June Newsletter (Issue 06-2015)

Parasailing_In_BoracayJune Newsletter (Issue 06-2015)

Does Your Sign Ordinance Pass The Laugh Test Or Strict Scrutiny?

stop-sign-clipart-z7TaM5XiAGilbert, Arizona (Town), has a comprehensive sign code (Code) that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant in this case.  “Ideological Signs,” defined as signs communicating a message or ideas” that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions.  “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season.  “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions which include having 1) no more than four of Temporary Directional Signs are allowed and they are limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after the event.

Good News Community Church (Church), whose Sunday church services are held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday.  The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs.  Unable to reach an accommodation with the Town, the Church filed suit, claiming that the Code abridged their freedom of speech.  The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed, concluding that the Code’s sign categories were content neutral; therefore, the Code satisfied intermediate scrutiny accorded to content-neutral regulations of speech.   The United States Supreme Court granted certiorari to determine the correct level of scrutiny.


The Church’s Temporary Directional Signs, inviting people to attend its worship services, are treated differently from Political Signs or Ideological Signs; therefore, these provisions are content-based regulation of speech subject to strict scrutiny. “As we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed.”  In this case, it is necessary for the Town to look at the message on the sign in order to determine whether or not it is a Temporary Directional Sign, a Political Sign, or an Ideological Sign.

A speech regulation “…is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed.”  Because the Town’s Sign Code imposes content-based restrictions on speech, these provisions can stand only if they survive strict scrutiny, which requires the Government to prove that the restriction furthers a                                                                                         compelling interest and is narrowly tailored to achieve that interest.

The Town failed to meet its burden that the Code’s differentiation between temporary directional signs and political signs or ideological signs furthers a compelling governmental interest and is narrowly tailored to that end. “The Town only offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety.” “These distinctions failed as hopelessly under inclusive. The court stated that the Ordinance did not even pass the laugh test.  Reed v. Town of Gilbert, Ariz., (13-502, 6/18/2015) 2015 WL 2473374.

Comment Howard: This decision will have a direct and immediate impact on local government sign ordinances making it one of the most important local government decisions in recent years.  Pull out your sign ordinance and carefully review this case to determine if the ordinance fails the laugh test, intermediate scrutiny or strict scrutiny.  Any distinction based upon the content of the sign should be reviewed by applying strict scrutiny to determine if the ordinance survives.

A concurring opinion authored by Justice Alito, lists a number of content neutral examples where local government can lawfully regulate signs while recognizing that the list is not comprehensive.  His opinion suggests that the opinion of the court is not as bad as the other concurring opinion written by Justice Kagan suggests.

“Given the Court’s analysis, many sign ordinances of that kind are now in jeopardy.  The court acknowledged that “entirely reasonable” sign laws “will sometimes be struck down” under its approach.  The majority made it clear that when laws “single[ ] out specific subject matter,” they are “facially content based”; and when they are facially content based, they are automatically subject to strict scrutiny.”

Justice Breyer’s while joining in the concurring opinion of Justice Kagan, wrote an additional explanation providing comments that are useful with respect to how this opinion of the Court may affect other local government laws where distinctions are made based on content.  All content-based regulations are now suspect and should be carefully reviewed.  This aspect of the opinion certainly will lead to a flurry of litigation over non-sign ordinances that have never been questioned.

What Constitutes Exclusive Control And Possession Of Public Property?

I70-SIGNA Missouri Department of Transportation (“MoDOT”) truck began leaking hydraulic fluid on an exit ramp from eastbound Interstate 70 to Paseo Boulevard in Kansas City.  The truck continued to leak as it traveled straight across and through two signaled intersections at the base of the ramp for southbound and northbound lanes of Paseo Boulevard and back up the entrance ramp for eastbound Interstate 70 where the truck pulled over to the side of the road.

Nearly three hours later, a motorcycle on which Randel was riding as a passenger crashed on the entrance ramp for eastbound Interstate 70 from Paseo Boulevard.  Randel suffered serious injuries.  At the time of the accident, no barricades prevented access to the entrance ramp, and Randel’s husband, the operator of the motorcycle, saw no police officers or warnings about the spill.  Randel’s husband described the crash in a manner that suggested he unexpectedly encountered a slick spot on the entrance ramp as he began his acceleration to access the Interstate.

Randel filed suit against the Missouri State Highways and Transportation Commission (“the Commission”) and the City.  The petition theorized premises liability based on the dangerous condition of hydraulic fluid on the roadway and alleged that both public entities waived sovereign immunity pursuant to Section 537.600.1(2).  MoDOT settled and Randel proceeded to trial against the City, resulting in a judgment in the amount of nearly $500,000, which was appealed by the City to the Western District arguing that the City did not own the property nor did it exercise ” exclusive control or possession” of the property.

State law provides that sovereign immunity is waived for injuries caused by the condition of a public entity’s property.  In this case, it is uncontested that the “dangerous condition” did not occur on City property because MoDOT owned the property.  The phrase “a public entity” used in the context of the statute is not different from the public entity otherwise referred to throughout Section 537.600.1 (2). “Thus, the property was not the City’s property pursuant to 537.600.1(2) on the basis of ‘ownership.’” In addition, the property was not under the “exclusive control and possession” of the City.  There was no maintenance agreement between the City and MoDOT, which could have been authorized by state statute.

We are not suggesting that a public entity can never “exclusively control and possess” property that is owned by another public entity.  However, because ownership already renders property “a public entity’s property” for purposes of waiver of sovereign immunity under Section 537.600.1(2), our cases do suggest that the evidence required to establish that a public entity has assumed “exclusive control and possession” over property to the exclusion of the public entity owner will be necessarily demanding.

Judgment reversed.  Randel v. City of Kansas City, (WD 77211, 5/19/2015) 2015 WL 2405224.

Comment Howard: This opinion, written by Judge Martin, is certainly the most comprehensive analysis of what constitutes “exclusive control and possession” over the property of a public entity. (The analysis is some 15 pages long.)” If you are faced with the question of ownership of the property or whether or not a public agency has exercised “exclusive control and possession” over the property this is no doubt the starting point and probably close to the end of your research.

Workers Compensation Law Applies When The Employee First Seeks And Receives Medical Treatment

Employee began working for Employer in 2009 on a project where he suffered a heatstroke.  Employee was not able to work for several days and requested and received medical treatment pursuant to Missouri’s Workers’ Compensation Law.  Employee’s physician put restrictions on his ability to work, limiting him to four-hour days, avoiding heat, and working in the air conditioning.  Employee requested these accommodations from Employer, but Employer denied them.  Employee then requested that his physician put him on ten-hour days so he could return to work.  Employee returned to work and was given a job moving dirt.  Employee again requested work in air-conditioning and to use an umbrella, but Employer refused both accommodations.  Employee worked from June 30 through July 17, when he injured his shoulder.  Employee was terminated on July 18.

Employee then filed a petition against Employer for violations of the Workers’ Compensation Law.  Employer filed a motion for summary judgment, arguing Employee could not establish a prima facie case of discrimination under the Workers’ Compensation Law because Employee filed his workers compensation claim after he was dismissed and the Employee admitted his exercise of his rights under the Workers’ Compensation Law was not the exclusive cause for his termination.  The trial court granted Employer’s motion for summary judgment and the Employee appealed to the Eastern District, which reversed the trial court’s decision because the Missouri Supreme Court in Templemire v. W & M Welding, Inc, held earlier that an employee need only show that the exercise of rights under Chapter 287 was a “contributing factor” to the employer discharging the employee.  Since this was a substantive change in the law it applied retroactively.  In addition, an employee under the Worker’s Compensation Law exercises his rights when the employee first seeks and receives medical treatment, which was immediately following a heat stroke on-the-job.  Demi v. Sheehan Pipeline Constr., 452 S.W.3d 211 (ED101461, 12/23/2014)

Prior Knowledge That The Drivers License Had Been Revoked Months Earlier Was Sufficient To Stop The Vehicle

Police Officer (Officer) in Granby, Missouri, saw a person driving a maroon Ford Crown Victoria toward him at 13 m.p.h. on Main Street in Granby late at night.  The speed limit for that street was 25 m.p.h. causing the Officer to be concerned because driving slowly is a characteristic of a drunk driver.  The Officer recognized the Crown Victoria based on prior incidents and as the vehicle passed by the patrol car (about four or five feet away), the Officer recognized the driver of the vehicle (Driver) based on several prior contacts and knew that the driver;s license had been revoked.  Officer stopped Driver for driving slowly and driving with a revoked license.  During the course of the stop, the Officer obtained other information that led him to arrest Driver for driving while intoxicated.  The Driver filed a motion to suppress, which was denied by the trial court.  Driver thereafter appealed to the Southern District arguing that the Officer should have checked the license information before stopping the vehicle.

The Southern District held that the Officer “…had reasonable suspicion to stop Defendant because the Officer recognized the car and the Driver and the Officer “had specific and articulable facts that illegal activity was occurring.”  State v. Nunez, 455 S.W.3d 529, (SD33240, 2/23/2015).

In Order To Be Entitled To Expungement Of Municipal Court Record The Arrest Must Be Based Upon False Information

gavelSutton was arrested at a Macy’s store for shoplifting.  Sutton was with “another individual” who had “appropriated some property” and that the two of them had been stopped outside of the store.  Sutton and the other person were sharing a car and that property belonging to Macy’s was found inside the car.  Sutton was charged with stealing, which charge was later amended to littering.  Later Sutton filed a petition for expungement of the municipal court record pertaining to her arrest for stealing.  The trial court granted the motion for expungement and the Missouri State Highway Patrol Criminal Records Repository (MSHP) appealed to the Eastern District.  MSHP argues that the trial court erred because Sutton failed to show that there was no probable cause for the arrest and that Sutton admitted to stealing even though the charge was amended to littering.

The state statute with respect to expungement of records provides that the arrest was based on false information and “(1) there is no probable cause, at the time of the action to expunge, to believe the individual committed the offense; (2) no charges will be pursued as a result of the arrest; and (3) the subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest.”  Section 610.122.1(1) Sutton failed to show that the arrest was based upon false information because at the time of the arrest she signed a written statement admitting that she had taken three pairs of jeans from Macy’s.  Sutton v. Mun. Court Div., Des Peres, (ED 101962, 5/19/2015), 2015 WL 2393287.

Comment Ragan:  This matter is an example of an important issue within our legal community which is the the masking of criminal activity.  There are ethic rules on this issue which probably need to be strengthened.  Masking is not good for our justice system.

Actual Knowledge Of A Prospective Employees Need For An Accommodation Is Not Required

Samantha Elauf (Elauf) is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf.  She applied for a position in an Abercrombie store, and was interviewed by the store’s assistant manager.  Using Abercrombie’s ordinary system for evaluating applicants Cooke gave Elauf a rating that qualified her to be hired.  Cooke was concerned that Elauf’s headscarf would conflict with the store’s Look Policy.  Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.”  When this yielded no answer, Cooke turned to Randall Johnson, the district manager.  Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith.  Johnson told Cooke that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

Elauf filed a complaint The Equal Employment Opportunity Commission (EEOC), which then filed suit on Elauf’s behalf, alleging that Title VII of the Civil Rights Act of 1964 prohibited a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship.  The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with. actual knowledge of his need for an accommodation.

The United States Supreme Court granted certiorari to determine if Title VII prohibited a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. More specifically, does this prohibition apply only when an applicant has informed the employer of his or her need for accommodation?


Abercrombie argued that a claim based on a failure to accommodate an applicant’s religious practice must be raised as a disparate-impact claim (requiring intent to discriminate), not a disparate-treatment claim.  The Court responded: “Congress defined “religion,” for Title VII’s purposes, as “includ[ing] all aspects of religious observance and practice, as well as belief.” “Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.  For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays.  If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Abercrombie argued that allocating the burden of raising a religious conflict requires the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule.  The Court rejected this argument because it “…would require the Court to add words to the law to produce what is thought to be a desirable result.”

Title VII relaxes but-for causation to prohibit making a protected characteristic a “motivating factor” in an employment decision.

“Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”  E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (14-86, 6/1/2015)

Police Officers Cannot Seize Records Of Hotel Operators Without An Administrative Subpoena

The city of Los Angeles (City), requires hotel operators to record and keep specific records of persons who rent rooms.  These Hollywood-Signrecords “shall be made available to any officer of the Los Angeles Police Department for inspection “… at a time and in a manner that minimizes any interference with the operation of the business, and a hotel operator’s failure to make the records available is a criminal misdemeanor.”

A group of motel operators and a lodging association, (Hotels) brought a facial challenge to the Ordinance on Fourth Amendment grounds.  The District Court entered judgment for the City, finding that hotels lacked a reasonable expectation of privacy in their records.  The Ninth Circuit subsequently reversed, determining that inspections under § 41.49(3)(a) (Ordinance) are Fourth Amendment searches and that such searches are unreasonable under the Fourth Amendment because hotel owners are subjected to punishment for failure to turn over their records.  The United States Supreme Court granted certiorari holding that the Ordinance was facially unconstitutional because it failed to provide hotel operators with an opportunity for precompliance review.


Under the Fourth Amendment searches conducted outside the judicial process, without prior approval by a judge are per se unreasonable subject only to a few specifically established and well-delineated exceptions.

Search where no warrant is ever required may be reasonable where  “special needs … make the warrant and probable-cause requirement impracticable,” where the “primary purpose” of the searches is distinguishable from the general interest in crime control.

The Court assumed that the searches served a “special need” other than conducting criminal investigations noting that they ensure compliance with the recordkeeping requirement, which in turn deters criminals from operating on the hotels’ premises. This kind of search has previously been referred to by the Supreme Court as an “administrative search” citing Camara v. Municipal Court of City and County of San Francisco.

In order for an administrative search exception to the warrant requirement to be valid the Supreme Court has held that absent consent, exigent circumstances, or the like, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decision maker.

Administrative searches recognized by the Court “…may proceed with only a subpoena where the subpoenaed party is sufficiently protected by the opportunity to “question the reasonableness of the subpoena, before suffering any penalties.”

Since the Ordinance did not afford any opportunity whatsoever to question the search the Ordinance is facially invalid.

The Court provided in its opinion a detailed analysis of how to cure ordinances that do not provide an opportunity to question the search utilizing what is recognized in the law as administrative searches.  The Court noted that the opportunity to have a neutral decision-maker review an officer’s demand to search the registry need not be burdensome.

To be clear, we hold only that a hotel owner must be afforded an opportunity to have a neutral decision maker review an officer’s demand to while they are waiting for a subpoena period the registry before he or she faces penalties for failing to comply.  Actual review need only occur in those rare instances where a hotel operator objects to turning over the registry and regularly refuse to cooperate with the police.

The Court identifies four closely regulated industries where certain industries do not have a reasonable expectation of because of privacy (liquor sales, firearms, mining, or an automobile junkyard) because inherent in these industries is a “clear and significant risk to the public welfare.”  There is nothing about the hotel industry that represents a “clear and significant risk to the public welfare.”

The Court also recognized that police officers could hold records that they cannot search while they are waiting for a subpoena.  City of Los Angeles, Cal. v. Patel, (13-1175, 6/22/2015) 2015 WL 2473445.

Comment Howard: Local government attorneys and public officials need to immediately check ordinances with respect to hotel registries as well as other ordinances that require the keeping of records that require record keepers to provide city officials immediate access to these records under penalty.  The good news is that we are on familiar territory since the court cites Camara v. Municipal Court of City and County of San Francisco, as the leading case for conducting administrative searches.  It would seem that authorizing the Municipal Court to issue subpoenas for the records would simply require changes to existing ordinances.

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