The proposed ordinance includes several changes to the temporary sign regulations (Section 13.05.00) and a few to the permanent sign regulations that are designed to enhance the defensibility of the regulations and respond to a recent U.S. Supreme Court case (Reed v. Town of Gilbert, described below):
- Removal of regulation by sign categories based on content or function, including political signs or election signs, grand opening and closing signs, garage-yard sale signs and holiday decoration;
- Replacement of the above regulations with more generic and simplified signage opportunities, without specifying that the signs must convey a particular message;
- Reduction in the number of sign types exempted from the regulations (Section 13.08.00) and the number of sign types prohibited (Section 13.07.00; and
- Revision and, where appropriate, removal of definitions for consistency with the regulations and case law standards (Section 13.02.00).
The changes to the intent, scope and purpose of the article are necessary to better articulate the compelling and substantial governmental interests that justify the regulation of signs: traffic safety and preserving aesthetics. The changes specifically reference and respond to the governing case law, and articulate that the requirement for local government sign regulation in Florida Statutes, the Florida Constitution’s protection of scenic beauty, and the relevant goals, objectives and policies of the City’s comprehensive plan and Community Redevelopment Plan, all factors that were missing from the Reed decision, all present compelling governmental interests supporting sign regulation in New Port Richey.
This ordinance is intended as Phase One of the City’s work on its sign code, to make the regulations more closely conform to the recent case law. The City intends to revisit the sign code in a second phase, where staff and consultants will comprehensively evaluate and update all of the standards applicable to signage in the City, and provide opportunities for public input and outreach.
The Constitutional Issue:
Signs are protected under the free speech guarantees of the First Amendment of the U.S. Constitution and local government sign regulation must be in conformance. The regulations cannot vary based on the content of speech that the sign is intended to express, and cannot favor or punish points of view or topics. “Content-based” regulation is presumptively unconstitutional and must be justified by a compelling governmental interest. If a sign regulation is content-based on its face, its purpose, its justification and its function do not matter. If it is content-neutral, then these factors can be considered in evaluating the constitutionality of the regulation. However, the courts have been unclear about exactly how to determine whether a particular regulation is “content-based.”
Sign regulations must be narrowly tailored to achieve the City’s governmental purposes for regulating signs, which can be generally characterized as aesthetics and traffic safety. The regulations must not be substantially overbroad, exceeding the scope of the governmental interests justifying regulation. But they also must not be substantially under-inclusive, so narrow or exception-ridden that the regulations fail to further the governmental interests. And, the regulations for commercial signage cannot be looser than those for noncommercial signage, because noncommercial speech is more highly protected by the First Amendment.
A 2015 U.S. Supreme Court case (Reed v. Town of Gilbert) places greater limitations on how much the City’s sign regulations can be tailored based on the functions or content of sign types. The case arose from a temporary sign category that allowed a number of small directional signs to be briefly placed in the right-of-way prior to and following a special event of a nonprofit entity. This categorical sign type was used by a small itinerant church, led by Pastor Reed, to publicize its church services at various locations including elementary schools and nursing homes. The Town of Gilbert cited the church for placing signs that failed to comply with the regulations for this sign type, because they were too large, were posted for too long and did not contain directional content.
Pastor Reed and the church sued because the Gilbert code treated these event directional signs differently from other noncommercial signs, and allowed temporary signs related to elections in the right of way and permanent ideological signs on private property to be larger and to be posted for a longer time. The Reed opinion modifies prior Supreme Court precedent by holding that government regulation of speech is “content-based” if a law applies to particular speech because of the topic discussed or the idea or message expressed. The majority opinion of the Court was delivered in an opinion by Justice Thomas, but three of the six justices who joined his opinion also joined a more narrow concurring opinion by Justice Alito.
The two opinions differ in some aspects; read together as the holding of the case they suggest that a regulation creating a category for a purely directional message, which merely gives “the time and location of a specific event,” is one that “conveys an idea about a specific event” and may be considered content-based. Sign regulations tied to the identity of the speaker may be content-based. Event-based sign regulations may also be considered content-based.
Justice Alito’s opinion assures local governments that Reed does not affect their continued ability to regulate based on key distinctions such as commercial vs. noncommercial, off-premise vs. on-premise, temporary vs. permanent, and regulation by zoning district and land use. Governmental signs on governmental property, including traffic control devices, are not affected by the First Amendment, and can be controlled in the broad discretion of the City. Private signs are not required to be allowed on governmental property.
Most sign codes in Florida, and across the country, fail to meet all of the requirements of Reed. Thus, this Ordinance was prepared for your consideration.
The proposed new language is shown with underlining and deleted language is shown with strikethrough.
Compatibility with Comprehensive Plan:
The proposal is consistent with the following Comprehensive Plan goals, objectives and policies:
- FLU Goal 1 - To promote compatible land uses which will maximize, enhance and preserve New Port Richey’s unique and attractive characteristics in a manner consistent with the economic, physical, ecological and social needs, capabilities and desires of the community.
- FLU Policy 1.1.2 - To implement this Comprehensive Plan, the City shall continue to implement land development regulations that contain specific and detailed provisions which, at minimum, shall:
e. Regulate signage;
l. Provide requirements for the provision of open space, and safe and convenient on-site traffic flow and parking requirements;
- FLU Objective 1.3 - Design commercial development that is compatible with environmental and economic resources, to enhances access and circulation, results in a positive and attractive built environment and will be in keeping with the needs and character of the community.
- FLU Policy 1.3.2 - The City shall promote commercial development that serves to maintain or enhance the economic health of the City, and to increase job opportunities, per capita income and convenience for residents.
- FLU Policy 1.6.4 - The New Port Richey Redevelopment Plan shall, at minimum, address the following issues:
h. Reduction of confusion and visual clutter through the control of the size, placement and related aspects of signage;
I. Assurance of safe and efficient traffic flow to and from the downtown and surrounding areas;
- LIV Objective 4.6 - Provide standards for the design and construction of signs that reflect the existing or intended neighborhood character and are expressive of individual businesses and community facilities.
- LIV Policy 4.6.1 - Encourage high quality signs that are attractive, appropriate for the location and balances visibility needs with aesthetic needs.
- LIV Policy 4.6.2 - Develop sign regulations to require monument (ground) signs in lieu of pole signs. Ground signs shall be designed and constructed:
a. To complement the architectural character of on-site buildings;
b. To include a street address number or range of address numbers for the building(s) it identifies (considered as a part of the sign area);
c. With roof, capital or base design detail; and
d. With landscaping in the area surrounding the sign base.
- LIV Policy 4.6.3 - Create special sign districts, where appropriate, to reflect neighborhood identity, historical or environmental features, or architectural character.
- TRA Goal 1 - To provide a street network that is safe, convenient, attractive, cost-effective and efficient; integrated with other transportation modes; and available to all residents and visitors to the City.
- TRA Objective 1.2 - Promote efficient and safe traffic circulation through transportation planning and administration of land use controls.
- TRA Objective 2.2 - A multimodal transportation system that emphasizes safety and aesthetics.
- TRA Policy 2.2.2 - The City shall develop and enforce the signage requirements along roadways in the Land Development Code.