Agenda - Planning Commission - 10/05/1999

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Z.B. September 10, 1999 -- Page 3 First Amendment-- Shop owner says town can't prevent her from hanging 'open' flag CONNECTICUT (8/3/99) -- Medina owned a consignment shop at a busy intersection in Watertown. She wanted to display a flag with the word "open" on it to attract customers and proposed putting the flag near the door so it would move with the wind. The town zoning officer told her the flag would violate the town zoning ordinance, which prohibited displaying commercial flags. The zoning ordi- nance prohibited all "attention-getting devices such as banners, pennants, val- ances, flags, streamers ... or similar devices designed for the purposes of at- tracting attention." Medina sued the town, claiming the zoning ordinance violated her free speech rights. There was a four-part test for determining whether commercial speech was constitutionally protected: the speech had to concern lawful activ- ity and not be misleading, any restriction on the speech had to seek to imple- ment a substantial government interest, the restriction had to directly advance that government interest, and the restriction couldn't be more extensive than necessary to serve that interest. The town pointed out it wasn't preventing Medina from advertising her store. She already had five signs in the windows, including two neon "open" signs. The town claimed commercial flags posed a traffic hazard to drivers. A town engineer testified the regulation promoted vehicular and pedestrian safety by prohibiting items that distracted drivers. He said signs distracted drivers and flags, which were really moving signs, attracted more attention than fixed signs because they were harder to read as they moved in the breeze. He said about 15,000 cars used the hazardous intersection daily and it had a very high accident rate. Medina claimed that even if the regulation did advance traffic safety, it was more extensive than needed to protect the public. She said the regulation was excessive because it prohibited flags in all locations in the town and because it regulated the content of flags. Medina admitted the intersection was similar to "the Indianapolis Raceway." Medina asked the court to issue an order prohibiting the town from en- forcing the ordinance against her. DECISION: Request denied. The ordinance was constitutional. The regulation directly advanced the towns' interest in highway safety by prohibiting those displays that caused the greatest distraction, such as flags and banners. The regulation wasn't too extensive. The flag Medina wanted to fly would increase the danger of an already dangerous intersection. The regulation barred flags and other devices meant to attract the attention of drivers, regardless of their content. Although the regulation barred the most distracting of adver-