Supreme Court of New York, 9th and 10th Judicial Districts
[971 N.Y.S.2d 659]
Michael P. Walsh, Patchogue, for respondent.
Raymond Negron, Mount Sinai, for appellant.
PRESENT: LaSALLE, J.P., NICOLAI and IANNACCI, JJ.
Appeal from five judgments of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), rendered February 9, 2012. Each judgment convicted defendant, upon its plea of guilty, of placing a prohibited sign on public property.
ORDERED that the judgments of conviction are reversed, on the law, the accusatory instruments are dismissed, and the fines, if paid, are remitted.
Defendant was charged, in each of five separate informations, respectively, with placing a sign advertising its opticians' business on public property at five locations in the Town of Brookhaven (the Town) in violation of Town of Brookhaven Code (Code) section 57A-11 (B), which prohibits commercial advertising on public property and roads. Defendant's counsel entered not guilty pleas on defendant's behalf and moved to dismiss the informations. Counsel argued, in the District Court as he does on appeal, that the provision under which defendant was charged did not further the Town's stated purposes in enacting chapter 57A of the Code; that certain of the regulation's terms and expressions are unconstitutionally vague; and that the entirety of chapter 57A, which contains the provisions regulating the location and configuration of commercial and noncommercial signs, is unconstitutional because chapter 57A impermissibly favors commercial speech over noncommercial speech. Defendant's counsel urges that, in the absence of a severability clause (which [971 N.Y.S.2d 660] the Town has since enacted), chapter 57A, in its entirety, must be invalidated. The District Court denied the motion and, on February 9, 2012, defendant's counsel entered guilty pleas to the five informations on defendant's behalf. For the reasons that follow, we find chapter 57A to be unconstitutional.
In furtherance of chapter 57A's stated purposes of " avoiding an unsightly proliferation of unnecessary signs," of " [p]rotecting the public from improperly located or distracting signs which create a hazard to said public by virtue of their construction, location and/or illumination" (Code § 57A-1[C] ), of providing " adequate signs for the business community to communicate its availability to the public" (Code § 57A-1[B] ), and of allowing " effective means for political expression" (Code § 57A-10[A] ), the Code bars all commercial advertising on public roads and property (Code § 57A-11), bars virtually all commercial advertising aside from the premises on which the goods or services are provided (i.e., permitting " onsite" and barring " offsite" advertising) ( e.g. Code § 57A-4[A] ), limits the size and configuration of all signs ( e.g. Code § 57A-4[A] ), and permits limited forms of noncommercial signage in most areas of the Town, albeit, with respect to political advertising, for only 30 days in relation to a particular campaign (Code §§ 57A-3, 57A-10[B], [C] ). The Code also exempts from regulation several categories of signs, including utility signs, signs associated with government interests and traffic control, and other signs required by law (Code § 57A-3). Code violations are punishable by fines and up to 15 days' incarceration (Code § 57A-24[A] ). Local governments retain " broad powers" to regulate the use of public areas ( Matter of Sulzer v. Environmental Control Bd. of City of N.Y., 165 A.D.2d 270, 275, 566 N.Y.S.2d 595 ; see also Municipal Home Rule Law §§ 2; 10), and " [b]ecause zoning ordinances are legislative acts they enjoy a strong presumption of constitutionality[.] ... [Therefore, i]f there is a reasonable relation between the end sought to be achieved and the means adopted to achieve it [,] the regulation will be upheld" ( Matter of Town of Islip v. Caviglia, 73 N.Y.2d 544, 550-551, 542 N.Y.S.2d 139, 540 N.E.2d 215 ; see also Stringfellow's of N.Y. v. City of New York, 91 N.Y.2d 382, 395-396, 671 N.Y.S.2d 406, 694 N.E.2d 407  ). " Questions as to wisdom, need or appropriateness are for the [legislative body] ... [and courts will] strike down statutes only as a last resort ... and only when unconstitutionality is shown beyond a reasonable doubt" ( Paterson v. University of State of N.Y., 14 N.Y.2d 432, 438, 252 N.Y.S.2d 452, 201 N.E.2d 27  [citations omitted]; see McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 548, 498 N.Y.S.2d 128, 488 N.E.2d 1240  ). Accordingly, a challenger bears a " heavy burden" to overcome the presumption of constitutionality ( Matter of Sulzer, 165 A.D.2d at 275, 566 N.Y.S.2d 595).
As a general rule, " time, place, and manner restrictions are permissible if ‘ they are justified without reference to the content of the regulated speech, ... serve a significant governmental interest, and leave ... open ample alternative channels for communication of the information’ " ( Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516, 101 S.Ct. 2882, 69 L.Ed.2d 800 , quoting Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346  ). " [T]he New York State Constitution does not afford heightened free speech protections to commercial speech" ( OTR Media Group, Inc. v. City of New York, 83 A.D.3d 451, 452, 920 N.Y.S.2d 337  ). Where, as [971 N.Y.S.2d 661] here, the restrictions are based on " the type of entity that violates the regulations" as opposed to " the content of the advertisements," and because defendant's signs were not inherently misleading or related to unlawful activity, a " rational basis" standard of review is applicable ( id. at 453, 920 N.Y.S.2d 337; see e.g. Willow Media, LLC v. City of New York, 78 A.D.3d 596, 910 N.Y.S.2d 903  ).
With respect to commercial speech, the Court of Appeals has adopted the four-part test employed in Central Hudson Gas & Elec. v. Public Serv. Comm. of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341  to determine whether restrictions are constitutional: " (1) whether the communication is outside the scope of constitutional protection— i.e., is it misleading or related to unlawful activity? (2) whether the government interests sought to be protected are substantial? (3) how directly the regulation advances those interests? and (4) whether there is a less restrictive alternative?" ( Matter of von Wiegen, 63 N.Y.2d 163, 173, 481 N.Y.S.2d 40, 470 N.E.2d 838  ). Elaborating on this test, in Florida Bar v. Went For It, Inc., 515 U.S. 618, 623-624, 115 S.Ct. 2371, 132 L.Ed.2d 541  [internal quotation marks and citations omitted], the Supreme Court stated:
" (C)ommercial speech (enjoys) a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression ... [Accordingly], we engage in intermediate scrutiny of restrictions on commercial speech, analyzing them under the framework set forth in Central Hudson ... [whereby] the government may freely regulate commercial speech that concerns unlawful activity or is misleading ... [Where the c]ommercial speech ... falls into neither of those categories ... the advertising ... may be regulated if the government satisfies a test consisting of three related prongs: First, the government must assert a substantial interest in support of its regulation; second, the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, the regulations must be narrowly drawn" ( see also Matter of Lucas v. Scully, 71 N.Y.2d 399, 404, 526 N.Y.S.2d 927, 521 N.E.2d 1070  [" commercial speech— although not vested with full First Amendment stature— is entitled to a certain degree of protection" ] ).
Nevertheless, " [i]t is common ground that governments may regulate the physical characteristics of signs" in addition to their location and content ( City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36  ). The stated purpose of the Code, essentially, to avoid " an unsightly proliferation of unnecessary signs" (Code § 57A-1[C] ) in the interests of traffic safety and esthetics, represents a " substantial" governmental interest which is constitutionally furthered by the regulation under which defendant was charged ( see Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805, 807, 104 S.Ct. 2118, 80 L.Ed.2d 772  [" It is well settled that the state may legitimately exercise its police powers to advance esthetic values ... (Thus, t)he problem advanced by (an ordinance which banned political advertising in public places)— the visual assault ... presented by an accumulation of signs posted on public property— constitutes a significant substantive evil within ... (a local government's) power to prohibit" ]; see also Metromedia, Inc., 453 U.S. at 507-508, 101 S.Ct. 2882; OTR Media Group, Inc. 83 A.D.3d at 453, 920 N.Y.S.2d 337; [971 N.Y.S.2d 662] People v. Weinkselbaum, 194 Misc.2d 19, 22, 753 N.Y.S.2d 284 [App. Term, 9th & 10th Jud. Dists. 2002]; 2 Rathkopf's Law of Zoning and Planning § 17:5).
In Florida Bar, the Supreme Court stated:
" [T]he differences between commercial speech and noncommercial speech are manifest ... ‘ [T]he least restrictive means' test has no role in the commercial speech context ... ‘ What our decisions require,’ instead, ‘ is a " fit" between the legislature's ends and the means chosen to accomplish those ends,’ a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘ in proportion to the interest served’ ... [and which is] narrowly tailored to achieve the desired objective' " (515 U.S. at 632, 115 S.Ct. 2371 [citations omitted] ).
" A governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree" ( Edenfield v. Fane, 507 U.S. 761, 762, 113 S.Ct. 1792, 123 L.Ed.2d 543 ; see also Rubin v. Coors Brewing Co., 514 U.S. 476, 486-487, 115 S.Ct. 1585, 131 L.Ed.2d 532  ). However, it is irrelevant that barring defendant's several small and scattered signs would not materially advance the interests stated, because a statute's constitutional validity is judged by " the relation it bears to the overall problem the government seeks to correct ... not on the extent to which it furthers the government's interest in an individual case" ( United States v. Edge Broadcasting Co., 509 U.S. 418, 419, 113 S.Ct. 2696, 125 L.Ed.2d 345  [citation omitted] ).
Nevertheless, in this context, a statute must be " narrowly tailored to achieve the desired objective" ( Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 528, 121 S.Ct. 2404, 150 L.Ed.2d 532  ). " A statute is narrowly tailored if it targets and eliminates no more than the exact source of the evil' it seeks to remedy ... A complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil" ( Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420  ). Although chapter 57A bars commercial advertising on public lands and roads, read as a whole, chapter 57A provides ample opportunity to advertise commercial activities on privately owned land and businesses ( see Metromedia, Inc., 453 U.S. at 508, 101 S.Ct. 2882 [upholding so much of a municipality's regulations as imposed a general ban on offsite commercial billboards, in part, because the municipality had " stopped short of fully accomplishing its ends: It has not prohibited all billboards, but allows onsite advertising and some other specifically exempted signs" ] ). Here, because the regulations are ...