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Burkow v. City of Los Angeles
United States District Court for the Central District of California October 17, 2000, Decided ; October 17, 2000, Filed
CASE NO. CV 00-5860 AHM (MANx)
Reporter
119 F. Supp. 2d 1076 *; 2000 U.S. Dist. LEXIS 16491 **
EDWARD BURKOW, Plaintiff, v. CITY OF LOS
ANGELES, Defendant.
Disposition: [**1] Plaintiff's Motion for Preliminary
Injunction GRANTED.
Core Terms
ordinance, governmental interest, commercial speech,
advertise, signs, preliminary injunction, street,
aesthetics, advances, merits, ban, parked car,
solicitation, irreparable, regulation, tailored, parked Case Summary
Procedural Posture
In plaintiff's suit against defendant city for declaratory and injunctive relief, claiming violation of his rights under U.S. Const. amend. I and Cal. Const. art. I, § 2, plaintiff moved for a preliminary injunction to enjoin enforcement of L.A., Cal. Municipal Code § 80.75.
Overview
Plaintiff was cited for violating L.A., Cal. Municipal Code § 80.75 by having a "for sale" sign visible in his car
parked on a public street. He sued defendant city for
declaratory and injunctive relief, for violation of his commercial speech rights under U.S. Const. amend. I.
The court granted plaintiff's motion for a preliminary
injunction against enforcement of § 80.75, as defendant failed to satisfy its burden to justify the restriction on commercial speech. Plaintiff's expression was protected by U.S. Const. amend. I, as defendant did not allege the proposed sale of his car was misleading or inherently
unlawful. Defendant presented no evidence that the
ordinance directly advanced the asserted governmental
interests of safety and aesthetics. Only vehicle "for sale" signs were prohibited; all other signs were permitted on parked cars, although they could be even more
distracting.
Outcome
Plaintiff's motion for preliminary injunction was granted to enjoin enforcement of defendant city's ordinance
prohibiting "for sale" signs on cars parked on public
streets. Display of sign was protected commercial
speech under U.S. Const. amend. I. Ordinance did not
directly advance public interest.
LexisNexis® Headnotes
Governments > Local Governments > Ordinances &
Regulations
Transportation Law > Private Vehicles > Bicycles
HN1[ ] Local Governments, Ordinances &
Regulations
See L.A., Cal. Municipal Code § 80.75.
Civil
Procedure > Remedies > Injunctions > Preliminary
& Temporary Injunctions
HN2[ ] Injunctions, Preliminary & Temporary
Injunctions
A plaintiff is entitled to a preliminary injunction upon showing either (1) a combination of probable success
on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the
merits and that the balance of hardships tips sharply in his favor. These standards are not two distinct tests, but rather are the opposite ends of a single continuum in
which the required showing of harm varies inversely
with the required showing of meritoriousness.
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > Misleading Speech
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > General
Overview
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
HN3[ ] Commercial Speech, Misleading Speech
The Supreme Court of the United States prescribes a
four-part test to analyze the validity of governmental
restrictions on commercial speech: [1] At the outset, the court must determine whether the expression is
protected by U.S. Const. amend I. For commercial
speech to come within that provision, it at least must
concern lawful activity and not be misleading. [2] Next, the court asks whether the asserted governmental
interest is substantial. If both inquiries yield positive answers, the court must determine [3] whether the
regulation directly advances the governmental interest
asserted, and [4] whether it is not more extensive than is necessary to serve that interest.
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Criminal Law & Procedure > Trials > Burdens of
Proof > Prosecution
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > General
Overview
HN4[ ] Freedom of Speech, Commercial Speech
The government bears the burden of proof in cases
involving rights to commercial speech under U.S. Const. amend. I. As the party seeking to regulate commercial
speech, the government has the burden of affirmatively
establishing that the statute or ordinance meets each of the elements of the four-part test to analyze
governmental restrictions on commercial speech. This
burden is not satisfied by mere speculation or
conjecture; rather, a governmental body seeking to
sustain a restriction on commercial speech must
demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.
Governments > State & Territorial
Governments > Licenses
Transportation Law > Private Vehicles > Bicycles
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Transportation Law > Commercial Vehicles > Traffic
Regulation
HN5[ ] State & Territorial Governments, Licenses
On its face, L.A., Cal. Municipal Code § 80.75 restricts speech that is commercial, by prohibiting the
advertising, offering, selling or renting of any bicycle or any vehicle which is subject to regulation under the
California Vehicle Code from or upon any public or
private property which is not the place of business of a bicycle retailer or duly licensed vehicle dealer.
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > Misleading Speech
Constitutional Law > Bill of Rights > Fundamental
Freedoms > General Overview
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > General
Overview
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
HN6[ ] Commercial Speech, Misleading Speech
For commercial speech to come within U.S. Const.
amend. I, it at least must concern lawful activity and not be misleading.
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
HN7[ ] Freedom of Speech, Commercial Speech
119 F. Supp. 2d 1076, *1076; 2000 U.S. Dist. LEXIS 16491, **1
In analyzing restrictions on commercial speech, to
establish whether the asserted governmental interest is substantial, the government must present evidence that
it had an interest in safety and aesthetics, or some other substantial governmental interest.
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
HN8[ ] Freedom of Speech, Commercial Speech
Unlike rational-basis review, the standard for analyzing governmental restrictions on commercial speech does
not permit a court to supplant the precise interests put forward by the government with other suppositions.
Neither will the court turn away if it appears that the stated interests are not the actual interests served by the restriction.
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > Scope
HN9[ ] Fundamental Freedoms, Freedom of
Speech
Ordinarily in U.S. Const. amend. I cases, the relevant
governmental interest is determined by objective
indicators as taken from the face of the statute, the
effect of the statute, comparison to prior law, facts
surrounding enactment of the statute, the stated
purpose, and the record of proceedings.
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
HN10[ ] Freedom of Speech, Commercial Speech
If the expression of commercial speech is protected by
U.S. Const. amend. I, and the asserted governmental
interest is substantial, the court must determine whether the regulation directly advances the governmental
interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > Misleading Speech
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > General
Overview
Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
HN11[ ] Commercial Speech, Misleading Speech
Laws restricting commercial speech, unlike laws
burdening other forms of protected expression, need
only be tailored in a reasonable manner to serve a
substantial state interest in order to survive U.S. Const. amend. I scrutiny. If there are numerous and obvious
less-burdensome alternatives to the restriction on
commercial speech, that is certainly a relevant
consideration in determining whether the "fit" between
ends and means is reasonable.
Civil Procedure > ... > Injunctions > Grounds for
Injunctions > Irreparable Harm
Civil
Procedure > Remedies > Injunctions > Preliminary
& Temporary Injunctions
HN12[ ] Grounds for Injunctions, Irreparable Harm
To determine whether to issue a preliminary injunction, courts must consider the possibility of irreparable harm to the plaintiff if the injunction is not imposed.
Civil
Procedure > Remedies > Injunctions > Preliminary
& Temporary Injunctions
Constitutional Law > Bill of Rights > Fundamental
Freedoms > General Overview
HN13[ ] Injunctions, Preliminary & Temporary
Injunctions
The loss of U.S. Const. amend. I freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury, in the context of determining whether a preliminary injunction should issue.
Counsel: For Plaintiff: Peter J. Eliasberg, ACLU
Foundation of Southern California, Los Angeles, CA.
For Plaintiff: Geoffrey L. Thomas, Steven D. Allison,
119 F. Supp. 2d 1076, *1076; 2000 U.S. Dist. LEXIS 16491, **1
Joanna Joyce Weiss, Richard A. Gallegly, Paul,
Hastings, Janofsky & Walker LLP, Costa Mesa, CA.
For Defendant: James K. Hahn, City Attorney, Michael
L. Claessens, Assistant City Attorney, Laurie Rittenberg, Deputy City Attorney, Los Angeles, CA.
Judges: A. Howard Matz, United States District Judge.
Opinion by: A. Howard Matz
Opinion
[*1077] ORDER GRANTING PLAINTIFF'S MOTION
FOR PRELIMINARY INJUNCTION
INTRODUCTION
Plaintiff Edward Burkow wants to advertise his car for
sale by placing a "For Sale" sign in the window and
leaving it there, even while the car is parked on a public street. Los Angeles Municipal Code ("LAMC") § 80.75
prohibits him from doing so. On May 31, 2000, Plaintiff filed this action against Defendant City of Los Angeles seeking declaratory and injunctive relief. He claims that § 80.75 impermissibly infringes on his rights under the First Amendment of the United States Constitution and
Article I, Section 2 of the California Constitution. [**2] Before the Court is his Motion for Preliminary Injunction ("Motion") seeking to enjoin Defendant from enforcing
LAMC § 80.75.
The Court has reviewed the papers submitted and the
file in this case, and considered oral argument of
counsel. The Court grants Plaintiff's Motion because
Defendant has failed to satisfy its burden to justify §
80.75's restriction on commercial speech under each of
the elements in Central Hudson Gas & Electric
Corporation v. Public Service Commission, 447 U.S.
557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980).
FACTUAL BACKGROUND
On September 23, 1999, Edward Burkow parked his car
on Willoughby Street in the City of Los Angeles. Burkow Dec. P 2. He placed two 8 1/2 by 11 inch "For Sale"
signs in the windows of the car, thereby saving the
expense of running a classified newspaper [*1078]
advertisement. Burkow Dec. PP 2-3. The City of Los
Angeles cited Burkow for violation of LAMC § 80.75. 1
Burkow Dec. Exh. 3. Burkow paid a $ 35 fine and
unsuccessfully contested the citation before an
administrative hearing examiner and later in Los
Angeles Municipal Court. Burkow Dec. PP 5-7. Burkow,
believing that the most effective and least expensive
means [**3] to advertise his car is to park it on the
street with a "For Sale" sign, has not yet sold his car.
Burkow Dec. P 8.
DISCUSSION
1. Standards For Issuing A Preliminary Injunction
HN2[ ] A [**4] plaintiff is entitled to a preliminary
injunction upon showing "either (1) a combination of
probable success on the merits and the possibility of
irreparable injury or (2) the existence of serious
questions going to the merits and that the balance of
hardships tips sharply in his favor." Sardi's Restaurant Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir. 1985) (citing Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d
521, 523 (9th Cir. 1984)). These standards are not two
distinct tests, but rather are "the opposite ends of a
single continuum in which the required showing of harm
varies inversely with the required showing of
meritoriousness." Rodeo Collection, Ltd v. West
Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987) (internal
quotations omitted).
II. General Principles Relating to Commercial
Speech
The following analysis applies federal constitutional law 1 The full text of HN1[ ] LAMC § 80.75 is as follows:
(a) No person shall display for the purpose of sale or rent or shall rent, advertise or offer for sale or rent, or sell or rent any bicycle or any vehicle which is subject to
registration under the California Vehicle Code from or
upon any public or private property which is not the place of business of a bicycle retailer or a duly licensed vehicle dealer.
(b) The provisions of Subsection (a) hereof shall not
apply to the registered owner of a vehicle or bicycle when displaying advertising, offering, selling or renting such vehicle or bicycle upon property of which he is the owner, lessee or lawful occupant, nor when displaying,
advertising or offering such vehicle or bicycle for sale or rent while in the act of driving such vehicle or riding such bicycle.
119 F. Supp. 2d 1076, *1076; 2000 U.S. Dist. LEXIS 16491, **1
because both sides focus on those principles and
neither side suggests there is any difference between
those standards and the judicial interpretation of Article I, Section 2 of the California Constitution.
In Central Hudson, HN3[ ] the Supreme Court
announced a four-part [**5] test to analyze the validity of governmental restrictions on commercial speech:
In commercial speech cases, then, a four-part
analysis has developed. [1] At the outset, we must
determine whether the expression is protected by
the First Amendment. For commercial speech to
come within that provision, it at least must concern
lawful activity and not be misleading. [2] Next, we
ask whether the asserted governmental interest is
substantial. If both inquiries yield positive answers,
we must determine [3] whether the regulation
directly advances the governmental interest
asserted, and [4] whether it is not more extensive
than is necessary to serve that interest.
447 U.S. at 566. Furthermore, HN4[ ] the government
bears the burden of proof: "As the party seeking to
regulate commercial speech, the City has the burden of
affirmatively establishing that the ordinance meets each of [the Central Hudson] elements." Desert Outdoor
Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 819 (9th Cir. 1996) (reversing grant of summary
judgment for the defendant city because, among other
reasons, the city, whose ordinance lacked any
statement of purpose [**6] concerning aesthetics and
safety, failed to "provide any evidence that it had an
interest in safety and aesthetics or that the [sign]
ordinance furthered those interests"). "This burden is
not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on
commercial speech [*1079] must demonstrate that the
harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield v. Fane, 507 U.S. 761, 770-71, 123 L. Ed. 2d 543, 113 S. Ct.
1792 (1993).
III. Application to This Case: Whether Plaintiff Is
Likely To Succeed On The Merits
1. Whether The First Amendment Protects This Speech
Defendant contends that the ordinance is a valid
restriction on commercial speech under Central Hudson.
Defendant does not challenge Plaintiff's standing to
bring either a facial or "as applied" challenge. Nor does it contend that § 80.75 is a valid time, place or manner restriction on speech.
HN5[ ] On its face, and as Defendant concedes,
LAMC § 80.75 restricts speech that is commercial, by
prohibiting the advertising, offering, selling or renting of "any bicycle or any vehicle which is subject [**7] to
regulation under the California Vehicle Code from or
upon any public or private property which is not the
place of business of a bicycle retailer or duly licensed vehicle dealer." 2 See LAMC § 80.75(a). HN6[ ] "For
commercial speech to come within [the First
Amendment], it at least must concern lawful activity and not be misleading." Central Hudson, 447 U.S. at 566.
There is no allegation that Burkow's proposed sale was
either misleading or inherently unlawful. Thus, his
expression is protected by the First Amendment.
2. Whether The Asserted Governmental Interests Are
Substantial
"Next, we ask HN7[ ] whether the asserted
governmental interest is substantial." Id. Defendant
must present "evidence that it had an interest in safety and aesthetics, [**8] " or some other substantial
governmental interest. See Desert Outdoor Advertising,
103 F.3d at 819. Defendant does not rebut Plaintiff's
contention that the ordinance lacks any statement of
purpose on its face or in its legislative history. See
Motion at 4. Instead, Defendant offers several post hoc rationales for the ordinance -- supported by defense
counsel's argument rather than evidence. 3 Counsel
asserts that the ordinance: (1) preserves safety by
reducing distractions that are likely to cause traffic
accidents, (2) promotes the flow of traffic and access to businesses by discouraging would-be automobile sellers
from parking on the busiest streets, (3) protects public streets from blight and (4) discourages trafficking in
stolen vehicles and other unlicensed automobile
dealers. See Opp. at 2-7.
HN8[ ] "Unlike rational-basis review, the Central
Hudson standard does not permit us to supplant the
precise interests put forward [**9] by the [government] with other suppositions. Neither will we turn away if it 2 Excepted from the advertising prohibition are (1) a registered vehicle owner who advertises "upon property of which he is the owner, lessee or lawful occupant" and (2) advertising "while in the act of driving such vehicle . . ." See LAMC §
80.75(b).
3 Defendant submitted no declarations or any other evidence. 119 F. Supp. 2d 1076, *1078; 2000 U.S. Dist. LEXIS 16491, **4
appears that the stated interests are not the actual
interests served by the restriction." Edenfield, 507 U.S. at 768 (internal citations omitted). HN9[ ] Ordinarily in First Amendment cases "the relevant governmental
interest is determined by objective indicators as taken from the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment of the statute, the stated purpose, and the record of
proceedings." City of Las Vegas v. Foley, 747 F.2d
1294, 1297 (9th Cir. 1984). These are all absent here.
Nevertheless, because the City invokes traffic safety,
public access, aesthetic and other interests, and solely for purposes of ruling on this Motion, the Court will
assume at this early stage of the proceedings that at
trial Defendant would be able to introduce evidence
supporting its counsel's contentions. 4 In any event,
[*1080] there is no question that (and Plaintiff
concedes that) the proffered safety and aesthetic
interests are traditional "substantial governmental
interests." See Desert Outdoor Advertising, 103 F.3d at 819.
[**10] C. Whether The Ordinance Directly Advances
The Asserted Governmental Interests
HN10[ ] "If [the expression is protected by the First
Amendment and the asserted governmental interest is
substantial], we must determine whether the regulation
directly advances the governmental interest asserted,
and whether it is not more extensive than is necessary
to serve that interest." Central Hudson, 447 U.S. at 566.
In Edenfield, the plaintiff successfully challenged a ban on solicitation by accountants as an impermissible
infringement on commercial speech. See 507 U.S. at
777. The government "asserted an interest in protecting consumers from fraud or overreaching by CPA's . . . and maintaining both the fact and appearance of CPA
independence in auditing a business and attesting to its financial statements." Id. at 768. Though it recognized that the asserted interests were substantial, the
Supreme Court held that the ban on solicitation was
invalid, reasoning:
The Board has not demonstrated that, as applied in
4 What seems equally plausible, at the very least, is that the political forces behind this ordinance included used car dealers and other business or property-owning interests that understandably would oppose would-be buyers and sellers of used cars using streets or other locations to set up the equivalent of an "automobile swap meet."
the business context, the ban on CPA solicitation
advances its asserted interests in any direct and
material way. It presents [**11] no studies that
suggest personal solicitation of prospective
business clients by CPA's creates the dangers of
fraud, overreaching, or compromised independence
that the Board claims to fear. The record does not
disclose any anecdotal evidence, either from
Florida or another State, that validates the Board's
suppositions . . . . Not even Fane's own conduct
suggests that the Board's concerns are justified.
The only suggestion that a ban on solicitation might
help prevent fraud and overreaching or preserve
CPA independence is the affidavit of Louis Dooner,
which contains nothing more than a series of
conclusory statements that add little if anything to
the Board's original statement of its justifications.
Id. at 771 (internal citations omitted).
Here, Defendant attempts to show with a rhetorical
question unsupported by any evidence that LAMC §
80.75 in fact alleviates the suggested harms:
How materially the regulation advances and
supports the government interest may be answered
this way: it is difficult to assess the magnitude of the problems sought to be addressed, but we know that
historically that [sic] these problems were serious
enough to warrant [**12] restrictive legislation.
Additionally "material" is an inexact term. For
example, would the prevention of one serious
accident per year materially advance the
government interest? City urges this answer is yes.
Opp. at 9.
Although the Court finds that Defendant has proffered at least two substantial governmental interests -- safety
and aesthetics -- to justify LAMC § 80.75, the Court is unwilling to accept similar "speculation or conjecture" on how this ordinance "directly advances the governmental
interest asserted." 5 See Edenfield, 507 U.S. at 770-71.
Like the defendant in Edenfield, the City has presented no studies or even anecdotal evidence, and "not even
[Plaintiff]'s own conduct suggests that [Defendant]'s
concerns are justified." See id. at 771. Instead of
demonstrating how "the harms it recites are real and
that its restriction will in fact alleviate them," Defendant employs circular reasoning to suggest that the [*1081]
mere act of passing the ordinance is evidence that there 5 See supra Part III.B for a list of harms proffered by Defendant.
119 F. Supp. 2d 1076, *1079; 2000 U.S. Dist. LEXIS 16491, **9
were "serious" problems. See id.; Opp. at 9. This is
inadequate.
[**13] 4. Whether the Ordinance Is Reasonably
Tailored To Serve A Substantial Interest
HN11[ ] "Laws restricting commercial speech, unlike
laws burdening other forms of protected expression,
need only be tailored in a reasonable manner to serve a substantial state interest in order to survive First
Amendment scrutiny." Edenfield, 507 U.S. at 767. "If
there are numerous and obvious less-burdensome
alternatives to the restriction on commercial speech,
that is certainly a relevant consideration in determining whether the 'fit' between ends and means is
reasonable." City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 418 n.13, 123 L. Ed. 2d 99, 113 S.
Ct. 1505 (1993) (invalidating city ordinance that banned newsracks dispensing commercial handbills because
they were "no more harmful than the permitted
newsracks, and have only a minimal impact on the
overall number of newsracks on the city's sidewalks").
Defendant claims that "the restriction is narrowly tailored to situations where the traveling motorist is distracted by a small sign in a parked car." Opp. at 9. The Court
disagrees. First, only vehicle "For Sale" signs are
prohibited; all other signs are [**14] permitted on
parked cars, although they could be even more
distracting to passing motorists. For example, under
LAMC § 80.75, commercial advertisements on cars
could offer anything for sale, such as ads depicting
jewelry, drugs or sexually explicit magazines, except the car on which the sign is mounted. In short, § 80.75 does not "fit" the proffered safety concerns. See Discovery
Network, 507 U.S. at 418.
Next, the distinction in LAMC § 80.75(b) between signs
in parked cars and signs in moving cars fails not only to be narrowly tailored but also to be rationally related to safety objectives. The Court cannot fathom how a sign
in a parked car is more dangerous than the same sign in a moving car; indeed, there is a greater likelihood that a passing motorist will avert his eyes to read a sign
posted in a moving vehicle. In contrast, if a driver
wishes to read a sign in a parked vehicle, and if road
conditions permit, he can slow down or stop or even
back up.
Next, contrary to Defendant's contention, the ordinance is not reasonably tailored to "situations where the
traveling motorist is distracted by a small sign in a
parked car" because it applies to "For [**15] Sale" signs without regard to the size of the sign or its visibility from the road.
As to the indisputably important "aesthetic" concerns,
Defendant could minimize the alleged harms with
measures far short of outright prohibition. For example, extensive parking regulations could permit owners to
park their cars displaying "For Sale" signs without
impeding public access to limited-availability parking
spaces; like all vehicles, the vehicle with the "For Sale" sign could be permitted to remain in any given space
only for a fixed or limited period. Similarly, to prevent streets from becoming a "de facto used car lot," a seller could be precluded from parking more than one car with
a "For Sale" sign on any given street at any single time.
Furthermore, serious questions about the sufficiency of the advertising alternatives -- i.e., opportunities to
exercise the right to speak -- left open to Plaintiff
remain. In Linmark Assoc., Inc. v. Township of
Willingboro, 431 U.S. 85, 93, 52 L. Ed. 2d 155, 97 S. Ct. 1614 (1977), the Supreme Court invalidated on First
Amendment grounds an ordinance banning "For Sale"
and "Sold" signs on residential property. The ordinance was [**16] designed to stem what the township
perceived as the flight of white homeowners from a
racially integrated community. The Supreme Court
noted:
The options to which sellers realistically are
relegated -- primarily newspaper advertising and
listing with [] agents -- involve more cost and less
autonomy than 'For Sale' signs . . . and may be
[*1082] less effective media for communicating
the message that is conveyed by a 'For sale' sign . .
. . The alternatives, then, are far from satisfactory.
Id. (internal citations omitted).
Here, Plaintiff "believe[s] the least expensive and most effective method for [him] to sell [his] car is to advertise the sale of [his] car by placing a 'For Sale' sign within the car while it is parked on a street within the City of Los Angeles." Burkow Decl. P 8. Who is to say he is
wrong? Certainly, Defendant hasn't demonstrated that
he is. A classified ad in a newspaper does not as
effectively advertise and describe the precise car that is for sale as does a simple "For Sale" sign posted on the car. And yet a newspaper ad would cost more. 6
6 Even if a photo of the car were published, it would have less persuasive power to a prospective buyer than the "real thing," because used car buyers are wary enough to begin with and are not likely to be impressed by a picture.
119 F. Supp. 2d 1076, *1081; 2000 U.S. Dist. LEXIS 16491, **12
Advertising the car for sale on a dealer's lot would
involve even "more cost and less autonomy." [**17]
See Linmark, 431 U.S. at 93. For these reasons, then,
the ordinance does not leave "satisfactory" alternatives available to would-be sellers.
Based on all of the foregoing, Plaintiff has demonstrated probable success on the merits. 7
[**18] III. Whether Plaintiff Will Suffer Irreparable
Harm
HN12[ ] To determine whether to issue a preliminary
injunction, the Court must consider the possibility of
irreparable harm to the plaintiff if the injunction is not imposed. The City of Los Angeles argues that Plaintiff
cannot show the requisite irreparable harm because he
has alternative "ways to offer his car for sale at little or no cost to him." Opp. at 10. That contention is
debatable, particularly as to the costs. Moreover,
Plaintiff is entitled to a preliminary injunction because he has "demonstrated probable success on the merits of
[his] claim" that LAMC § 80.75 impermissibly restricts
protected speech. See S.O.C., Inc. v. County of Clark,
152 F.3d 1136, 1148 (9th Cir. 1998) (finding that a
preliminary injunction against an ordinance prohibiting "off-premises canvassing" should have been issued
because the plaintiff demonstrated probable success on
the merits of its First Amendment claim and noting that HN13[ ] "the loss of First Amendment freedoms, for
even minimal periods of time, unquestionably
constitutes irreparable injury" (quoting Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673
(1976)). [**19]
CONCLUSION
For the foregoing reasons, and good cause appearing
7 Although the parties cited no cases discussing the
constitutionality of "car for sale" restrictions, this Court notes that the Court of Appeals of Wisconsin affirmed the trial court's grant of summary judgment -- finding a Milwaukee ordinance banning "For Sale" signs on vehicles parked on "any highway" unconstitutional -- and stated that: "Because the restriction is disproportional and way beyond that necessary for the claimed interest of traffic safety, both the statute and the ordinance are unconstitutional violations of Blondis', and for that matter, every motor vehicle owner's, limited constitutional commercial free speech rights." City of Milwaukee v. Blondis, 157 Wis. 2d 730, 460 N.W.2d 815, 818 (1990).
therefor, the Court orders as follows:
1. The Court GRANTS Plaintiff's Motion for
Preliminary Injunction.
2. By not later than October 26, 2000, Plaintiff shall
submit a proposed injunction.
1. By not later than November 2, 2000, Defendant
shall submit any objections to Plaintiff's proposed
injunction.
IT IS SO ORDERED.
DATE: October 17, 2000
A. Howard Matz
United States District Judge
End of Document
119 F. Supp. 2d 1076, *1082; 2000 U.S. Dist. LEXIS 16491, **16