ACLU takes on city’s sign law

Business owners who oppose the proposed Lane Transit District EmX project on west Eugene streets have a new group on their side trying to protect the owners’ right to protest: the American Civil Liberties Union of Oregon.

The city of Eugene in recent months told several business owners along West Sixth Avenue to remove their signs opposing EmX — or face $100-a-day fines — because they violate the city’s sign ordinance. In response, the ACLU sent a letter to City Attorney Glenn Klein last week saying the city had 14 days to suspend enforcement of the ordinance or face a lawsuit.

“We have reviewed the matter and conclude that the sign standards ordinance is legally indefensible,” says the letter by ACLU of Oregon Legal Director Kevin Diaz. “Unless the city of Eugene agrees to immediately suspend enforcement pending its amendment, the ACLU of Oregon intends to challenge the constitutionality of the ordinance in court.”

The ACLU says the city’s ordinance violates the First Amendment rights of the business owners.

Klein said he and Jerry Lidz, a private attorney who represents the city, plan to speak with ACLU attorneys on Friday “to try and gain a better understanding” of how the city could address the ACLU’s concerns and possibly change the sign code.

But short of that, the city plans to continue to enforce the ordinance and not postpone a hearing before a Eugene hearings official slated for Wednesday , to consider sign code appeals brought by business owners Bob Macherione and Roy Benson.

“The city just keeps stubbing their toe on this,” said Benson, who owns the Tire Factory at West Sixth Avenue and Fillmore Street and is active in the “No Build” effort against the EmX project. “It’s more like harassment because they keep targeting the ones involved in the ‘No Build’” movement.

At the heart of the sign ordinance dispute is whether the city’s ordinance is “content-based,” according to the ACLU letter.

“The ordinance is an impermissibly content-based restriction on speech in that it allows some signs, and criminalizes others, based solely on content,” Diaz wrote to Klein.

The city code’s section on signs runs to 18 pages of detailed rules. The aim of the rules is to prevent proliferation of unsightly “Las Vegas-style” signs, plus ensure that signs aren’t a safety hazard, said Stuart Ramsing, manager of the city’s building and permit services division.

The rules allow a number of types of signs outright — for example historical markers, holiday decorations, real estate sale or rent signs, conference signs and political signs up to 60 days before an election. The city also bans certain types of signs, for example, ones with balloons or search lights. All other signs are regulated by a complex set of restrictions on their number, size and height, depending on whether they are in a residential, commercial, office or industrial zone.

Anyone who wants to put up a sign that isn’t allowed outright must apply for a city permit — minimum application fee $169. The city then looks at the proposed location, and if the proposal meets code, issues a permit.

The code, by allowing some signs outright but requiring a permit and fee for others, is impermissable discrimination based on the sign’s content, the ACLU asserts.

Plus, the permit and fee requirement is “an unconstitutional prior restraint on speech,” the letter says. In addition, “Because enforcement is entirely complaint-based, and the city has refused to release any information about those complaining, the ordinance is guaranteed to be enforced primarily against signs that express an unpopular or controversial viewpoint,” the letter says.

City officials acknowledge that the city only enforces the code when it receives complaints about possible violations, and that’s why certain business owners have been targeted for enforcement.

If no one complains, the city might never know certain signs are there, said Ramsing, who has dealt with the Benson and Macherione cases.

“No Build” signs may not violate the specific rules on sign size, for example, but to comply with the code, Benson and Macherione need to apply for permits, Ramsing said.

“That’s when it’s all verified” that the signs comply with the city code, he said.

Critics of the EmX proposal have been clashing with LTD and the city for months.

As part of the protest against the EmX plan, business owners and others put up scores of anti-EmX signs. The city, responding to complaints, inspected several of the signs and issued citations to the business owners. The city won’t release the names of the complainants, saying it can keep them secret under Oregon public records law.

Benson and Macherione are part of a group of 16 business owners who filed a lawsuit in April, arguing that the city charter requires the EmX project to go to a vote of the people because the project would constitute the city creating a throughway under state statutes.

Lane County Circuit Judge Karsten Rasmussen dismissed the lawsuit in July, agreeing with the city that the proposed four-mile bus line isn’t a throughway, and that it was a claim against a planning process that’s yet to reach a final decision.

Benson received a letter dated July 27 from a city code enforcement inspector, saying the city had received a complaint about a sign on his building placed in violation of city code, and that staff had confirmed a code violation and determined that such a sign needed a city permit. The letter said an inspection would occur on or after Aug. 1 to confirm the he had removed the sign.

But Benson did not remove the sign.

So, the city issued him a penalty notice on Aug. 8, saying if he did not remove the sign immediately, he would face the $100-a-day fine.

Benson removed it from the corner of his building, where it was plainly visible by westbound West Sixth Avenue traffic, putting it instead on the inside of a window facing the street. He said the city told him he did not need a permit to place it there.

“That was a little too much for my blood,” Benson said of the threatened fines.

The Aug. 8 letter also said he could appeal the decision within 15 days by paying a $250 appeal fee. Benson appealed, as did Macherione, and both are part of the Sept. 7 hearing.

Macherione, who owns the Sports Car Shop at 288 W. Sixth Ave., received the same warnings as Benson but took a different tack. He refused to move his prominently displayed anti-EmX banner. Then he had his Eugene attorney, Alan Thayer, contact the ACLU.

“They were basically betting that I didn’t have enough money to take this all the way to the Supreme Court,” Macherione said. “What (the city) doesn’t realize is that this is a group that is growing,” Macherione said of the “No Build” movement. “We are going to watch everything the city and LTD is doing. We’ve been bullied on this.”