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Morris v. City of New Orleans

United States District Court, E.D. Louisiana

July 9, 2019

NEAL MORRIS
v.
CITY OF NEW ORLEANS

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff's motion for summary judgment that the City's murals-permit scheme is an unconstitutional prior restraint and content-based regulation of expression, in violation of the First Amendment, and is void for vagueness under the Fourteenth Amendment. For the reasons that follow, the motion is GRANTED.

         Background

          This civil rights lawsuit challenges the constitutionality of the City's murals-permit scheme, which regulates the installation of artwork on all private property throughout the City of New Orleans.

         Neal Morris lives in Orleans Parish. He owns residential and commercial properties. He is perhaps not a fan of President Donald Trump. On November 4, 2017, Morris commissioned a local artist to paint a mural on a commercial property he owns at 3521 South Liberty Street. The mural quotes a controversial comment made by President Trump that had been recorded in a 2005 “Access Hollywood” segment; the mural replaces with pictograms two vulgar words used by Trump.

         Just a few days after the mural was painted, a local news outlet publicized a story about the mural and noted that murals “are typically regulated by the Historic District Landmarks Commission and the City Council.” The same day the news story was published, on November 8, 2017, the City of New Orleans Department of Safety and Permits sent Morris a letter advising him that the mural violated a zoning ordinance. Jennifer Cecil, the purported director of the City's “One Stop for Permits and Licenses, ” wrote that an inspection of the property on November 8 revealed a violation of Section 12.2.4(8) of the Comprehensive Zoning Ordinance, which, according to her letter, concerns “Prohibited Signs-Historic District.” Ms. Cecil described the violation:

The mural on the building on this property is not allowed in that the property is zoned residentially and murals shall not be permitted in any residentially zoned historic district.

         Morris was instructed to remove the mural, and warned that his failure to do so by November 22, 2017 would

cause the Department of Safety and Permits to initiate appropriate legal action to secure compliance. The penalty for failure to comply is a maximum fine or jail for each and every day the violation continues plus court cost as prescribed by law.

         Ms. Cecil said Morris should contact her once the mural had been removed so that she could re-inspect the property.

         Not to be outdone, Morris uncovered several stark inaccuracies in the November 8 letter: Section 12.2.4(8) does not in fact exist; there is no section titled “Prohibited Signs- Historic District” in the CZO; nor does the CZO contain a blanket prohibition on murals in residentially zoned historic districts. On November 17, 2017, Morris politely wrote to the City requesting clarification in light of the inaccuracies in Ms. Cecil's letter.[1]Impolitely, apparently the City did not respond.

         Anxious about being prosecuted, Morris sued the City on March 13, 2018, alleging that the murals-permit scheme (Comprehensive Zoning Ordinance § 21.6.V et seq. and Municipal Code § 134-78A et seq.) violate his First and Fourteenth Amendment rights. His complaint alleges that: (1) the City's requirement that property owners obtain advance government approval before receiving a mural permit, or face criminal punishment, subjects him and other property owners to an unconstitutional prior restraint on speech where approval or denial of a permit is left to the unfettered discretion of City officials; (2) the City's murals-permit process is an unconstitutional, content-based restriction on speech insofar as an applicant must pay a $500 fee and must submit a drawing, which will be subject to the City's “acceptability” review before a mural is approved;[2] (3) the City's murals-permit process violates Morris' and other property owners' due process rights by subjecting their artistic expression to prior review, indefinite in duration, by unspecified officials using vague, overbroad, or nonexistent standards; and (4) the City engages in selective enforcement of its mural regulations in violation of the Equal Protection Clause.[3] Morris' complaint requests:

• A preliminary (and ultimately permanent) injunction barring the City from enforcing the murals-permit scheme, Comprehensive Zoning Ordinance §21.6.V et seq. and Municipal Code § 134-78A et seq.;
• A declaratory judgment that the City's actions, policies, and procedures embodied in the murals-permit scheme are unconstitutional violations of the plaintiff's rights under the First Amendment, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.
• Reasonable attorney's fees, expenses, and costs under 42 U.S.C. § 1988.

         In May of 2018, about two months after Morris filed suit, the New Orleans City Council enacted M.C.S., Ordinance No. 27783, which removed Sections 134-78A and 134-78B from the Municipal Code. As a result, the City's murals-permitting scheme was found only at CZO Section 21.6.V. In addition, the City agreed that it would not enforce its murals-permitting scheme against Mr. Morris for any existing or additional murals painted on his properties during the pendency of this lawsuit. In light of the City's non-enforcement pledge, this Court, in its May 31, 2018 Order and Reasons, denied as moot Mr. Morris' motion for preliminary injunctive relief.

         Thereafter, the City moved to dismiss the plaintiff's complaint for failure to state a claim under Rule 12(b)(6). On October 18, 2018, the Court denied the City's motion as to all claims, except the plaintiff's “class of one” Equal Protection claim. Faced with this Court's unfavorable decision, the City proceeded to amend its murals-permit scheme once again. Contending that it had undertaken revisions of the CZO that it believed would “change the course of this litigation, including mooting the case, ” the City moved to the stay these proceedings on December 12, 2018. The next day, the Court held a status conference and denied the City's motion to stay. However, the Court was “convinced that a brief delay [wa]s warranted to give the City an opportunity to remedy issues it faces in this lawsuit.” Accordingly, the Court continued the pre-trial conference and trial dates and admonished the City “to act as efficiently and as quickly as possible . . . in presenting a new Ordinance which the City feels addresses the issues in this case.” The City has now passed the successor ordinance. On January 22, 2019, the City Planning Commission unanimously approved a text amendment to the City's murals-permit scheme, which modifies the definitions of “sign” and “mural” in CZO § 26.6 and alters the murals-permit application and approval process in CZO § 21.6.V. The City Council adopted the amendment on April 25, 2019, and the Mayor signed the measure into law on April 30, 2019. Most recently, on June 13, 2019, the City amended its mural regulations for a third time, reducing the permit fee from $500 to $50. As currently drafted, the CZO regulates murals as follows:[4]

Article 26.6 DEFINITIONS
Mural. A work of art painted or otherwise applied to or affixed to an exterior surface that does not include any on- or off-premise commercial advertising or does not otherwise meet the definition of a sign as set forth in Article 26 of the Comprehensive Zoning Ordinance.
Sign. Any structure, display, device, or inscription which is located upon, attached to, or painted or represented on any land, structure, on the outside or inside of a window, or on an awning, canopy, marquee, or similar structure, and which displays or includes any numeral, letter work, model, banner, emblem, insignia, symbol, device, light, trademark, or other representation used as, or in the nature of, an announcement, advertisement, attention-arrester, direction, warning, or designation of any person, firm, group, organization, place, community, product, service, business, profession, enterprise, or industry proposes a commercial or economic transaction through advertisement; promotion; the direction of attention to any commercial establishment, product, service, industry, business, profession, enterprise, or activity for a commercial purpose; or proposes such a transaction through other means.
ARTICLE 21.6.V - MURALS
ARTICLE 21.6.V.1 - APPLICATION
a. No person, firm, or corporation may commence a mural installation on a site without development plan and design review approval by the Executive Director of the City Planning Commission and the Design Advisory Committee in accordance with Section 4.5. A separate application is required for each mural on a site the submittal of a mural permit application and subsequent mural permit issuance by the Department of Safety and Permits.
b. Any structure within a local historic district or on a historically designated structure requires approval of the Historic District Landmarks Commission or Vieux Carré Commission prior to review by the Design Advisory Committee the issuance of the mural permit by the Department of Safety and Permits. If the Historic District Landmarks Commission or Vieux Carré Commission does not approve the mural, the mural is prohibited.
ARTICLE 21.6.V.2 - REQUIRED SUBMITTALS
a. Proof of ownership or written permission of property owner.
b. Building elevation drawn to scale that identifies:
i. The façade on which the mural is proposed.
ii. The location of existing and proposed murals.
iii. The proposed mural dimensions.
iv. The height of the mural above grade.
v. The building eave/cornice and roofline.
c. General drawing sketch and written description of the type of mural (painted, mosaic, etc.) specifically identifying any commercial elements. This requirement shall solely serve to allow the City to determine whether the proposal is more properly permitted as a sign, as defined in Article 26 of the Comprehensive Zoning Ordinance. The Department of Safety and Permits shall make this determination within 15 days of submittal.
d. If the mural is not painted directly on a wall surface, details showing how the mural is affixed to the wall surface.
ARTICLE 21.6.V.3 - STANDARDS
a. Murals are considered public art. Murals are not permitted to advertise any product, service or brand. No. off-premise advertising is permitted. ...

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