Contest Promotions v. City & County of San Francisco

FILED
NOT FOR PUBLICATION
AUG 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONTEST PROMOTIONS, LLC, No. 15-16682
Plaintiff-Appellant, D.C. No. 3:15-cv-00093-SI
v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted July 12, 2017
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL,** District
Judge.
Plaintiff Contest Promotions, LLC, appeals the dismissal of its complaint
against Defendant the City and County of San Francisco, alleging that provisions
of the San Francisco Planning Code regulating outdoor signs violate Plaintiff’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Consuelo B. Marshall, Senior United States District Judge
for the Central District of California, sitting by designation.
constitutional rights. The Planning Code distinguishes between "general
advertising signs" and "business signs." The Planning Code bars new general
advertising signs, Planning Code § 611(a), which are defined as signs that "direct[]
attention to a business, commodity, industry or other activity which is sold, offered
or conducted elsewhere than on the premises upon which the Sign is located." Id.
§ 602. On the other hand, the Planning Code permits business signs, subject to
various restrictions. A business sign must refer to the "primary business,
commodity, service, industry or other activity which is sold, offered, or conducted
on the premises upon which such Sign is located." Id.
Plaintiff alleges that section 602 violates the First Amendment, is
unconstitutionally vague, and violates Plaintiff’s equal protection and substantive
due process rights. The district court granted Defendant’s motion to dismiss for
failure to state a claim. Reviewing de novo, Friedman v. AARP, Inc., 855 F.3d
1047, 1051 (9th Cir. 2017), we affirm.
1. Plaintiff first argues that, by requiring business signs to direct attention to
the "primary business . . . conducted on the premises," section 602 is a content-
based regulation of speech subject to "heightened" or even strict scrutiny, and that
Defendant’s proffered justifications of safety and aesthetics fail to satisfy either
standard. But as this court recently reaffirmed, "Central Hudson [Gas & Electric
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Corp. v. Public Service Commission, 447 U.S. 557 (1980),] continues to set the
standard for assessing restrictions on commercial speech." Retail Dig. Network,
LLC v. Prieto, 861 F.3d 839, 849 (9th Cir. 2017) (en banc).1 Under that standard,
we consider four factors. First, the speech "must concern lawful activity and not
be misleading." Central Hudson, 447 U.S. at 566. Second, "we ask whether the
asserted governmental interest is substantial." Id. Then, "[i]f both inquiries yield
positive answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is
necessary to serve that interest." Id.Section 602 satisfies the Central Hudson test. First, neither side disputes
that Plaintiff’s proposed signs concern lawful activity and are not misleading.
Second, it is well established that Defendant’s interests in safety and aesthetics are
substantial. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 508 (1981)
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Accordingly, Plaintiff is incorrect that the Supreme Court’s recent
decisions in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), and Reed v. Town of
Gilbert, 135 S. Ct. 2218 (2015), supplant the longstanding Central Hudson
intermediate scrutiny framework under which we analyze commercial speech
regulations. See Retail Dig. Network, 861 F.3d at 846 (holding that "Sorrell did
not mark a fundamental departure from Central Hudson’s four-factor test, and
Central Hudson continues to apply"); Lone Star Sec. & Video, Inc. v. City of Los
Angeles, 827 F.3d 1192, 1198 n.3 (9th Cir. 2016) (observing that, "although laws
that restrict only commercial speech are content based," "such restrictions need
only withstand intermediate scrutiny" (citing Reed, 135 S. Ct. at 2232; Central
Hudson, 447 U.S. at 564)).
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(plurality) (noting that "[i]t is far too late to contend otherwise with respect to
either traffic safety or esthetics" (citations omitted)); Metro Lights, L.L.C. v. City
of Los Angeles, 551 F.3d 898, 904 (9th Cir. 2009) (same). Third, we have
repeatedly held that regulations distinguishing between on-site and off-site
advertising signs directly advance governmental interests in safety and aesthetics.
Id. at 907; see also id. at 908 (noting that a city is permitted to "value one kind of
commercial speech—onsite advertising—more than another kind of commercial
speech—offsite advertising" (quoting Metromedia, 453 U.S. at 512)).2 Finally,
section 602 is not broader than necessary to achieve Defendant’s interests. See,
e.g., Metromedia, 453 U.S. at 508 (noting that "[t]he city has gone no further than
necessary" when"[i]t has not prohibited all billboards, but allows onsite advertising
and some other specifically exempted signs"). As noted, Defendant’s detailed
definition of a "business sign" permissibly ensures that such signs actually relate to
on-site activities. The district court did not err by dismissing Plaintiff’s First
Amendment claim.
2
Plaintiff argues that the ordinance—which does not merely distinguish
between on-site and off-site ads, but also goes further to specify that on-site ads
must bear a relationship to the primary activities on the premises—exceeds what
this court and the Supreme Court have approved in the past. But section 602’s
requirements merely explain what it means to be an on-site business sign by
anticipating artful avoidance strategies that might attempt to transform signs
depicting otherwise off-site activities into on-site signs.
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2. Plaintiff next argues that section 602 (which defines business signs) is
unconstitutionally vague because the terms it uses to define what "use" occupies
the greatest area of a premises—and thus what may be permissibly displayed on a
business sign—is unclear. But because Plaintiff’s conduct is "clearly proscribed"
by the challenged regulation, no vagueness challenge is available. Holder v.
Humanitarian Law Project, 561 U.S. 1, 20 (2010); see also Hunt v. City of Los
Angeles, 638 F.3d 703, 710 (9th Cir. 2011). Plaintiff’s claim clearly alleges only
vagueness, not overbreadth, and "[a]rguments ‘not raised clearly and distinctly in
the opening brief’ are waived." Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1101
(9th Cir. 2014) (quoting McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir.
2009)).
3. Plaintiff’s equal protection claims also were properly dismissed. To the
extent that Plaintiff advanced a "selective prosecution" claim in the operative
complaint, that claim was abandoned on appeal. See id. And to the extent that
Plaintiff advances a "class of one" claim, it fails on its merits. Plaintiff has not
plausibly alleged that it is "being singled out by the government," raising "the
specter of arbitrary classification." Engquist v. Or. Dep’t of Agric., 553 U.S. 591,
602 (2008). The ordinance that Plaintiff challenges applies to all, and Plaintiff
does not argue otherwise. Plaintiff cannot "demonstrate that [Defendant]: (1)
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intentionally (2) treated [Plaintiff] differently than other similarly situated [sign]
owners, (3) without a rational basis." Gerhart v. Lake County, 637 F.3d 1013,
1022 (9th Cir. 2011). Even if Defendant’s ordinance responds to a problem
brought about by Plaintiff and other creative would-be advertisers, Defendant had
a rational basis for clarifying the definition of an on-site "business sign." Finally,
to the extent that Plaintiff advances a more general equal protection theory
grounded in a claimed abridgement of its fundamental rights, as discussed above,
the ordinance is subject to intermediate scrutiny, and it survives under that
framework.
4. Finally, Plaintiff argues that the ordinance violates substantive due
process because it furthers no legitimate government purpose. To the extent
Plaintiff merely reframes its First Amendment claim under this heading, the two
fall together. When a "plaintiff’s claim can be analyzed under an explicit textual
source of rights in the Constitution, a court should not resort to the ‘more
subjective standard of substantive due process.’" Hufford v. McEnaney, 249 F.3d
1142, 1151 (9th Cir. 2001) (quoting Armendariz v. Penman, 75 F.3d 1311, 1319
(9th Cir. 1996) (en banc)). If Plaintiff instead intends this as a distinct claim that
the ordinance violated a freestanding right to conduct its business, "governmental
action need only have a rational basis to be upheld against a substantive due
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process attack." Kim v. United States, 121 F.3d 1269, 1273 (9th Cir. 1997). As
noted above, Defendant has legitimate interests in safety and aesthetics.
Metromedia, 453 U.S. at 508; Metro Lights, 551 F.3d at 904. The ordinance bears
a rational relationship to those interests. Accordingly, this claim was properly
dismissed.
AFFIRMED.
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