Lone Star Security & Video, Inc. v. City of Los Angeles

FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LONE STAR SECURITY AND VIDEO, No. 12-56333
INC., a California corporation,
D.C. No. 2:11-cv-02113-ODW-
Plaintiff - Appellant, FMO
v.
MEMORANDUM *
CITY OF LOS ANGELES, CITY OF
SANTA CLARITA, CITY OF RANCHO
CUCAMONGA, and CITY OF LOMA
LINDA,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted March 8, 2013
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and WATFORD, Circuit Judges, and CONLON, District Judge.**
Plaintiff Lone Star Security and Video, Inc. (“Lone Star”) appeals from the
district court’s denial of its motion for a preliminary injunction in this First
Amendment challenge to municipal ordinances regulating mobile billboards. We
have jurisdiction under 28 U.S.C. § 1292(a)(1). We review for an abuse of
discretion the district court’s denial of a preliminary injunction. Melendres v.
Arpaio, 695 F.3d 990, 999 (9th Cir. 2012). We affirm.
The district court concluded that Lone Star failed to demonstrate a likelihood
of success on the merits. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.”).
The ordinances at issue are content neutral because they do not “distinguish
favored speech from disfavored speech on the basis of the ideas or views
expressed.” Reed v. Town of Gilbert, Ariz., 587 F.3d 966, 977 (9th Cir. 2009)
(quotation marks and citation omitted). Instead, the ordinances merely distinguish
**
The Honorable Suzanne B. Conlon, District Judge for the United
States District Court for the Northern District of Illinois, sitting by designation.
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between vehicles whose primary purpose is advertising and those that have a
different primary purpose, such as carrying passengers or transporting cargo. In
determining whether a vehicle’s primary purpose is advertising, the enforcing
officer need only decide whether the vehicle’s primary purpose is to display a
billboard or sign to the public. See, e.g., Fashion Boutique of Short Hills, Inc. v.
Fendi USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002) (“The ordinary understanding of . .
. ‘advertising’ . . . connotes activity designed to disseminate information to the
public.”); Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1188 (11th Cir.
2002) (“[A]s it is commonly understood, advertising means the ‘action of calling
something to the attention of the public.’” (citation omitted)); Showing Animals
Respect and Kindness v. City of West Hollywood, 83 Cal. Rptr. 3d 134, 138 (Cal.
Ct. App. 2008) (“The definition of ‘advertise’ is more general: ‘to make something
known to[;] ... to make publicly and generally known[;] ... to announce publicly . . .
.’” (citation omitted) (alterations in original)). The content of any message
conveyed by the billboard is irrelevant—indeed, a regulated vehicle bearing a
blank billboard could conceivably violate the ordinances. In any event, we need
not decide the precise scope of the ordinances, because for present purposes our
conclusion that a display of any message falls within the definition of “advertising”
is sufficient to find the ordinances content neutral.
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For the reasons articulated by the district court, the ordinances likely meet
the remaining requirements of the “time, place, and manner” test. See Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 945 (9th
Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1566 (2012) (“[T]he government may
impose reasonable restrictions on the time, place, or manner of protected speech,
provided the restrictions are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for
communication of the information.” (quotation marks and citation omitted)). In
particular, the ordinances leave open ample alternative forms of vehicular
advertising, such as the display of signs on buses, taxis, and delivery vehicles.
There is a significant government interest, moreover, in regulating a mode of
advertising that may obstruct traffic and parking, may endanger pedestrians, and
may constitute blight. Accordingly, the district court did not abuse its discretion in
denying Lone Star’s request for preliminary injunctive relief.
AFFIRMED.
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