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Changeable sign becomes free-speech issue
(by Sue Reid - February 03, 2010)
Changeable sign becomes free-speech issue
By SUE REID
Following an opinion from Solon's law director with regard to changeable signs in city codes, the planning commission approved a changeable-copy variance request last week for the new Le Chaperon Rouge day-care facility.
But City Council moved to table the issue Monday and will await the outcome of research being conducted on the issue by the planning department.
The applicant had proposed a 14.3-square-foot, free-standing sign along the Bainbridge Road frontage of the facility. The proposed sign would be in compliance with all dimension and setback requirements, Solon Planning Director Robert S. Frankland said, but approximately 32 percent of it would be devoted to changeable copy.
While city code permits changeable copy, it restricts such areas to messages that serve a general-public function, such as time and temperature, Mr. Frankland said, or where the sign area is devoted to advertising gasoline prices or other commodities that customarily fluctuate.
Law Director David J. Matty and Shana A. Samson, of Mr. Matty's office, reviewed current case law with regard to the regulation of sign content. "The city's restrictions on changeable copy signs are not enforceable," they said.
"The current case law is not in our favor," Ms. Samson told the commission.
"While there is no dispute that the authority to regulate outdoor advertising is well-established in Ohio and aesthetics are a substantial governmental goal which should be accorded respect, municipalities must be sure that the ordinance does not burden more speech than necessary in order to regulate aesthetics," Mr. Matty and Ms. Samson said.
"Where restrictions on commercial signs are content neutral, narrowly tailored to serve governmental interests, and directly advance governmental goals, they will survive a First Amendment challenge."
Mr. Matty and Ms. Samson recommended striking the "where such changeable copy serves a general public function (time, temperature, etc.) or where the sign area is devoted to advertising gasoline prices or the prices of other commodities that customarily fluctuate on a daily basis" from the section of the code. "This type of differing treatment, based upon the message displayed, is content-control and is usually prohibited or subject to a higher standard which cannot be met in the instant case."
Mr. Matty said that the regulation of changeable copy signs must apply equally across the board.
"There may be no exceptions based upon whether the nature of the message is commercial or noncommercial," he said. "Thus, it is also problematic that the city allows religious institutions to use changeable copy signs. Pursuant to current law, the city cannot single out favored speakers for favored treatment."
The attorneys also suggested making the portion of the sign that is changeable be smaller. Currently, 80 percent is allowed for changeable copy according to the city code.
Commission member George K. Hrabak asked Mr. Frankland what percentage he would be in favor of.
"It's a matter of aesthetics," Mr. Frankland said. "I would recommend 25 percent, but it is a matter of opinion."
Mr. Frankland said he will illustrate examples for the commission so that members could make an informed decision about the percentage.
Mayor Susan A. Drucker, a member of the commission, said she was in favor of granting the variance but would like to take a look at the city's sign code and review it with Mr. Frankland.
"I think this is in keeping with the tradition of the Solon Schools and some of the churches," commission chairman William M. Mazur said of granting the variance, "but I do recommend that the percentage be reduced."
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