Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation.
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Twin Oaks Park, the site of the photography dispute. Source: STLtoday.com

Last year, we reported on a case in Twin Oaks, Missouri, where a local wedding photographer, Josephine Havlak, challenged a town ordinance limiting commercial activity in a public park.  Late last month, the Eighth Circuit Court of Appeals affirmed the district court’s denial of the photographer’s motion for preliminary injunction, finding the ordinance content neutral and constitutional as applied to the photographer.

The facts of the case can be found on our post from last year.

On appeal, the Eighth Circuit first evaluated whether the plaintiff’s claim was an as-applied challenge or a facial challenge to the entire ordinance.  A facial challenge can result in invalidation of the entire ordinance, while an as-applied challenge only prohibits enforcement of the ordinance against the plaintiff.  Because the photographer failed to provide any evidence that third parties would be affected in a manner different from her, the court determined that Havlak’s challenge was an as-applied challenge.  Thus, the court only analyzed the ordinance’s application to the plaintiff.
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Sam Shaw and one of his signs. Source: Indiana Public Media.

Last week, a federal district court in Indiana ruled that the enforcement of the City of Bedford’s sign ordinance would not be enjoined, finding that the sign code was content neutral, supported by a significant governmental interest, and narrowly tailored.  The court’s denial of the preliminary injunction indicates that the ordinance is likely to survive constitutional scrutiny.
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This post was originally authored by Evan J. Seeman of Robinson & Cole LLP on the RLUIPA Defense blog.  We have re-posted it here with permission.  The original post can be found here.  Any views expressed in this post are those of the author and do not necessarily reflect the views of Otten Johnson Robinson Neff + Ragonetti, P.C.

Last year, we reported about a case in which the city of St. Michael, Minnesota utilized RLUIPA’s “safe harbor” provision to avoid liability under the act’s substantial burden and equal terms provisions.  While the federal court found for the city as to Riverside Church’s RLUIPA claims at the summary judgment stage, the court concluded that there were genuine issues of fact regarding Riverside’s free speech claim that could only be resolved at trial.  Following a several-week-long trial, the court late last month issued its decision and found that the city’s zoning ordinance violated Riverside’s right to free speech under the First Amendment to the U.S. Constitution, and awarded Riverside $1,354,595 in damages.

Riverside identified property in the city’s B-1 district as an ideal satellite location to accommodate its growing congregation.  Riverside would use the new location much like a movie theater, where it would broadcast religious worship services being held at its primary church in Big Lake, Minnesota.  The property was already suited for Riverside’s intended use, since it had previously been operated as a 15-screen movie theatre, with nearly 2,800 seats, a maximum capacity of over 3,600 people, and having more than 91,000 square feet.  Although Riverside sought to use the property in much the same way as a movie theatre – an allowed use under the zoning code for this B-1 district – the city concluded that the proposed use was not allowed since “collective religious worship” was not among the uses permitted in this district.
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A 20-foot buffer zone at a Planned Parenthood facility in Harrisburg. Source: PennLive.com.

Last week, in a case that we reported on last summer involving protests near abortion clinics in Harrisburg, Pennsylvania, the Third Circuit Court of Appeals remanded the plaintiffs’ request for a preliminary injunction back to the district court, finding that the lower court misapplied the narrow tailoring analysis.

The facts of the case, which challenges Harrisburg’s protest-free buffer zone requirement around abortion clinics, can be found on our post from last fall.  The buffer zone in question is a 20-foot zone extending from the entrance to a reproductive health care clinic in which congregating, patrolling, picketing, and demonstrating are unlawful.  Following the district court’s denial of a preliminary injunction, the plaintiffs appealed that ruling to the Third Circuit. 
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Donation boxes in Oakland, California. Source: East Bay Express.

Yesterday, in a case that we have been following for the past year, the Ninth Circuit Court of Appeals affirmed a California federal district court’s denial of a motion for preliminary injunction in a case pertaining to unattended donation and collection boxes in Oakland.

The plaintiff, a nonprofit group called Recycle for Change, places donation and collection boxes around Oakland in order to obtain donated materials for the dual purpose of conserving environmental resources and raising funds for charity.  The city enacted an ordinance in 2015 to regulate unattended donation and collection boxes, which included a requirement that the property owner or operator of the boxes obtain a permit, produce a site plan, and carry at least $1 million in liability insurance.  The license fee established under the permitting scheme is $246 per year, and the initial application fee for the permit is $535.  The city’s regulations require maintenance of the boxes, place restrictions on the size and location of the boxes, and prohibit the placement of boxes within 1,000 feet of one another.

Recycle for Change sued Oakland on First Amendment and Equal Protection Clause grounds.  The district court denied the plaintiff’s motion for preliminary injunction.
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Last week, a federal district court in Massachusetts accepted a nude dancing establishment’s argument that the City of Chelsea violated the First Amendment in denying a building permit for renovations to the business’s premises.  In so doing, the court struck down the city’s adult business zoning regulations and directed the city to treat the establishment under other use classifications contained in the code.

Chelsea’s zoning code provides for several zoning districts, including industrial, highway business, shopping center, and retail commercial business districts.  The code allows for an “art use”, defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction,” in the industrial district, and by special permit in the retail business and highway business districts.  The code also allows for theater uses in the retail and shopping center districts, and adult entertainment uses in the highway commercial and shopping center districts.  Adult entertainment uses and theater uses are not allowed in the industrial district.
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This post was originally authored by Evan Seeman and Karla Chafee of Robinson + Cole, LLP.  Any views reflected in this post are the views of the original authors. 

hillside-sign

Thou shall have the right to an electronic sign?  Apparently not.  Just over a year ago, Hillside Baptist Church and Signs for Jesus (together, Plaintiffs or Church) filed a complaint in the District Court for New Hampshire, seeking a declaration that the Town of Pembroke’s (the Town) sign ordinance is unconstitutional both facially and as applied to the Plaintiffs.  The complaint alleged that the Town’s Ordinance banning the use of electronic signs in all but the Town’s commercial zoning district “restricts how the Church may proclaim a daily Biblical message while not restricting the medium of communicating state, municipal or school messages.”  Our post regarding the complaint is available here.

The Plaintiffs claimed that the Town’s limitation on electronic signs in all zones but the commercial zone, and the Town’s denial of the Church’s sign application violated its rights to Free Speech, Free Exercise of Religion, and Equal Protection, as well as RLUIPA’s substantial burden and equal terms provisions.
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Last week, another local sign code was found content based and unconstitutional, this time in North Redington Beach, Florida.

A local business, Sweet Sage Café, was issued notices of violation for several alleged violations of the town’s sign code.  In response, the café filed First Amendment claims against the town, which is a small coastal community along the Gulf of Mexico.  The town’s sign code had several features of sign codes that are commonly understood to be unconstitutional post-Reed:

  • The town’s definition of “sign” had several arguably content based elements, including “Drawings of articles for sale on the premises that is related to the business and/or is intended to advertise or inform, rather than being merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an official traffic control sign, official marker, national or state flags permitted by this Chapter, athletic scoreboards, or the official announcements or signs of government.”
  • The town exempted several types of signs from permitting on the basis of their message, including “national flags shown in accordance with the standards of the Adjutant General,” warning signs, murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house signs, political campaign signs, “no trespassing” signs, and others.

The town issued notices of violation to Sweet Sage Café for a series of flip-flop sandal footprint decals
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