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Yard Sign Do’s and Don’ts: How to Avoid Legal Challenges to Municipal Sign Codes this Election Season

As the nation heads into the tail end of the 2020 general election, municipalities will inevitably face challenges as they seek to regulate the seasonal proliferation of yard signs on residential property. While the matter may seem trifling, a seemingly benign yet content-based sign ordinance can result in significant legal exposure for municipalities that have not heeded recent Supreme Court decisions on content neutrality. 

In Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015), the Supreme Court of the United States held that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Because content-based laws are presumptively unconstitutional, sign ordinances that impose restrictions based “entirely on the communicative content of the sign” must satisfy strict scrutiny to pass muster under the First Amendment. 

As a result of Reed, municipalities with sign codes pre-dating 2015 should ensure that their current regulations satisfy the requirements of content neutrality. In short, this means that cities cannot regulate yard signs by implementing any rule, regulation, or ordinance that facially distinguishes between signs based on the topic discussed, the function or purpose of the sign, and most of all, the speaker’s viewpoint. 

In his concurring opinion in Reed, Justice Alito offered guidance to municipalities seeking to enforce content-neutral sign regulations, and examples include the following: 

  • Rules regulating the size of signs [note: such rules cannot be “under inclusive” and should apply to all signs based on content-neutral criteria (i.e., whether the sign is in a residential or commercial zoning district). Under no circumstance should size restrictions be contingent on a sign’s topic, purpose, function, or viewpoint].
  • Rules regulating the locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings.
  • Rules distinguishing between lighted and unlighted signs.
  • Rules distinguishing between signs with fixed messages and electronic signs with messages that change.
  • Rules that distinguish between the placement of signs on private and public property.
  • Rules distinguishing between the placement of signs on commercial and residential property.
  • Rules distinguishing between on-premises and off-premises signs.
  • Rules restricting the total number of signs allowed per mile of roadway.
  • Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.
  • In addition to regulating signs put up by private actors, government entities may also erect their own signs consistent with the principles that allow governmental speech. For example, they may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots.

Municipalities looking to update or enforce their existing sign codes (or to implement new regulations altogether) should consult with experienced legal counsel to understand how to maintain content-neutrality consistent with the Supreme Court’s decision in Reed. BMD’s Governmental Liability Practice Group has experience defending cities in First Amendment challenges and has the resources to assist your community with drafting, updating, and implementing constitutionally compliant sign codes. For more information, please contact BMD Member Robert A. Hager, Esq. or Partner Daniel J. Rudary, Esq.

 

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.