Sign Codes and the Constitution
Know your rights under the law

While presenting at the International Car Wash Association’s (ICA) Car Care World Expo, I asked audience members to raise their hands if they were having difficulty with local sign codes and city enforcement. I was astounded when about 70 percent of the audience raised its hands.

In today’s society, the method of governing the bad behavior of business owners, as it relates to signs, has taken on a life of its own.

That is unfortunate. When fairly applied, sign codes can actually assist a business in increasing the rate of attraction through carefully implemented quality sign planning.

Many cities now regulate seemingly for sport rather than purpose. It is not that the concept of sign regulation is not important or necessary, but rather that many cities seem to regulate for pleasure, personal power and a general exhibition of control over the business community rather than a stated common communal purpose. Also, as city planners get more aesthetically minded, many lack appreciation for the impact of sign codes on the cash flow of businesses. Do cities have the right to control a business’s cash flow by limiting street communication devices? Many codes are anti-business and may even impinge on the business owner’s commercial constitutional rights.

Why should a business owner care about this issue? A study at the University of San Diego found that a new sign will generate a 3-percent sales increase. The two-year study showed that a pole sign will increase sales on average a whopping 15.6 percent. The 189 businesses participating in the study know the importance of this issue.

Getting a sign

After determining that a new sign may be appropriate for your business, a good place to start is your city’s sign code. Hopefully, you will find your city’s regulations and personnel cordial and business-friendly. For those who are not so fortunate, an assessment of the legal options may be appropriate.

The city does not have the freedom to violate the rights of an individual prescribed by the constitution. It is important to understand those rights in order to determine if the regulations we are subjected to are fair and constitutional.

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Do we as business citizens have the right to commercial free speech? In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, it is stated:

The fact that the advertiser’s interest in a commercial communication is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have interests in the free flow of commercial information.

There are three areas the courts have held that the cities have the power to regulate.

Time: When the signs may be displayed or illuminated.

Place: Where the sign may be displayed.

Manner: The type of sign that may be displayed.

The courts have also said that the restrictions must be content neutral and that the city cannot place restrictions that regulate the speech of a sign unless the message would cause harm to the public. There must also be a substantial benefit to the community. The city must be able to prove a substantial benefit to the whole community for regulations imposed on the community. If the city has specific limitations on signs, they must be able to prove that the adverse impact of failing to enforce these regulations would cause harm to the community.

An example of a good use of a substantial benefit to the community can be found in most codes under the “prohibited signs” section. Most cities will not allow sign devices that emulate safety vehicle lights or stop lights. It makes good common sense that the need for such a regulation is in the best interest of the community and would be easy to prove through historical traffic safety data.

Proof is the issue. When put to the test in the courts, the cities have the burden of proof, not the business owner. The city must be able to quantify and provide evidence of the substantial benefit to the community in enforcing restrictions.

Regulations must also be crafted as narrowly as possible. The courts have concluded that sign ordinances must not contain arbitrary and unclear language. The city must have clear and distinguishable goals with its regulations and must provide evidence supporting its positions when it regulates signage. The courts have found in favor of business owners’ rights when the language of the ordinance is ambiguous.

The Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment to the constitution guarantees the right of any citizen of the United States to due process. Anything that is decided by government can be appealed to a higher authority until the higher authority of the U. S. Supreme Court hears or refuses to hear the appeal. In the sign-permitting process, the federal courts have held that the appeal to the variance board must be a legitimate process granting reasonable relief to the unduly and adversely affected parties.

The process must respond to legitimate hardships by granting reasonable relief or the due process rights of the appellant have been violated by the city.

The variance

In reality, the sign variance process can be very daunting. Cities can range from easy to absurd in the approaches they take in the variance process. The secret to achieving a desirable outcome can be in the details of preparation. The successful variance hearing must be artfully and thoughtfully carried out.

Let’s start with why you should engage the city in such a variance request. Sign codes are written to the median or norm. Any situation that falls outside the norm needs further review by all parties concerned. The owner of a business considering the impact of a sign code that does not meet the needs of his business may do well to consider the loss of revenue against the aggravation that is required to appeal to the variance board.

The increased revenues will out weigh the aggravations very quickly if the attempt is successful.

The variance process is a little like getting a mortgage: You must give the board the information it needs, in a form it needs and that it can use in order to have a desired outcome.

The city with a legitimate process is looking for three things:

1. Hardship. A hardship is something about your location that causes the norm (set forth in the code), when applied to your property, not to result in equal performance of your sign as compared to other commercial signs.

2. Not unfair to other businesses. If an exception is granted, will the board be giving an unfair competitive advantage over other business owners in the city?

3. Self-infliction. Most cities want to be sure that the hardship was not self-inflicted by the business owner in order to gain an unfair competitive advantage.

Just compensation

As it relates to signs, the government cannot take your property for public use unless it pays for it. If new regulations have prompted the city to seek to remove your sign, you may be in line for compensation. Compensation for the sign may not only include compensation for the physical sign, but also include the resulting harm experienced in gross sales and profits. A qualified sign appraiser can help quantify this number in a way the courts should be able to grasp.

The Fourteenth Amendment

Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While certain portions of the language of the Fourteenth Amendment may sound like the Fifth Amendment, the intent was that each and every citizen’s rights would be equally and fairly protected. The laws would therefore be impartially applied to all. There are several areas to which this amendment applies:

1. In administration, the process must be speedy and reasonable. Unnecessary delays are not appropriate nor are unfairly applied regulations.

2. Secondly, the city should not grant itself or the state rights it denies citizens. A great example of this is the use of electronic signs in construction zones. Cities usually deny this type or manner of sign to businesses on the basis of safety, while allowing highway construction companies to use these signs to promote safety in a zone that requires the greatest diligence of the driver. If it is a safety issue for a well-lit, well-traveled street, it must surely be a safety issue for construction zones where the signs are located in the road bed and not in the business property set back.

Another example of this discrimination is the use of electronic message displays installed along the interstate highway system. These signs usually warn of traffic and construction issues, as well as Amber Alerts. The fact that the state may have the right to use these displays, but that the right may be denied a business, is discrimination.

3. To have signage requirements limited on the basis of business type is discrimination to the business that cannot qualify for this sign. Remember, restrictions must be content-neutral. In this case, the basis for this determination is the speech of the sign. If it is fair for one, it is fair for all. An example might be language in the code permitting car dealers to have signs that are different from other types of businesses in the same community.

4. The use of subjective or arbitrary criteria for the permitting process is discriminatory.

5. This amendment guards against prior restraint. Prior restraint exists when you have to get the permission of the government, before you speak, to determine if you can say what you want to say. This again focuses on the issue of content neutrality. The government cannot censor your commercial free speech unless it would cause harm to the community and is fairly applied to all.

Discrimination

This is a very complex issue and requires more than a little effort in determining the best course of action a business owner may wish to take if he feels he is the subject of discrimination. A good place to start is a qualified sign professional.

A sign professional is not necessarily a sign fabricator, sign salesperson or the owner of a local sign company, but rather the person with the knowledge and resources to place a sign in front of the business that will produce revenue for that business owner. This includes a thorough knowledge of city sign codes, business owner rights and knowledge of strategies that can assist an operator in a discriminatory environment.

No one wants an unnecessary fight with city hall, but there may come a time when it might be the right thing to do. The counsel of a qualified sign professional can help you make that determination and even steer your attorney in the right direction on the resources available touching this point of law.

Don’t give up on your sign. If you do nothing, the bureaucrats win and you lose profits.

Perry Powell is a sign consultant to the Car Wash Industry.
He is a member of the National Academies of Science Transportation Research Board's On-Premise Sign Sub-committee.

He can be reached by:Telephone: 817-307-6484

Email Perry