FOR IMMEDIATE RELEASE:
May 19, 2009
CONTACT:
Brandon Hensler, Director of Communications, (786) 363-2737 or media@aclufl.org
COCOA BEACH, Fla. – The American Civil Liberties Union of Florida today sent a letter to Cocoa Beach Mayor Skip Beeler, City Commissioners and the City Attorney urging the city to allow Save Our Aquifer (SOA) and interested citizens to exercise their First Amendment right to display political signs on private property.
The dispute in Cocoa Beach began when SOA was notified by a city employee that the signs were not considered political speech by the city and that they would be required to acquire permits. However, the city exempts from permitting requirements holiday displays and special event signs for circuses and festivals.
“Free speech is the bedrock of our Constitution and our democracy, and the city simply cannot regulate speech based on its content. It’s unconstitutional for the city to favor circus signs and holiday displays over political speech on an issue of public concern,” said Maria Kayanan, ACLU of Florida Associate Legal Director. “We are hopeful that the city will allow Save Our Aquifer to place the signs on private property.”
In 2008, the ACLU convinced the City of Rockledge that SOA’s signs were constitutionally protected political speech. In April 2009, the ACLU won a Preliminary Injunction in federal court against the City of Clearwater, Florida, enjoining the enforcement of similar content-based restrictions on protected speech.
The letter, sent to the city by Kayanan, can be read in its entirety below, or in PDF here.
Via Email and U.S. Mail
The Hon. Skip Beeler, Mayor of Cocoa Beach
Vice-Mayor Kevin Pruett
Commissioner Don John
Commissioner Skip Williams
Commissioner Ken Griffin
James A. “Skip” Fowler, Esq., City Attorney for the City of Cocoa Beach
May 19, 2009
Re: Save Our Aquifer; City of Cocoa Beach’s Sign Ordinances
Dear Mayor Beeler and Commissioners:
The ACLU of Florida represents the environmental group “Save Our Aquifer, Inc.” (“SOA”), a Florida corporation whose objectives are set forth on its website at http://www.saveouraquifer.org/. SOA’s Articles of Incorporation provide:
ARTICLE IV – PURPOSES
The corporation is organized exclusively for charitable, educational, and scientific purposes under section 501 (c) (3) of the Internal Revenue Code, or corresponding section of any future federal tax code. Specific purposes for which this corporation is organized are to:
1. protect the Floridan aquifer system and Underground Sources of Drinking Water (USDW) from threats, such as partially treated sewage effluent, other contaminants, aquifer injections, groundwater mining and other forms of aquifer depletion and contamination;
2. promote awareness about harm to the Floridan aquifer system and Underground Sources of Drinking Water (USDW) from aquifer injections of partially treated sewage effluent and other contaminants, groundwater mining and other forms of aquifer depletion and contamination;
3. educate the public, elected officials and agency staff regarding the ethical stewardship and critical role of the Floridan aquifer system in maintaining the landscape, native habitat and biological diversity; and
4. conduct other such related activities as are necessary, but only for charitable, educational, or other exempt purposes, including conducting educational meetings, preparing and distributing educational materials, or considering public policy issues in an educational manner.
The ACLU takes no position on the environmental claims, but represents SOA in connection with securing and enforcing its First Amendment rights. We are writing this letter in an attempt to avoid costly and protracted litigation under 42 U.S.C. §1983 for violation of SOA’s constitutional rights.
SOA has been informed by Ms. Christina Doerrfeld of the City Clerk’s Office, see Ex. A attached to this letter, and Mr. Tony Caravella, of the Development Services Department with the City of Cocoa Beach, that the SOA signs are not “political signs” and therefore must meet the permitting requirements of Section 6-05 of the City of Cocoa Beach’s Land Development Code.
SOA seeks to erect temporary signs of varying sizes on private property, with the owners’ consent, that convey SOA’s mission to educate the public about, and urge them to voice their opposition to, the injection of sewage water into the aquifer through the ASR well. As you are probably aware, the issue has been the subject of many council meetings and protests in and around Rockledge, and is of great public interest to the adjoining communities that share the aquifer. The aquifer does not recognize municipal boundaries, and SOA’s political speech is addressed to all persons within the geographic area who are affected by the quality of their shared water source.
Some of SOA’s signs, which the adjacent cities of Rockledge, Cocoa and Cape Canaveral have allowed to be posted without incident, read:
Other SOA signs convey information regarding the types of chemicals found in the sewage wastewater, the types of damage that would be caused by injecting sewage wastewater into the aquifer, depths of the proposed injections of sewage wastewater, and the Save Our Aquifer website address. The signs invite their viewers to sign SOA’s petition, and the most recent signs feature surfers, a scuba diver, and illustrate other types of outdoor recreational and water-related activities that SOA advocates would be adversely affected if the proposed sewage wastewater injections are permitted by Florida Department of Environmental Protection.
These signs are unquestionably political speech, as they address matters of public concern and because they are vehicles for “the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Stough v. Gallagher, 967 F.2d 1523, 1527 (11th Cir.1992) (quoting Roth v. United States, 354 U.S. 476, 484). The form and context of the signs evidence SOA’s intent to inform the public as part of the public discourse. See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1158 (11th Cir. 2002). Not only is SOA constitutionally entitled to convey information and advocacy through their signs; area residents and visitors are constitutionally entitled to receive the information and determine whether to join SOA’s advocacy efforts.
Accordingly, the City of Cocoa Beach’s construction of the term “political signs” exempt from permitting requirements to encompass only those advanced by a “Political Committee” and issues that will be placed on the ballot is contrary to settled and controlling First Amendment law. The Code itself defines a political sign in section 6-04(z) as “A sign or poster advertising either a candidate for political office or political causes.” (emphasis added). Therefore, even under the City’s own definition, SOA’s signs are political signs.
Although Ms. Doerrfeld’s correspondence references permissible political signs, see Ex. A, those permissible signs that are exempt from the permitting process are limited to only six (6) square feet. Section 6-07(h). However, Article VI of the City’s Land Development Code either exempts some larger signs from permitting requirements or allows other signs with no size restrictions, thereby impermissibly regulating protected speech based on its content. For example, “Directory signs” may be eight (8) square feet for each occupant; “Signs indicating that a special event, such as a fair, carnival, circus, festival or similar event” may not exceed thirty-two (32) square feet. “Integral decorative or architectural features of a building” and “holiday displays, including lighting, erected in connection with the observance of holidays” have no size restrictions.
Save Our Aquifer’s political signs, which seek to inform the public of environmental concerns, are therefore treated less favorably by Cocoa Beach than signs advertising a circus or displays of holiday reindeer. The City of Neptune Beach, like the City Cocoa Beach, had a complex sign code replete with content-based exemptions from permitting regulations. Like the City of Cocoa Beach, the City of Neptune Beach allowed holiday decorations to be displayed freely, but Neptune Beach required permits signs identifying homes and offices and exempted only political signs that “related to elections, political campaigns or a referendum.” Solantic, LLC v. City of Neptune Beach, 410 F. 3d 1250, 1264 (11th Cir. 2005). The Eleventh Circuit noted the impermissible content-based regulation:
Thus, a homeowner could plant a giant illuminated Santa Claus or a jack-o-lantern in his front yard, but not a figure of, say, the President or the Mayor. An illuminated reindeer would be permissible, whereas a less festive animal such as a dog would not.
Id. at 1265.
Neptune Beach’s entire signage ordinance scheme, which is markedly similar to Cocoa Beach’s Land Development Code, was declared facially unconstitutional. See also Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir. 1993); Bonita Media Enters. v. Collier County County Code Enf. Bd., 2008 WL 423449 (M.D. Fla. Feb. 13, 2008); The Complete Angler, LLC v. City of Clearwater, -- F.Supp. 2d --, 2009 WL 969910 (M.D. Fla. April 9, 2009) (attached as Ex. C). We believe that Cocoa Beach’s code would likewise be found either facially unconstitutional or unconstitutional as applied to SOA.
In short, the ACLU of Florida urges the City of Cocoa Beach to reconsider its position on Save Our Aquifer’s signs, and allow SOA’s political signs to be placed on private property with the owners’ permission without the necessity of permitting or permitting fees. Please inform us in writing by Friday, May 29, 2009 whether Cocoa Beach is willing to voluntarily take steps to allow SOA to post its political signs on private property with the owners’ permission. Your prompt attention to this matter is necessary to avoid legal action. Please feel free to contact me should you have any questions.
Sincerely yours,
Maria Kayanan
Maria Kayanan, Esq.
Fla. Bar No. 305601
Associate Legal Director
ACLU Foundation of Florida
On Behalf of Save Our Aquifer, Inc.
About the ACLU of Florida
The ACLU of Florida is freedom's watchdog, working daily in the courts, legislatures and communities to defend individual rights and personal freedoms guaranteed by the Constitution and the Bill of Rights. For additional information, visit our web site at: www.aclufl.org.
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