County goes to court to defend code outlawing sign-holders
Published: Thursday, March 7, 2013 at 7:49 p.m.
Last Modified: Thursday, March 7, 2013 at 7:49 p.m.
Driving past Ballyhoo Grill on West University Avenue in the past couple weeks, many people may have seen Casey Lane on the sidewalk across the street.
Brandishing a sign that reads "We Buy Gold," Lane drowns the din of traffic and wind with the rap and classic rock pounding through his headphones a few days a week while he works his minimum-wage job as a sign-flipper.
Twenty-year-old Lane works for Precious Metal Group LLC holding the "We Buy Gold" sign on the sidewalk bordering West University Avenue. The sign, shaped like an arrow, points toward the strip of stores where the shop is located.
"It gives me a bad day when people don't wave to me or look at me," he said. Just being acknowledged means a lot.
Lane was hired a couple of weeks ago by the West University Avenue store, but two of the company's former sign-holders were let go this year after Precious Metal Group's shop at Southwest 13th Street and Williston Road closed when the county said the sign-holders were violating Alachua County's sign code.
Those violations have led Precious Metal Group to file a federal lawsuit against the county.
"We had to close our store (on Southwest 13th Street) because of the sign issue," said James Minshew, manager of the West University Avenue store. "I mean, it drove us out of business completely."
An Alachua County code enforcement officer issued a violation notice to the Southwest 13th Street store in May 2012 because the county said a "We Buy Gold" sign-holder had violated two sections of the county's sign code, which applies to unincorporated Alachua County.
One section of the ordinance prohibits portable signs, while the other prohibits signs in the public right-of-way.
In September of last year, the Alachua County Code Enforcement Board found Precious Metal Group guilty on both counts.
Precious Metal Group recently filed suit alleging that the sign code is unconstitutional both in the way it was applied to the company and in general.
Once the 13th Street store stopped using sign-holders by the roadside to attract customers because it wasn't allowed under county code, it didn't draw enough business to stay open, Minshew said.
"It's sad. You try to bring business into Alachua County ... and then this happened, and you get fined," he said. "It drives you out of business."
The Sun requested information on the total fines that Precious Metal Group was required to pay, but hadn't received it by Thursday.
A photograph of a "We Buy Gold" sign-holder included in the agenda for last week's County Commission meeting showed the employee holding the sign by a BP gas station located near the store. Although the worker doesn't appear to necessarily be in the right-of-way, County Attorney Dave Wagner said the photo was only included to show a clear image of the sign and not as evidence regarding the right-of-way violation.
The lawsuit doesn't question whether Precious Metal Group's sign-holder was in the right-of-way or carrying a portable sign, but whether the sign code itself, as well as its application to the company, were unconstitutional, Wagner said.
Wagner said at last week's County Commission meeting that the county has interpreted its sign code as prohibiting people from holding signs, although the ordinance doesn't specifically address the issue. Staff are assessing the code to determine if any changes should be proposed.
The city of Gainesville's sign code is silent on the issue of human sign-waving, according to an email from spokesman Bob Woods. The city's ordinance, however, includes a prohibition on portable signs as well as on signs in the public right-of-way, with exceptions.
The question of the county sign code's constitutionality revolves around the First Amendment right to freedom of speech. Although commercial speech is protected under the amendment, Wagner said it has historically received fewer regulatory protections in the realm of the courts than noncommercial speech such as political sign-waving or panhandling.
This case, whatever the outcome, shouldn't have an impact on panhandling or the use of political signs, said Gary Edinger, a Gainesville-based attorney with First Amendment expertise who is working with the county on this case.
The County Commission approved Edinger's hiring last week. His services are estimated to cost about $75,000, although the eventual total could be above or below that figure. The county will pay for Edinger's work, as well as for the case's overall legal fees, using its self-insurance fund.
If the county loses the case, it may also need to pay Precious Metal Group's legal fees.
While the county's sign code could infringe on First Amendment rights, the court gives more leeway to regulating signs than most other areas of speech, Edinger said. Additionally, courts aren't usually very lenient with plaintiffs in these cases.
Plaintiffs usually assert the unconstitutionality of a particular detail in the sign code rather than the entire ordinance, as Precious Metal Group has done.
"Frankly, we're having to kind of guess at what the plaintiff's grievances are," he said. "It's a very bare-bones complaint."
Edinger, who said he is sensitive to First Amendment issues, considers the county sign code a pretty good one, although these types of regulations can always be tweaked.
The code bases its restrictions on concerns like traffic safety and aesthetics. The rules are in place to prevent signs from distracting a driver or obstructing his or her vision.
Dave Bee, owner of Schwinn Shop Inc. in Gainesville, employs a man who waves a Schwinn sign on the corner of West University Avenue and 13th Street for a couple of hours a day during the week. It is an effective, and not too expensive, way to attract business and raise the store's profile, he said. Plus, it's a job for someone who needs it.
"Students could go to school for four years and never know we're here," he said. His employee's sign-flipping lets students and other residents know the store exists. Sometimes customers will come in and tell Bee they saw the sign.
"Even if they buy a bike somewhere else, at least they're thinking bicycles," he said. "One less car."
The Schwinn sign-holder as well as the sign-holder on Newberry Road are being allowed to flip their signs because both those locations are in the city, whereas the "We Buy Gold" sign-holder at the corner of 13th Street and Williston Road was outside the city limits.
The county sign code may prohibit sign-holders because they can distract drivers, but Bee points out that the Schwinn sign-flipper isn't running into the street trying to draw attention to himself. He's there to catch the eye of people waiting at traffic lights.
Besides, handheld signs aren't the only distractions, he insists. So are billboards and cellphones.
Contact Morgan Watkins at 338-3104 or firstname.lastname@example.org.