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BELL VISTA UNITED v. CITY OF PHILADELPHIA

April 15, 2004.

BELLA VISTA UNITED, et al.
v.
CITY OF PHILADELPHIA



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

Plaintiffs brought this action to enjoin the enforcement of a number of City of Philadelphia ("City") ordinances restricting the posting of non-permanent signs. Presently before the Court is Plaintiffs' "Motion for a Temporary Restraining Order/Preliminary Injunction," which requests that the Court enjoin the enforcement of three of the challenged provisions pending the final resolution of this litigation on the merits. A hearing on the Motion was held before the Court on March 30, 2004, and the matter has been fully briefed by the parties. For the reasons that follow, the Motion is granted.

I. BACKGROUND

  On March 8, 2004, Plaintiffs filed a Verified Complaint seeking injunctive relief from the enforcement of various ordinances located in Title 10 of the Philadelphia Code ("Code"), which regulates the posting of temporary signs on public and private property in the City.

  Plaintiff Bella Vista United is an unincorporated community organization "dedicated to improving the lives of people living in, working in, or visiting the Bella Vista section of Philadelphia." (Compl. ¶ 3.) The association meets bi-monthly and advertises these meetings, as well as community events, by posting flyers throughout Bella Vista. (Id.)

  Plaintiff David Cohen is a Philadelphia resident who has served on City Council for over 25 years. (Id. ¶ 4.) Councilman Cohen has posted campaign signs on public property since he first ran for City Council over 30 years ago. (Id.)

  Plaintiffs William and Anne Ewing, who live within the City limits, frequently post signs in and around their neighborhood, as well as on their private property, on behalf of political candidates and regarding neighborhood events. (Id. at ¶ 5.) The Ewings intend to continue posting such signs in the future. (Id.)

  Plaintiff Walter Fox, a City resident, has participated in neighborhood sales in the past, and intends to continue doing so. (Id. ¶ 6.) To alert people to these sales, Mr. Fox and his neighbors post signs throughout the area notifying neighbors of the time and dates of the sale. (Id.)

  Plaintiff Terry Gillen, a City resident, is currently running for state representative. (Id. ¶ 7.) As part of her campaign, Ms. Gillen intends to post campaign posters on public property. (Id.) Ms. Gillen has also requested that her supporters display her campaign signs on their private property. (Id.)

  Plaintiff Babette Josephs, a City resident, has served as state representative for the 182nd District of the City since 1985, and is currently running for reelection. (Id. ¶ 8.) Ms. Josephs intends to ask her supporters to display campaign signs on their private property. (Id.) She has also, on a variety of occasions, posted signs about upcoming events or meetings on public property, including street lights, utility poles and the posts to which parking signs are attached, and will seek to publicize future events in this manner. (Id.)

  Plaintiff Pennsylvania Abolitionists United Against the Death Penalty ("PAUADP") is a registered, non-profit, tax-exempt organization founded in 1997. (Id. 1 9.) PAUADP works to end capital punishment in Pennsylvania by mobilizing citizens and joining activists together in rallies, vigils, demonstrations, public debates, and discussion forums. (Id.) In order to inform the community of these events, PAUADP regularly posts signs on public property throughout Philadelphia, including on street lights, utility poles and the posts to which parking signs are attached. (Id.) PAUADP intends to continue to post signs as a method of community outreach and advocacy. (Id.)

  On March 8, 2004, Plaintiffs also filed the instant Motion seeking preliminary injunctive relief with respect to §§ 10-1202(4), 10-1202(7), and 10-1203 of the Code. Each challenged ordinance regulates the posting of "temporary signs" and/or "political campaign posters." "Temporary signs" are defined in Section 10-1201(7) of the Code as "[a]ny sign except a political campaign poster, which is constructed of cloth, paper, cardboard or any other material other than glass, wood or metal, intended to be displayed for a short time only, including ground signs, banners, pennants, advertising flags and poster placards." Phila. Code § 10-1201(7). Section 10-1201(8) of the Code defines "political campaign posters" as "[a]ny printed or written matter containing the name, picture, likeness or lever number of any candidate for any office." Phila. Code § 10-1201(7).

  Section 10-1202(4) provides: "(a) No political campaign posters shall be affixed in any manner to any type of tree; (b) No political campaign posters shall be allowed to remain posted over thirty (30) days after the primary or regular election to which it refers; (.1) Each candidate and campaign committee that does not remove his/their political or campaign poster from where it was posted as required by section 10-1202(4)(b) above, shall be assessed a fine of one dollar ($1.00) for each such unremoved poster." Phila. Code § 10-1202(4).

  Section 10-1202(7), which was added in an amendment to § 10-1202 in December 2003, provides: "Notwithstanding any other provision of this Section, no person shall affix any temporary sign or political campaign poster to public utility poles; streetlights;traffic or parking signs or devices, including the posts to which such signs and devices are attached; or historical markers, without the permission of the owner or of the agency responsible for the maintenance of such fixture." Phila. Code § 10-1202(7). Section 10-1203 requires persons to, inter alia, obtain a permit, submit a deposit, and pay a fee before posting any "temporary signs" pursuant to the provisions of Title 10 of the Code. Phila. Code § 10-1203.

  At the March 30, 2004 preliminary injunction hearing, several of the named Plaintiffs, as well as a number of other persons, testified regarding the First Amendment injuries caused by the City's enforcement of the challenged ordinances. Several City officials testified about the City's policies and practices with respect to enforcement of the challenged ordinances, as well as about the interests underlying the City's enactment of the ordinances. The City also presented testimony by a representative of PECO Energy Company ("PECO") regarding PECO's stance on the posting of temporary signs and political campaign posters on PECO-owned utility poles. In addition, the parties entered an interim agreement on the record regarding the regulation of private property under the challenged ordinances. Pending final resolution of this litigation on the merits, the City agreed not to enforce the challenged ordinances with respect to private property except as follows: (1) a person cannot pay to ...


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