Institute for Justice's Attorney Makes His Case Against City's Storefront Sign Ordinance

According to the Institute for Justice, these are the spots where Dallas has gone after violators of the year-old sign ordinance.
According to the Institute for Justice, these are the spots where Dallas has gone after violators of the year-old sign ordinance.

At this very moment, Matt Miller, executive director of the Institute for Justice Texas Chapter, is driving from Dallas back to Austin -- only after he made a pit stop downtown to file a federal lawsuit against the city of Dallas over last year's ordinance that prohibits store owners from covering the top two-thirds of their windows. And, according to the newly amended City Code, "The combined effective area of all signs attached to any window or any glass door may not exceed 15 percent of the area of that window or that glass door." Miller, as noted earlier this morning, ain't a fan of the ordinance -- hasn't been since he first started hearing about it in the summer of '08.

After the jump, a Q&A with Miller about how the IJ came to file the suit on behalf of several local small-business owners. I wondered whether the plaintiffs approached IJ, or if it was the other way around. That answer, among others, follows -- as does the complaint filed this morning.

Update at 5:30 p.m.: After the jump as well you will find the city's response to the filing of the lawsuit, provided by Frank Librio in the city's public information office.

So, how did the lawsuit come to pass? Did the plaintiffs you mentioned in this morning's press release contact you guys, or did IJ seek them out?

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We read about the ordinance last year when it was passed, and it caught our eye because IJ works in the area of commercial speech. We like this because we don't think commercial rights are taken seriously. Most firms tend to work with political speech or obscenity cases or pornography cases because they tend to be more inflammatory, but commercial speech is one of the most basic kinds of speech there is. It's the ability for companies to tell people, "Here I am, here's what I offer, stop inside." It's crucially important and increasingly regulated, and it's really hurting some of these small businesses.

One thing we found interesting was the press had been misreporting the ordinance, because of how the city spun it. They said they were targeting junky convenience stores. But the ordinance prohibits signs that cover more than 15 percent of any storefront, and it targets most every business in Dallas. It's incredibly broad, so, we started sniffing around, talked to businesses and discovered a pattern of enforcement.

In the spring, we sent to the city an open-records request for all the citations issued after the ordinance passes, and we got 150 citations back -- I've got a binder full of 'em in the trunk. They had really hit very hard businesses up and down Harry Hines -- kind of immigrant-owned small businesses, like import-export stores and cell-phone businesses. And they'd also hit Maple really hard. And there were pockets where they'd hit every business in a strip center, and those citations were primarily complaint-driven, whether from a competitor or a so-called concerned citizen. So we started to find businesses who'd received them, and a lot of them were afraid of the city. They live here and rely on police protection and were just afraid of standing up for their constitutional rights. But we found five who were willing to stand up for theirs. It really was an organic process.

Had any of these plaintiffs considered filing a suit against the city before IJ approached them?

The problem with lawsuits is they're expensive. If you want to pursue a case against the city like this, it'd probably cost you $100,000 or $150,000. What was fun was we'd talk to people, and they'd have us talk to other people. You'd find out this was affecting a lot of people and their friends.

Did you make any effort to go to the city and talk to the officials about the effect the ordinance had on these businesses? Did the city have any idea this was coming?

No. Dallas wouldn't have known this was coming. A lot of the business owners we talked to tried to go to their city council members, and they turned a deaf ear. So we filed a lawsuit instead.

Dwaine Caraway, who really pushed for this ordinance, championed it for two reasons. One was it would clean up junky storefronts whose appearance contributed to the deterioration of neighborhoods. Do you think he was being disingenuous, or do you think that the ordinance had good intentions and unintended consequences?

I am not going to speak to the city's intentions. But restricting speech is always dangerous, and this illustrates why. This is a content-based ordinance. I can put anything on my window unless I am trying to sell somebody something. And they said they were going to target genuinely junky businesses, and that has overwhelmingly not been the case. These are not ugly businesses. If you go up and down Harry Hines, these weren't convenience stores that were falling down. They were tidy vinyl graphics on clean storefronts.

The case was also made that taking down signs in windows would make stores safer.

First, I don't have to have windows on my business. And this ordinance only targets signs, which means I can put beer coolers in front of my store windows, I can paint them black or put an American flag on my window. This targets commercial language only. And aside from convenience stores, there is no evidence that businesses are regularly targeted for hold-up. There's no evidence either that people see crimes through windows and then run and get a cop and the cop saves a day. The argument's interesting when you first hear it, but the more you think it through, the less it holds up. We tried to think through what the city was up to, and there's a huge disconnect there.

So, what do you think they were up to?

[Long pause.] I don't know. I am not saying that to be diplomatic. I hesitate to question people's motives. You'd have to ask the city what they were trying to accomplish. There's an idea that signs are ugly and we should have as few as possible, but these signs are crucially important. Lakeside Cleaners had to take down sign that said "20 percent off," and they've lost business. The owner has seen people drive off when they noticed the sign was down. Honestly, they're about health and vibrancy, not looking junky. When you take signs down businesses look vacant.

Update: Here is what Frank Librio in the city's public information office sent to media by way of response this evening:

STATEMENT REGARDING NEW SIGN LAWSUIT

The City's sign ordinance gives business owners ample opportunities to tell customers and potential customers about their products, services, and prices. For decades, the City's sign ordinance has allowed a business owner to have signs attached to a building façade as long as the signs collectively have no more than eight words with characters more than four inches in height. In addition, the ordinance does not limit the number of words that can be on a building façade as long as the characters are less than four inches in height. Furthermore, the ordinance allows a business owner to have a sign on a pole or monument within some limits.

In recent years, the Dallas Police Department has found that some window and door signs can hide criminal activity. In addition, the proliferation of signs on some properties has made them unsightly and distracting. To remedy these problems, the City Council passed an ordinance on June 25, 2008 that prohibited signs: (1) in the upper two-thirds of a window or glass door in business zoning districts, (2) from covering more than 15 percent of any window or glass door, and (3) from covering more than 25 percent of the main building façade with signs.

The law's main purpose is to protect public safety by helping police and the public look into and out of stores. Secondary purposes of the law include enhancing properties' appearance and market values and improving communications efficiency by removing lots of small signs cluttering windows and doors. Property owners were required to comply by September 25, 2008. Since then, code inspectors have been enforcing this law city-wide.

The courts have repeatedly held that a city may have content-neutral sign regulations as long as they are reasonable and advance a significant governmental interest. The City believes that its ordinance is valid and will withstand judicial scrutiny.

City of Dallas Sign Ordinance Complaint


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