BEFORE THE WASHINGTON COUNTY CIRCUIT COURT
The City of Fayetteville, Arkansas
Plaintiff
File No. CIV 01-150
John S. La Tour
Defendant
Pretrial Motion
John S. La Tour now alleges and states the following:
1. I have applied for numerous sign permits with the City of Fayetteville, AR and have never before been even charged, much less convicted, of a sign violation.
I am a practicing CPA and I have been self-employed in Fayetteville for the last 21 years. My wife and I are the parents of seven children ages eight and under.
2. On December 23, 1999, the day after my son Nate was born, I went to the inspections desk at the City of Fayetteville, AR to file applications for two wall signs that I was approved for on a building I own at 2285 West Sixth Street. I visited with Jan and Sharon, the ladies at the inspections desk, and I told them about Nate’s birth just the night before and how my wife got up the next morning and fixed me breakfast, voluntarily.
The ladies handed me the sign permit applications and I sat down at the work desk in front of the inspections desk and began filling out the applications. While I was working, Mr. Mike McKimmey, the city sign inspector happened to walk by.
I had known Mike on a professional level for some time and had dealt with him on numerous occasions. Mike sat down and helped me fill out the applications by telling me to skip a question because he already knew my response etc., etc..
I told Mike that I had approval for two signs, one on the west wall of the building and the other on the east wall of the building. However, I explained, that I did not have a sign approved for the north wall of the building and I wanted a sign for that wall since it faces Sixth Street.
Mike explained that the planning department had only approved the two wall signs and I would have to apply for a variance if I wanted another sign.
I didn’t want to get involved in the variance process so I asked Mike if I could put a sign inside the north facing window of the building. I remember distinctly what he said next. He asked, "Inside the building". I replied "yes". He then said, "If it’s inside the building, I don’t mess with it."
I pressed him. I then asked, "You don’t mess with indoor signs". He replied "yes". I then asked, "Even if they are facing outward, meant to attract attention outward?" He stood by his statement and restated, "If the sign is inside I don’t mess with it."
About two weeks later, before I ordered my sign, I wanted to make sure my indoor sign would be legal before I spent the purchase money. I called Bob Estes, a practicing attorney and member of the Fayetteville Planning Commission. Bob and I have known each other for approximately twenty years and had gone through the MBA program at the University of Arkansas together. I placed a call to Bob’s office on my cell phone.
I told Bob that I was about to order a sign to put in my window and I asked what I needed to do to be legal with the city. I told him that I wanted to jump through all of the whoops, just tell me what they are. Bob said that he wasn’t sure but he would call the city, find out, and call me right back.
He called back about thirty minutes later. He placed the call to my cell phone. He told me, "They said if it’s behind the glass, nothing applies". I thanked him and we hung up.
Before I even ordered the sign, I sought out two Fayetteville officials who were in positions that are charged with the administration of the sign ordinance. Twice I asked the question and both times I received the very same answer. I placed that order for the sign and spent approximately $6000.00 purchasing and installing the sign.
The sign arrived about a month later and we installed it sometime in February 2000. About a month after we started operating the sign, Mike McKimmey stopped by our building and informed Nate McGooden, an employee of mine, that the sign was illegal and would have to be removed. Nate called me and I immediately called Mike McKimmey.
I said to Mike, "You yourself told me that if the sign was inside, you wouldn’t mess with it". I don’t recall his exact response but it was something to the affect that he was just doing his job. I then asked to speak with Bert Rakes, Mike’s supervisor.
I repeated the entire story to Bert and he told me that he had seen the city make people take down Christmas tree lights before. I told Bert what I had paid for the sign and offered to sell it to the city for my cost and then the city could do as they pleased with it. Bert said, "Now John, you know that’s not liable to happen." I don’t recall exactly how the conversation ended but it did.
I continued to operate the sign. Please note that my sign operated exactly like the sign on North College Avenue that presents the time and temperature at First Federal Savings and Loan of Harrison. My sign functioned exactly like that one. The only difference in the two signs was that mine was indoors and much smaller than the time and temperature sign and of course I was expressing my political opinions on my sign and they were giving only time and temperature.
During this period of operation, it appears that Mr. McKimmey went to the city prosecutor’s office and filed criminal charges against me. Mr. Warrick sent me his first of several letters asking me to correct the alleged violation.
I called Mr. Warrick the day I received his letter dated May 16, 2000. I told him the story that I have related above. He asked me to put it all in a letter to him and he would review it. I wrote the letter and mail it to him within a few days.
I waited a couple of weeks after I mailed the letter and then called Mr. Warrick to see if he had arrived at a conclusion. He told me that he still needed to speak with Mr. McKimmey and Mr. Estes to verify my story.
I waited another week and called Mr. Warrick back and asked if he had visited with McKimmey and Estes. He said that he had AND THEY VERIFIED MY STORY. But in their defense, they said that I didn’t tell them that the sign was going to electronic.
In retrospect, I probably didn’t tell them the sign was electronic because I had not definitely decided to buy the electronic sign until after I had gotten the go-ahead from McKimmey and Estes.
Both of these men, in their replies to my questions about indoor signs, gave exhaustive statements. The only condition they attached to their reply was that the sign had to be inside.
Neither man asked about the size of the sign or how it operated, or even if it was electronic or not. They only told me that if it was located indoors, it was not regulated.
Mr. Warwick knows all of this information. This is what he confirmed when he talked to McKimmey and Estes.
He should be compelled to tell what he knows. In his letter to me dated June 13, 2000 he admits that he spoke with Mr. Estes and Mr. McKimmey "regarding the current situation".
3. Under Ark. R. Crim. P. 17.1(d) a prosecutor is required to promptly disclose to the [defendant or his] counsel any material or information within his knowledge, possession, or control which tends to negate the guilt of the defendant. Yet in spite of the law, instead of disclosing the information that he gathered in his investigation, Mr. Warrick has now motioned to exclude the very evidence that he has an affirmative duty to disclose!
We plead with the Court, please do not allow such an injustice to exist. Please compel a testimony from Mr. Warrick.
DEFENSES
4. Given these facts, I began looking at possible defenses against the criminal charges and conviction that have been imposed on my good name. I have found the following:
a. Affirmative Defenses found at Ark. Code Ann. Section5-2-206(c)
state the following:
(a) It is a defense to a prosecution that the actor engaged in the conduct
charged to constitute the offense under a mistaken belief of fact if:
(1) The statute defining the offense, or a statute relating thereto,
expressly provides that such a mistaken belief of fact constitutes a defense; or
(2) Mistaken belief of fact establishes a defense of justification provided
by subchapter 6 of this chapter.
(b) Except as provided by subsection (c) of this section, a person is not
relieved of criminal liability for conduct because he engages in that conduct
believing that it does not, as a matter of law, constitute an offense.
(c) It is an affirmative defense to a prosecution that the actor engaged in
the conduct charged to constitute the offense believing that the conduct did
not, as a matter of law, constitute an offense, if he acted in reasonable
reliance upon an official statement of the law contained in:
(1) A statute or other enactment afterward determined to be invalid or
erroneous; or
(2) The latest judicial decision of the highest state or federal court that
has decided the matter; or
(3) An official interpretation of the public servant or agency charged by law with responsibility for the interpretation or administration of the law defining the offense (emphasis supplied).
As noted above, I asked for and received two official interpretations of the Fayetteville sign ordinance and then purchased and installed the controversial sign in reliance on those interpretations. Persons charged with the duty to administer the sign ordinance gave both interpretations to me.
Therefore, if I am allowed to present my evidence to the jury and the jury believes my side of the story, as a matter of law, my innocence should be clear.
b. Entrapment: The affirmative defense of entrapment applies to this case.
I was in no way predisposed to breach the Fayetteville sign ordinance. Indeed, I have operated outdoor signs inside Fayetteville city limits for years without any citations. Additionally, I undertook two times to find out what the law was regarding indoor signs and both times the city officials told me indoor signs are not regulated. If either official would have informed me that I could not have a time and temperature type display, I would never have installed it.
This is a nonserious criminal charge and but for the actions of the law enforcement administrators, Mr. McKimmey and Mr. Estes, I would have never installed the sign. I must be allowed considerable latitude to introduce the evidence required to prove this defense.
The prosecution, of course, would like to exclude such evidence. It is interesting to observe the latent desperation of such a proposal. Excluding this evidence would clearly be a breach of due process.
c. Constitutional Issues: It is my firm belief that several provisions in the Fayetteville sign ordinance will never survive constitutional scrutiny. Here are those issues:
CONSTITUTIONAL ISSUES
INTRODUCTION AND BACKGROUND
On January 3, 2001 Fayetteville Municipal Judge Rudy Moore ruled that electronic display signs operating in the city limits of Fayetteville, AR could only change their display messages no more frequently than once every 24-hour period. At the same time, the city allowed and continues to allow time and temperature displays to change their displayed messages as frequently as the sign operator desires. Often these displays change their message as much as 8 to 15 times per minute!
Thus, our electronic sign is prohibited from functioning while time and temperature electronic signs are allowed to function. It is our contention that such differences constitute nothing more than good old fashion content regulation.
1. Content Regulation
The application of the Fayetteville sign ordinance (the "ordinance") fails a content neutral test in that it illegally distinguishes between time and temperature displays and other electronic messaging devices solely on the basis of their content.
According to the ordinance at Section 158.08(I) time and temperature displays are not only allowed to operate but they are also exempted from the permit requirement.
It should be noted that time and temperature displays operate in the following manner:
Time display, screen goes blank for about one second, temperature display, screen goes blank for about one second, time display, screen goes blank for about one second, etc., etc..
When the time or temperature is displayed the characters of the sign do not move up or down, left or right. There is no scrolling or animation of the characters.
Our sign, at the center of this controversy, functions exactly the same as a time and temperature display.
The alphanumeric characters on our sign did not move up or down, or left or right when the sign was ruled illegal by the municipal court. The words on the sign simply appeared, then the screen would go blank, and then a new set of words would appear to complete the thought. This process was continued until an entire idea was communicated.
As the evidence of this case will bear out, if we are allowed to present it, our sign functioned in exactly the same manner as a time and temperature display. The one and only difference between our sign and a time and temperature display is the content of the sign.
Presumably, our sign would have been perfectly legal if we would have only published the time of day and the temperature of the outside air. But because we choose instead to express our political and religious ideas, i.e., something other than time and temperature, the sign was judged illegal under the Fayetteville sign ordinance Section 158.40.
Our case is almost completely analogous to City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113, S.Ct. 1505, 1516-17, 123 L. Ed.2nd 99 (1993). See also, Larry Whitton v. City of Gladstone, Missouri, 54F.3d 1400.
In Cincinnati, respondents operated a series of newspaper racks that contained, and distributed for free, a variety of commercial handbills such as residential and commercial real estate offerings.
In an attempt to further its interest in the substantial objectives of public safety and environmental esthetics, the City of Cincinnati enacted an ordinance that prohibited the operation of these commercial handbill news racks but allowed the continued operation of news racks that distributed actual newspapers.
In its arguments, the city contended that its, "regulation of news racks qualifies as a [time, place, and manner] restriction because the interests in safety and esthetics that it serves are entirely unrelated to the content of respondents’ publications. Thus, the argument goes, the JUSTIFICATION for the regulation is content neutral." Ibid.
The Court disagreed with the city’s reasoning and stated the following:
"The argument is unpersuasive because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech. True, there is no evidence that the city has acted with animus toward the ideas contained within respondent’s publications, but just last Term we expressly rejected the argument that ‘discriminatory … treatment is suspect under the First Amendment ONLY when the legislature intends to suppress certain ideas (emphasis supplied) Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S., at 117, 112 S.Ct. at 509.
Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of news racks that distribute ‘commercial handbills’ but not ‘newspapers.’ Under the city’s news rack policy, whether any particular news rack falls within the ban is determined by the content of the publication resting inside that news rack. Thus, by any commonsense understanding of the term, the ban in this case is ‘content based.’ Cincinnati at Section IV[5].
The Court further noted that the city contends that safety concerns and visual blight may be addressed by a prohibition that distinguishes between commercial and noncommercial publications that are equally responsible for those problems. Id. at Sect. III.
The Court, on the other hand, concluded that there was no reasonable fit between the regulation and the legitimate interest of the city since newspaper news racks and commercial handbill news racks both caused the same problems. Moreover, the Court recognized that the intended ban on commercial handbill racks would remove only a mere sixty or so racks while the ban left unaffected between 1500 and 2000 newspaper racks.
In our case, the facts are almost identical in principle.
The City of Fayetteville is apparently asserting its interest in regulating signs to achieve a pleasing result for public safety and esthetic concerns. However, just as in Cincinnati above, the City of Fayetteville prohibits the functioning of our sign but fails to prohibit the functioning of time and temperature displays.
Both types of signs function in the exact same manner. The only difference between our electronic sign, and time and temperature displays, is the message contained on the sign. If our sign causes esthetic and public safety problems, then time and temperature displays cause the same problems. Yet the city prohibits our sign from functioning but not time and temperature displays.
Additionally, under the Fayetteville sign ordinance scheme, thousands of time and temperature displays can be erected without even the filing of a single sign permit application. However, under this same scheme, not even one electronic sign can be erected to express the political or ideological views of the sign’s owner.
Such an irrational scheme can hardly be termed a "reasonable fit".
For the same reasons articulated in Cincinnati, the only logical, commonsense, conclusion is that the application of Fayetteville sign ordinance Sect. 158.40 is an unconstitutional imposition of content based regulations which fails miserably at effecting a reasonable fit between the stated objectives of the city and the measures undertaken to accomplish such objectives.
Moreover, because of the manner in which the Fayetteville officials apply Section 158.40, owners of electronic signs that communicate something other than time and temperature are regulated differently and more restrictively.
This sort of disparity in the regulation of noncommercial speech was strictly prohibited when the US Supreme court declared that a city ordinance that regulates noncommercial signs based on their subject matter is invalid. Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).
Vagueness:
Fourth and Fourteenth Amendment Problems1. Notice:
The courts have ruled that if a state or municipal government is going to make an activity illegal, it must spell out the prohibited activity in clear and concise language so that any citizen can read the prohibitions and understand exactly what is being prohibited. Such notice is an essential aspect of the fair and equitable application of justice in a society, or so the reasoning goes.
The courts have raised the standards for this sort of notice when the prohibitions are dealing in the sensitive area of protected First Amendment rights. The courts have clearly stated that such first amendment regulations must be set forth with "bright lines" of definition so as to protect the First Amendment rights of every citizen.
The Fayetteville sign ordinance can be read from start to finish and nothing will come close to even implying, much less expressly stating with bright lines of definition, that the owners of electronic signs can only change the sign’s message once every 24 hour period. It is simply not there.
This rule, first articulated by Judge Moore on January 3, 2001, was never debated in a legislative body. There were no dissenting opinions voiced and no city counsel ever voted on this law. In short, this law was not legislated but merely hatched in the back room of the Fayetteville city prosecutor’s office.
Without such notice, applying the Fayetteville sign ordinance in this manner will surely fail even the slightest constitutional scrutiny.
2. Terms Undefined:
The Fayetteville sign ordinance does not define "attraction device" or "animated" yet it uses these terms in Section 158.40. With no definition almost anything can be an attraction device.
Conceivably, if I am standing on the side of a city street waiving at passing motorist, my actions could be considered criminal under Section 158.40 because my body could be construed as an "attraction device" and the movement of my arms and hands would certainly be animated.
Surely, the application of the statute in this manner would never occur where the city government is acting rationally. However, the citizens of Fayetteville have no guarantee of protection from such nonsense where the code terms are undefined.
Indeed, where undefined terms are used, the administrator of the sign ordinance can choose his/her own definitions and apply the statute to whomever he/she desires.
To illustrate the point, there is a downtown Fayetteville jewelry store that operates a "bubble machine" right outside its business establishment. This machine produces massive amounts of soap bubbles that float away into the air that would surely delight any youngster.
I personally enjoy seeing the bubbles also, but under Section 158.40, this business owner is probably engaging in criminal activity!
Surely the city can do a more thorough job of defining its terms and protecting its citizens from the arbitrary interpretations of its administrators.
3. Strict Liability
In Video Software Dealers Ass’n v. Webster, 968 F.2d 684, 690 (1992), the Eight Circuit Court of Appeals ruled "any statute that chills the exercise of First Amendment rights must contain a knowledge element.
The City of Fayetteville is applying its sign ordinance in such a way as to impose strict liability for the violation of any of its provisions.
The evidence, if we are allowed to present it, in this case will show that John La Tour made two good faith efforts to determine what restrictions applied to indoor signs. In both instances, I was told, by two separate city officials, both apparently without knowledge that I had spoken with the other, essentially the same thing. Both times I was told that if the sign was located indoors, it was not regulated by the city sign ordinance.
I acted on what the officials told me and was then convicted of a class A misdemeanor by the Fayetteville Municipal Court. I could not have had a guilty mind under any definition of a mens rea requirement except strict liability. However, the city has enforced its sign ordinance by using this exact strict liability standard.
Clearly such a standard will fail the test establish by the Eight Circuit in Video Software Dealers Ass’n..
CONCLUSION
I earnestly pray and ask this Court to grant relief to me in this cause. The evidence I have to present is strong and compelling. The prosecutor, seeks to exclude this evidence in a arrogant attempt to win at all costs. As noted above, such an effort is clearly violating Arkansas Rules of Criminal Procedure.
I acted at every step with diligence and integrity. The city government is the only party to this action seeking to conceal evidence, breach civil rights, and swindle the public.
We ask this Court to please grant relief.