As the court has previously ruled to allow testimony pertaining to events that occurred prior to April 10, 2000, the city believes that any further argument on these matters would be best left until after the close of evidence.

The balance of Defendants’ Pretrail Motion appears to challenge the constitutionality of the Fayetteville City Sign Ordinance on the grounds that the ordinance is content based regulation, that the ordinance is void for vagueness and that the ordinance did not require a culpable mental state. To these the city now responds.

The City of Fayetteville first enacted its sign ordinance as Ordinance No. 1893 in December of 1972 finding that the proliferation of signs created a traffic hazard and was detrimental to the aesthetics and economic base of the city. This ordinance was codified in the Fayetteville Code of Ordinances as Chapter 158. On June 16, 1998 the City of Fayetteville passed its Unified Development Ordinance (UDO) which compiled all ordinances pertaining to development in one volume and renumbered them. The sign ordinance is no Chapter 174 of the UDO.

Since its enactment in 1972, the city’s sign ordinance has been challenged and upheld by the Arkansas Supreme Court in several different cases. See Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc. 260 Ark 448 (1976), City of Fayetteville v. S&H, Inc. 261 Ark. 148 (1977), City of Fayetteville v. McIlroy Bank & Trust Co., 278 Ark. 500 (1983), Hatfield v. City of Fayetteville, 278 Ark. 544 (1983), Donrey Communications Co., Inc. v. City of Fayetteville, 280 Ark. 408 (1983), Fisher Buick, Inc. v. City of Fayetteville, 286 Ark. 49 (1985).

The Defendants appear to seek to challenge the City’s sign ordinance on several grounds. One issue that they raise is the argument of vagueness. Defendants first focus in on the guidance given by the municipal court pertaining to the number of times that a sign may change in lieu of directing the complete removal of the sign. As Defendants so adequately point out, this matter is before the court de novo and the clear prohibition of signs that are animated, flash, blink or change in intensity in the city ordinance is the matter at bar.

Defendants next argue that the terms "attraction device" and "animated" as used in the ordinance are unconstitutionally vague. In constitutional challenges to ordinances, the ordinance is presumed to be constitutional and the burden is upon the party challenging the ordinance to show its invalidity. Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc. 258 Ark. 91, 93 (1975), See also Rolling Pines Limited Partnership v. City of Little Rock, 2001 Ark. App. Lexis 217 (Decided March 14, 2001), Night Clubs Inc. v. Fort Smith Planning Commission, 336 Ark. 130, 132 (1999), Hamilton v. Jeffrey Stone Company, 25 Ark. App. 66 (1988). In a discussion over the terms "gaming" and "gambling" the Arkansas Supreme Court discussed the issue of vagueness in the case of State v. Torres, 309 Ark. 422, 424-425, (1992) and in upholding the statute stated as follows:

"The norm by which we determine when a statute is void for vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). The law must give fair warning in definite language of the prohibited act. Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983). In addition to the fair warning, a statute is also void-for-vagueness if it is so broad that it becomes susceptible to arbitrary and discriminatory enforcement. Id. Nevertheless, flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. David v. Smith, 266 Ark. 112, S.W.2d 37 (1979). Moreover, impossible standards of specificity are not constitutionally required, even in criminal statutes. Id. A statute will meet constitutional muster if the language conveys sufficient warning when measure by common understanding and practice. Id. Additionally, it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise." Id.

Defendant also challenges the ordinance by arguing that the ordinance does not specify a culpable mental state. Defendants rely upon the case of Video Software Dealers Association v. Webster, 968 F.2d 684 (8^th Cir. 1992). Citing the United States Supreme Court’s opinion in Smith v. California, 361 U.S. 147 (1959), the Eighth Circuit in Video Software, noted, "In any event we believe that any statute that chills the exercise of First Amendment rights must contain a knowledge requirement." The city maintains that the city ordinance is valid based upon the opinion of the United States Supreme Court in Osborne v. Ohio, 495 U.S. 103 (1988). In Osborne, the Defendant was prosecuted for possession of child pornography. The Defendant argued to the Court that because the Ohio statute did not contain a scienter requirement, the statute was unconstitutional. The Court noted that while the statute on child pornography did not contain a scienter element, Ohio had a default statute that provided a mental state and that its application plainly satisfied the culpable mental state. Osborne v. Ohio, 495 U.S. 103 (1988).

Section 10.02 of the Fayetteville City Code stats as follows:

"Unless otherwise provided herein, or by law or implication required, the same rules of construction, definition, and application shall govern the interpretation of this code as those governing the interpretation of state law."

Because the city sign ordinance does not specify otherwise, the rules of construction and application from the state law control. A.C.A Section 5-2-203(b) provides:

"(b) Except as provided in section 5-2-204(2), if the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly."

Because the state law grafts to the city ordinance the required culpable mental states, the city ordinance is valid and should not be invalidated by Defendants’ arguments.

The bulk of the argument in Defendants’ Pretrial Motion challenges the constitutionality of the city ordinance on the grounds that the ordinance is an impermissible burden on free speech. Signs represent a combination of both speech and non-speech components. The Court has said that wherever speech and non-speech components are combined in an individual expression, 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, 191 (1989). So long as they are content neutral, the restrictions upon speech that are imposed by such regulations need not be the least restrictive manner, but rather so long as the "regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Id. At 799, citing United States v. Albertini, 472 U.S. 675 (1985). Time, place and manner restrictions are upheld if they are content-neutral, serve a substantial government interest and do not limit alternative avenues of communication.

The United States Supreme Court cases that appear to be most on point in this matter are Metromedia, Inc. v. City of Sand Diego, 453 U.S. 490 (1981) and City of Ladue v. Gilleo, 512 U.S. 43 (1994). In Metromedia, the city of San Diego had prohibited off-site billboards, but then carved out twelve exceptions to the prohibition. A majority of the Court held that the city’s interest in regulating off-site billboards was justified, but, in a plurality decision, nonetheless invalidated the ordinance. Four Justices, White, Stewart, Marshall and Powell, believed the ordinance to be unconstitutional because it impermissible discriminated based on content by providing more protections to commercial speech that non-commercial speech. The plurality noted that under the ordinance "(1) a sign advertising goods or services available on the property where the sign is located is allowed; (2) a sign on a building or other property adverting goods or services produced or offered elsewhere is barred; (3) noncommercial advertising, unless within one of the specific exceptions is everywhere prohibited." The plurality also noted that a city may treat on-site and off-site signs differently. Id. At 511. The difficulty for the plurality was that non-commercial speech was being prohibited while commercial speech was being permitted. Id. at 514-515. The two concurring Justices in Metromedia, Brennan and Blackmun, [concluded] that the ordinance eliminated billboards as an effective medium of communication without showing a substantial justification for regulating content-neutral prohibitions. Id at 526-529.

In Ladue, the Court invalidated and ordinance that prohibited all residential signs, except "For Sale" signs, signs warning of safety hazards and those of "residence identification." The Court invalidated the ordinance as there were not adequate substitutes for displaying a sign from one’s own residence. City of Ladue v. Gilleo, 512 U.S. 43 (1994).

The city maintains that the ordinance’s prohibition on flashing signs and fluctuating illumination is constitutionally valid. In the findings and rationale for the ordinance, the city council noted its findings that the uncontrolled proliferation of signs created traffic hazards, harmed the aesthetics and economy of the city. The United States Supreme Court recognized that traffic safety and aesthetics are both substantial government interest. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984). In upholding Fayetteville’s prohibition of flashing or blinking signs, the Arkansas Supreme Court noted that the prohibition was a proper exercise of the city’ police power. City of Fayetteville v. S&H, Inc. 261 Ark. 148 (1977). Some six years later the Arkansas Supreme Court, following the United States Supreme Court ruling in Metromedia, again upheld the Fayetteville sign ordinance noting that it was a time place and manner restriction on the non-communicative aspects of the signs, and that it did not prohibit all signs. Donrey Communications Co., v. City of Fayetteville, 280 Ark. 408 (1983). Here there remain ample means of sign communication at the same times and locations as the Defendants desire. The ordinance simply regulates the manner of the speech and the type of signs that can or cannot be used.

Defendants appear to center their arguments to the third prong of this test and whether the ordinance is content neutral. In their arguments challenging the ordinance, Defendants rely heavily on the case of City of Cincinnati v. Discovery Network, 200 U.S. 321 (1993). Defendants argue that the case at bar is analogous to the city ordinance that prohibited a de minimis number of handbill racks while allowing all newspaper racks to remain. In Discovery Networks, the Court found that the city ordinance did not reasonably fit to solve the problems that they were attempting to address. Here, the city would maintain, as the Arkansas Supreme Court has previously held, that the prohibition on flashing signs certainly fits with the aesthetic and traffic safety purposes that the ordinance is attempting to remedy.

Defendants then focus in on the time and temperature exemption. Defendants particularly argue that the sign ordinance exempts time and temperature displays and therefore the city is engaged in content based regulation. Here, the Defendants are attempting to have the Court rule clocks and thermometers speech so that the whole ordinance will be invalidated. It is the position of the city, that some things are what they are and nothing more. Here the display of time or temperature is merely the display of a tool and does not rise to the level or expression such as protesting, political signs, commercial advertising or nude dancing.

Additionally, should the court determine that time and temperature displays are in fact speech, the city would maintain that the exemption of time and temperature displays demonstrates the fact that the city’s ordinance is only 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 city would also point out the Defendants appear to be misreading and misapplying the ordinance. The exemptions section of the ordinance is found at section 174.03 and state the following:

"Exemption 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 located and maintained."

Here, the ordinance clearly states that these signs are exempted from the permitting process. Additionally, in section 174.03 is the exemption allowing signs affixed to the glass surfaces of windows to avoid the permitting process, which is the provision that the city maintains would allow the Defendants to place signs in their windows without having to apply for a permit.

Because the prohibition on fluctuating illumination is a "time, place and manner" restriction that serves a recognized substantial government interest and leaves open other avenues of communication, particularly other types of signs at the same locations and only prohibits fluctuating illumination, and is content-neutral, the sign ordinance passes constitutional muster and should be held as valid.

Should the Court determine that the exemption for time and temperature is unconstitutional, the city would refer the court to the severability provisions found in UDO Section 150.13 and in the original ordinance. These sections clearly state that if any section, clause or part should be determined to be unconstitutional, then that part of the ordinance is severable and the balance of the ordinance should stand. In U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 268 (1994). In Levy v. Albright, 204 Ark. 657 (1942) the Arkansas Supreme Court struck the words "Supreme Court" from a list of courts that a statute purported to grant original jurisdiction over issuing search warrants but sustained the constitutionality of the act as it related to other courts. There the Court state that the "constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall." Levy at 659. Here the balance of the sign ordinance is functionally independent from the time and temperature provision and is not mutually connected or interwoven. Were the provision on time and temperature severed and struck, the balance of the ordinance would firmly stand. As such even if Defendants prevail in demonstrating that the time and temperature exemption is invalid, the balance of the ordinance still passes the constitutional scrutiny.

As the city has now demonstrated that the ordinance withstands constitutional review, we would pray that the Defendants’ Pre-trial Motion be denied.

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