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

Client Alert

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.

 


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.