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B. L. Brereton v. Salt Lake County Complaint

31 August 2002 Published in Litigation Materials

JANELLE P. EURICK USB #8801
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, Utah 84103-1215
Telephone: (801) 521-9862

JAMES L. HARRIS, Jr. USB # 8204
BRIAN M. BARNARD USB # 0215
Utah Legal Clinic
214 East Fifth South Street
Salt Lake City, Utah 84111-3204
Telephone: (801) 328-9531

Attorneys for Plaintiff

COMPLAINT

Case No. 2:02-CV-1241
Judge Dee Benson

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH CENTRAL DIVISION

B. L. BRERETON, Plaintiff,

vs.

SALT LAKE COUNTY, a governmental entity; NANCY WORKMAN, Mayor of Salt Lake County; AARON KENNARD, Sheriff of Salt Lake County; and DAVID YOCOM District Attorney, Defendants.

Plaintiff, B.L. Brereton, by and through counsel, hereby complains as follows:

NATURE OF ACTION

1. This civil action seeks to redress and to prevent violation of rights protected by the Constitutions of the United States and the State of Utah. Plaintiff seeks declaratory relief as to the unconstitutionality of Salt Lake County Code §11.20.140 (the“Ordinance”). The Ordinance is facially unconstitutional because it impermissibly infringes on plaintiff’s rights under the First Amendment of the United States Constitution and Article I, Section 15 of the Utah Constitution by prohibiting the plaintiff from engaging in otherwise lawful and protected expression. Plaintiff seeks injunctive relief prohibiting defendants from enforcing the Ordinance. Plaintiff seeks nominal damages. Plaintiff also seeks attorney fees pursuant to 42 U.S.C. §§ 1983 and 1988.

JURISDICTION AND VENUE

2. This Court has jurisdiction over plaintiff’s federal claims pursuant to 28 U.S.C. §§1331 and 1343(3), as deprivations of rights created under the United States Constitution. The doctrine of pendent jurisdiction gives the Court jurisdiction over the plaintiff’s claim under the Utah Constitution.

3. Pursuant to 28 U.S.C. § 1391, venue properly lies in this district and division, where the events underlying the plaintiff’s claims took place.

PARTIES

4. B. L. Brereton is an adult citizen and resident of Salt Lake City and County, Utah. Brereton is the owner of a motor vehicle. Brereton desires to sell that vehicle. Brereton has determined that an effective and inexpensive manner in which to sell the vehicle is by placing a “For Sale” sign in the vehicle window with pertinent legal and truthful information. Brereton is aware of the existence and terms of the challenged Ordinance and of an incident where agents of defendant Kennard enforced a similar Ordinance against a private individual whose car was parked in Holladay City with a “For Sale” sign in the window. Brereton wishes to park and/or operate the vehicle on public streets within unincorporated Salt Lake County while displaying a “For Sale” sign in the window of the vehicle. Due to the restrictions imposed by the Ordinance, however, Brereton fears prosecution for advertising the vehicle for sale in this manner. Brereton has refrained from driving and parking in unincorporated areas of Salt Lake County with a “For Sale” sign in the vehicle window.

5. Defendant SALT LAKE COUNTY is a governmental entity organized and existing under the laws of the State of Utah. The County is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.

6. Defendant NANCY WORKMAN is Mayor of Salt Lake County. She is sued in her official capacity. The Mayor’s powers and duties include supervising the administration and enforcement of all laws and ordinances of the County.

7. Defendant DAVID YOCOM is the District Attorney and County Prosecutor of Salt Lake County. His powers and duties include prosecuting persons charged with violations of ordinances of the County including the Ordinance.

8. Defendant AARON KENNARD is Sheriff of Salt Lake County. He is sued in his official capacity. The Sheriff’s powers and duties include supervising and administering the sheriff’s department, which is responsible for enforcing all ordinances of the County.

FACTUAL BACKGROUND

9. The Ordinance (Salt Lake County Code §11.20.140) provides in pertinent part: “No person shall park or operate a vehicle upon any roadway for the principal purpose of ... [d]isplaying such vehicle for sale ...[or] [d]isplaying advertising.”

10. On information and belief, Salt Lake County does not prohibit the display of all advertisements or messages on all vehicles parked or operated on the public streets within Salt Lake County. To the contrary and as an example, Salt Lake County allows public buses to display advertising. It also allows private businesses to display advertising on vehicles. The County allows vehicles on its streets with bumper stickers.

12. On information and belief, Salt Lake County does not prohibit the display of all advertisements or messages visible to those operating motor vehicles on public streets within Salt Lake County. To the contrary, Salt Lake County allows signs, billboards and other displays on fixed locations visible to motorists.

13. On information and belief, defendants do not have any written ordinances, policies, rules or regulations for determining when a vehicle is being operated for the “principal purpose” of displaying advertising, or “for the purpose of displaying it for sale.” As a result, defendants have the power to enforce the Ordinance arbitrarily and capriciously.

FIRST CAUSE OF ACTION
(Declaratory and Injunctive Relief to Enforce United States Constitution)

14. Plaintiff incorporates herein by this reference the foregoing paragraphs as if set forth fully herein.

15. The Ordinance is vague and unclear such as to chill the exercise of free expression as protected by the First Amendment to the United States Constitution.

16. The Ordinance prohibits legal and truthful expressive conduct based upon the content of the expression.

17. The Ordinance is substantially overbroad in that it prohibits legal conduct protected by the United States Constitution, including commercial speech on public streets.

18. No compelling state interest justifies the restriction of plaintiff’s right to expressive activity, and the Ordinance unconstitutionally chills and/or silences otherwise lawful and protected speech without justification either as a valid time, place, and manner restriction or as a regulation that directly advances a substantial governmental interest without being more extensive than necessary to serve that interest.

19. Plaintiff is entitled to declaratory relief that the Ordinance interferes with free expression as protected by the United States Constitution.

20. Plaintiff is entitled to injunctive relief that defendants not enforce the Ordinance because it is in violation of the Free Expression Clause of the United States Constitution.

SECOND CAUSE OF ACTION
(Declaratory and Injunctive Relief to Enforce Utah Constitution)

21. Plaintiff incorporates herein by this reference all paragraphs above as if set forth fully herein.

22. The Ordinance is vague and unclear such as to chill the exercise of free expression as protected by Article I Section 15 of the Utah Constitution.

23. The Ordinance prohibits legal and truthful expressive conduct based upon the content of the expression.

24. The Ordinance is substantially over broad in that it prohibits legal conduct protected by the Utah Constitution, including commercial speech on public streets.

25. No compelling state interest justifies the restriction of plaintiff’s right to expressive activity, and the Ordinance unconstitutionally chills and/or silences otherwise lawful and protected speech without justification either as a valid time, place, and manner restriction or as a regulation that directly advances a substantial governmental interest without being more extensive than necessary to serve that interest.

26. Plaintiff is entitled to declaratory relief that the ordinance interferes with free expression protected by the Utah Constitution.

27. Plaintiff is entitled to injunctive relief that defendants not enforce the Ordinance because it is in violation of the Article I Section 15 of the Utah Constitution.

THIRD CAUSE OF ACTION
(Damages: United States Constitution)

28. Plaintiff incorporates herein by this reference the foregoing paragraphs as if set forth fully herein.

29. Brereton has operated Brereton’s vehicle on various streets in unincorporated Salt Lake County with a “For Sale” sign in the vehicle window.

30. When Brereton has driven through unincorporated areas of Salt Lake County, Brereton has removed the “For Sale” sign from the vehicle.

31. Upon leaving the unincorporated areas of Salt Lake County, Brereton has replaced the “For Sale” sign in the vehicle window.

32. Brereton’s conduct as set forth above was caused by fear that the defendants would enforce the Ordinance and cite Brereton for displaying the “For Sale” sign.

33. Brereton has suffered damages as a result of the existence of the Ordinance and fear of enforcement by defendants.

34. Brereton is entitled to nominal damages in the sum of one dollar ($1.00) for the harm as set forth above based upon the United States Constitution.

RELIEF

WHEREFORE, Plaintiff demands relief as follows:

a. For declaratory judgment that Salt Lake County Code §11.20.140 violates the First Amendment of the United States Constitution;

b. For declaratory judgement that Salt Lake County Code §11.20.140 violates Article I, Section 15 of the Utah Constitution;

c. For a preliminary and permanent injunction enjoining defendants from enforcing Salt Lake County Code §11.20.140;

d. For nominal damages ($1.00) as against Salt Lake County for the violation of plaintiff’s rights under the United States Constitution occasioned by the Ordinance;

e. For plaintiff’s reasonable attorneys’ fees and court costs in pursuing this action; and

f. For such other and further relief as the Court deems just and proper.

DATED this 18th day of NOVEMBER 2002.

AMERICAN CIVIL LIBERTIES UNION OF UTAH, INC.

UTAH LEGAL CLINIC

Attorneys for Plaintiff

By BRIAN M. BARNARD By _______________________________________ BRIAN M. BARNARD JAMES L. HARRIS, Jr.

EXHIBIT

Salt Lake County Ordinance § 11.20.140

Title 11 VEHICLES AND TRAFFIC

Chapter 11.20 STOPPING, STANDING AND PARKING

§ 11.20.140 Parking for certain purposes prohibited.

No person shall park or operate a vehicle upon any roadway for the principal purposes of:

A. Displaying such vehicle for sale;

B. Greasing or repairing such vehicle, except repairs necessitated by an emergency;

C. Displaying advertising; or

D. Selling foodstuffs or other merchandise in any business district. (Prior code § 21-4-10)