Arizona Court of Appeals Division One Holds That City Of Mesa’s Commercial Window Sign Code Does Not Violate Business Owner’s Free Speech Rights Under The United States And Arizona Constitutions.

The City of Mesa enacted a sign code limiting sign coverage to thirty percent of store windows. Edward Salib owned a donut store with sign coverage exceeding the limit. Mesa gave Salib several warnings and Salib filed a complaint claiming that the code “violated his free speech rights under the Arizona and United States Constitutions.” After the trial court granted summary judgment in Mesa’s favor, Salib appealed.

The Arizona Court of Appeals affirmed. The court first analyzed the code under the First Amendment. Because the signs expressed “a purely commercial message,” the court scrutinized the code under the Central Hudson test. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980). Salib conceded that the code’s purpose—regulation of aesthetics—furthered a substantial government interest. The court concluded that the code also directly advanced that interest and the regulation had a “reasonable fit” between the means to its end.

The court also rejected Salib’s challenge under the Arizona Constitution. The court concluded that the regulation was a valid time, place, and manner restriction. See Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 357–58, 773 P.2d 455, 462–63 (1989). The parties agreed that the regulation was content-neutral, and the court had decided that “improving aesthetics is a substantial government interest and Mesa’s Sign Code directly serves that interest.” Furthermore, Salib failed to argue that the regulation did not leave open ample alternative means of communication. Finally, the court briefly considered whether the regulation was “drawn with narrow specificity to affect as little speech as possible.” Division Two had held that the Arizona Constitution protected more speech from time, place, and manner restrictions than the First Amendment. See Empress Adult Video & Bookstore v. City of Tucson, 204 Ariz. 50, 57, 59 P.3d 814, 821 (Ct. App. 2002). Nevertheless, the court stated that, “[e]ven assuming this con[c]lusion is correct, an issue we need not decide here, Salib has not established that the increased strictness applies to the regulation at issue here.” According to the court, “unlike the regulations struck down in Mountain States and Empress, limiting how much of a window may be covered by signs does not erect a direct barrier to communication.” Lastly, the court reasoned even further that “in the context of regulating window coverage there will always be a direct and proportionate relationship between the regulation and the desired goal: . . . Less coverage means less clutter; more coverage means more.”

Judge Irvine authored the unanimous opinion.