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Contest Promotions, LLC v. City and County of San Francisco

United States Court of Appeals, Ninth Circuit

August 16, 2017

Contest Promotions, LLC, Plaintiff-Appellant,
v.
City and County of San Francisco, Defendant-Appellee.

          Argued and Submitted July 12, 2017 San Francisco, California

         Appeal from the United States District Court No. 3:16-cv-06539-SI for the Northern District of California Susan Illston, Senior District Judge, Presiding

          Michael F. Wright (argued), Los Angeles, California, for Plaintiff-Appellant.

          James M. Emery (argued) and Victoria Wong, Deputy City Attorneys; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendant-Appellee.

          Before: Susan P. Graber and Michelle T. Friedland, Circuit Judges, and Consuelo B. Marshall, [*] District Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed the district court's Fed.R.Civ.P. 12(b)(6) dismissal of an action brought pursuant to 42 U.S.C. § 1983 challenging San Francisco's sign-related regulations.

         Through its Planning Code, San Francisco prohibits new billboards but allows onsite business signs relating to activities undertaken on the premises, subject to various rules. Noncommercial signs are exempt from the rules. Plaintiff, an advertiser that rents the right to post signs on the premises of third-party businesses, alleged that the City's Planning Code violates the First Amendment by exempting noncommercial signs from its regulatory ambit.

         The panel held that the distinction drawn between commercial and noncommercial signs in the City's Planning Code survived intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). The panel held that the distinctions directly advanced the City's substantial interests in safety and aesthetics and was not impermissibly underinclusive.

          OPINION

          GRABER, CIRCUIT JUDGE.

         Plaintiff Contest Promotions, LLC, rents advertising space from businesses in cities around the country, including San Francisco, and places third-party advertising signs in that space, framed by text inviting passersby to enter the business and win a prize related to the sign. Through its Planning Code, San Francisco prohibits new billboards but allows onsite business signs subject to various rules. Noncommercial signs are exempt from the rules. In this, the latest of several challenges that Plaintiff has mounted to San Francisco's sign-related regulations, Plaintiff argues that the distinction between commercial and noncommercial signs violates the First Amendment. The district court dismissed the complaint. Reviewing the order of dismissal de novo, Friedman v. AARP, Inc., 855 F.3d 1047, 1051 (9th Cir. 2017), we affirm.

         BACKGROUND

         Like other local governments, the City and County of San Francisco, Defendant here, uses its Planning Code to regulate outdoor advertising, including billboards. The purposes of Planning Code Article 6, which contains the advertising rules, include "promot[ing] the aesthetic and environmental values of San Francisco, " "protect[ing] public investment in and the character and dignity of public buildings, streets, and open spaces, " "protect[ing] the distinctive appearance of San Francisco, " and "reduc[ing] hazards to ...


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