IN
THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE
DIVISION
JOHN S. LA TOUR PLAINTIFF
VS.
CITY OF FAYETTEVILLE, ARKANSAS;
BRANT WARRICK, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
DEPUTY CITY PROSECUTOR; CLINTON
K. JONES, INDIVIDUALLY AND IN HIS
DEFENDANTS
OFFICIAL CAPACITY AS CITY
PROSECUTOR; KIT WILLIAMS,
INDIVIDUALLY AND AS CITY
ATTORNEY; BOB ESTES, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY; AND
MIKE MCKIMMEY, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY
COME
NOW the defendants, and all of them, and for their Brief in Support of Motion
to Dismiss pursuant Rule
12(b) of the Federal Rules of Civil Procedure,
state as follows, to-wit:
The
plaintiff brings this alleged civil rights action to challenge the provisions
of Title 15, Chapter 174 of the City of Fayetteville's Unified Development
Ordinance (hereinafter "Ordinance"). (June 16, 1998). The plaintiff
alleges that the Ordinance is unconstitutional and that the City of
Fayetteville (hereinafter "City") and the individual defendants
acting as the City's sign inspector, prosecutors, attorney, and Planning
Commission chairman are liable to him in the amount of Ten Million Dollars
($10,000,000.00) for enforcing the Ordinance. (See plaintiffs Complaint, P.
13).
The
City first enacted the Ordinance in question as Ordinance No. 1893 in December
of 1972. (See Ordinance 1893, Exhibit "A"). The City enacted the
Ordinance as a response to the proliferation of signs, which created a traffic
hazard and was detrimental to the aesthetics and economic base of the City. ~
This
Ordinance was first codified as Chapter 158 of the Fayetteville Code of
Ordinances. (See Chapter 158, Exhibit "B"). On June 16, 1998, the
City passed the Unified Development Ordinance, which compiled all ordinances
pertaining to development into one volume, and also renumbered them, and it
should be noted that the provisions that the plaintiff herein complains of
were untouched by the City when it created the Unified Development Ordinance.
The provisions of the Ordinance that the plaintiff now complains of are
currently found in Chapter 174 of Title 15 of the Unified Development
Ordinance. (See Chapter 174, Exhibit "C").
As
set forth below, since its enactment in 1972, the Ordinance has been
challenged and upheld by the Arkansas Supreme Court on numerous occasions, and
on at least one occasion on grounds similar to those which the plaintiff
complains of herein. The Arkansas Supreme Court has upheld the Ordinance, as
applied to fluctuating illumination signs, in each of those cases.
The
plaintiff is a Certified Public Accountant who maintains his place of business
at 2285 West Sixth Street in Fayetteville. (See plaintiff's Complaint, P.
3-4). On or about January 5, 2000, the Plaintiff purchased and installed an
"electronic message sign" (hereinafter "Sign") that
measures eight (8) inches tall by seventy-two (72) inches wide in the window
of his Sixth Street office. (See plaintiffs Complaint, P .3). The plaintiff
positioned his sign so that its fluctuating or changing messages may be
viewed outside of his office by pedestrians and other passers by. (See
plaintiffs Complaint, P .2-3).
Thereafter,
the City informed the plaintiff that, even though it was located inside his
office, his fluctuating illumination sign that faced outside his office, and
which could be seen through his window by passersby, was a violation of the
Ordinance. (See Exhibit C, §174.03(K) & 174.08(B». Specifically, it
violated the Ordinance because it "flashed, blinked, or is animated"
and is positioned so that it can be seen from outside of his office. (See
Exhibit C, § 17 4.08(B». Despite repeated attempts to resolve this matter
without resorting to judicial procedure, the plaintiff refused to cause his
sign to stop flashing or blinking, and thereby refused to comply with the
Ordinance. (See January 4, 2002 Memorandum, P .2, Exhibit "H"). At
this point, the City was left with no option but to 0
file
charges against the plaintiff for his willful noncompliance with the
Ordinance. Subsequently, a Criminal Summons was issued by the Municipal Court
of the City of Fayetteville charging the plaintiff with noncompliance with the
Ordinance beginning on or about the 16th day of June 2000 until or about the
29th day of June 2000. (See Summons, Exhibit "D").
The
plaintiff demanded a trial and was convicted in the Fayetteville District
Court of several misdemeanors stemming from his repeated violations of the
Ordinance, even after he had been warned by City officials that he was not in
conformance with said Ordinance. (See Exhibit H). The plaintiff was convicted
in the District Court, and though the Ordinance could have levied much harsher
penalties for the plaintiffs noncompliance, the City agreed to suspend a
significant portion of the penalty and only impose a $1025.00 fine against the
plaintiff. (See plaintiffs Complaint, P .3). Thereafter, the plaintiff
promptly served his notice that he was appealing the District Court ruling to
the Circuit Court of Washington County. (See February 1, 2001 Notice of
Appeal, Exhibit "E"). At his trial in the Circuit Court as well as
during his trial in the District Court, the plaintiff raised the same
constitutional claims that he is raising against the Ordinance in this action.
His primary argument in each instance was that because the Ordinance exempts
Time and Temperature signs (i.e. such as found at local financial
institutions) that do not contain advertising matter (See Exhibit C, §
174.03(1)), it should also exempt the commercial, political and / or religious
messages that he displays on his sign. (See plaintiffs Complaint, P .5).
Otherwise, the plaintiff alleges (which the defendants deny) that the
Ordinance unconstitutionally discriminates based on content. !Q..
It
is the City's position that "time and temperature displays without
advertising matter" may be and are properly exempted because these type
of signs are more like tools such as clocks and / or thermometers, which can
only function if movement is provided for and display on basic factual and
fundamental information. The information found on time and temperature
displays, and other exempted signs, is helpful to the public as a whole, and
thus does not display distracting or other forms of "speech" that
non- exempted or prohibited signs, such as the plaintiffs; display. (See
generally Exhibit C, §174.03 etseq. & 174.08 etseq.).
As
previously mentioned, the District Court rejected the plaintiffs arguments and
he appealed to the Circuit Court. On November 5, 200 I, the plaintiff entered
a plea in the Circuit Court to the charge of Violation of Fayetteville City
Sign Ordinance. (See Order, Exhibit "F"). By the terms of that
Order, and as another affirmative act of the City to
appease
the plaintiff, prosecuting officials agreed, though they were under no legal
obligation to do so, to fully remit or suspend the already reduced Seven
Thousand Five- hundred Dollar ($7,500.00) fine and all costs, and further
agreed to allow the plaintiff to change the message on his non-conforming sign
once every three hours. Once again, the good faith effort to resolve this
dispute without further intervention of the Courts was repaid upon the City
and defendants herein by the plaintiff, who on January 3, 2002, acting pro se,
initiated this suit in the United States District Court for the Western
District of Arkansas. The plaintiff has once again raised the same arguments
against the ordinance that have been rejected numerous times when raised by
him and when adjudicated previously.
Now,
the plaintiff, once again, alleges that the Ordinance violates his First
Amendment rights, due process and equal protection rights, and runs afoul of
Section 1983 of Title 42 of the United ~ ~. (See plaintiffs Complaint, P. 13).
The
plaintiff requests injunctive relief and monetary
relief in the amount of Ten Million Dollars, costs,-and fees. For the
reasons set forth In their Motion and in this Brief, the defendants, and all
of them, are entitled to dismissal of this case, or in the alternative,
judgment as a matter of law.
Rule 12(b) of the Federal Rules of Civil Procedure
states in pertinent part as follows:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counter-claim, cross-claim or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except where the following defenses may at the option of the pleader be made by Motion(6) Failure to state a claim upon which relief can be granted... Fed. R. Civ. P. 12(b)(6)(Supp. 2000).
If
the Court considers matters outside the pleadings in a Motion to Dismiss, it
may be treated as a Motion for Summary Judgment. Fed. R. Civ. P. 12(b) (Supp.
2000). In such a case, the Motion shall be treated and disposed of as provided
in Rule 56. ~
A Motion for Summary Judgment is governed by Rule
56 of the Federal Rules of Civil Procedure, which states in pertinent part as
follows:
A
party against whom a claim... is asserted... may, at any time, move with or without supporting affidavits for a summary
judgment in the party's favor as to all or any part thereof. Fed. R. Civ. P.
56(b )(Supp. 2000)
Once
a Motion for Summary Judgment is made, the non-moving party must come forward
and plead facts in addition to those in the pleadings, Rule 56(c) provides:
When
a Motion for Summary Judgment is made and supported as provided in this Rule, an adverse party may not
rest upon the mere allegations or denials of the adverse parties pleading, but
the adverse parties response, by affidavits or as otherwise provided in this
Rule, must set forth specific facts showing there is a genuine issue for
trial. Fed. R. Civ. P. 56(e) (Supp. 2000).
Thus, summary judgment is appropriate when the pleadings, depositions, any answers to Interrogatories and admissions, together with any affidavits or exhibits, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) (Supp. 2000); Celotex v. Catrett. 477 U.S. 317 (1986). When the Court determines there is no genuine issue of material fact remaining to be tried, it has no discretion and must rule in favor of the moving party. Kennedy v. Silas Mason Co.. 334 U.S. 249 (1948).
For
the reasons set forth below, the plaintiff is not entitled to recover under
any discernible circumstances, and as such, his claims should be dismissed
pursuant to Rule 12(b)( 6) of the Federal Rules of Civil Procedure for failure
to state a claim upon which relief can be granted. Furthermore, there is no
genuine issue as to any material fact to be tried. This is true as to both the
plaintiffs requested injunctive relief as well as the request for damages set
forth in his Complaint. Therefore, this Court should dismiss the plaintiffs
Complaint, or alternatively, the defendants are entitled to judgment as a
matter of law.
A.
Fayetteville City Sign Ordinance.
As
previously mentioned, the plaintiff is challenging the application of a City
of Fayetteville Unified Development Ordinance. Specifically, he is challenging
the constitutionality of Ordinance I 74.08(B), which states:
Fluctuating
Illumination. It shall be unlawful for any person to erect additional attraction devices or signs or to
continue in operation an attraction device or sign which flashes, blinks, or
is animated. Illumination of attraction devices or signs located in the City
that fluctuates in light intensity shall be prohibited. Unified Development
Ordinance, Title 15, Chapt. 174.08(B), (See also Exhibit C).
Though
the plaintiff is primarily concerned with that provision of the Ordinance, his
Complaint cannot be adequately understood without first looking at other
provisions of the Ordinance, and then at the history of the Ordinance and its
application. The Court must be made aware of two additional sections of the
Ordinance that bear directly upon the matter at hand. First, Title 15, Chapter
174.01 states:
It
shall be unlawful for any person to erect... or keep within the City any
sign... except as exempted herein without first
obtaining a permit from the Building Inspector. Unified Development Ordinance,
Title 15, Chapt. 174.01 (A) (See also Exhibit C).
As
this section of the Ordinance indicates, unless the sign to be erected is one
of the classes of exempted signs (a fact not present in the case at bar) found
in Chapter l74.03(A)-(R), then said sign shall be required to comply with the
terms of the Ordinance, and the person seeking to erect the sign shall be
required to get a permit before he erects the sign. It is the plaintiff's
position that since his sign is similar to an exempted class of sign, denial
of his "right" to post such a sign constitutes a violation of his
constitutional rights. (See plaintiff's Complaint, P. 2-3). That is, since his
sign functions in a similar manner as a class of specifically defined and
exempted signs, the equal protection clause prevents the Ordinance from
prohibiting his sign.
Specifically,
the plaintiff first compares his sign with the class of exempted signs that
include time and temperature displays, such as those found at local financial
institutions. Section I of Chapter 174.03, in pertinent part, provides:
§174.03
EXEMPTIONS. Exemptions shall not be construed as relieving
the owner of such signs from the responsibility of
complying with certain applicable provisions of this chapter. The exemptions
shall apply to the requirement for sign permit only, and no sign permit shall
be required for the erection of the following signs:
I.
Time and Temperature Displays. Time and temperature displays without
advertising matter, providing all clearances prescribed herein for signs
similarly situated are maintained. (See Exhibit C).
In
the alternative, the plaintiff secondly asserts that since he chooses to
display religious and / or political messages on his sign, the First Amendment
bars the Ordinance from restricting the location and operation of his sign,
because to rule otherwise, he asserts, amounts to content based regulation.
(See generally plaintiffs Complaint, P. 3,5, & 6). As set forth herein,
both of these assertions are misstatements of law.
Title
15, Chapter 174, et seq., is the latest in a long line of ordinances generally
referred to as the City Sign Ordinance or Sign Ordinance of the City of
Fayetteville. The version the plaintiff complains of is Chapter 174.08(B) of
what is now commonly referred to as the Unified Development Ordinance, which
was most recently revised in June, 1998. However, the provision that plaintiff
complains of has been in place for a significant amount of time before the
1998 revision, and was notably unchanged by City officials when they adopted
the current version. Before June, 1998 the Sign Ordinance of the City of
Fayetteville was located in Chapter 158 of the City's Ordinances; however, it
is exactly the same provision the plaintiff now complains of which is
currently located in Chapter 174. (See Exhibit B, §158.40). Though there were
minor changes to other portions of Chapter 158 with the adoption the
successor, Chapter 174, the provisions requiring that a permit be issued
before a sign is erected, exempting time and temperature signs, and
prohibiting fluctuating illumination signs were not changed. 14:.
As
such, previous case law interpretation of these provisions is still
controlling on this issue.
Any
doubts about the general purpose, validity and constitutionality of the
Ordinance involved in this case were removed in a long line of cases beginning
with Osage Oil and Transportation Inc. v. City of Fayetteville. 258 Ark. 91,
522 S. W.2d 836 (Ark. 1975). To date, there are no fewer than six cases that
have directly challenged the sign ordinance in one form or another. Each of
these courts found that the Ordinance was enacted to promote the reasonable,
orderly and effective display of signs and as a tool to promote safety,
recreation, public travel, to preserve the natural beauty of the City, and to
promote tourism and economic advancement within the City. See generally: Osage
Oil and Transportation Inc. v. City of Fayetteville. (Osage I) 258 Ark. 91,
522 S.W.2d 836 (Ark. 1975), affirmed Osage II 260 Ark. 448, 541 S.W.2d 922
(Ark. 1976); City of Fayetteville v. S&H. Inc.. 261 Ark. 148,547 S. W.2d
94 (Ark. 1977); City of Fayetteville v. Mcilroy Bank & Trust Company. 278
Ark. 500,647 S.W.2d 439 (Ark. 1983); Hatfield v. City of Fayetteville. 278
Ark. 544, 647 S.W.2d 450 (Ark. 1983); Donrey Communications Co. Inc. v. City
of Fayetteville. 280 Ark. 408, 660 S. W.2d 900 (Ark. 1983); Fisher Buick. Inc.
v. City of Fayetteville. 286 Ark. 49, 689 S.W.2d 350 (Ark. 1985). In these
cases, the Supreme Court of Arkansas found that the Ordinance was
constitutional with regard to flashing or fluctuating illumination signs
(exactly the type of sign in question in the case at bar) and in some cases,
infra., expounded upon the constitutionality of the Ordinance. The City would
submit that the plaintiff's claims, even if true, are therefore barred by the
doctrines of res judicata and collateral estoppel.
The
validity of the Ordinance was first upheld in Osage I. supra.. 541 S. W .2d at
922. The next challenge to the Ordinance came in S&H. Inc.. supra., which
focused on the applicability of the Ordinance to signs that already had
fluctuating illumination in place when the Ordinance passed. There, the
Arkansas Supreme Court affirmed the portion of the Trial Court decision that
found that "flashing and blinking signs were inimical to the safety of
the traveling public" and allowed regulation by ordinance of such signs.
547 S.W.2d at 95. There the Arkansas Supreme Court, when ruling on the
validity of this exact same ordinance, held:
The
prohibition against flashing or blinking signs falls within that area of Police regulation that is exercised for
the protection of the health and 'morals of the people. On
its face the portion of the ordinance prohibiting the use of flashing and
blinking signs would annear to be a matter that could affect the safety or health of
the City. 14:. at 98 (emphasis added).
In concurring opinions, Justices Hickman and
Fogleman each agreed with the majority, stated that the regulation of flashing
or blinking signs was, in fact, a I2roI2er exercise of governmental authority. at
98.
Here,
the plaintiff has erected a fluctuating illumination sign in the front window
of his office located on West Sixth Street in Fayetteville. It is without
question that this sign was not in place during 1973, when the complained of
Ordinance was first enacted, and it is without question that the sign was not
in place when Chapter 174 of the Unified Development Ordinance was enacted in
1998. Additionally, each of the first two courts to visit this issue found
that regulation of such signs was a proper exercise of governmental authority,
and did not infringe upon any individual rights of the citizens of this
municipality, even when applied to signs that were already in place when the
Ordinance was enacted. See generally: Osage I. 258 Ark. 91, 522 S. W.2d 836
(Ark. 1975), affirmed Osage II 260 Ark. 448, 541 S.W.2d 922 (Ark. 1976);
S&H. Inc.. 261 Ark. 148, 547 S.W.2d 94 (Ark. 1977). Thus, the doctrines of
res judicata and/or collateral estoppel should prohibit the plaintiff from
bringing this action, as these specific issues have already been ruled upon by
a court of competent jurisdiction. As such, based on those doctrines and the
case interpretation of the Ordinance in question, the plaintiff has failed to
state a claim upon which relief can be granted as to all of the claims
asserted in his Complaint, and his claims should be dismissed, or in the
alternative the defendants are entitled to judgment as a matter of law.
The
next case to address this issue was Mcilroy. supra., which relied in large
part on the language and ideas set forth in S&H. Inc.. but questioned the
validity and constitutionality of the Ordinance as applied to signs, such as
the one in question, that were erected after the Ordinance was enacted. In
McIlroy, the Arkansas Supreme Court stated that it "could hardly be
doubted that an ordinance such as this one is valid as to signs to be erected
in the future." 647 S. W.2d at 440. (emphasis added). Clearly, that is
exactly the question before this Court. That is, the applicability of the
Ordinance to the plaintiffs sign, which was erected long after the Ordinance
was adopted. As seen in McIlroy. the Arkansas Supreme Court has already ruled
on that issue, holding that absent an exemption (a fact not present here),
such signs fall squarely within the parameters of the Ordinance. Going
further, the Court opined:
If the inhabitants of a city or town want to make
the surroundings in which they live and work more beautiful or more attractive
or more charming, there is nothing in the constitution forbidding the addition
of reasonable measures to attain that goal.
As the concurring opinion in stated: 'The regulation of signs by
cities is long overdue.' If an ordinance as moderate as this one before us
cannot be sustained, the possibility of effective regulation becomes almost
non-existent.
at
441.
Here,
the plaintiff is complaining that the Ordinance should not apply to his sign,
which was obviously erected after the enactment of the Ordinance. As
illustrated by McIlroy, this assertion is notably misplaced because the
plaintiffs sign does not fall within
one of the expressly defined and specifically exempted class of signs. ~
at
440. Moreover, as seen in Mcilroy and S&H. Inc.. the
Arkansas Supreme Court has already ruled that this is a reasonable regulation
of signs that is not forbidden by the Constitution. ~ For these reasons, the
doctrines of res judicata and collateral estoppel clearly apply, and the
plaintiff has failed to plead facts upon which relief can be granted as to his
challenge of the constitutionality of the Ordinance, and his claims should be
dismissed, or in the alternative, the defendants are entitled to judgment as a
matter of law.
Perhaps
the most telling opinion on this matter is Donrev Communications. supra.,
where the Supreme Court of Arkansas addressed First and Fourteenth Amendment
challenges to the Ordinance. There, based on prior United States Supreme Court
reasoning, the Court stated that restrictions on speech are permissible if: -
i)
they
are justified without reference to the content of the regulated speech;
ii)
they
serve a significant governmental interest, and
iii)
iii)
they leave open ample alternative channels for communication.
660 S.W.2d at 902 citing Virginia Pharmacy Board v.
Virginia Citizens Consumer Council. 425 U.S. 748 at 771 (1976) (emphasis
added).
In
Donrey the Court found that since the Ordinance only restricted the size and
location of signs that the Ordinance was, in fact, content neutral. 660 S. W
.2d at 902 (emphasis added). Further, the Supreme Court of Arkansas held that
the Ordinance "seeks to implement a substantial government interest and
they directly advance that interest." Citing Central Hudson Gas &
Electric Corn. v. Public Service Commission. 447 U.S. 557 (1980) & Metromedia
Inc. v. San Diego. 453 U.S. 490 (1981) (emphasis added). The Court stated that
the "twin goals" behind the Ordinance are substantial governmental
goals. 660 S. W.2d at 903. Finally, the Court held
The
ordinances under attack are as narrowly as
is practically and legally possible and the city has gone no further
than necessary to meet its goals. This type of ordinance directly advances
legitimate governmental interests in traffic safety, the aesthetic landscape
and the tourism industry. Id.
(emphasis added).
As
previously mentioned, the Donrey Court found that the Ordinance is, in fact,
content neutral. Donrex. 660 S.W.2d at 902. Furthermore, the Court found that
the Ordinance was a reasonable regulation of signs that promoted a legitimate
and rational government interest. See generally: Donrev. McIlroy. and S&H.
Inc.. supra. Finally, it must be pointed out that there are numerous other
alternative channels of communication open to the plaintiff. For example, the
plaintiff could have simply positioned his sign inside his office, so that it
could not be seen from the outside of his office, and it would then be part of
a exempted class of signs that are not regulated by the ordinance. (See
Exhibit C, § 174.03(K)). Moreover, the plaintiff could have complied with the
plea that he entered in the Circuit Court of Washington County that allowed
him to change his message once every three hours. (See Exhibit F & Plea
Agreement, Exhibit "G"). However, the plaintiff instead deliberately
chose to expose his sign to passersby and to bring this action, despite the
efforts of the City to provide another alternative channel to accommodate the
plaintiff's desire to display his sign. Clearly, the doctrines of res judicata
and collateral estoppel also apply to the plaintiff's First and Fourteenth
Amendment claims, as the Donrev Court specifically addressed these challenges
and directly refuted any argument that the Ordinance infringed upon anyone's
First or Fourteenth Amendment rights. As such, the plaintiff has failed to
state a claim upon which relief can be granted and, as such, his Complaint
should be dismissed, or alternatively the defendants are entitled to judgment
as a matter of law.
Generally
speaking, the aforementioned cases, when viewed as a group, were based on
similar facts, events, circumstances, and occurrences as the case at bar.
However, even if new legal issues or additional remedies could be found, res
judicata and collateral estoppel would still bar this lawsuit. If a case is
based on the same events and subject matter as a previous case, and only
raises new legal issues and seeks additional remedies, the present case is
still barred by those doctrines. Finch v. Neal. 316 Ark. 530, 873 S. W.2d 519
(1994). The two doctrines bar relitigation of issues already litigated between
the parties, and extends to questions of law and fact that might well have
been. but were not. Presented in anv former lawsuit. Kulbeth v. Purdom. 305
Ark. 19, 805 S.W.2d 622 (1991)(emphasis added). Even though the individual
defendants herein were not named in the Municipal Court and later in the
Circuit Court of Washington County, this cause of action arose from the same
source of events, acts, and circumstances, and they are therefore in privity
with the City, who was a party to those actions.
The
privity of party element also means that a party to the second action is so
identified with or affected by the decision as to the parties in the first
action that he or she represents the same legal right. Blankenship v. Office
of Child Support Enforcement. 58 Ark. 260, 952 S. W.2d 173 (Ark. App. 1997).
Here, there can be little doubt that the individual defendants are "so
identified" with the City that they represent the same legal right.
Moreover, the parties need not be precisely the same as the parties to the
previous action or actions, so long as their substantial identities on the
same claim is at stake. Even
privity is not required so long as the individual defendants' liability may be
dependent upon the acts or liability of the City. Nichols Brothers Investments
v. Rector- Phillips-Morse. Inc.. 801 S.W.2d308, 33 Ark. App. 47 (1990). The
question is simply whether the individual defendants would have been bound by
an adverse judgment against the City in the prior action. If so, then the
individuals are in privity with the city and the doctrines would also prohibit
the plaintiff from now bringing an action against the individual plaintiffs.
Specifically, this plaintiff has already made his constitutional
argument against the Ordinance at the Municipal Court level, an argument that
was summarily denied and resulted in a fine being levied upon the plaintiff
for his non-compliance with the Ordinance. Thereafter, the plaintiff appealed
to the Circuit Court of Washington County and was prepared to raise his
constitutional argument a second time when he instead entered a voluntary plea
agreement in this matter. (See Exhibits D, E, & F). As part of that
settlement, defendant Warrick, the Deputy City Prosecutor, who, ironically, is
now being sued by the plaintiff, offered to allow the plaintiff to change his
sign once every three hours and to remit any monies paid by the plaintiff for
his intentional non- compliance with the Ordinance to date. See Exhibit F. Not
content with this affirmative effort to resolve this dispute amicably, the
plaintiff has now brought this action in Federal Court for redress of his
alleged constitutional right to display his fluctuating illumination sign.
However, the fact is that two final judgments, one in which the plaintiff had
the opportunity to raise his constitutional challenge and one in which he made
the same arguments in pre-trial motions and eventually entered a guilty plea,
have been rendered against him on the issues in this matter. Thus, the
plaintiff should now be prohibited from relitigating these issues.
Furthermore,
the prior case law interpreting and reviewing the Ordinance leave no doubt
that it is constitutional. The prior decisions decided the specific issues
raised in this case,
and the decision definitely affects the plaintiff - that is, the Ordinance was deemed content-neutral
and constitutional. As such, based on res judicata and/or collateral estoppel
the plaintiff should now be prohibited from bringing this action.
For
these and the aforementioned reasons, the plaintiff has failed to state a
claim upon which relief can be granted, and the allegations and claims in his
Complaint should be dismissed, or alternatively, the Court should grant the
defendants judgment as a matter of law. It should also be noted that if the
Court does elect to treat this as a Motion for Summary Judgment rather than as
a Motion to Dismiss, and grants the motion, such a decision should be with
prejudice. That is because the plaintiff actually has failed to have a claim,
as opposed to merely failing to state a claim. See, e.g., Mertz vs. Pappas,
320 Ark. 368, 896 S.W.2d 593 (1995).
C.
Immunity
The defendants are also entitled to a dismissal of the plaintiffs allegations based on the immunity doctrine. In particular, the individual defendants will be entitled to immunity, such that the plaintiffs allegations against them in his Complaint should be summarily dismissed.
The
plaintiff seeks equitable and legal remedies in his Complaint against both the
City of Fayetteville and individual employees or representatives of the City.
These claims to relief by the plaintiff are based both upon the zoning
ordinances of the City of Fayetteville and the application of the zoning
ordinances to the plaintiff by employees of the City.
The
promulgation of zoning ordinances is a legislative function. See Horizon
Concepts. Inc. v. City of Balch Springs. 789 F .2d 1165 (5th Circuit 1986). It is
established that state, regional, and local legislators are absolutely immune
for actions taken solely in the sphere of their legislative activity. Bogan v.
Scott-Harris. 118 S.Ct. 966 (1988). Accordingly, acts which are legislative in
nature entitle the actor making them to absolute legislative immunity. I4:
Thus, the City of Fayetteville and its officials who promulgate city
ordinances would in any case be entitled to legislative immunity for the
promulgation of zoning ordinances, even if they were found to be
unconstitutional, which is sgecificallv denied by the defendants herein. The
remedy would be to strike any unconstitutional provisions, not to award the
plaintiff equitable or legal remedies against the individual defendants.
Similarly,
the law allows absolute immunity for persons carrying out duties that may be
interpreted as ministerial or judicial in nature, such as the activities Brant
Warrick, Clinton Jones, and Kit Williams, when the functions of the person are
closely associated with the judicial process. Cleavinger v. Saxner, 474 U.S.
193 (1985). If such judicial processes are closely akin to the functions of
the persons whose activity is being reviewed, then those persons are entitled
to absolute judicial immunity, absent bad faith. Moreover, prosecutorial immunity
protects public officials serving in their official capacity as a public
prosecutor from civil suit in administering the duties of their office. Ark.
Code Ann. Section 19-10-305 (Supp. 2001); Imbler vs. Pachtman, 424 U.S. 409
(1976); Culpepper vs. Smith, 792 S.W.2d 293 (1990). Prosecutorial immunity is
also absolute, even if malice is alleged. Id:
Additionally,
each of the individual defendants, and all of them, was performing
discretionary functions on behalf of the City. Government officials performing
such discretionary functions, and their employer, the municipality, are
shielded from liability insofar as their conduct does not knowingly violate
clearly established statutory or constitutional rights of which a person would
have or should have known. Harlow
v. Fitzgerald,
457 U.S. 800 (1982); see also Ark. Code Ann. Section 21-9-203; Assaad- Faltas
v. University of Arkansas for Medical Sciences, 708 F. Supp. 1026 (E.D. Ark.
1989). This immunity standard provides ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the
law. Malley v. Briggs, 475 U.S. 335 (1986); Hunter v. Bryant. 502 U.S. 224
(1991). Where this immunity standard applies, those government officials found
to have acted in "good faith" are entitled to qualified immunity
from lawsuits alleging constitutional violations.
Id. Finally,
inquiries of this type are normally inquiries of pure law. l.H.H. v. O'Hara,
878 F.2d 240 (8th Cir. 1989).
In
the present case, there is no factually-based allegation that the defendants
acted in bad faith. Furthermore, given the prior case law interpreting the
Ordinance, it could hardly be said that the enforcement of the Ordinance in
this case violated any clearly established constitutional rights of the
plaintiff. Thus, the defendants are all entitled to immunity, either absolute
or qualified, even if the allegations of the Complaint are viewed as true in
light of the existing case law on the subject matter.
All of this demonstrates that the plaintiff has failed to state a claim upon which relief can be granted, and his claims must be dismissed based upon absolute municipal immunity, absolute legislative immunity, absolute judicial immunity, absolute prosecutorial immunity and / or qualified immunity, or in the alternative the aforementioned facts and circumstances illustrate that the defendants are entitled to judgment as a matter of law.
D.
First Amendment
Should
this Court find that the above discussion does not preclude the plaintiff from
bringing his action, the plaintiffs First Amendment challenge is still without
merit. Signs, in any form,
represent a combination of both speech and non-speech components. The United
States Supreme Court has held that wherever speech and non-speech components
are combined in an individual expression as a legitimate governmental interest in
regulating the non-speech component may justify some regulation of an
individual's First Amendment rights. City Council v. Taxpayers for Vincent.
466 U.S. 789 (1984). Cities are allowed to apply reasonable regulations that
regulate the time, place, and manner of the message to be conveyed. Ward v.
Rock Against Racism. 491 U.S. 781, 791 (1989), see also Donrev. supra. So long
as they are content neutral, the restrictions upon speech that are imposed by
such regulations need not be carried out in the least restrictive manner, so
long as the "regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation."
491
U.S. at 799. Any such time, place, and manner restriction is upheld if it is
content-neutral, serves a substantial governmental interest and does not
limit alternative avenues of communication.
As
previously mentioned, no fewer than six Arkansas cases have ruled that the
Ordinance in question is constitutional, and several of those courts also
found that the Ordinance served a substantial government interest. See
generally res judicata section supra., see also generally Osage I 258 Ark. 91,
522 S.W.2d 836 (Ark. 1975), affirmed Osage II 260 Ark. 448, 541 S. W.2d 922
(Ark. 19'76); S&H. Inc.. 261 Ark. 148, 547 S. W.2d 94 (Ark. 1977); McIlroy
Bank & Trust Company. 278 Ark. 500, 647 S. W.2d 439 (Ark. 1983); Hatfield.
278 Ark. 544, 647 S.W.2d 450 (Ark. 1983); Donrey Communications Co. Inc.. 280
Ark. 408, 660 S.W.2d 900 (Ark. 1983); Fisher Buick. Inc.. 286 Ark. 49, 689
S.W.2d 350 (Ark. 1985). For the reasons provided as the basis for those
findings in the prior cases interpreting the Ordinance, the plaintiffs
constitutional claims are notably misplaced and should be dismissed as to all
defendants.
Two
United States Supreme Court cases are relevant to the matter at hand. They are
Metromedia. Inc. v. City of San Diego, 453 U.S. 490 (1981), and Ladue v.
Gilleo. 512 U.S. 43 (1994). In Metromedia, San Diego prohibited off-site
billboards by ordinance, but had carved out twelve exceptions or exemptions to
that ordinance. The Court held that San Diego had a justified interest in
regulating off-site billboards, but in the end invalidated the ordinance. The
justices believed that the ordinance was invalid because it provided more
protection to commercial speech than non-commercial speech, a fact not present
in this case. Though it invalidated that ordinance, the Court ultimately
held
that a city could, in fact, treat different classes of signs differently.
Id
at
511.
In
Ladue, the Court invalidated an ordinance that prohibited signs posted in or
upon residential property except for "FOR SALE" signs, safety or
warning signs, and signs used to identify the residence. The Court invalidated
that ordinance because it did not provide for an adequate alternative to such
displays, again a fact not in question here. As previously stated, the
plaintiff has at least two alternative channels of communication, facing or
displaying his sign so that it can Q!1lY be viewed inside his office by his
patrons, which he chose not to do, or complying with the Order entered by the
Circuit Court of Washington County and only change the sign once every three
hours. (See Exhibit F).
The
defendants maintain, based on prior United States and Arkansas Supreme Court
guidance, that the fluctuating illumination provisions of the Ordinance are
constitutionally valid. In the findings and rationale for the' ordinance,
which are reflected in the WHEREAS Clause of Ordinance 1893, the city council
noted its findings that the uncontrolled
proliferation of signs created traffic hazards, and haffi1ed the aesthetics
and economy of the City. See Exhibit A. The United States Supreme Court and
the Arkansas Supreme Court have each recognized that traffic safety and
aesthetics are both substantial government interests. See generally:
Metromedia. Inc., 453 U.S. 490,Osage I 258 Ark. 91,
522 S. W.2d 836 (Ark. 1975), affirmed Osage II 260 Ark. 448, 541 S. W.2d
922 (Ark. 1976); S&H. Inc.. 261 Ark.
148, 547 S.W.2d 94 (Ark. 1977); McElroy Bank & Trust Company. 278 Ark.
500, 647 S. W.2d 439 (Ark. 1983); Donrey Communications Co. Inc.. Ark. 408,
660 S. W.2d 900 (Ark. 1983).
As
previously stated, the Arkansas Supreme Court has held that the prohibition of
flashing and / or blinking lights by the Ordinance was a proper exercise of
the City's police power. S&H. Inc.. supra. Six years later, in Donrey, the
Arkansas Supreme Court, following the logic set forth in Metromedia, again
upheld the Ordinance as a proper time, place, and manner restriction on the
non-communicative aspects of the signs. Donrev. supra. Despite the fact that
the Arkansas Supreme Court has held that the Ordinance is content neutral, the
plaintiff continues to pursue this cause of action asserting, contrary to fact
and controlling case law, that the Ordinance is NOT content neutral. As
previously mentioned, this assertion is notably misplaced, and, as such, the
plaintiffs claim should be dismissed. The Ordinance is not in any way directed
at the message on a flashing or fluctuating illumination sign, but only at the
signs themselves. The exemption for time and temperature displays is because
it is deteffi1ined that such infoffi1ation is by its very nature time
sensitive and is useful and beneficial to the public.
It
is anticipated that the plaintiff will also attempt to challenge the time and
temperature exemption. The plaintiff has previously argued that since the
Ordinance exempts time and temperature displays, the city is engaged in
content based regulation. The plaintiff has attempted to persuade the lower
courts that clocks and thermometers amount to "speech," in an effort
to have the entire Ordinance invalidated as a content based regulation.
Obviously, the lower courts rejected these arguments or this matter would not
have ensued. It is the defendants position that the display of time and
temperature is merely the display of a "tool" and nothing more, a
display that does not arise to the level of expression such as protesting,
political signs or messages, commercial advertising, and / or nude dancing.
Should
this Court be persuaded that time and temperature displays amount to speech,
the defendants submit that the exemption of time and temperature displays
demonstrates that the Ordinance is so narrowly tailored as to regulate time,
place, and manner while providing other similar opportunities for
non-commercial speech without wholly precluding an area of content.
The
defendants would also submit that the plaintiff may be misapplying or confused
about the Ordinance. The exemptions section of the Ordinance is found at §
174.03, and states that exemptions "apply to the requirement for sign
permit only and no sign permit shall be required for the erection of the
following signs." (See Exhibit C, § 174.03). Thereafter, Section I of
that provision specifically states that time and temperature displays are
exempted, provided that they do not contain advertising material. ~ at (I). The Ordinance clearly states
that time and temperature displays, which the plaintiffs sign is not, are
exempted from the permitting process that is mandated by the City.
Because
the prohibition on fluctuating illumination is a time, place, and manner
restriction that serves a legitimate and substantial government interest and
leaves other avenues of communication open to the plaintiff, and is content
neutral, the Ordinance passes constitutional muster and should be held to be a
valid exercise of local government regulation. As such, the plaintiff's claim
should be dismissed, pursuant to Rule 12(b)(6), as to all defendants for
failure to state a claim upon which relief could be granted.
E.
Punitive Damages
Finally,
taking into consideration pertinent aspects of Arkansas law and taking into
consideration all reasonable inferences to be drawn from the facts in favor of
the plaintiff, the plaintiff, as a matter of law, is clearly not entitled to
the Ten-Million Dollars ($10,000,000.00) that he has prayed for as "punitive"
damages. (See plaintiff's Complaint, P. 13).
The
plaintiff pleads for punitive damages "to provide the City and its
officials with ample incentive not to drag its citizens into court" and
because "City officials that offer perjured testimony and / or attempt to
improperly influence witnesses should be given every form of incentive not to
engage in such malicious activities ever again." (See plaintiffs
Complaint, P. 13). Even if these allegations were true (which the defendants
specifically deny), this behavior does not rise to the level to warrant an
award of punitive damages. First, the plaintiff's Complaint has wholly and
completely failed to plead facts, which, even if true, establish underlying
liability against the defendants for any of the alleged causes of action
asserted against them. Thus, because the plaintiff cannot establish his
underlying causes of action, his prayer for "punative" damages in
this matter should also be dismissed pursuant to Fed. R. Civ. P. l2(b)(6).
In
the alternative, should this Court find that the plaintiff has properly stated
a claim upon which relief may be granted, the plaintiff is still not entitled
to punitive damages. This is because, the plaintiff has not pled that the
actions of the defendants were willful, wanton, and with conscious
indifference. "Punitive damages are to be a penalty for conduct that is
malicious or done with the deliberate intent to injure another," neither
of which is present in the case at bar. Ellis v. Prince. 337 Ark. 542, 551,
990 S.W.2d 543 (1999). Moreover, negligence alone is never enough to support
an award for punitive damages. McLaughlin v. Cox. 324 Ark. 361, 371, 922 S.
W.2d 327 (1996). Accordingly, the Plaintiffs' prayer for punitive damages must
also be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief can be granted.
WHEREFORE, PREMISES CONSIDERED, the defendants,
and all of them, pray that this Court will grant their Motion to Dismiss, or
alternatively that this Court will issue a judgment as a matter of law against
the plaintiff, and further pray for any and all other relief to which they may
be entitled.