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BOARD OF COUNTY COMMISSIONERS
Mayor David Rice, District 4
Mayor Pro Tem Sylvia J. Murphy, District 5
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Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
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BULK ITEM: DEPARTMENT:
No County Attorney's Office
TIME APPROXIMATE:STAFF CONTACT:
Steve Williams (305) 289-2584
11:00 A.M.
AGENDA ITEM WORDING:
Discussion and direction regarding the existing Monroe County
sign code (Chapter 142 SIGNS) with a presentation given by Nancy Stroud, Esq.
ITEM BACKGROUND:
It was the desire of the Board of County Commissioners that Monroe County examine and study its
land development regulations relating to signs, particularly in light of the United States Supreme
Court case of [[502,1579,1020,1636][12][,I,][Times New Roman]]Reed v. Town of Gilbert [[984,1579,1047,1636][12][,I,][Times New Roman]]. [[1009,1579,1059,1636][12][,,][Times New Roman]]
[[1022,1579,1072,1636][12][,,][Times New Roman]]O [[1058,1579,1290,1636][12][,,][Times New Roman]]n October [[1256,1579,1306,1636][12][,,][Times New Roman]] [[1269,1579,1344,1636][12][,,][Times
New Roman]]19 [[1319,1579,1469,1636][12][,,][Times New Roman]], 2016 [[1444,1579,1494,1636][12][,,][Times New Roman]], [[1456,1579,1506,1636][12][,,][Times New Roman]] [[1469,1579,2060,1636][12][,,]
[Times New Roman]]the County entered into a co [[2035,1579,2300,1636][12][,,][Times New Roman]]ntract with
Nancy Stroud, Esq. with the Law Firm of Lewis, Stroud and Deutsch, P.L., to serve as outside legal
counsel to review and report on the Monroe County Sign Code in regards to the Supreme Court case.
code regulations have been initially examined and the matter is being brought
before the Board of County Commissioners for discussion and direction.
PREVIOUS RELEVANT BOCC ACTION:
October 19, 2016 - Approval of Nancy Stroud Contract.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION:
N/A
DOCUMENTATION:
MEMORANDUM from Nancy E. Stroud, Esq. to Monroe County Attorney 1.31.18
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
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Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match
:
Insurance Required:
Additional Details:
REVIEWED BY:
Steve Williams Completed 12/20/2017 4:14 PM
Mayte Santamaria Completed 12/20/2017 6:59 PM
Bob Shillinger Completed 12/22/2017 5:05 PM
Kathy Peters Completed 12/27/2017 8:48 AM
Board of County Commissioners Pending 02/21/2018 9:00 AM
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MEMORANDUM
TO: Robert Shillinger, County Attorney
Steve Williams, Assistant County Attorney
FROM: Nancy E. Stroud, Esq.
Christine P. Tatum, Esq.
RE: Review of Monroe County Sign Code in Light of [[1619,863,2136,920][12][,I,][Times New Roman]]Reed v. Town of Gilbert [[2100,863,2150,920][12][,,][Times New Roman]] [[2113,863,2163,920][12][,,][
Times New Roman]]
DATE: January 31, 2018
At your request, we have performed a legal analysis of the Monroe County sign
regulations, which are codified as Chapter 142 of the Monroe County Land Development Code.
This analysis was undertaken in light of the United States Supreme Court ruling in [[1975,1210,2300,1267][12][,I,][Times New Roman]]Reed v. Town
[[300,1268,532,1325][12][,I,][Times New Roman]]of Gilbert [[496,1268,1054,1325][12][,,][Times New Roman]], 135 S. Ct. 2218 (2015). [[1017,1268,1067,1325][12][,,][Times New Roman]]
A. Background of [[759,1383,1277,1440][12][,I,][Times New Roman]]Reed v. Town of Gilbert [[1240,1383,1290,1440][12][,,][Times New Roman]]
The [[542,1498,668,1555][12][,I,][Times New Roman]]Reed [[644,1498,694,1555][12][,,][Times New Roman]] [[660,1498,2299,1555][12][,,][Times New Roman]]case involved an ordinance of the
Town of Gilbert, Arizona that set limits on
the dimensions of various kinds of temporary signs, a type of regulation which is extremely
common in local government sign codes. Political signs were permitted to be as large as 32
square feet, were allowed to stay in place for months and were generally unlimited in number.
General ideological signs (signs expressing noncommercial viewpoints) were not permitted to
be larger than 20 square feet, could stay in place indefinitely and were unlimited in number. But
signs announcing church services and similar events were limited to six square feet, could be
displayed only just before and after an event, and were limited to four per property.
To advertise their service, a small local church without a permanent building placed
fifteen-to-twenty temporary signs in various locations around the Town. The signs would
typically include the church's name as well as the location and time of services. The church was
cited by the Town for violating the code restrictions.
The church filed suit in March 2008, where it claimed that the Town "abridged their
freedom of speech in violation of the First and Fourteenth Amendments". Thus began a seven
year legal odyssey that would take the Town and the church to the Supreme Court of the United
States, resulting in unanimous decision declaring that the Town's sign code violated the First
Amendment's protections for free speech.
The church sued under Section 1983 of the U.S. Code, by which a successful case results
fees),
and the totals can be extremely high. At the end of the litigation, the Town was left without a
church in excess of $1 million dollars.
1
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B. The Decision in [[780,300,1298,357][12][,I,][Times New Roman]]Reed v. Town of Gilbert [[1261,300,1311,357][12][,,][Times New Roman]]
The fundamental holding of the [[1178,415,1305,472][12][,I,][Times New Roman]]Reed [[1280,415,1330,472][12][,,][Times New Roman]] [[1310,415,2300,472][12][,,][Times New Roman]]decision
is that if a sign code makes any
distinctions based upon the message of the sign, the code is content based.[[2034,473,2160,530][12][,I,][Times New Roman]]Reed [[2135,473,2185,530][12][,,][Times New Roman]] [[2151,473,2300,530][12]
[,,][Times New Roman]]case,
that meant that the Town sign code that treated temporary direction signs differently than
political signs made an unconstitutional distinction based on the message on the sign. If the code
is content based, the regulations are subject to strict scrutiny and are presumptively
unconstitutional. To overcome this presumption, the government must show that "the restriction
furthers a compelling interest and is narrowly tailored to achieve that interest." [[1953,760,2079,817][12][,I,][Times New Roman]]Reed [[2055,760,2105,817][12][,I,][Times New Roman]],
[[2067,760,2117,817][12][,I,][Times New Roman]] [[2084,760,2300,817][12][,,][Times New Roman]]at 2231.
Regulations subjected to such a strict scrutiny test rarely, if ever, survive a court's review. In
effect, the [[525,875,676,932][12][,I,][Times New Roman]]Reed [[647,875,839,932][12][,,][Times New Roman]]decision [[814,875,864,932][12][,,][Times New Roman]] [[834,875,2064,932][12][,,][Times
New Roman]]adopted a strict or absolutist view of content neutrality. [[2035,875,2157,932][12][,,][Times New Roman]]Post [[2121,875,2171,932][12][,,][Times New Roman]]- [[2136,875,2262,932][12][,I,
][Times New Roman]]Reed [[2238,875,2301,932][12][,,][Times New Roman]],
regulating signs in a content neutral manner satisfying First Amendment limitations will be more
difficult for local governments.
C. Experience of Other Local Governments
Constitutional challenges to a sign code can result in extremely time consuming and
expensive litigation. In addition to the cost of defense to the local government, if a plaintiff
brings a constitutional challenge and wins, it is entitled to its attorney fees and costs, and any
damages it may have sustained. As mentioned above, the Town of Gilbert, the defendant in the
[[298,1450,424,1507][12][,I,][Times New Roman]]Reed [[400,1450,450,1507][12][,,][Times New Roman]] [[412,1450,1035,1507][12][,,][Times New Roman]]case, faces an adverse award [[998,1450,1255,1507][
12][,,][Times New Roman]]simply for [[2153,1450,2203,1507][12][,,][Times New Roman]]
Last year, after the [[837,1565,963,1622][12][,I,][Times New Roman]]Reed [[938,1565,988,1622][12][,,][Times New Roman]] [[952,1565,1359,1622][12][,,][Times New Roman]]case was decided,
[[1322,1565,1433,1622][12][,,][Times New Roman]]the [[1396,1565,2300,1622][12][,,][Times New Roman]]Town of North Reddington Beach, Florida
was successfully
premises that is related to the business and/or is intended to advertise or inform, rather than being
merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an
official traffic control sign, official marker, national or state flags permitted by this Chapter,
exempted several types of signs from permitting on the basis of their message, including
murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house
These were determined to be
content based provisions and did not survive strict judicial scrutiny. The Town code was
declared to be unconstitutional and the Town was ordered to pay the restaurant owner over
[[1109,2313,2299,2370][12][,I,][Times New Roman]]. Sweet Sage Café, LLC v. Town of North Reddington
[[298,2370,474,2427][12][,I,][Times New Roman]]Beach, [[437,2370,487,2427][12][,,][Times New Roman]] [[450,2370,613,2427][12][,,][Times New Roman]]2017 U [[598,2370,1529,2427][12][,,][Times
New Roman]].S. Dist. Lexis (M.D. Fla. January 27, 2017). [[1492,2370,1542,2427][12][,,][Times New Roman]]
The North Reddington Beach experience highlights the need for a sign code review for
content based provisions and for adopting necessary amendments.
D. Applying the [[723,2658,850,2715][12][,I,][Times New Roman]]Reed [[825,2658,875,2715][12][,,][Times New Roman]] [[837,2658,1530,2715][12][,,][Times New Roman]]test to the Monroe
County Code [[1493,2658,1543,2715][12][,,][Times New Roman]]
In applying the [[772,2773,924,2830][12][,I,][Times New Roman]]Reed [[890,2773,2267,2830][12][,,][Times New Roman]]test to the current sign code, the inquiry is fairly straight forward
[[2233,2773,2283,2830][12][,,][Times New Roman]]- [[2251,2773,2301,2830][12][,,][Times New Roman]]
does the regulation apply to a sign based upon the content (message) of the sign? If so, the
regulation is content based and presumptively unconstitutional, and should be changed. We have
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identified several areas where the code should be changed in order to strengthen it against a
potential challenge. These recommendations are not directed to changing time, place and
manner regulations of signs, but instead to limit the content-based distinctions and address other
constitutionality.
E. Recommendations
Three major areas of change are recommended for the Monroe County code.
1. Elimination of content based regulations
First, and most important, is the elimination of content based definitions and distinctions.
For example, section 142-2 (Definitions) contains a few problematic definitions which are
content based: in particular, Posted property sign, Promotional sign and Real estate sign.
Additionally, the definition of sign itself excludes the flag or emblem of any nation or
organization of nations, state, city, or fraternal, religious or civic organization, clearly content
based-distinctions.
Section 142-3 (Exceptions), which defines additional signs that do not require a permit,
also contains numerous problematic definitions and exceptions. Section 142-3 lists 19 types of
signs that do not require a permit. With the arguable exception of [[1658,1450,2300,1507][12][,I,][Times New Roman]](1) banners and (14) window
[[300,1508,433,1565][12][,I,][Times New Roman]]signs [[403,1508,682,1565][12][,,][Times New Roman]], each of the [[654,1508,704,1565][12][,,][Times New Roman]] [[669,1508,1454,1565][12][,,][Times
New Roman]]exceptions is content based or author [[1421,1508,1471,1565][12][,,][Times New Roman]]- [[1438,1508,2300,1565][12][,,][Times New Roman]]based, and thus constitutionally suspect.
Additionally, most of these items contain a mix of definition and regulation.
[[450,1680,724,1737][12][,I,][Times New Roman]](1) banners [[695,1680,745,1737][12][,I,][Times New Roman]]
(2) business affiliation and law enforcement signs
(3) business information signs
(4) commemorative plaques
(5) construction signs
(6) directional signs
(7) flags
(8) garage sale
(9) holiday decorations
(10) memorial signs or tablets
(11) nameplates
(12) posted property signs
(13) warning signs
[[450,2428,860,2485][12][,I,][Times New Roman]](14) window signs [[829,2428,879,2485][12][,I,][Times New Roman]]
(15) new business signs
(16) political signs
(17) promotional signs (further regulated by Sec. 142-4(1)a.1)
(18) real estate signs (further regulated by Sec. 142-4(1)b.1)
(19) monument signs
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One suggested approach which would minimize, if not eliminate, the content
distinctions, would be to compress the various types of signs into three categories and regulate
the various types of signs within those categories as to time, place and manner:
a. [[750,530,1118,587][12][,I,][Times New Roman]]Temporary signs [[1088,530,1138,587][12][,,][Times New Roman]]
It is our understanding that the regulation of temporary signage currently presents
the biggest enforcement challenge throughout the County. [[1637,645,1788,702][12][,I,][Times New Roman]]Reed [[1753,645,2299,702][12][,,][Times New Roman]]was decided in regard to
problematic temporary sign regulations. Although temporary signage regulations can
result in a myriad of challenges to sign codes it is possible to enact time, place and
manner restrictions that can survive such constitutional challenge.
b. [[748,933,1115,990][12][,I,][Times New Roman]]Permanent signs [[1085,933,1135,990][12][,,][Times New Roman]]
Similarly, well thought time, place and manner restrictions as well as construction
specifications can survive such a constitutional challenge.
c. [[750,1163,1143,1220][12][,I,][Times New Roman]]Government signs [[1113,1163,1163,1220][12][,I,][Times New Roman]]
Although government signs are in fact "content-based" the [[1948,1220,2075,1277][12][,I,][Times New Roman]]Reed [[2050,1220,2100,1277][12][,,][Times New Roman]] [[2083,1220,2300,1277][12][,,][Times
New Roman]]decision
specifically recognizes the authority of the government to allow certain signage. Any
regulations of government signs should be contained in a separate section of the code,
and a definition should be added to Section 142-2 to encompass local, state and federal
signs, as well as signs erected by non-government entities but required by government
(such as handicapped parking). Signs which promote safety, direct traffic and point out
historic and scenic spots may be erected consistent with principles which allow
government speech.
2. Create several new sections
Case law prior to [[813,1853,939,1910][12][,I,][Times New Roman]]Reed [[915,1853,965,1910][12][,,][Times New Roman]] [[930,1853,1541,1910][12][,,][Times New Roman]]provides some guidance
for [[1506,1853,1764,1910][12][,,][Times New Roman]]strengtheni [[1728,1853,1940,1910][12][,,][Times New Roman]]ng the co [[1915,1853,2300,1910][12][,,][Times New Roman]]nstitutionality
of
sign codes in regard to other than content-based distinctions. We recommend incorporating
changes that include these protections.
a. [[750,2083,1156,2140][12][,I,][Times New Roman]]Severability clause [[1129,2083,1179,2140][12][,I,][Times New Roman]]
There is a general severability clause contained in Section 1-9 of the Monroe
County Code of Ordinances, but such a clause would be unlikely to withstand a challenge
to the sign code. Some courts have refused to uphold severability clauses and this had led
to an increase in litigation seeking to strike down sign codes in their entirety, even though
only one provision may be unconstitutional. Severability clauses are extremely important
after the [[625,2428,752,2485][12][,I,][Times New Roman]]Reed [[727,2428,777,2485][12][,,][Times New Roman]] [[740,2428,982,2485][12][,,][Times New Roman]]decision. [[945,2428,995,2485][12][,,][Ti
mes New Roman]]
Specific severability clauses should be codified in the sign regulations. These
should include a general clause; severability where less speech results; severability
pertaining to prohibited signs; and severability relating to the prohibition of billboard/off-
premises signs. A sample severability section follows:
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Severability.
(1) Generally. It is the declared legislative intent of the county that if any part, section,
subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of this sign
code, is declared unconstitutional by the final and valid judgment or decree of any court
of competent jurisdiction, this declaration of unconstitutionality or invalidity shall not
affect any other part, section, subsection, paragraph, subparagraph, sentence, phrase,
clause, term, or word of this code.
(2) Severability where less speech results. This subsection shall not be interpreted to
limit the effect of subsection (1) above, or any other applicable severability provisions in
the land development code or any adopting ordinance. The county specifically intends
that severability shall be applied to these sign regulations even if the result would be to
allow less speech in the county, whether by subjecting currently exempt signs to
permitting or by some other means.
(3) Severability of provisions pertaining to prohibited signs. This subsection shall not be
interpreted to limit the effect of subsection (1) above, or any other applicable severability
provisions in the land development code or any adopting ordinance. The county
specifically intends that severability shall be applied to prohibited signs and prohibited
sign locations, so that each of the prohibited sign types listed in that section shall
continue to be prohibited irrespective of whether another sign prohibition is declared
unconstitutional or invalid.
(4) Severability of prohibition on off-premises signs. This subsection shall not be
interpreted to limit the effect of subsection (1) above, or any other applicable severability
provisions in the land development code or any adopting ordinance. If any or all of sign
code, or any other provision of the county's land development code is declared
unconstitutional or invalid by the final and valid judgment of any court of competent
jurisdiction, the county specifically intends that that declaration shall not affect the
prohibition on off-premises signs.
b. [[750,2198,1168,2255][12][,I,][Times New Roman]]Substitution Clause [[1141,2198,1191,2255][12][,,][Times New Roman]]
The code should confirm that noncommercial messages are allowed wherever
commercial messages are allowed. This will overcome a constitutional objection that the
code impermissibly favors commercial speech over noncommercial speech. A sample
substitution provision follows:
Any sign erected pursuant to the provisions of this code may, at the option of the
applicant, contain either a noncommercial message unrelated to the business located on
the premises where the sign is erected or a commercial message related to the business
and located on the business premises pursuant to the following regulations:
(1) The noncommercial message may occupy the entire sign face or portion
thereof.
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(2) The sign face may be changed from commercial to noncommercial messages
as frequently as desired by the owner of the sign, provided:
a. The size and design criteria conform to the applicable portions of this
code;
b. The sign is allowed by this code;
c. The sign conforms to the requirements of the applicable zoning
designation; and
d. The appropriate permits are obtained.
(3) For the purpose of this sign code, noncommercial messages shall never be
deemed off-
c. [[748,933,1496,990][12][,I,][Times New Roman]]Process for obtaining a sign permit [[1460,933,1510,990][12][,,][Times New Roman]]
There is no process, separate from the building permit process, for obtaining a
sign permit in Chapter 142. Sign permitting requirements raise constitutional prior
restraint issues. The courts have held that to withstand First Amendment challenges, a
licensing system must require decision-making for an application to be made within a
specific, brief period of time. To avoid challenges, the permitting process should contain
adequate procedural safeguards including brief timelines for review. A distinct process
for sign permits should be recommended and included in the sign code. The code should
set forth standards which the permit official must apply in determining whether a sign
may be permitted. Giving the permit official unbridled discretion to decide whether a
sign may be permitted is typically a constitutional problem. The code should set out
those standards which have to be applied in determining whether a sign permit should be
granted. The code must establish the time frame within which a decision for a sign
permit application must be made. Allowing a sign permit application to be held
indefinitely without a decision can be a denial of free speech. The code should also
provide a process for an appeal of a negative decision to a court of competent
jurisdiction.
d. [[748,1968,1309,2025][12][,I,][Times New Roman]]Purpose and intent section [[1285,1968,1335,2025][12][,,][Times New Roman]] [[1297,1968,1347,2025][12][,,][Times New Roman]]
Sign codes require justification with purpose statements which should be
supported by empirical studies or data. The code should include an extensive purpose and
intent section to establish the government interest in the adopting the regulations. There
are a few references in the Comprehensive Plan to support regulations and these specific
policies should be referenced, for example: FLU 104.5.2; 101.15; 101.15.1 and TE
301.6.2; 301.6.3.
[[600,2370,650,2427][12][,I,][Times New Roman]]
[[598,2428,724,2485][12][,I,][Times New Roman]]Reed [[700,2428,750,2485][12][,,][Times New Roman]] [[726,2428,1036,2485][12][,,][Times New Roman]]recognized th [[1011,2428,2299,2485][12][,,][Times
New Roman]]at traffic safety can support sign restrictions, but a mere
statement re traffic safety is inadequate. To establish that traffic safety is a substantial or
compelling interest, the county should reference a traffic study and tie traffic issues to the
need for regulation. It should substantiate that a proliferation of signs actually causes
traffic safety concerns.
The uniqueness of the natural beauty of the Keys should provide support for the
regulations on an aesthetic basis. Supporting language can be found in the numerous
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studies and plans relating to the Scenic Highway Corridor designation, as well as other
public sources.
3. Other
We note two other areas that the County may wish to address, although they are not
based on constitutional concerns, and are simply suggestions for consideration.
a. [[748,760,1032,817][12][,I,][Times New Roman]]Regulating [[995,760,1045,817][12][,I,][Times New Roman]]a [[1020,760,1879,817][12][,I,][Times New Roman]]nimated signs/electronic
message centers [[1849,760,1899,817][12][,,][Times New Roman]] [[1861,760,1911,817][12][,,][Times New Roman]]
Section 142-3(b)(4) prohibits animated signs, but allows the operation of
electronic message centers and automatic changing sign, cross referencing 142-5(4)d.
There is no definition of an electronic message center. Electronic message centers and
automatic changing signs are prohibited in residential areas and areas of low intensity.
There does not appear to be any other regulation of such signs in the districts where they
are allowed. This type of sign may create negative impacts on a community. There is a
wide variety of methods to regulate such signage, if this is an area that the County wishes
to explore.
b. [[748,1335,1771,1392][12][,I,][Times New Roman]]Establish consistent off premises sign regulations [[1741,1335,1791,1392][12][,I,][Times New Roman]]
It appears that the validity of a prohibition on off-premises commercial signs
survives [[635,1450,786,1507][12][,I,][Times New Roman]]Reed. [[749,1450,799,1507][12][,,][Times New Roman]] [[769,1450,896,1507][12][,,][Times New Roman]]The [[864,1450,991,1507][12][,I,][Times
New Roman]]Reed [[966,1450,1016,1507][12][,,][Times New Roman]] [[986,1450,2299,1507][12][,,][Times New Roman]]decision did not eliminate the ability of local government to
differentiate between on and off premises signs, and a prohibition of off-premises signs
can be constitutionally achieved. (Justice Alito's concurring opinion in [[1955,1565,2081,1622][12][,I,][Times New Roman]]Reed [[2056,1565,2106,1622][12][,,][Times New Roman]] [[2078,1565,2300,1622]
[12][,,][Times New Roman]]included
rules distinguishing between on-premises and off-premises signs on a list of rules that
would not be considered content-
U.S.1, is a designated Federal and State Scenic Highway Corridor and the provisions of
Chapter 479 Florida Statutes apply to restrict off premises signs along the highway.
There are several references to off premises signs in the Code and there appear to be
internal inconsistencies. In general, with some limited exceptions, off premises signs are
prohibited. It is these exceptions which cause concern and could create problems. We
recommend taking another look at these exceptions.
We hope that this review is helpful. Monroe County is certainly not alone in having to
deal with the aftermath of the [[918,2255,1044,2312][12][,I,][Times New Roman]]Reed [[1019,2255,1069,2312][12][,,][Times New Roman]] [[1035,2255,2300,2312][12][,,][Times New Roman]]decision
but we believe that with adjustments to the current
code, the County can reduce the risks that result from this important decision.
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