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Mobile Media on the Go v. Salt Lake City Corporation | Complaint

31 January 2002 Published in Litigation Materials

Mobile Media on the Go v. Salt Lake City Corporation

JANELLE P. EURICK (# 8801)
STEPHEN C. CLARK (#4551)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

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

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

COMPLAINT

Case No. 2:02CV00118J

Judge Bruce Jenkins

MOBILE MEDIA ON THE GO, a California corporation; SHOWING ANIMALS RESPECT AND KINDNESS, a nonprofit corporation; and B.L. BRERETON, Plaintiffs,

v.

SALT LAKE CITY CORP., a municipal corporation; ROSS C. “ROCKY” ANDERSON, Mayor of Salt Lake City; and RICK DINSE, Chief of Police of Salt Lake City, Defendants.

Plaintiffs, by and through their attorneys, hereby allege and complain as follows:

NATURE OF ACTION

1. This is a civil action for declaratory and injunctive relief to prevent violation of rights protected by the Constitutions of the United States and the State of Utah. Plaintiffs seek declaratory relief as to the unconstitutionality of Salt Lake City Code 12.56.510 (the “Ordinance”). The Ordinance is facially unconstitutional because it impermissibly infringes on plaintiffs’ rights under the First Amendment of the United States Constitution and Article I, Section 15 of the Utah Constitution by prohibiting them from engaging in otherwise lawful and protected speech. Plaintiffs seek injunctive relief prohibiting defendants from enforcing the Ordinance. Plaintiffs also seek attorneys’ fees and court costs pursuant to 42 U.S.C. §§ 1983 and 1988.

JURISDICTION AND VENUE

2. This Court has jurisdiction over plaintiffs’ federal claim pursuant to 28 U.S.C. §§ 1331 and 1343(3), since it concerns the deprivation of rights created under the United States Constitution. The doctrine of pendent jurisdiction gives the Court jurisdiction over the plaintiffs’ claim under the Utah Constitution.

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

PARTIES

4. Plaintiff Mobile Media On the Go (“Mobile Media”) is a California corporation based in Orange, California. Mobile Media provides mobile billboard advertising for national companies and public service advertising for non-profit organizations. In the ordinary course of its business, Mobile Media parks and/or operates vehicles on public streets for the principal purpose of advertising and/or conveying to the public legal and truthful messages its clients wish to convey. For example, Mobile Media currently has a vehicle circulating on the streets of Las Vegas featuring an American flag and the words “In God We Trust” and “United We Stand.” Mobile Media is aware of the existence and terms of the Ordinance, and of a recent incident where the City enforced the Ordinance. Mobile Media wishes, and has made several attempts, to conduct business in Salt Lake City. Due to the restrictions imposed by the Ordinance, however, Mobile Media fears prosecution for conducting its otherwise lawful business in Salt Lake City, and believes the Ordinance is restricting its lawful business.

5. Plaintiff Showing Animals Respect and Kindness (“SHARK”) is a nonprofit corporation based in Geneva, Illinois. Incorporated in 1993, SHARK seeks to to educate policymakers and the public about animal abuse and to promote an understanding of the right of all animals to be treated with respect. One of the tools SHARK uses is a mobile video display van, which carries its messages on animal issues to cities and towns around North America. SHARK parks and/or operates the van on public streets for the principal purpose of advertising and/or conveying to the public legal and truthful messages. SHARK plans to do so during the 2002 Winter Games in Salt Lake City during the period February 8-24, and from time to time thereafter. Due to the restrictions imposed by the Ordinance, however, SHARK fears prosecution for engaging in otherwise lawful speech in the City.

6. B.L. Brereton is an adult citizen and resident of Salt Lake City, 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 information that is legal and truthful. Brereton is aware of the existence and terms of the Ordinance and of a recent incident where defendants enforced the Ordinance against a private individual whose car was parked in Salt Lake City with a “For Sale” sign in the window. Brereton wishes to park and/or operate the vehicle on public streets within Salt Lake City 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.

7. Defendant Salt Lake City Corporation is a municipal corporation organized and existing under the laws of the State of Utah. The City 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.

8. Defendant Ross C. “Rocky” Anderson is Mayor of Salt Lake City. He is sued in his official capacity. The Mayor’s powers and duties include supervising the administration and enforcement of all laws and ordinances of the City.

9. Defendant Rick Dinse is Chief of Police of Salt Lake City. He is sued in his official capacity. The Chief’s powers and duties include supervising and administering the police department, which is responsible for regulating and controlling motor vehicle traffic in the City and enforcing all laws and ordinances of the City.

FACTUAL BACKGROUND

10. The Ordinance provides in 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.”

11. On information and belief, Salt Lake City does not prohibit the display of all advertisements or messages on all vehicles parked or operated on the public streets within Salt Lake City. To the contrary, Salt Lake City allows public buses and trolleys to display advertising. It also allows private businesses to display advertising on vehicles.

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

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

14. On or about December 12, 2001, counsel for plaintiffs wrote to Salt Lake City Attorney Roger Cutler, and to the City Attorney of West Valley City, which has a similar ordinance, to apprise them of concerns about the constitutionality of the ordinances and to invite them to consider not enforcing the ordinance or other options short of litigation. West Valley City responded by agreeing not to enforce its ordinance. Salt Lake City did not respond. As a result, plaintiffs believe defendants intend to continue to enforce the Ordinance.

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

15. Plaintiffs incorporate herein by this reference paragraphs 1 through 14 as if set forth fully herein.

16. 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.

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

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

19. No compelling state interest justifies the restriction of plaintiffs’ 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.

20. Plaintiffs are entitled to declaratory relief that the Ordinance is in violation of the pro­hibition against government interference with free expression as protected by the United States Constitution.

21. Plaintiffs are 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)

22. Plaintiffs incorporate herein by this reference paragraphs 1 through 21 as if set forth fully herein.

23. 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.

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

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

26. No compelling state interest justifies the restriction of plaintiffs’ 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.

27. Plaintiffs are entitled to declaratory relief that the Ordinance is in violation of the pro­hibition against government interference with free expression as protected by the Utah Constitution.

28. Plaintiffs are 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.

Wherefore, Plaintiffs pray for relief as follows:

a. For declaratory judgment that Salt Lake City Code 12.56.510, both facially and as applied, violates the First Amendment of the United States Constitution;

b. For declaratory judgment that Salt Lake City Code 12.56.510, both facially and as applied, violates Article I, Section 15 of the Utah Constitution;

c. For a preliminary and permanent injunction enjoining defendants from enforcing Salt Lake City Code 12.56.510;

d. For plaintiffs’ reasonable attorneys’ fees and costs in pursuing this action; and

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

DATED this 1 day of February 2002.

American Civil Liberties Union of Utah, Inc.
Utah Legal Clinic

By Stephen C. Clark

Attorneys for Plaintiffs