I fear that those joining in today's disposition have become mesmerized with broad, but not controlling, language appearing in our prior opinions but now torn from its original setting. They overlook a co- gent admonition to avoid "mechanically [applying] the doctrines developed III other contexts. The unique situation presented by this ordinance calls, as cases in this area so often do, for a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free ex.- pression." Young v. American Mini Theatres, Inc., 427 US 50, 76 (1976) (POWELL, J" concnrring), [**2918J See Columbia Broadcasting System, lnc, v, Democratic NatIOnal Committee, 412 US 94, 134 (/973) (STEWART, 1., concurring), [*557] It is not really relevant whether the San Diego ordinance is viewed as a regulation regarding time, place, and manner, or as a total prohibition on a medium with some exceptions [***8461 defined, in part, by content. Regardless of the label we give it, we are discussing a very simple and basic question: the au- thority of local government to protect its citizens' legiti- mate interests in traffic safety and the environment by eliminating distracting and ugly structures from its build- ings and roadways, to define which billboards actually pose that danger, and to decide whether, in certain in- stances, the public's need for information outweighs the dangers perceived. The billboard industry's superficial sloganeering is no substitute for analysis, and the plural- ity opinion and the opinion concurring in the judgment adopt much of that approach uncritically. General con- stitutional principles indeed apply, but "each case ulti- mately must depend on its own specific facts. Erznoznick v, City oJ Jacksonville, 422 US 205, 209 (1975). (2) (a) [***LEdHR4Dj [4D]As all those joining in today's disposition necessarily recognize, "'[each] medium of expression must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.'" Ante, at 501, n. 8 (plurality opinion); aote, at 527-528 (BRENNAN, J" conCUITlng in judg- ment) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 US 546, 557 (1975)).Accord, California v, faRue, 409 US 109, 117 (/972); Red Lion Broadcasting Co, v, ITC, 395 Us. 367, 386 (/969); Joseph Burstyn, Inc, v, Wilson, 343 US 495, 503 (1952); Kovacs v Cooper, 336 Us. 77, 97 (1949) (Jacksoll, J" concurring). ' The uniqueness of [*558 J the medium, the availability of alternative means of conullunication, and the public in- terest the regulation serves are important factors to be weighed; and the balance very well may shift when at- tention is tumed from onc medium to another. Heffron v. International Society for Krishna Consciousness. Inc., 452 US 640 (t98l), Regulating newspapers, for exam, pIe, is vastly different from regulating billboards. 1 For example, because of the limited spectnrm available and the peculiar intrusiveness of the 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***; 1981 U,S, LEXIS 50 Page 33 medium, broadcasting is subject to limitations that would be intolerable If applied to other forms of communication. FCC v. Pacifica Foundation, 438 US 726, 748-749 (/978), Compare Red Lion Broadcasting Co. v. FCC, 395 US 367 (/969), with Miami Herald Publishing Co. v. Torni!lo, 418 US, 241 (1974). For the same reason, certain media may mix the form with the substance of the communication and the permissible range of regulation is correspondingly narrower than when the message is completely separable from the medium used to convey it. Some level of protection is generally afforded to the medium a speaker chooses, but as we have held just this past week in He.Uron, "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Jd, at 647 (emphasis added), Justice Black, speaking for the Court m Adderley v, Florida, 385 US 39, 48 (/966) (emphasis added), "vigorously and [***847J forth- rightly rejected" the notion that "people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." In Kovacs v. Cooper, supra, the Court upheld a mu- nicipal ordinance that totally barmed sound trucks from a town's borders; other media were available. The Court had no difficulty distinguishing SOia v, New York, 334 Us. 558 (1948), decided seven months earlier. [**2919] where the Court had invalidated an ordinance requiring a permit from the local police chief before using a sound tmck. The danger seen in Saia was in allowing a single government official to regulate a medium of communica- tion with the attendant risk that the decision would be based on the message, nut the medium. Id., at 560-561. The ordinance in Kovacs, however, did not afford that kind of potential for censorship and was held not to violate the First Amendment, 336 US, at 82-83 (plural- Ity opinion [*559] of Reed, J,), Justice Frankfurter, concurring, expressed this point more broadly: "So long as a legislature does not prescribe \vhat ideas may be noisily expressed and what may not be, nor dis- criminate among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity ami reflection." fd., at 97. Justice Jackson, also concurring separately, agreed with this core proposition, wTlting that the Kovacs typc of regulation would not infringe freedoms of speech "unless such regulation or prohibition undertakes to censor the contents of the broadcasting." Ihid. Later, Chief Justice Warren, speaking for the Court m United States v. O'Brien, 391 US 367, 376 (1968), observed: "[WhenJ 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech ele- ment can justify incidental limitations on First Amend- ment freedoms." In the 1979 Term, we once again reaffirmed that restric- tions are valid if they "serve a significant governmental interest and (eave ample alternative channels for com- munication." Consolidated Edison Co. v. Public Service Comm'n, 447 US 530, 535 (1980). The Court has con- tinued to apply this same standard almost literally to this day in Heffrun v International Society for Krishna Con- sciousness, Ine., supra, at 647-648. Accord, Schad v. lvIount Ephraim, 452 Us. 61, 75-76 (/981), (b) San Diego adopted its ordinance to eradicate what it perceives -- and what it has a right to perceive -- as ugly and dangerous eyesores thrust upon its citizens. This was done [*560J with two objectives in mind: the dis- figurement of the surroundings and the elimination of the danger posed by [***848J these large, eye-catching signs that divert the attention of motorists. 2 The plurality acknowledges -- as they must -- that promoting traffic safety and preserving scenic beauty "are substantial gov- ernmental goals." Ante, at 507-508. See also ante, at 528 (BRENNAN, J, concurring in judgment) (traffic safety), But, having acknowledged the legitimacy of local gov- ernmental authority, the plurality largely ignores it. 2 Congress, too, has recognized the dangers to safety and the environment posed by billboards. The Highway Beautification Act of 1965 pro- vides in part ''The Congress hereby finds and declares that the erection and maintenance of outdoor advertis~ ing signs, displays, and devices in areas adjacent to the Interstate System and the prlmary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of puhlic trave/, and to preserve natural heauty." 23 U. s. c. .9' 131 (a) (emphasis added), If San Diego, through its duly constituted legislative body, may not guard against the defac- 453 U,S, 490, *; 101 S. Ct. 2882, **; 69 L. Ed, 2d 800, ***; 1981 U,S, LEXlS 50 Page 34 iog of its environs and the risks to the movement of traffic by eliminating billboards, the authority of Congress to limit billboards adjacent to feder- ally funded highways is called into question as well, See ante, at 515. n, 20 (plurality opinion); ante, at 534, n, II (BRENNAN, 1., concurring in judgment). Surely, the legislative powers of a municipality over its own affairs cannot be less than those of the Congress of the United States in its area of authority. As the plurality also recognizes, anle, at 508-510, the means the city has selected to advance these goals are sensible and do [**29201 not exceed what is necessary to eradicate the dangers seen. When distraction of mo- torists is the perceived harm, the authorities reasonably can conclude that each billboard adds to the dangers in moving traffic; obviously, the billboard industry does not erect message carriers that do not catch the eye of the traveler. J In addition, a legislative body reasonably can conclude that every large billboard adversely [*561J affects the environment, for each destroys a unique per- spective on the landscape and adds to the visual pollution of the city. 4 Pollution is not limited to the air we breathe and the water we drink; it can equally offend the eye and the ear. 3 The parties have stipulated that billboards come in "two basic standardized form.')," 12 ft. by 24 ft, and 14 fL by 48 ft, Joint Stipulation of Facts No, 25, App, 47a, 4 Indeed, streets themselves may be places of tranquility. Heffron v. International Socie(v for Krishna Consciousne.\'s, !nc., 452 u.~)'. 640, 651 (1981), The means chosen to effechlate legitimate govern- mental interests are not for this Court to select. "These are matters for the legislative judgment controlled by public opinion." Kovacs v. Cooper, 336 US., at 96-97 (Frankfurter, 1., concurring). The plurality ignores this Court's seminal opinions in Kovacs by substituting its judgment for that of city officials and disallowing a ban on one offensive and intrusive means of conullunication when other means are available. Although we must en- sure that any regulation of speech "[furthers] a suffi- ciently substantial government interest," Schad v. MOllnt Ephraim, supra, at 68, given a reasonable approach to a perceived problem, this Court's duty is not to make the primary policy decisions but instead is to determine whether the legislative approach is essentially neutral to the messages conveyed and leaves open other adequate: 1***S491 means of conveying those messages. This is the essence of both democracy and federalism, and we gravely damage both when we undertake to throttle Ieg- islative discretion and judgment at the "grass roots" of our system. (c) The plurality, in a remarkable ipse dl~lit, states that "[there] can be no question that a prohibition on the erec- tion of billboards infringes freedom of speech. . .." Ante, at 520. Of course the city has restricted one form of communication, and this action implicates the First Amendment. But to say the ordinance presents a First Amendment issue is not necessarily to say that it consti- tutes a First Amendment violation. [*562] The plurality confuses the Amendment's coverage with the scope of its protection. See generally Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev, 265, 270, 275-276 (1981), In the process of eradicating the perceived harms, the ordinance here in no sense suppresses freedom of expression. either by discriminating among ideas or top- ics or by suppressing discussion generally. San Diego has not attempted to suppress any particular point of view or any category of messages; it has not censored any information; it has not banned any thought. See Po- lice Dept. oJ Chicago v, Mosley, 408 Us. 92, 96 (1972), It has not "[attempted] to give one side of a debatable public question an advantage in expressing its view to the people. . . ." First National Bank of Boston v. Bellotti, 435 Us. 765, 785 (1978) (footnote omitted), See lvIadi- son School District v. Wisconsin Employment Relations Comm'n, 429 US 167, 175-176 (1976), There is no sug- gestion or danger that the city has permitted these narrow categories of signs but forbidden the vast majority "merely because public officials disapprove of the speaker's view." Niemotko v. Mm)'land, 340 Us. 268, 282 (1951) (Frankfurter, J., concurring in result). More- over, aside from a few [**2921} narrow and essentially neligible exceptions, see injra, at 564-565, 566, San Diego has not differentiated with regard to topic. See Consolidated L"dison Co. v. Public Service Comm'n, 447 US, at 537-538; Carey v. Brown, 447 US 455, 462, n, 6, 463 (/980); First NatIOnal Bank v. Bellotti, supra, at 784-785; Police Dept. of Chicago v. Mosley, supra, at 96. The city has not undertaken to determine, paternalis- tically, '''what information is relevant to self- government.'" Gertz v, Robert Welch, lnc, 418 US 323, 339 (/974) (quoting Rosenbloom v. lvIetromedia, [ne, 403 US 29,79 (1971) (MARSHALL, J" dissenting)), The messages conveyed on San Diego billboards -- whether commercial, political, social, or religious -- are not inseparable from the billboards that carry them. These same messages [*563] can reach an equally large audience through a variety of other media: newspapers, television, radio, magazines, direct mail, pamphlets, etc. True, these other methods may [***850] not be so "eye- 453 U,S, 490, *; 101 S, Ct 2882, **; 69 L Eel. 2d 800, ***; 1981 U,S, LEXlS 50 Page 35 catching" -- or so cheap -- as billboards, '; but there has been no suggestion that billboards heretofore have ad- vanced any particular viewpoint or issue disproportion- ately to advertising generally, Thus, the ideas billboard advertisers have been presenting are not re!ative~y disad- vantaged vis-a-vis the messages of those who heretofore have chosen other methods of spreading their views. See First National Bank v. Bellotti, supra, at 789. See also Martin v, Struthers, 319 US 141, 146 (1943). It borders on the frivolous to suggest that the San Diego ordinance infringes on freedom of expression, given the wide range of alternative means available. 5 Before trial, the parties stipulated: "Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." Joint Stipulation of Facts No. 28, App. 48a. This sweeping, conclu- sory, and rather vague generalization does noth- ing to explain how other media are insufficient, inappropriate, or too expensive. More important, the stipulation does not sllggest that any partiClI- lar point of view or issue will be suppressed by the elimination of billboards. (3) (a) The plurality concludes that a city may constitution- ally exercise its police power by eliminating offsite commercial billboards; they reach this result by follow- ing our recent cases holding that commercial speech, while protected by the Constitution, receives less protec- tion than ttnoncornmercial" -- i. e., political, religious, social -- speech. See, e. g., Central Hudson Gas & Elec- tric Corp. v. Public Service Comm'n, 447 US 557 (1980); Ohralik v, Ohio State Bar Assn" 436 US 447 (1978); Bates v State Bar oJ Arizona, 433 US 350 (1977), But as the plurality giveth, they also taketh away -- and, in the process take away virtually everything. [*564] ln a bizarre twist of logic, the plurality seems to hold that because San Diego has recognized the hardships of its ordinance on certain special needs of citizens and, therefore, exempted a few narrowly deCmed classes of signs from the ordinance's scope -- for exam- ple, onsite signs identifying places of business, time-and- temperature signs, corrunemorative and historic plaques - - the ordinance violates the First Amendment. From these dubious premises, the plurality has given every city, town, and village in this country desiring to respond to the hazards posed by billhoards a choice, as previously noted, between two equally unsatisfactory alternatives: (a) bmming all signs of any kind whatsoever, or (b) perm.itting all "noncommercial" signs, no matter how numerous, how large, how damaging to the envi- ronment, or how dangerous to motorists and pedestrians. [**2922] Otherwise, the municipality must give up and do nothing in the face of an ever-increasing menace to the urban environment. Indeed, the plurality hints -- and not too subtly -- that the first option might be with- drawn if any city attempts to invoke it. See ante, at 515, n. 20. This result is insensitive to the needs of the mod- em urban dweller [***851] and devoid of valid consti- tutional foundations. (b) The exceptions San Diego has provided -- the pres- ence of which is the plurality's sole ground for invalidat- ing the ordinance -- are few in number, are nanowly tailored to peculiar public needs, and do not remotely endanger freedom of speech. Indeed, the plurality con- cludes that the distinctions among commercial signs are valid. Ante, at 512. More generally, as stated supra, at 562-563, San Diego has not preferred any vie\vpoint and, aside from these limited exceptions, has not allowed some subjects while forbidding others. Where the ordinance does differentiate among top- ics, it simply allows such noncontroversial things as con- ventional [*565] signs identifying a business enterprise, time-and-temperature signs, historical markers, and for sale signs. It borders n if not trespasses -- on the frivo- lous to suggest that, by allowing such signs but forbid- ding nonconmlercial billboards, the city has infringed freedom of speech. This ignores what we recognized in ?ohce Del'/. of ChIcago v lvIosley, 408 US, at 98, that "there may be sufficient regulatory interests justifying selective exclusions or distinctions. . . . "For each excep- tIOn, the city is either acknowledging the unique connec- tion between the medium and the message conveyed, see, e. g., Unmark Associates, Inc. v. Willingboro, 43 j Us. 85 (/977) (for sale signs), or promoting a legitimate public interest in information. Similarly, in each in- stance, the city reasonably could conclude that the bal- ance between safety and aesthetic concerns on the one hand and the need to communicate on the other has tipped the opposite way. 1> More important, in no instance is the exempted topic controversial; there can be no ra- tional debate over, for example, the time, the tempera- ture, the eXIstence of an offer of sale, or the identity of a husiness establishment. The danger of San Diego's set- ling the agenda of public discussion is not simply de minimis; it is nonexistent. The plurality today trivializes genuine Firs! /lmendment values by hinging its holding on the city's decision to allow some signs while prevent- ing others that constitute the vast majority ofthe genre. 453 U,S, 490, *; 101 S. Ct. 2882, **; 69 L. Ed, 2d 800, ***; 1981 U,S, LEXIS 50 Page 36 6 Indeed, the plurality acknowledges that a city may undertake this kind of balancing: liAs we see it, the city could reasonably con- clude that a corrunercial enterprise -- as well as the interested public -- has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the pur- pose of advertising commercial enterprises lo- cated elsewhere.!! Ante, at 512. A city reasonably may decide that onsite signs, by identifying the premises (even if in the process of advertising), aChtally promote traffic safety. Prohibiting them would require motorists to pay more attention to street numhers and less to traffic. [*566J Thns, despite the plurality's umque focus, we are not confronted with an ordinance like the one in Saia v. New York, which vested in a single official -- the local police chief -- an unlimited discretion to grant or to deny licenses for sound trucks. "Annoyance at ideas can be cloaked in annoyance at sound. The power of [***852] censorship inherent in this type of ordinance reveals its vice." 334 Us., at 562. Accord, /)'huttle.n-vorth v, Birmingham, 394 US 147, 150-151 (1969); Staub I'. City afBaxley, 355 Us. 313, 322-325 (/958); Lovell 1'., Griffin, 303 Us. 444, 451-452 (1938), See also Consoli. dated Edison Co. v. Public Service Comm'fl. 447 lIeS'.. at 546-548 (STEVENS, J" concurnng in judgment), But here we have no allegation and no danger that San Diego is using its billboard ordinance [**2923] as a mask for promoting or deterring any viewpoint or issue of public debate. This ordinance, in precisely the same sense as the regulation we upheld last week in Heffron v. fnterna- tional Society for Krishna Consciousness, Inc., "is not open to the kind of arbitrary application that this Court has condemned. . because such discretion has the po- tential for becoming a means of suppressing a particular point of view." 452 US, at 649, ' 7 As JUSTICE BRENNAN recogmzes, onte, at 536-540, the plurality's treatment of the ordinance may well create this very danger, for the plurality appears willing to allow municipal officials to de- termine what is and is not noncommercial speech. San Diego simply is exercising its police power to provide an environment of tranquility, safety, and as much residual beauty as a modem metropol itan area can achieve. A city's simultaneous recognition of the need for certain exceptions permitting limited forms of com- munication, purely factual in nature and neutral as to the speaker, should not wholly deprive the city of its ability to address the balance of the problem. 1'hcrc is no threat here to our "profound national commitment to the princi- ple that debate on public issues should be uninhibited, robust, and wide-open. .It New York Times Co. v. Sul- livan, 376 US 254, 270 (1964). [*567] (c) The fatal flaw in the plurality's logic comes when it concludes that San Diego, by exempting ousite commer- cial signs, thereby has "[afforded] a greater degree of protection to commercial than to noncommercial speech." Ante, at 513. The "greater degree of protection" our cases have given noncommercial speech establishes a narrower range of constitutionally pem1issible regula~ tion. To say noncommercial speech receives a greater degree of constitutional protection, however, does not mean that a legislature is forbidden to afford differing degrees of statutory protection when the restrictions on each form of speech -- commercial and noncommercial - - otherWise pass constitutional muster under the stan- dards respectively applicable. No case in this Court creates, as the plurality sug- gests, a hierarchy of types of speech in which, ifone type is actually protected through legislative judgment, the Constitution compels that that judgment be exercised in favor of all types ranking higher on the list. \Vhen a city chooses to impose looser restrictions in one area than it docs in another analogous area n even one in which the Constitution [***853] more narrowly constrains legisla- tive discretion -- it neither undemlines the constitutional- ity of its regulatory scheme nor renders its legislative choices ipso jr.lcto irrational. A city does not thereby ","concede 1 that some communicative interests are stronger than its competing interests in esthetics and traf- fic safety," ante, at 520; it has only declined, in one area, to exercise its powers to the full extent the Constitution permits. The Constitution does not require any govern- mental entity to reach the limit of pemlissible regulation solely because it has chosen to do so in a related area. Cf. Williamson v. Lee Optical Co" 348 US 483, 489 (1955) (a "legislature may select one phase of one field and apply a remedy there, neglecting the others"). The plurality today confuses the degree of constitutional pro- tection -- i. e., the strictness of the test applied -- with the outcome of legislative judgment. [*568.1 By allowing communication of certain commercial ideas via billboards, but forbidding non- commercial signs altogether. a city does not necessarily place a greater "value" on commercial speech. E In these situations, [**2924.1 the city is simply recognizing that it has greater latitude to distinguish among various forms of commercial cOITlllmnication when the same distinc- tions would be impermissible if undertaken with regard to noncommercial speech. Indeed, when adequate alter- native channels of cOITlll1Unication are readily available 453 U.S, 490, *; 101 S, Ct. 2882, **; 69 L EeL 2d 800, ***: 1981 U,S, LEXIS 50 Page 37 so that the message may be freely conveyed through other means, a city arguably is more faithful to the Con- stitution by treating all nonconunercial speech the same than by attempting to impose the same classifications in noncommercial as it has in commercial areas. To under- take the same kind of balancing and content judgment with noncommercial speech that is permitted with com- mercial speech is far more likely to run afoul of the First Amendment. 9 8 Indeed, in Lehman v, City oJ Shaker Heights, 418 US, 298 (/974), we upheld a municipal pol- icy allowing commercial but not political adver- tising on city buses. I cannot agree with the plu- rality that Lehman "[has] no application here.1I Ante, at 514, n, 19, Although Lehman dealt with limited space leased by the city and this case deals with municipal regulation of privately leased space, the constitutional principle is the same: a city may forgo the "lurking doubts about favoritism" in granting space to somt', but neces- sarily not all, political advertisers. 4/8 U~)"_, at 304 (plurality opinion of BLACKMlfN, J). The same constitutional dangers do not arise in allo- cating space among commercial advertisers. 9 See 11. 8, supra. If a city were to permit onsite noncommercial billboards, one can imagine a challenge based on the argument that this favors the views of persons who can afford to own prop- erty in commercial districts. See supnz, at 562- 563. I intimate no view on whether I \vould ac- cept snch an argument should that case ever arise. Thus, we may, consistent with the First Amendment., hold that a city may -- and perhaps must -- take an a11-or- nothing approach with noncommercial speech yet remain free to adopt selective exceptions for commercial speech, as long as the latter advance legitimate governmental interests. Indeed, [*569] it is precisely because "the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength oC or distinguish between, various communicative interests," ante, at 514, that a city should be commended, [***X54] not condemned, for treating all noncommercial speech the same. (4) The Court today unleashes a novel principle, unnec- essary and, indeed, alien to First A mendment doctrine announced in our earlier cases. As JUSTICE STEVENS cogently observes, the plurality, "somewhat ironically, concludes that the ordinance is an unconstitutional abridgment of speech because it docs not ahridge enough speech. fI Ante, at 540 (emphasis added) The plurality gravely misconstnres the commercial- noncommercial distinction of earlier cases when it holds that the preferred position of noncommercial speech compels a city to impose the same or greater limits on commercial as on noncommercial speech. The Court today leaves the modem metropolis with a series of Hobson's choices and rejects basic concepts of federal- ism by denying to every community the important pow- ers reserved to the people and the States by the Constitu- tion. This is indeed "an exercise of raw judicial power," Doe v. Bo/ton, 410 US 179, 222 (/973) (WlllTE, J" dissenting), and is far removed from the high purposes of the First Amendment. mSTICE REHNQUIST, dissenting, I agree substantially with the views expressed in the dissenting opmions of THE CHIEF JUSTICE and JUS- TICE STEVENS and make only these two additional observations: (I) In a case where city planning commis- sions and zoning boards must regularly confront consti- tutional claims of this sort, it is a genuine misfortune to have the Court's treatment of the subject be a virtual Tower of Babel, from which no definitive principles can be clearly drawn; and (2) I regret even more [*570] keenly my contribution to this judicial clangor, but find that none of the views expressed in the other opinions written in the case come close enough to mine to warrant the necessary compromise to obtain a Court opinion. In my view, the aesthetic justification alone is suffi- cient to sustain a total prohibition of billboards within a community, see Berman v. Parker, 348 Us. 26. 32-33 (1954), regardless of whether the particular community is "a historical community such as Williamsburg" or one as unsightly as the older [**2925] parts of many of our major metropolitan areas. Such areas should not be pre- vented from taking steps to correct, as best they may, mistakes of their predecessors. Nor do I believe that the limited exceptions contained in the San Diego ordinance are the types which render this statute unconstitutional. The closest one is the exception permitting billboards during political campaigns, but I would treat this as a virtually self-limiting exception which will have an ef.- fect on the aesthetics of the city only during the periods inunediatcly prior to a campaign. As such, it seems to me a reasonable outlet, limited as to time, for the free expression which the First and Fourteenth Amendments were designed to protect. Unlike JlJSTICE BREl\'NAN, I do not think a city should be put to the task of convincing a local judge that the elimination of billboards would have more than a negligible impact on aesthetics. Nothing in my experi- ence on the bench has led me to 1***855J believe that a judge is in any bcttcr position than a city or county commission to make decisions in an area such as aesthet- ics. Therefore, little can be gained in the area of constitu- tional law, and much lost in the process of democratic 453 U,S, 490, *; 101 S, Ct. 2882, **; 69 LEd, 2d 800, ***, 1981 U,S, LEX1S 50 Page 38 decisionmaking, by allowing individual judges in city after city to second-guess such legislative or administra- tive determinations. REFERENCES 3 Am Jur 2d, Advertising 4, 14 7 Am Jur PI & Pr Forms (Rev), Constitutional Law, Forms 11 et seq, uses, Constitution, 1st Amendment US L Ed Digest, Constitutional Law 954 L Ed lndex to Annas, Advertising; Freedom of Speech, Press, Religion, and Assembly ALR Quick Index, Billboards; Freedom of Speech and Press Federal Quick Index, Advel1ising AIU1otation References: Supreme Court's views as to party's standing to assert rights of third persons Uus tertii) in challenging constitu- tionality of legislation, 50 L Ed 2d 902, Precedential weight of Supreme Court's memorandum decision sununarlly affirming lower federal court judg- ment on appeal or summarily dismissing appeal from state court. 45 L Ed 2d 791, Applicability to advertisements of First Amendment guaranty of free speech and press, 37 L Ed 2d 1124, The Supreme Court and the right of free speech and press, 931, Ed 1151, 2 LEd 2d 1706,11 LEd2d 1116, l6LEd2d 1053,21 LEd2d976,