What Does the Sign Say Part II: Practical Solutions for Local Governments

As was discussed in Part I of this blog series, all signs are subject to some form of regulation while also carrying First Amendment protection.  This almost always leads to sign regulations that are confusing, inadequate, dated, and often, unconstitutional. Yet local governments across that state of Florida and the United States need  defensible regulations to instruct business and property owners on what is acceptable and preferable in their communities.  Understanding content neutrality, the definition of a sign, and inclusion of a severability clause or substitution clause can help in formulating defensible regulations. This blog will offer some practical solutions to local governments that are interested in bringing their sign ordinances current with today’s law.

Practical Steps To Take

1. Content Neutrality

The first step to take is not only practical, it is obvious:  review your current sign code for areas of potential content bias.  This review will take some time – so the next practical step is to educate and instruct your agency’s staff to avoid all content-based enforcement.  Any distinctions being made based on content, should be avoided.

2. Severability Clause and Substitution Clause

In reviewing an existing sign ordinance, two items should be readily identifiable, and if they are not, make sure to add them to existing ordinance language first:  a severability clause and a substitution clause.

• A severability clause states that if any part of an ordinance is found to be invalid or unconstitutional, the remaining sections will still be applied to the maximum extent practicable.  This will assist in protecting other language in a sign ordinance and the life of the ordinance as a whole.
• A substitution clause in the sign ordinance world, states that a non-commercial message may be substituted for a commercial message on any sign permitted by the code.  This helps demonstrate an ordinance’s content neutral intent and objective.

3. Amending existing ordinance

The next step to take in amending an existing sign ordinance is to make sure that it has a statement of intent or purpose statement.  This should also demonstrate the content neutrality of the regulating language.

4. Review exceptions and waivers

Finally, review existing exceptions, variances or other avenues contained in an ordinance that allow for avoidance or waiver of the regulations.  Such language can add to inconsistencies, subjectivity, lack of clarity, and even lack of fair play or favorability.  Frankly, such language should be avoided in all codes, but most certainly should be avoided when it comes to signage given the dangers of content based regulations.

Hugely important in revamping a sign code is to reduce or eliminate the number of sign “categories” or designations, especially for non-commercial signs.  Again, such language can easily be interpreted as content based.  The best way to avoid having to use categories is to connect the statement of intent or purpose with actual signage data.  A sign ordinance that focuses on the function of signs rather than the message, is much more likely to survive legal challenges.

For example, “old” sign categories include:

1. Political signs
2. Special Event signs
3. Special/Garage Sale signs
4. Community Event signs
5. Development or Construction signs
6. Grand Opening signs
7. Directional/Informational signs
8. Historic markers

Each of these, clearly, are based on the message being projected by a sign, rather than a classification on size, location or structure.  Categories that have proven more likely to survive various legal challenges are ones involving attached versus detached, permanent versus temporary, pole versus monument, etc.  Following that, more specific regulations that identify the size and placement of banners, window signs, posters, yard signs or swing signs can be more easily crafted to be content neutral.

Definition Of What Is A Sign

If you Google “How to Create a Sign Ordinance” you will see pages of results – most focusing on “sample” or “model” ordinances.  However, as discussed here and in Part I, there is no one-size-fits-all approach to regulating signage.  Instead, any ordinance must be created with the needs and intent of the local government in mind, along with the all-important constitutional considerations and restraints.  Therefore, all sign regulations start and end with their definitions.

The definition of a sign sets the stage and the motivation for any sign ordinance.  Whether it borders on generic or includes a list of specific types and locations, an ordinance’s definition of a sign is the cornerstone of its purpose and intent.

The most common and defensible approach to defining signs in an ordinance include multiple parts:

• A general or basic definition of a “sign”
  • g., “any display or object used to identify or convey information about or direct or attract attention to a ‘person’ by any means or method”
    • (Person is usually further defined to include individuals, business entities, organizations, etc.)
  • A group of sub-definitions to include:
    • Noncommercial signs
    • Commercial signs
    • Political signs
    • Billboards
    • Off-premises signs
    • Real Estate signs
    • Special Event signs
    • Structural signs

Any of these sub-definitions may also have their own categories or qualifiers, such as structural signs, banners, electronic signs, temporary or permanent signs, pole signs, monument signs, and signs with “copy” that may or may not be altered.

The danger here is that sign ordinance language can get very complicated, resulting in applications and interpretations that are either not intended or not foreseeable.  The more impactful danger is that overly complicated sign ordinance language can result in restrictions that violate the First Amendment of the U.S. Constitution.

Problematic Examples & Potential Solutions

To give the reader a picture of what can go wrong, here are few limited examples of well-intended sign ordinances that either ran afoul of the law or had to be amended or rescinded to avoid costly litigation and unwanted negative press.

1. A sign ordinance that prohibits all flags other than the state or U.S. flag (First Amendment implications);
2. A sign ordinance that allows the display of “holiday lights” only during the 60 days before and after Christmas (First Amendment implications);
3. A sign ordinance that sets the time frame during which political signs may be displayed (First Amendment implications);
4. A sign ordinance that only allows billboards to be placed in certain areas may unfairly restrict certain businesses from having the same opportunity to advertise as their industry competitors in different locations.

Again, the first step in avoiding most of the issues listed above is to ensure that the sign ordinance language is not content based.  Clearly a sign regulation that only allows for certain kinds of flags to be flow is restricting the content of those flags that are prohibited.  The same applies to a sign ordinance that restricts the timing of certain displays, such as holiday lighting or political signs.  If it is permissible for someone to display a political sign during September and October, leading up to a November election, prohibiting the same sign during the remaining months of the year clearly means it is the content of that sign that is of issue.  Such a regulation will not survive challenge.

Some general tools that can help set the stage for sign ordinance language not only include the definitions, as discussed above, but also specific statements on the ordinance’s purpose and intent.  For instance, specifically stating in the preamble or “purpose statement” of an ordinance that it is created to ensure or protect free speech is helpful.  But only if the remaining language of the ordinance carries forth this intent.  Also, language expressing the need to promote and protect public health, safety and welfare of citizens and visitors can be helpful given that is the primary mandate and purpose of local governments.

More specific purpose and intent language that focus on efficiency of signage, protection of business climates, pedestrian and vehicular safety, avoidance of distractions that may cause injury or harm, and protection of property values are all helpful in conveying a sign ordinances desire to create a regulatory scheme that is not overly burdensome or restrictive.  But again, the more specific language that actually applies the regulatory scheme must remain content neutral.

A snapshot of defensible and practical sign ordinance language can be seen most often in the realm of billboards.  Billboards regulations that contain no restriction on content and are directly connected to land use zoning categories (commercial and industrial versus residential) have repeatedly been allowed or upheld.  When content neutral sign regulations vary be zoning district they are not only much more likely to survive a challenge, they are more likely to effectuate the actual desires of a community or local government.

Conclusion

Clearly, the parameters of a valid and defensible sign ordinance are . . . well . . . far from clear.  Hundreds of cases and hundreds of local governments have dealt with the myriad of challenges that can arise from sign regulations.  Most stemming from protections provided and afforded by the First Amendment.  Simply put, free speech is not to be tangled with.

However, as discussed above and in Part I of this blog, basing a sign regulation on content neutrality is the safest and most practical approach.  The U.S. Supreme Court’s ruling in Reed et al., v. Town of Gilbert (https://www.oyez.org/cases/2014/13-502) is the current guiding law.  Content-neutral standards such as size, location, lighted v. unlighted, public property v. private property, commercial v. residential (zoning districts), fixed messages v. electrical and rotating, and restricting the total number of signs per mile of road frontage are all acceptable under the applicable law.  This also means, that such regulations are not subject to strict scrutiny (because they are content neutral).  Which is exactly what any local government wants when having to administer and defend a sign ordinance.