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Weekly litigation update — September 17, 2016

By James S. Burling Vice President for Litigation
  • First Amendment challenge to ban on automobile “For Sale” signs
  • EEOC gets a haircut
  • Petition for rehearing denied in Florida takings case
  • Amicus brief filed in support of right to earn a living

First Amendment challenge to ban on automobile “For Sale” signs

We filed this complaint in Cefali v. San Juan Capistrano, challenging that town’s ban on automobile “For Sale” signs. When law student Michael Cefali tried to sell his Volkswagen by parking it front of his home with a “For Sale” sign, he didn’t receive an offer; instead he received a $50 ticket. Michael had the good fortune, however, of being a student in PLF’s Liberty Clinic at Chapman University’s Fowler School of Law where he learned about PLF’s success in challenging an identical ordinance in Alexandria, Virginia. The bottom line here is that the First Amendment protects speech, including truthful commercial speech. For more, see our blog post here.

EEOC gets a haircut

Image result for dreadlocks album cover
Dreadlocks okay in the music biz, not so much in customer relations

In accord with our amicus brief, the Equal Employment Opportunity Commission just lost its latest appellate case, this time with this opinion from the 11th Circuit in EEOC v. Catastrophe Management Solutions. This case came about when the EEOC sued an employer after the employer required its sales staff to adhere to a dress and grooming code that prohibited dreadlocks. Now dreadlocks may have a place in the music industry, but if a customer-oriented business wants its personnel to look professional when dealing with the public, that is not, without more, evidence of discrimination. For more details, see our blog post here.

Petition for rehearing denied in Florida takings case

A Florida court of appeals denied a motion for rehearing in Ganson v. City of Marathon (previously known as Beyer v. City of Marathon.) When the owners first purchased this nearly nine-acre island in the Keys in 1970, zoning would have allowed one home per acre. Now the only allowed use is for a bird rookery. But the court found there to be no taking because the owners took too long to build and there were some transferable development credits floating around. There was, however, a splendid dissent by Judge Shepherd (who cited at footnote 9 an article by PLF’s Dave Breemer) and we’re now poised to ask the Florida Supreme Court to take the case. For a detailed explication of Judge Shepherd’s dissent, see our blog post here.

Amicus brief filed in support of right to earn a living

We filed this friend of the court brief in Siena Corp. v. City of Rockville, Maryland. On the surface, the case is about Siena’s attempt to build a self-storage facility and the town’s adoption of a last-minute zoning change to placate NIMBY neighbors. Underneath this, however, is the question whether the City can argue that there is a “rational basis” for its behavior and that the court must defer without analysis to the City’s assertions that it did nothing wrong. Siena argues that the Due Process Clause of the Constitution and its right to earn a living were violated. But if the City’s argument were to prevail, then Siena’s constitutional rights would have little meaning because independent judicial review would cease to have meaning. For a more detailed explanation, see our blog post here.

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Ganson v. City of Marathon, Florida

The Beyer family owns a 9-acre island off the Florida coast that was reclassified from a general zoning designation to a bird rookery that permitted no use of the property other than temporary camping. Instead of offering compensation for this taking of property, as required by the Fifth Amendment, the city offered the Beyers only transferable development credits toward possible purchase of a limited number of development permits in other locations.

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