Ruling on Scottsdale sign walkers could have wide impact

They’re there – everywhere, it seems – simply to grab motorists’ attention.

They stand along busy thoroughfares gyrating to a silent beat and twirling signs that point to mattress blowout sales, bigger tax-return checks and Cash For Gold. It’s a kind of capitalist performance art writ small.

To Scottsdale’s municipal leaders, the so-called sign walkers are eyesores and pose a threat to public safety. To advertisers, they perform a valuable form of marketing that’s no different from any other constitutionally.

The city’s effort to bar the advertising from public sidewalks in spite of a state law protecting sign walkers has led to a high-profile court battle. The Arizona Court of Appeals will likely rule soon on the case, which could have far-reaching implications.

Though Scottsdale is the only city fighting the state law, the Court of Appeals could open the door for tougher rules in other cities. More importantly, the ruling could set a precedent on the extent of cities’ right to self-govern.

PREVIOUSLY: Scottsdale challenges Arizona sign-walker law

RELATED: Scottsdale takes hard line on roadside ‘sign-walkers’

Scottsdale filed suit against the state last year in an attempt to uphold its sign-walker ban. The city’s ordinance prevents people from carrying or wearing advertising on public streets, including sidewalks, though it is not currently being enforced.

Opponents say that sign-walkers can cause accidents on the road and ultimately hurt the image of the tourism-driven locale, known as the West’s Most Western Town.

“The sign-walkers are, for one, very distracting,” said Scottsdale Councilwoman Linda Milhaven, who called the advertisers “eye pollution.”

Mayor Jim Lane said Scottsdale has concerns about its appearance and is “very interested in how it presents itself to the rest of the country.”

“For the rest of the world, and certainly for our own residents, it is a matter of image and aesthetics, and one of the ways we’ve expressed that is with a fairly strict sign ordinance,” Lane said.

Sign-walkers, on the other hand, argue the ban is anti-business and violates their constitutional right to free speech.

Jim Torgeson, owner of a Mesa-based business that providers sign walkers to businesses, said Scottsdale’s criminalization is of “a simple activity that’s legal in other places” and is starting to “give up a whole lot of freedom to people.”

Torgeson has joined in the lawsuit to defend the state law. He said Scottsdale’s ban is bad for businesses.

“In the last year, I’ve basically done no business in Scottsdale because people are afraid to work,” Torgeson said. “They’re afraid they’ll get cited for other things.”

Torgeson was cited for sign-walking in Scottsdale in 2007, resulting in the Arizona Legislature passing a measure in favor of sign-walkers.

In 2008, lawmakers passed a bill preempting cities’ bans on sign-walkers, making the practice legal statewide.

The law allowed cities to adopt “reasonable time, place and manner regulations” for sign-walkers.

Scottsdale continued to enforce its ordinance. As a result, the Legislature passed a bill in 2014 prohibiting cities from adopting restrictions on sign walkers on public sidewalks.

After the state law took effect, Scottsdale stopped enforcing its ordinance.

The city filed a lawsuit against the state, claiming its authority trumps the state law.

A Maricopa County Superior Court judge ruled in favor of the state last year.

Scottsdale appealed the ruling, which sticks unless the appellate court overturns it.

The city “owns the sidewalks” as much as it owns City Hall, Scottsdale City Attorney Bruce Washburn argued before a three-judge panel at the Arizona Court of Appeals last week.

Washburn said cities have power under their charters to criminalize certain behaviors and set rules for managing its real estate, sidewalks included.

The court decision could have far-reaching effects in establishing how much the state can impose on a charter city’s right to self govern.

Arizona has 19 charter cities, including Phoenix, Mesa and Tempe, with governing charters similar to a constitution.

Attorneys supporting sign walkers say the matter is of statewide, not local, concern.

Scottsdale’s position is not shared by a majority of municipalities, which is why the League of Arizona Cities and Towns has not taken a position on the case, Executive Director Ken Strobeck said.

Superior Court Judge Robert Oberbillig’s ruling last August did not address the free-speech claims brought on by sign walkers, according to the Goldwater Institute, which is representing Torgeson and his business, Sign King, LLC.

The outcome of the case will set an important precedent, said Clint Bolick, vice president for litigation at the Goldwater Institute.

“The precedent I hope it sets is that however broad the power of charter cities is, it does not extend to nullifying constitutional protections,” Bolick said.

The case itself rests on the question of whether the state law represents a statewide interest, he said.

“If it does, then the statute prevails,” Bolick said. “If it addresses a matter of purely local concern, it doesn’t.”

Timeline

1972: Scottsdale signs ordinance takes effect.

2008: The Arizona Legislature enacts a law that says all municipalities should allow “the posting, display and use of sign walkers.” It also says cities can adopt “reasonable time, place and manner regulations” for sign walkers.

2014: The Legislature’s passes House Bill 2528, amending state law and prohibiting municipalities from adopting reasonable time, place and manner regulations that restrict a sign walker from using a public sidewalk, walkway or pedestrian thoroughfare. It says the state can enforce the law in a private civil action.

Scottsdale’s sign-walker ordinance

“No person shall have, bear, wear or carry upon any street, any advertising banner, flag, board, sign, transparency, wearing apparel or other device advertising, publicly announcing or calling attention to any goods, wares, merchandise, or commodities, or to any place of business, occupation, show, exhibition, event or entertainment. The provisions of this subsection do not apply to the wearing of apparel without remuneration for doing so or business identification on wearing apparel.”

“Street means all that area dedicated to public use for public street purposes and includes roadways, parkways, alleys and sidewalks.”

Article source: http://www.azcentral.com/story/news/local/scottsdale/2015/05/26/scottsdale-state-battle-sign-walker-ban-court/27812011/