WAS YOUR CAR TICKETED AND/OR TOWED FOR HAVING A

“FOR SALE” SIGN?

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I am not a lawyer and I am not qualified to offer legal advice.  I am a citizen who was affected by the ordinance that allows the city to ticket and tow vehicles displaying a “For Sale” sign and without a special permit to display that sign (101-29).  We fought and won.

 

In 1990 a similar ordinance was ruled unconstitutional in a case called City of Milwaukee v. Blondis. According to the Milwaukee Journal Sentinel (Oct. 23 2003, page B1),  “[t]o get around free speech concerns, the new ordinance defines its purpose as cracking down on the sale of unregistered or stolen vehicles.”  In my opinion, based on listening to the tapes of the Common Council meetings, the City Attorney knows that the intent of the ordinance is to improve parking conditions and that Alderman Donovan sponsored this ordinance with this intent.

 

It seems that the city will enforce the ordinance only if people don’t fight it.  We entered a “not guilty” plea at a hearing and had to show up for another court date, but we also entered the following brief.  The City dropped the case because they said their witness, the parking enforcement officer, was not available.  However, we stated right in the brief that the car was parked on the street displaying the signs, so it seems to me that they didn’t need any witnesses.  Not only were the charges dropped, we got the towing fee back (eventually). Another neighbor also fought and got his fine reduced to $0.  In my personal opinion, the City does not want to have to defend the constitutionality of the ordinance, so they are not willing to argue it before a judge.  I believe that they’ll still fine you and tow your car if they think they can get away with it.

 

If you want to fight your ticket, you will probably have to attend court to plead “not guilty,” then submit your brief and attend court again.  The staff at the Municipal Court can explain that to you.  Getting a lawyer is probably a good idea, if you can afford it or find a way to get free legal advice.  I’m not a lawyer, but I used examples of court briefs that I found on the Internet to write the brief below.  I had friends help me with it, but none of them were lawyers either.  If you want to use it, copy it to a word processing program and make sure that you fill in or change all of the stuff that [looks like this] so that it fits your situation.  After you change it, make sure that you remove the brackets and italics and put it in black and white.  Read it all a couple of times to make sure that everything is right.  Good luck.

 

Sept., 2005:  The latest ordinance expired in July, but they are working to remove the “sunset clause” to expand the time frame or make it permanent.  To find out if it is currently active, see the City Charter and Code of Ordinances at http://www.ci.mil.wi.us/.   You’re looking for 101-29.  You can use the search engine to find it, then use the “find” function in the pdf file.  It was on page 554b and 554c the last I looked.  If the “history” section at the end says “eff:” and has a date later than today, it is in effect.

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IN THE MUNICIPAL COURT OF THE CITY OF MILWAUKEE

 
 
 
 
 

City of Milwaukee                                Plaintiff	)  ) ) )
vs.	)	Civil No. [Fill this in from your documents]
[Your full name and address]                                      Defendant	)  )  )  )

 

DEFENDANT'S MOTION FOR DISSMISSAL DUE TO

UNCONSTITUTIONAL ORDINANCE

 

 

I. INTRODUCTION

 

II. FACTUAL AND PROCEDURAL BACKGROUND

 

On [date] Defendants’s vehicle (a [year, make, model, license plate]) was parked [location].  The vehicle was parked in a legal space on the correct side of the street.  The vehicle’s registration was current and the license plates and registration sticker were properly displayed.  The vehicle’s valid parking decal was properly displayed.  The vehicle also displayed a “For Sale” sign.  [Edit this to make sure it matches your situation]

 

At [time] [date], a citation was issued for display of “For Sale” sings.  At [time] [date] the vehicle was towed to the Milwaukee County Impound lot. 

 

 

III. ISSUE PRESENTED

1.  Does Milwaukee Ordinance 101-29 (Vehicles For Sale on Public Property) impermissibly regulate commercial speech?

 

 

IV. ARGUMENT

A. MILWAUKEE ORDINANCE 101-29 DOES NOT MEET THE STANDARDS OF THE LINMARK TEST BECAUSE THE SPEECH CONCERNED WAS NOT FALSE OR MISLEADING; THE GOVERNMENT’S SEEMING INTEREST IN LOCAL AESTHETICS IS NOT SUBSTANTIAL; TICKETING AND TOWING SUCH A CAR DOES NOT ADVANCE THE STATED GOVERNMENT INTEREST IN CRIME CONTROL; AND THE ORDINANCE IS MUCH MORE EXTENSIVE THAN NECESSARY TO SERVE ANY LEGITIMATE GOVERNMENTAL INTEREST.

 

The Supreme Court in Linmark Associates, Inc. v. Willingboro (431 US 85, 1977) ruled that posting “for sale” signs was protected speech because the regulation went to expressive content. A similar ordinance was ruled unconstitutional in City of Milwaukee v. Blondis, 460 N.W.2d 815 Wi. Ct. App. (1990).  This new ordinance differs from Blondis only in that, according to the Milwaukee Journal Sentinel (Oct. 23 2003, page B1), “[t]o get around free speech concerns, the new ordinance defines its purpose as cracking down on the sale of unregistered or stolen vehicles.” 

 

Other jurisdictions have struck down similar ordinances for failing the Linmark test.  See Burkow v. City of Los Angeles,119 F.Supp.2d 1076, CD Cal. (2000), People v. Moon, 89 Cal. App. 3d Supp 1 (1978), and Rumford v. City of Berkeley, 31 Cal. 3d 545, (1982).  In Burkow, the court concluded that the restriction would probably violate the third and fourth prongs of the commercial speech test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 US 557, (1980), because the restriction was not reasonably tailored to serve a substantial government interest. 

 

The Court held that the expression was protected if:

1. “The commercial speech concerns lawful activity and is not false or misleading.”

 

 If this prong is met, any measure that infringes on this speech must:

2. Serve a substantial governmental interest;
3. Directly advance the asserted governmental interest; and
4. Be no more extensive than necessary to serve that interest

 

The current ordinance fails the Central Hudson Gas test.  The ordinance is enforced against signs that are neither false nor misleading, and that involve no unlawful activity.  The City does not show that the ordinance meets any of the other three criteria.  It must meet all of them.  See Desert Outdoor Advertising, Inc v. City of Moreno Valle, 103 F.3d 814, 819, 9^th cir. (1996), in which the court ruled that “As the party seeking to regulate commercial speech, the City has the burden of affirmatively establishing that the ordinance meets each of [the Central Hudson] elements.”  The court ruled that this also applied in Burkow.  

 

 

a. Ambiguous Government Interest

 

i History of the Ordinance

The City of Milwaukee asserts that the purpose of the ordinance is to “prevent the sale of stolen or unregistered vehicles.”  This assertion is undermined by the structure and history of the ordinance.  (Note that The City of Los Vegas v. Foley, 747 F.2d 1294, 1297, 9^th  Cir. [1984] allows records of proceedings to be used in determining intent.)  First, the sponsor (Alderman Bob Donovan) explicitly presented the ordinance as addressing “a quality of life issue.”  The discussion was almost exclusively about parking issues except for when a member of the Legislative Reference Bureau interrupted to say that, “Technically speaking, this ordinance is not really about selling a vehicle on the street.  It is about stolen vehicles.  This is why the city attorney has accepted this.” His statements were followed by a discussion about how this ordinance would be important for reducing sales of cars on the street.  Alderman Donovan concluded with, “So it is my hope that this will curtail a lot of the used car dealers that quite frankly use our streets to sell sell [sic] vehicles.  So I would ask for the committee’s support.”  The discussion about renewing this ordinance consisted of a report from two Department of Public Works employees and Alderman Donovan.  The DPW employees had no information on how many stolen cars had been identified or towed, or whether stolen vehicle sales had been reduced.  Alderman Donovan stated only that his constituents were no longer being inconvenienced by cars for sale on the street.

 

ii Structure of the Ordinance

This ordinance itself reveals a lack of interest in crime reduction.  It runs counter to the purpose of preventing the sale of stolen or unregistered vehicles.  If vehicles being sold by private parties are more likely to be stolen or unregistered, then ‘for sale’ signs would actually aid law enforcement officers by identifying vehicles that are likely to be stolen or unregistered.  The vehicles are also readily available for license, registration, and VIN inspection.  It is much more difficult for law enforcement officers to check VIN’s of vehicles sold through newspaper advertising or posters.  And such cars, when parked on the street, are not recognizable as being at higher risk if they do not display signs.

 

The ordinance authorizes the towing of vehicles that are not stolen, are properly licensed and registered, and are otherwise legally parked.  This does not further the stated purpose.  In the case of an abandoned vehicle, which is arguably more likely to be stolen or unregistered, the owner is warned with an orange placard or sticker on the vehicle and is mailed a notice before any action is taken.  The owner is then given 72 hours to remove the vehicle.  An owner displaying a “For Sale” sign is given no such warning.  Criteria for determining whether a vehicle will be towed are not listed in the ordinance. 

 

The ordinance diverts law enforcement resources away from crime prevention and law enforcement.  Owners of vehicles towed under this ordinance are not informed of the towing in a timely manner, leaving them to believe their vehicles have been stolen.  Their erroneous reports of stolen vehicles require time and resources that could be spent preventing vehicle theft, apprehending thieves, or recovering stolen vehicles.

 

iii Temporal and Spatial Limitations of the Ordinance

The limitations in time and area suggest that the interest is not substantial.  The ordinance was renewed only for one year, and was limited to the sponsoring alderman’s constituency.  There was no showing that the proposed ordinance would be effective only within the confines of his district.

 

Reasonable people are left to suspect that the intent of the ordinance involved local aesthetics and parking convenience, not crime control—and that the government’s interest in the aesthetic and quality of life improvement that would accrue from the removal of “for sale” signs is not so substantial that it would justify the regulation of free speech rights.

 

iv Content Limitations of the Ordinance

If the City of Milwaukee’s interest is to prevent the misrepresentation of goods for sale on public property, there is no apparent reason to limit regulation to vehicles displaying for sale signs.  Vehicles regularly display permanent and temporary advertising for goods and services.  Under this ordinance the only signs on vehicles that are regulated are those advertising vehicles for sale.  Signs advertising vehicles, real estate, rummage sales, and other goods and services are regularly displayed on public property.  Under this ordinance, vehicle sales are only regulated if the signs are actually posted on the vehicle itself.  This leads to a reasonable conclusion that the aim of the ordinance is to remove the vehicles themselves, rather than to regulate the advertising.

 

b. Failure to Advance Asserted Government Interest

 

There is no evidence that this ordinance advances the stated governmental interest.  In Burkow the court cited Edenfield v. Fane, 507 US 761, 770-71 (1993), stating that “This burden [providing evidence that the ordinance furthered the interest] is not satisfied by mere speculation or conjecture, rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it cites are real and that its restriction will in fact alleviate them to a material degree.”  The City of Milwaukee has provided no such evidence.  It has not shown that:

   i.      A significant number of stolen or unregistered vehicles were sold via “for sale” signs in vehicles parked on public property in the area of the City affected by the ordinance;

 ii.      This ordinance is reducing the sale of stolen or unregistered vehicles to a material degree.  During the discussion regarding renewing the ordinance, no data were provided regarding reduction in crime or even how many stolen vehicles had been towed under the ordinance.

 

 

c. Unnecessarily Extensive Burden

 

In Burkow, the court cited Edenfield in saying that “[i]f there are numerous and obvious less-burdensome alternatives to the restriction on commercial speech, that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” 

 

Ticketing and towing a registered vehicle that is legally parked in front of the house of the registered owner is much more extensive than necessary to prevent the sale of stolen or unregistered vehicles.  These goals could be accomplished by checking the VIN of any vehicle displaying a “for sale” sign.  Officers enforcing this ordinance must check for a permit to sell the car, and check for a match between the VIN on the vehicle and that on the permit.  Checking the VIN requires less of an officer’s time than ticketing a vehicle and having it towed.

 

Subjecting people to towing fees ($95 plus $20 per day storage), loss of time while retrieving the vehicle, and loss of transportation, in addition to the $30-$50 ticket imposes a burden on citizens that is much more extensive than necessary to achieve the objective. 

 

An ordinance prohibiting unregistered and unlicensed vehicles on public property would be sufficient to allow these vehicles to be towed.  Enforcement of the parking permit ordinance would probably be sufficient as well because in the area covered by this ordinance, vehicles must display valid parking permits and must be moved daily (except Saturday and certain holidays).  Abandoned, stolen, and unregistered vehicles are unlikely to be in compliance with parking regulations.

 

If the purpose of the ordinance is actually aesthetic or to prevent parking congestion, as discussion by the Milwaukee Common Council indicates, the court in Moon found that the ordinance was not necessary for these purposes.  Enforcing the existing regulation of the number of cars a person can sell per year, and perhaps reducing that number, would address this interest.

 

CONCLUSION

The City ticketed and towed a registered car that was legally parked in front of the residence of the registered owner and displayed a valid parking permit.  [Edit as necessary to fit your situation]  The “for sale” signs it displayed are protected under the First Amendment as commercial speech, and the city ordinance that attempts to regulate these signs does not meet any of the four required prongs of the Central Hudson Gas test: The speech was not false or misleading, the government’s seeming interest in local aesthetics is not substantial, ticketing and towing such a car does not advance the stated government interest in crime control, and the ordinance is much more extensive than necessary to serve any legitimate governmental interest whatsoever.

 

For the reasons stated in this brief, the court should find that the citation should be dismissed and Milwaukee Ordinance 101-29 should be declared unenforceable until it can be repealed.