Case No.: 03-2824
IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
JOHN S. LA TOUR
APPELLANT
VS.
CITY OF FAYETTEVILLE, ARKANSAS;
W. BRANT WARRICK; CLINTON K. JONES; KIT WILLIAMS;
BOB ESTES and PERRY MICHAEL MCKIMMEY APPELLEES
On Appeal From
The United States District Court
For the Western District of Arkansas
The Honorable Jimm Larry Hendren
Presiding
Judge
BRIEF OF APPELLEES
Submitted by:
Woody Bassett
Paul E. Thompson, Jr.
BASSETT LAW FIRM P.O. Box 3618
Fayetteville, AR 72702 (479) 521-9996
Attorneys for Appellees
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT
This is an appeal from an Order holding that the City of Fayetteville's (hereinafter "City") Sign Ordinance and, specifically, its prohibition on flashing or blinking signs is a valid content-neutral regulation and one that does not infringe upon any fundamental right. The District Court Ordered that the Sign Ordinance, as applied to prohibit Mr. LaTour from operating his electronic sign in a flashing or blinking mode, was not unconstitutional and did not infringe upon his First or Fourteenth Amendment rights. After the District Court entered its Order, Mr. LaTour filed this appeal.
The questions presented to this Court are purely legal ones that the parties may sufficiently address through their written submissions. Oral argument would not materially assist the Court in resolution of this appeal. However, because Mr. LaTour has requested thirty minutes of oral argument to address these issues, the City of Fayetteville respectfully requests that, if Mr. LaTour's request for oral argument is granted, the City be granted twenty minutes of oral argument to respond to Mr. LaTour's oral argument.
i
TABLE OF
CONTENTS
SUMMARY OF THE CASE....................................................................................................i
TABLE OF CONTENTS ........................................................................................................ii
TABLE OF AUTHORITIES................................................................................................... iv
STATEMENT OF THE
ISSUES............................................................................................
vii
STATEMENT OF THE
CASE.................................................................................................1
STATEMENT OF THE FACTS...............................................................................................3
SUMMARY OF THE ARGUMENT........................................................................................ 6
ARGUMENT............................................................................................................................7
I. The District
Court did not
err in holding that the challenged provision of the Sign Ordinance,
regulating the operation of flashing or blinking signs, is
constitutional....................................................7
A. The challenged provision of the Sign Ordinance is content-neutral........................................ 7
B. The challenged
provision of the Sign Ordinance is narrowly tailored to
serve a significant
government interest................................................................................ .14
C. The challenged provision of the Sign Ordinance leaves open ample
alternative channels of communication................................................................................ .19
D. Because the
challenged provision of the Sign Ordinance is a valid content
neutral time,
place, or manner restriction, strict scrutiny does not
apply..................................21
E. The
District Court
did not err in not allowing additional evidence to
invalidate the rationale behind the
ordinance........................................................................22
ii
II. The District Court correctly determined that Mr. LaTour's right to Equal
Protection was not
violated by how the Sign Ordinance
is applied to him..........................................................................25
III. . The District Court
did not err in
holding that Mr.
Warrick and Mr. McKimmey are entitled
to immunity and, as such, Mr. LaTour is
not entitled to punitive damages............................................27
A. Mr. Warrick is entitled to Absolute Immunity.....................................................................27
B. Mr. Warrick and Mr. McKimmey are entitled to Qualified Immunity..................................29
C. Because Mr.
Warrick and Mr. McKimmey are entitled to immunity,
Mr. LaTour is not entitled
to recover punitive damages from them ......................................31
CONCLUSION...........................................................................................................................................32
CERTIFICATE OF COMPLIANCE...........................................................................................................
33 CERTIFICATE OF
SERVICE.....................................................................................................................34
ADDENDUM..............................................................................................................................................ADD-1
iii
Cases - Federal
Ambassador Books & Video Inc. v. City of Little Rock,
20 F.3d 858 (8th Cir. 1994)........................................................................ .14
Assaad-Faltas v. University of Arkansas for Medical
Sciences,
708 F. Supp. 1026 (E.D. Ark. 1989)............................................................. 29
Central Hudson Gas & Electric Corp. v. Public Service Commission,
447 U. S. 557 (1980)................................................................................... .18
City of Cincinnati v. Discovery Network,
507 U. S. 410 (1993)..................................................................................... 8
City of Renton v. Playtime Theaters, Inc.,
475 U. S. 41 (1986)..................................................................................... .14
Cleavinger v.Saxner,
474 U. S. 193 (1985) ....................................................................................28
Excalibur Group, Inc. v. City of Minneapolis
116 F.3d 1216 (8t Cir. 1997) .....................................................................7,14
Fish v. St. Cloud State University
295 F.3d 849 (8t Cir. 2002).......................................................................... viii
Harlow v. Fitzgerald,
457 U. S. 800 (1982) ...................................................................................29
Horizon Concepts, Inc. v. City of Balch Springs,
789 F.2d 1165 (5t Cir. 1986) ............................................................................27
Hunter v. Bryant,
502 U. S. 224 (1991)........................................................................................ 29
Imbler vs. Pachtman,
424 U. S. 409 (1976) ........................................................................................ 28
iv
J.H.H. v. O'Hara,
878 F.2d 240 (8th Cir. 1989) .............................................................................29
Mal1eyv. Briggs,
475 U. S. 335 (1986) .........................................................................................29
Members of City Council v. Taxpayers for Vincent,
466 U. S. 789 (1984) ........................................................................................ .13
Metromedia Inc. v.
San Diego,
453 U. S. 490 (1981)
........................................................................................ .18
Pursely v. City of Fayetteville, Ark.,
820 F.2d 951 (8t Cir. 1987) .................................................................................20
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994) ..............................................................................8, 10, 12, 13, 21, 22
U.S. v. Eichman,
496 U.S. 310, 315 (1990)................................................................................... .11
Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989)........................................................................... .8, 10, 14, 19
Whitton v. City of Gladstone, MO,
54 F.3d 1400 (1995) ........................................................................................ 8
Cases - state
City of Fayetteville v. McIlroy Bank & Trust Company,
278 Ark. 500, 647 S.W.2d 439 (Ark. 1983).. ...................................................15, 17, 19
City of Fayetteville v. S&H, Inc.,
261 Ark. 148, 547 S.W.2d 94 (Ark. 1977).......................................................15, 16, 17, 19
Culpepper v. Smith,
302 Ark. 558, 792 S.W.2d 293 (1990) ......................................................................28
Donrey Communications Co. Inc. v. City of Fayetteville,
280 Ark. 408, 660 S.W.2d 900 (Ark. 1983)................................................... .15, 18, 19
Fisher Buick, Inc. v. City of Fayetteville,
286 Ark. 49, 689 S.W.2d 350 (Ark. 1985)........................................................... .15
Hatfield v. City of Fayetteville,
v
278 Ark. 544,647 S.W.2d 450 (Ark., 1983).......................................................... 15
Osage
Oil and
Transportation Inc. v.
City
of Fayetteville,
(Osage I),
258 Ark. 91, 522
S.W.2d 836 (Ark. 1975) ........................................................15, 16
Osage Oil and Transportation Inc. v. City of Fayetteville, (Osage II),
1 260 Ark. 448, 541 S.W.2d 922 (Ark. 1976) ....................................................15, 16
Statutes and Rules
F.R.E. R. 401.......................................................................................................... 25
F.R.E. R. 403.......................................................................................................... 24, 25
Fed. R. App. P. R. 28 (a) (7)....................................................................................3
Fed. R. App. P. R. 28 (a) (9) (A)..............................................................................22
Fed. R. App.P. R. 28 (e)...........................................................................................3
Fed. R. App. P. R. 32 (a) (7) (C) .............................................................................33
Fed. R. App. P. R. 32 (a) (7) (B) (iii)........................................................................33
8th Cir. Local Rule 28 (A) (c) ...................................................................................33
Ark. Code Ann. § 19-10-305 (Supp. 2002)............................................................ 28
Ark. Code Ann. § 21-9-203 (Supp. 2002).............................................................. 29
Other Authority
Chapter 174 of the Unifed Development Ordinance............................................................................. 5
Local Regulation of Adult Businesses, Jules B. Gerand,West Publishing Company, 2001 Ed ...................12, 13
vi
STATEMENT OF THE ISSUES AND STANDARD OF REVIEW
STATEMENT OF THE ISSUES
I. Whether the District Court erred in holding that the challenged provision of the Sign Ordinance, regulating the operation of flashing or blinking signs, is constitutional?
Turner Broadcasting System, Inc. v. FCC, 512 u.S. 622(1994)
Ward v. Rock Against Racism, 491 u.S. 781, 791 (1989)
Excalibur Group, Inc. v. City of Minneapolis, 116
F.3d 1216 (8t Cir. 1997)
Donrey Communications Co. Inc. v. City of Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (Ark. 1983)
II. Whether the District Court erred in holding that Mr. LaTour's right to Equal Protection was not violated by how the Sign Ordinance is applied to him?
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622(1994)
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
Excalibur Group, Inc. v. City of Minneapolis, 116
F.3d 1216 (8t Cir. 1997)
Donrey Communications Co. Inc. v. City of
Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (Ark. 1983)
vii
III. Whether the District Court erred in holding that Mr. Warrick and Mr. McKimmey are entitled to immunity under these facts and finding that Mr. LaTour is not entitled to punitive damages in this case?
Cleavinger v.Saxner, 474 u.s. 193 (1985)
Imbler vs. Pachtman, 424 U.S. 409 (1976)
Harlow v. Fitzgerald, 457 U.S. 800 (1982)
Hunter v. Bryant, 502 u.s. 224 (1991)
Ark. Code Ann. § 19-10-305 (Supp. 2002)
STANDARD OF REVIEW
City, Mr. Warrick, and Mr. McKimmey agree with Mr. LaTour in that the issues are exclusively ones of law and that the applicable standard of review for all issues presented herein is de novo.
Fish v. St. Cloud State University, 295 F.3d 849 (8th Cir. 2002)
viii
Mr. LaTour filed his federal
lawsuit on January 3,
2002 after reaching
an agreement with the City regarding his violation of the Sign Ordinance in
Question. Mr. LaTour
I sought
a
declaration that the
Sign Ordinance was unconstitutional as
applied to him and sought punitive damages from the
defendants to that action. (LaTour
Addendum
(hereinafter "LTA")
,
Item F; Original
Complaint,
p. 2, 7, 13)
Subsequently, Mr.
LaTour sought to amend his Complaint
to add two
additional defendants to his cause of action. (LTA,
Item G) Specifically, Mr.
LaTour wanted to add Mr. Warrick and Mr. McKimmey, appellees herein. rd.
On
February 3,
2003, the District Court denied Mr. LaTour's request .for leave to amend his
Complaint. (LTA, Item H) Among other things, the
District Court held that Mr. Warrick was entitled to absolute immunity and
that Mr.
McKimmey was
entitled to qualified
immunity.
(LTA,
Item H February 3, 2003
Order, p. 2-4)
On or about May 7,
2003, the District Court called a
pre-trial hearing
to, among other things, evaluate whether a jury trial would be necessary in
this matter. (Transcript, p. 59) During this hearing the parties agreed upon
several undisputed material facts: (Transcript 2-52). The District Court
determined that the issues presented by Mr. LaTour's Complaint were purely
1
legal and that it would not be necessary to seat a jury to hear Mr. LaTour's
case. (Transcript, p. 66, 68) The parties agreed to conduct a conference call
with the District Court the following day to revisit these issues before the
Court entered a ruling reflecting the agreed upon material facts and
indicating that there would be no need to seat a jury for Mr. LaTour's case.
(Transcript, pg. 72-99)
During the
conference call, Mr. LaTour agreed to forego his request for a jury trial.
(Transcript, p. 80-81) Because of the
limited issues presented herein, the City also agreed not to ask for a jury
trial. (Transcript, pg. 85) The District Court would not be calling a jury in
for trial the following Monday. (Transcript, p. 90) The parties also agreed to
accept the proffered uncontested material facts.
(Transcript, p. 72-99; LTA,
Item K; May 12, 2003 Memorandum Opinion, p. 2-3)1
On May 12, 2003, the
District Court entered a Memorandum Opinion holding, among other things, that
the prohibition against flashing or blinking signs contained in the Fayetteville
Sign Ordinance is constitutional.
(LTA,
Item K; May
12, 2003,
2
Memorandum Opinion, p. 17-28) The District Court entered its Judgment
reflecting the same
Findings on June 19,
2003. (LTA, Item J) Mr. LaTour timely appealed the District Court's rulings.
The City objects to
Mr. LaTour's Statement of Facts in its entirety because his Statement of Facts
does not contain the proper citations or any citations to the Record or
Transcript as required by Rules 28(a) (7) and 28(e) of the Federal Rules of
Appellate Procedure. The City specifically objects to the first sentence
contained in Mr. LaTour's Statement of the Case and further objects to that
sentence because it is internally inconsistent with the
documents that Mr.
LaTour cites to in support of that proposition.
Specifically, Mr. LaTour indicates that he paid $1,800 I for
his electronic sign, which is contrary to the amount that he states
in the letter he
cites in support of that proposition wherein he alleges that he paid $5,000
for his
sign. (LTA,
Item B,
p. 2) In the same sentence, Mr. LaTour
alleges that he
purchased his sign to express his political
and religious
opinions, which is contrary to the language
located in
Item B
of his Addendum where he indicates that he purchased the sign
so that passersby
3
"could easily
see
the
signs and
identify the business located in this new
1
building" and so
people would "know about our business."
(LTA,
Item B,
p. 1-3)
For these reasons, the City
f
respectfully
requests that this Court strike Mr. LaTour's Statement of the Case in its
entirety.
The material facts that have been agreed upon by the parties
are set forth as follows:
1. Mr. LaTour has an electronic
sign, eight inches by seventy-two inches, mounted inside his office window,
facing outward, and visible from Sixth Street,
',1
Fayetteville,
Arkansas. (LTA,
Item K; June 19, 2003
Memorandum Opinion,
p.2)
2. Mr. LaTour's
sign can only accommodate twenty-one characters at a time. Id.
3. The sign can be programmed so that
it displays those characters for fifteen seconds, goes blank for five
seconds, then displays a different group of characters for fifteen seconds,
etc. Id. Mr. LaTour desires to use his
sign to display messages, some of which require several different displays to
complete the message.
4.
Mechanically,
Mr. LaTour's sign functions in the same manner as several signs in
Fayetteville that alternate a display of time and temperature.
5. Mr. LaTour's sign
can also be used without the
flashing or blinking
option, operating simply as a static
4
illuminated sign.
6. Mr. LaTour has
used his sign to display his political and religious opinions, such as "choose
life,"
"God listens," "stop abortion," and "recall coody. com"
Id.
7. None of the
political or religious messages
displayed on the
sign have been obscene or threatening.
!.9-:-
(June 19, 2003
Memorandum Opinion, p. 2-3)
8. On June 16, 2000,
Mr. LaTour was charged with violating the Sign Ordinance, found at Section 174
of the Unified Development Ordinance ("UDO") of the City. (June .19, 2003
Memorandum Opinion, p. 3)
9. Mr. LaTour was
convicted in Municipal Court of violating the Sign Ordinance and paid a fine
and costs in connection with that conviction. Id.
10. Mr. LaTour
appealed his conviction to the Circuit Court and the matter was eventually
settled on terms that allowed Mr. LaTour to change the message on his
electronic sign no more often than every three hours.
11. As a result of
the settlement, Mr. LaTour's fines and costs were returned to him. Id.
12. The City has not
attempted to regulate what message Mr. LaTour displays on his electronic sign,
so long as
5
the message does not flash or blink.
13. During the fall
of 2002, Mr. LaTour had a painted sign installed on the west side of his
office, visible from Sixth Street, on which he displayed his political
opinions, and the City made no attempt to regulate the content of that sign.
~
14. The City's purpose, reflected in its Sign Ordinance prohibiting flashing or blinking signs, is to promote aesthetics and safety.
In this case, Mr.
LaTour contends that the provision of the Sign Ordinance in question is
unconstitutional in how it is applied to him and his electrical sign. Mr.
LaTour contends that the provision in question is a content based restriction
that results in a violation of his right to Freedom of Speech and also
violates his right to Equal Protection. Moreover, Mr. LaTour contends that Mr.
Warrick and Mr. McKimmey are not entitled to immunity in this case and that he
is entitled to punitive damages from them for their acts in enforcing the Sign
Ordinance.
The City contends that the prohibition against flashing or
blinking signs is a valid time,
place, or manner restriction
6
that is content-neutral and that does not result in a constitutional violation
as applied to Mr. LaTour and his sign. Mr. Warrick and Mr. McKimmey contend
that they are entitled to immunity for their acts in enforcing the provision
of the Sign Ordinance in
question.
The District Court
correctly rejected Mr., LaTour's contentions, holding instead that the
provision of the Sign Ordinance in question was content neutral, that it was
not unconstitutional as applied to Mr. LaTour and that Mr. Warrick and Mr.
McKimmey were entitled to immunity. This Court's precedent and United States
Supreme Court precedent compelled the District Court to interpret and apply
the law in the manner that it did, just as it compels this Court to affirm the
result below.
ARGUMENT
I. The District Court did not err in holding that the challenged provision of the Sign Ordinance, regulating the operation of flashing or blinking signs, is constitutional.
A. The challenged
provision. of the Sign Ordinance is content-neutral.
It is well
established that an ordinance is content- neutral if it is "justified without
reference to the content of the regulated speech."
Excalibur Group, Inc.
v.
City of Minneapolis,
116 F.3d
1216 (8th Cir. 1997); citing: Ward v. Rock Against Racism, 491 u.s. 781,
791 (1989) An
7
ordinance can be content neutral "even if it has an incidental
effect on some speakers or messages but not
others." Id.
citing: Ward 491 u.s. at 791
In this case, the
District Court correctly found that the provision of the Sign Ordinance
that prohibits flashing or blinking signs is content neutral. Mr. LaTour
contends that the District Court erred in its interpretation of
Turner Broadcasting
System, Inc. v. FCC,
512 U.S. 622(1994)
and Ward, supra. (LaTour Brief (hereinafter (LTB") , p. 10) Interestingly,
Mr. LaTour asserts that the reasoning set forth in Turner was rejected
by a case that actually came before it. However, even if Mr. LaTour's
assertion that the Turner reasoning was rejected by City of
Cincinnati v. Discovery Network, 507 U.S. 410 (1993), is correct, his
reliance upon that case and the case of Whitton v. City of Gladstone, MO,
54 F.3d 1400 (1995), is incorrect.
In Cincinnati
and Whitton, the prohibited speech and the applicability of the
ordinance depended upon the message to be conveyed. In the case at bar,
flashing or blinking signs are prohibited regardless of their content. As
such, Mr. LaTour's reliance upon Cincinnati and Whitton for the proposition that he asserts is misplaced. Through the course of this
8
litigation, Mr. LaTour has alleged that his rights have been infringed upon
because of what his
sign says -
religious and
political opinions. However, in May of 2000 when he explained the purpose of
his sign to City personnel, Mr. LaTour never once mentioned that he
intended to display
political or religious opinions. (LTA,
Item B) To the contrary, he indicated that
he was interested in obtaining sign permits so that
as traffic was approaching the building ... people could easily see the signs and identify the business located new building. However, I was concerned that if ... traffic was stopped right in front of the building, there was no sign facing the north and people stopped in traffic would not know about our business.
(LTA, Item B, p.l) (emphasis added)
Notably absent from
Mr. LaTour's explanation for the need for his sign is any assertion that he
intends to do anything except advertise his business. Throughout the course of
this litigation, Mr. LaTour has failed to grasp that regardless of the content
of his sign, if it flashes or blinks, and an exemption or exclusion to the
permit process does not apply to his sign (as it does to time and temperature
signs), then his sign violates the ordinance no matter what message is
conveyed.
As correctly noted
by the District Court, the Turner Court acknowledged that the
"principal inquiry in determining
9
content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is whether the
government adopted a regulation of speech because of disagreement with the
message it conveys." (May 12, 2003 Memorandum Opinion, p. 19) citing:
Turner and,
supra.
In this regard, this
case is very similar to Turner. In Turner, Congress passed an
Act that required cable television systems to devote a specified portion of
their channels to the transmission of local commercial and
public broadcast
stations. Turner, 512 U.S. 622 Shortly thereafter, the Act
was challenged as a content based
regulation that
required strict scrutiny to be applied.
In
Turner, the Court
first identified that the regulations
were neutral on
their face because the distinction is based
"only upon the
manner in which programmers transmit their messages to viewers,
not the message they carry."
rd.
at 623,644-645
(emphasis added)
Likewise, in this
case, the prohibition against flashing or blinking signs is based solely upon
the manner in which the message is conveyed, not the content of the
message. As noted by the District Court:
10
the evidence does not support a finding that the Sign Ordinance prohibits flashing or blinking signs because the City favors or disfavors any message a citizen might want to convey by use of such a sign.
(June 19, 2003 Memorandum Opinion, p. 19-20) (emphasis added)
Clearly, the
provision of the ordinance in question is not unconstitutional on its face. As
such, it must be determined whether the provision is unconstitutional as
applied to Mr. LaTour. Mr. LaTour contends that because the City allows the
existence time and temperature displays, the Sign Ordinance is
unconstitutional as applied to him. Even a content neutral provision, such as
the one in question, can be an unconstitutional content based restriction "if
its manifest purpose is to regulate speech
because of the
message it conveys."
Id. at 645-646;
citing:
U.S. v. Eichman,
496 U.S.
310, 315 (1990)
In this case, the
manifest purpose of the sign is to limit the number of flashing or blinking
signs and to control the way that those signs function because of concerns
about aesthetics and public safety. The prohibition against flashing or
blinking signs
absolutely nothing
to do with the content of such a sign.
The provision in
question applies to all non-exempt signs, does not require or prohibit the
expression of any ideas or expressions on the
signs, does not penalize the owner of the sign
11
because of the views expressed
on the sign. This fact is not lost on Mr. LaTour who states "I do not
purport
...
that the
city is directly regulating the content of my sign."
(LTB, p. 12)
There
has been absolutely no evidence put forth by Mr. LaTour that indicates that,
by allowing time and temperature displays to function, the City is favoring
one form of speech over another. Likewise, there has been absolutely no
evidence put forth by Mr. LaTour that indicates that his political and
religious messages are
disfavored because
their content.
Mr. LaTour asserts
that simply because a sign inspector must look at his to determine if the sign
complies with the Sign Ordinance it is a content based provision. Moreover,
content neutrality ... [is] to be determined by looking at the ordinance's purposes, as well as its terms. If its purpose was unrelated to the suppression of speech, and if it. was viewpoint neutral, then it may be considered content neutral.
Local Regulation of Adult Businesses, Jules B. Gerand, West Publishing Company, 2001 Ed. (p. 186) (emphasis added)
The Turner
Court rejected this line of reasoning by stating that simply because the
regulation has a preference for one
12
station over
another that does not "automatically entail content requirements." Turner,
512 U.S. at 649 This is the same argument put forth by Mr. LaTour but for
the reasons set forth in Turner and in the District Court's
Memorandum Opinion,
Mr. LaTour's argument is misplaced.
Similarly, Mr.
LaTour has also spent a significant amount of time arguing that because of the
nature of signs, any restriction placed upon signs has to be content based
because an inspector must look at or read the sign to determine if it is
in compliance with the Ordinance.
(LTB,
p.11; Transcript, p.
43) Mr. LaTour's position is
misplaced.
Since the one and only purpose of any sign is to communicate a message, the I question becomes: How can a regulation : of signs possibly be 'unrelated' to the suppression of speech? The answer the Court gave was that the governmental interest, not the regulation, must be 'unrelated.'
Local Regulation of
Adult Businesses,
Jules B. Gerand,
West Publishing Company, 2001 Ed. (p. 186) (emphasis
added) (referring to
Members of City Council v. Taxpayers for Vincent,
466 U.S. 789
(1989))
Here, the governmental interest, safety and aesthetics, is clearly
unrelated to the contents of a message placed on an electronic sign. For all
of these reasons, the District Court did not err in finding that the
challenged portion of the Sign
13
Ordinance was content-neutral.
B. The challenged provision of the Sign Ordinance is narrowly tailored to serve a significant government interest.
The requirement that the ordinance be narrowly tailored is met so long as the
regulation promotes a significant government interest that would be achieved
less effectively without the regulation or ordinance and the means chosen does
not burden substantially more speech than is necessary to further the City's
interest. Excalibur, 116 F.3d 1216; citing: ~, 491 U. S. at 799
"[A] City's interest in attempting to preserve the quality of urban life is
one that must be accorded high respect." Ambassador Books & Video Inc. v.
City of Little Rock, 20 F.3d 858 (8th Cir. 1994)quoting: City of Renton
v. Playtime Theaters, Inc., 475 U.S. 41, 50 (1986) (emphasis added)
Further, to be narrowly tailored, the regulation does not have to be the least
restrictive means of furthering the City's interest Id.; citing: ,
491 U.S. at 797 Finally, "the validity of the regulation depends on the
relation it bears
to the overall
problem
the government seeks to correct, on the extent to
which it furthers the government's
interests in an
individual case." , 491 U.S. at 801
The fact that the
Sign Ordinance is narrowly tailored to further a significant government
interest is illustrated by a line
14
of Arkansas cases beginning with Osage
Oil and Transportation Inc. v.. City of Fayetteville. 258 Ark. 91, 522
S.W.2d 836 (Ark. 1975) In fact, no fewer than six cases have 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 Ordinance was found to be constitutional with
regard to flashing or fluctuating illumination signs and the Court also found
that the challenged provision of the Sign Ordinance furthers a significant
government interest.
15
The validity and
purpose of the Sign Ordinance was first upheld in Osage I, supra., affirmed
Osage II, 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 went into effect. 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
(emphasis added) The Arkansas Supreme Court, when ruling on the validity and
purpose of the Sign 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 appear to be a matter that could affect the safety or health of the city.
Id. at 98 (emphasis added) .
Concurring Justices agreed with the majority and stated that the regulation of
flashing or blinking signs was, in fact, a
proper exercise of governmental authority. Id. at 98
McIlroy, supra.,
which
relied in large part on the language and ideas set
16
forth in S&H, Inc.,
supra., 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 that case the Arkansas Supreme Court stated that it
"could hardly be doubted
that an ordinance such as this one
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. As
seen in McIlroy, the Arkansas Supreme Court has held that, absent an
exemption (a fact not present here), Mr. LaTour's sign, regardless of the
message contained falls 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 adoption of reasonable measures to attain that goal.
As the concurring opinion in S&H 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.
17
Id. at 440-441.
Perhaps the most telling opinion on this matter is Donrey 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 because the Ordinance
only restricted the size and location of signs, the Ordinance was content
neutral. 660 S.W.2d at 902 Further, that Court held that the Ordinance
"seeks to implement a substantial government interest and they directly
advance that interest." rd. citing Central Hudson Gas & Electric
Corp. 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(emphasis added) Finally, the Court held
The ordinances under attack are as narrowly drawn 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.
18
Id. (emphasis added)
The Donrey
Court found that the Ordinance is, in fact, content neutral and narrowly
tailored. Donrey, 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.
generally: Donrey,
McIlroy,
and S&H, Inc., supra.
The Sign Ordinance
furthers its overall goal of promoting safety and aesthetics, which is another
valid consideration under Ward. supra. In this case, the District Court
held, based upon the same logic and reasoning set forth above, "that both the
aesthetic and traffic safety rationales are sound, and that the prohibition is
narrowly tailored to prevent traffic risks and to promote aesthetic
considerations that motivated its
passage." (LTA,
Item, K; May 12,
2003 Memorandum Opinion, p. 25) For all of these reasons, this Court should
affirm the findings of the District Court.
C. The challenged provision of the Sign Ordinance leaves open ample alternatives channels of communication.
Mr.
LaTour is afforded ample alternatives channels of communications to express
his opinions and beliefs. For example, Mr. LaTour could keep his sign static
so that it does not change or
Mr. LaTour could, in accordance with his plea in the Circuit
19
Court of
Washington County, Arkansas, change his message once every three hours. As
stated by the District Court,
Content-neutral regulations of non- commercial speech are permissible if they serve a significant governmental interest; are narrowly tailored to serve that interest; and leave open ample alternatives channels for communication of the same information.
(LTA Addendum,
Item K; June 19, 2003 Memorandum Opinion, p. 23) quoting: Pursely v. City of
Fayetteville, Ark., 820
F.2d 951 (8th Cir. 1987)
There is no doubt
but that there are alternative channels of communication available to Mr.
LaTour. In fact, during the course of this litigation, Mr. LaTour displayed
large static painted signs to express his religious and political beliefs.
(Transcript, p.1S3) Mr. LaTour is allowed to operate his sign in conformity
with the ordinance or
the agreement he reached as a result of his plea before the Circuit Court.
Moreover, the City operates a public access television station that allows
citizens the opportunity to express their ideas or opinions; and the City
Council meetings offer an opportunity for public comment on issues that go
before the Council. Clearly, there are many other alternative channels of
communication that Mr. LaTour could use to express his message
and the provision of the ordinance in question is not an unconstitutional
restriction upon Mr.LaTour's rights
20
in any way whatsoever.
For these and the
aforementioned reasons, the District Court did not err in finding that the
Sign Ordinance was constitutional as applied to Mr. LaTour.
D. Because the challenged provision of the Sign Ordinance is a valid content neutral time, place, or manner restriction, strict scrutiny does not apply.
For the reasons set
forth in Subsections A. through C., the provision of the Sign Ordinance in
question is a valid content neutral time, place, or manner restriction and is
entitled to intermediate scrutiny,
~ strict
scrutiny as
erroneously asserted by Mr. LaTour.
Moreover, as stated
in Turner "it would be error to conclude
...
that the First
Amendment mandates strict scrutiny for any speech regulation that applies to
one medium but not others." Turner, 512 U.S. at 660 This is the exact
argument advanced by Mr. LaTour. Moreover, heightened scrutiny is "unwarranted
when the differential
treatment is
'justified by some special characteristic of'
the particular
medium
being regulated." Id. at 660-661; internal citations omitted In this
case, as the City has asserted from the beginning of this action and as found
by the District Court,
the restrictions placed upon Mr. LaTour's sign are
21
a direct result of the
"special characteristic" of his sign
- its flashing and
blinking - ~
the content of the
messages contained thereon. As such, the
appropriate level of scrutiny is the intermediate level, which is applicable
to content-neutral restrictions that impose an incidental burden on speech.
Turner, 512 u.s. at 663 For these reasons, the District Court did not err
in applying intermediate scrutiny to this action.
E. The District Court did not err in not allowing additional evidence to invalidate the rationale behind the ordinance.
The City would
suggest that this Court should strike the entire portion of Mr. LaTour's Brief
that is styled as his Subsection D, starting on page 17 and ending on page 18 of his Brief. (LTB,
p. 17-18) Contrary to Rule 28(a) (9) (A) of the Federal
Rule of Appellate Procedure this portion, and other the other
portions of Mr. LaTour's Brief, do not contain any citations of authority and
do not contain citations to sections of the record upon which he is relying.
As such, it is somewhat difficult for the City to reply to these arguments, it
is also prejudicial to require the City to respond to an argument that is not
based upon any authority or citation to any portion of the record or transcript. The
Court of Appeals is not a forum to assert shotgun type
22
arguments, especially
in a case involving a constitutional challenge, and that is what Mr. LaTour
has done through a large portion of his Brief and it is- the City's position
that all portions of the Brief that are not supported by a cite to authority
and that all portions of the Brief that do not properly cite to the sections
of the transcript or Orders that he is challenging should be stricken in their
entirety from Mr. LaTour's Brief and not considered by this Court.
Without waiving the
foregoing, the City suggests that all of the additional evidence Mr. LaTour is
seeking to introduce was presented in an untimely fashion, is wholly
irrelevant to the case at bar, or is unduly
prejudicial.[2] In the fist instance, Mr. LaTour identified a purported expert witness,
Steven Smith, one week before trial of this matter and this purported expert
was going to testify about various other signs or scoreboards in the area that
do not come within the province of the Ordinance. (Transcript, 106-112) As
noted by the District Court, Mr. LaTour identified this purported expert
several months after the
23
expert disclosure
deadline and it would be unfair surprise and unduly prejudicial to have
allowed him to testify. Moreover, Mr. LaTour presented this alleged expert
after the parties and the
District Court had a hearing and a teleconference to discuss any disputed
facts and potential witnesses. For all of these reasons, the District Court
did not err in refusing to allow Mr. LaTour to present Mr. Smith as an expert.
Even if Mr. Smith's testimony was relevant, which is denied, the Court has the
authority to preclude the presentation of such evidence under Rule 403 of the
Federal Rules of Evidence.
Next, the City
believes that Mr. LaTour seeks to introduce evidence of the manner in which
neighboring towns regulate flashing and blinking signs. (Transcript, p. 44-
45) That evidence is wholly irrelevant to the case at bar and is unduly
prejudicial to the City. It is irrelevant in that the only ordinance in
question is the Fayetteville Sign Ordinance and no other. The manner in
which neighboring communities regulate electronic signs has no bearing on the
resolution of this matter, is not likely to make the existence of any fact
that is of consequence to
this action more or
less probable. [3] Moreover, it is unduly
prejudicial
because
24
it could result a decision upon an improper basis or comparison. For these
reasons, pursuant to Rules 401 and 403 of the Federal Rules of Evidence this
evidence is inadmissible.
II. The District Court correctly determined that Mr. LaTour's right to Equal Protection was not violated by how the Sign Ordinance is applied to him.
Mr. LaTour asserts
that the District Court "seems to
reason that he
dropped his Equal Protection claims." (LTB,
p. 20) Whether or
not the District Court did so is irrelevant because the .District Court still
engaged in an Equal Protection analysis and correctly determined that, because
the provision of the Sign Ordinance prohibiting flashing and blinking lights
is content neutral, it does not interfere with
the exercise of a fundamental right. (LTA, Addendum,
Item K, p. 27; June 19,
2003 Memorandum Opinion, p. 27) As such, the District Court correctly
determined that Mr. LaTour's equal protection challenge is fatally flawed.
at p. 28
25
Mr. LaTour attempts
to overcome this by analogy to two business owners who operate side-by-side. (LTB,
p.20) While entertaining, Mr. LaTour's argument does not overcome the fact
that time and temperature displays are exempt or excepted from the provisions
of the Ordinance and that
~
other electronic
signs, regardless of their message, are regulated.
Mr. LaTour paints
his argument in terms of religion and political speech and completely glosses
over the fact that if the sign stayed static then there would not be any
problem under the Sign Ordinance. Also glossed over by Mr. LaTour is the fact
that he can put whatever message he wants on his sign so long as it does not
flash or blink. It is Mr. LaTour's choice to try to display messages that are
too large for his sign. However, the City should not have to bear the burden
of his buying a sign that does not fit the size of his desired messages.
Finally, it should,
again, be pointed out that when Mr. LaTour was first alerted about his
non-compliance with the Sign Ordinance, he did not express that he
purchased the $1,800 [4] sign to display his religious and political opinions. (LTA,
Item B) To the contrary, Mr. LaTour indicated that he wanted to use the
sign to attract
attention to his
business
and did not indicate
26
any intention to display his religious and political
opinions on the sign. This is significant because Mr. LaTour now cloaks his
argument in political and religious rights when no one has ever told him that
he could
express those opinions on his
electronic sign, so long as he could fit them on the sign that he ordered
without having to make the sign flash or blink messages.
III. The District Court did not err in holding that Mr. Warrick and Mr. McKimmey are entitled to immunity and, as such, Mr. LaTour is not entitled to punitive damages.
A. Mr. Warrick is entitled to Absolute Immunity.
In bringing his
action, Mr. LaTour sought equitable and legal remedies from both the City and
individual employees or
representatives of the City. Mr. LaTour's claims are based
upon the Sign Ordinance itself and the application of the Sign Ordinance to
Mr. LaTour by employees of the City.
The promulgation of
zoning ordinances is a legislative function. Horizon Concepts, Inc. v. City
of Balch Springs, 789 F.2d 1165 (5th Cir. 1986) It is established that
state, regional, and local legislators are absolutely immune for
actions taken solely
in
27
the sphere of their legislative activity. 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 of Brant Warrick,
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. .!2. 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. 2002); 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.
In this case, the
District Court correctly found that Mr. Warrick was entitled to immunity. For
the reasons set forth in that Opinion and herein, this Court should affirm the
decision of the District Court.
28
B. Mr. Warrick and Mr. McKimmey are entitled to Qualified Immunity.
Mr. Warrick and Mr. McKimmey were performing discretionary functions on behalf of the City at the time that Mr. LaTour alleges that his alleged cause of action against them arose. Government officials performing 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. § 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. Finally, inquiries of this type are normally inquiries of pure law. J.H.H. v. O'Hara, 878 F.2d 240 (8th Cir. 1989)
29
In the present case,
there is no factually-based allegation that the defendants acted in bad faith.
Furthermore, even if this Court were to determine that the Sign Ordinance is
unconstitutional, because it is an inquiry of pure law, the "facts" Mr. LaTour
asserts in support of his argument on this point are irrelevant. Finally,
given the prior case law interpreting the Ordinance, finding it to be a valid
time, place, or manner restriction, it could hardly be said that the
enforcement of the Ordinance in this case violated clearly established constitutional
rights. - If anything,
the prior case law
interpretations
reinforcing the validity of the Sign Ordinance illustrate that Mr. Warrick and
Mr. McKimmey acted in good faith and are entitled to, at the very least,
qualified immunity.
On these two issues,
Mr. LaTour takes issue with his version of the testimony of Mr. Warrick and
Mr. McKimmey. (LTB, p. 22-"26) As a review of the City's Addendum illustrates,
Mr. LaTour's version of Mr. Warrick's and Mr. McKimmey's testimony is skewed.
For example, Mr.
LaTour mischaracterizes Mr. Warrick's testimony in his Brief where he alleges
that Mr. Warrick testified that he observed time and temperature displays
"alternate messages...' ... every five
seconds or so." (LTB, p.23) In the section
30
of his Addendum Mr. LaTour cites for this allegation, the language that he
quotes as being attributed to Mr. Warrick is missing. (LTA,
Item G, p. 2)
More importantly, in
the actual deposition [5], Mr. Warrick did
not testify as
asserted by Mr. LaTour and did
testify that he
knows time and temperature displays "alternate messages" and did not testify
that he knew they did so
"every five seconds
or so." (City's Addendum, p. 1-2)
Likewise, Mr. LaTour mischaracterizes the testimony of Mr. McKimmey. (LTB,
p. 25)
C. Because Mr. Warrick and Mr. McKimmey are entitled to immunity, Mr. LaTour is not entitled to recover punitive damages from them.
For all of the reasons set forth herein, Mr. LaTour is not entitled to any damages in this case. That is, because the challenged portion of the Sign Ordinance is constitutional, Mr. LaTour is not entitled to recover. Even assuming .for the purposes of this Brief only that the Sign Ordinance was constitutional, Mr. LaTour is not entitled to recover under these facts and circumstances from Mr. Warrick or Mr. McKimmey because they are immune from suit.
31
The District Court correctly applied all applicable law to the issues at bar herein, and correctly determined that the challenged portion of the Sign Ordinance was a constitutional time, place, and manner restriction and that Mr. LaTour's rights had not been violated in any way whatsoever by the challenged portion of the Sign Ordinance. For the reasons set forth herein and contained in the District Court Opinion, this Court should affirm the findings of the District Court.
Respectfully
submitted:
Woody Bassett
(AB#77006)
Paul E. Thompson;
Jr. (AB#2002111)
BASSETT LAW FIRM P.O. Box 3618
Fayetteville, AR
72702 (479) 521-9996
Attorneys for
Appellees
32
I. The undersigned hereby certifies that this Brief complies with
Federal Rule of Appellate Procedure
32 (a) (7) (C) and Eighth Circuit Rule
28 (A) (c) .
II. The undersigned
hereby certifies that this Brief was prepared with Microsoft Word 2000, and
was prepared in Courier New Font Face, in Font Size 12. The text is monospaced
and the Brief contains 903 lines. As such, this Brief is in
compliance with Federal Rule of Appellate
Procedure
32(a) (7) (B)
(iii).
III. The undersigned hereby further certifies that the digital version of this Brief submitted herewith has been scanned for viruses and is saved in Word format.
Wood Bassett
33
This is to certify that I have on this day served counsel for all parties in the foregoing matter with a true and correct copy of this pleading by depositing in the United States mail a copy properly addressed with adequate postage thereon.
Dated this 15th day of September, 2003.
TO: Mr. John S.
LaTour, CPA
112 Center Street,
Suite 560 Fayetteville, AR 72701
34
In his Brief, Mr. LaTour cites to certain portions of Mr. Warrick's and Mr. McKimmey's depositions. (LTA, Item G) It is the City's position that the summary of these gentlemen's testimony does not accurately reflect what they testified to and that, specifically, their actual testimony does not support the propositions put forth by Mr. LaTour in his Brief. Their actual testimony follows.
Relevant Excerpts of Mr. Warrick's Deposition.
Questioning by Mr. LaTour:
Q: It is very small. It's not nearly as noticeable as the one on North College. So you've been by the time and temperature display on North College numerous times and you've seen it functioning; is that correct?
A: Yes, sir.
Q: Had you been by there before you prosecuted my case?
A: Yes, sir.
Deposition of Brant Warrick, p. 27, 1. 19-25
Q: If you're going to pull somebody into court and prosecute them for criminal activity, it seems to me like it would be due diligence on your part to make sure that the law you're enforcing is constitutional. Did you look up anything? Did you do any research on the sign ordinance to make sure that what you were enforcing was, indeed, constitutional?
A: I reviewed the ordinance and read it and it appeared to be a valid ordinance, and I made the decision to file charges.
Q: SO in your opinion the law was constitutional when you filed charges? In your opinion I suppose it's still legal; right?
A: Yes, sir.
1
Q: That's still your opinion? So you didn't look up any cases? You didn't do any what we call legal research, per se, get on-line or go to a set of law books and look up things like prior restraint or content regulation?
A: I did not look it up for this case, no, sir.
Deposition of Brant Warrick, p. 16, 1. 9-15 & p. 17, 1. 1-2
Relevant Excerpts of Mr. McKimmey's Deposition. Questioning by Mr. LaTour:
Q: Okay, and I realize I'll have a better memory of it than you would because it's my money at stake. It's my name at stake through all this, but I specifically remember asking you, "Can I have a
sign in my window?" and you said, "Inside?" and I said, "Yes," and you said, "If it's inside, I won't mess with it," or something to that effect.
A: I can - I've said that many times.
Q: Does that sound -
A: Yes.
Q: And I pressed you. I was surprised that there was a sign the City of Fayetteville would not mess with, and I said to you, "Even if it's facing outward, meant to attract attention outside?" and you stood by your statement and said, "If it's inside, I don't mess with it." Do you think that's correct?
A: That's very likely correct.
Deposition of Mike McKimmey, p. 21, 1.19-25 & p.22, 1. 1-7
Q: Okay. Probably not. I don't think I would describe it as a flashing light or a blinking light. I would describe it as a red light or a stoplight. I wouldn't agree with me either if I did that. Have you ever believed that indoor signs are not regulated or that they were not your responsibility as a sign inspector? Have
2
you ever held that belief any time during your life, let's say professional life? Do you have a recollection of that? Were you ever under the impression that indoor signs were outside the realm of your responsibility as sign inspector?
A: Yes.
Q: Do you think you had that impression on December 23rd 1999?
A: Certainly.
Q: Certainly. Okay. You were under that impression that indoor signs were outside your area of responsibility? Okay.
A: That's a restatement of what - I didn't say that.
Q: Okay. Has it ever been in your - one of your beliefs or one of your impressions that indoor signs are not regulated by the Fayetteville city sign ordinance, and, as such, they're outside of your responsibilities to enforce?
A: My practice and my training, signs that were inside the window were routinely not enforced.
Q: Okay. Your practice and your training. So you were trained by the city not to enforce the sign ordinance against signs that are inside the window?
A: Correct.
Q: I guess the next question would be - it's not on my script, but what was different about my case? My sign was inside the window.
A: Your sign violated the ordinance that prohibited flashing, moving lights.
Deposition of Mike McKimmey, p. 26, 1. 11-25 & p. 27, 1. 1- 20
3
Q: Okay.
A: And as always by practice, and I need to add furthermore that this was - every policy that I express here was run through previous administrations, through the city attorneys. This is not something I did.
Q: SO the whole city infrastructure, legal and otherwise, political and legal, trained you to ignore signs or to say that they were not under the -
A: I wouldn't say it like you said it, no.
Q: Okay. How would you say it?
A: It was found to be in a legal opinion from a previous city attorney to be an unenforceable section.
Deposition of Mike McKimmey, p. 27, 1. 1-12
Q: Okay. When you would go on these patrols, where would you patrol? Residential or commercial areas or both?
A: The affirmative answer to the previous question was based on memory. There was a complaint to the mayor's office about a banner, and we had a discussion with my boss that I could not be unequally enforcing it, and therefore, all the banners would have to be addressed, and I spent a week visiting every business from Cafe Santa Fe to the courthouse to the city limits and back. Five days.
Deposition of Mike McKimmey, p. 9, 1. 10-18
Q: Okay. While you were working at the City of Fayetteville as the sign inspector, did you ever have occasion to drive on North College?
A: Yes.
Q: Did you ever drive, say, from downtown to them all area on North College?
4
A: Many times.
Q: And as you were driving, as was your habit when you were going out for field work and whatnot, you would observe signs?
A: Correct.
Deposition of Mike McKimmey, p. 9, 1.25 & p. 10, 1. 1-10 5
5
The
agreed upon material facts are set forth in the
"Statement of the
Facts. II
Infra. 2
Because Mr. LaTour
did not cite to any portion of the transcript for his allegations on these
issues it is impossible for the City to accurately respond to his contention
in this area.
This is especially applicable in this case where, as
reflected in the District Court's June 19, 2003 Memorandum Opinion, the parties
have agreed upon all material facts.
In his initial correspondence with the City on this
issue Mr. LaTour alleged that he paid $5,000 for his electronic sign. (LTA,
Item B,
p.2-3)
The actual text of the portions of the deposition that Mr.
LaTour is citing to are set forth in their entirety in the City's Addendum.