Agenda - Planning Commission - 08/02/2007

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July 1, 20071 Volume 1\ No. 13 was ordered to pay a fine, which it did, though the money was ulti- mately returned w-ithout an explanation. The store resumed using the banner and was cited and fined again. Beauty of Flowers filed a civil rights action against the city, arguing that the city had violated its First Amendment right to free speech and 14th Amendment equal protection and due process rights. The city asked the court to dismiss all claims against it. Decision: Request denied in part and granted in part. The city relied, in part, on what were called "affirmative defenses" in its request to dismiss the case. An affirmative defense occurred when the defendant introduced evidence that negated its liability- even if it was proven that the defendant committed the alleged acts. (A . common example of an affirmative defense in criminal cases is . self-defense.) Affirmative defenses can also LTlclude defenses based on various legal principals, such as res judicata or estoppel, which essentially prevent a case that has been decided previously from be- ing reheard. Here, the city noted that there was no official policy that caused the alleged injuries claimed. by the store, so-even if constitutional viola- tions had occurred-it could not be held liable. However, at the stage . in the lawsuit at which the city asked for dismissal based on this and its procedural affirmative defenses, a "complaint state[d] a claim upon which relief may be granted whether or not some defense [was] poten- tially available [to the defendant]." The store needed oilly to "allege that a government official, acting under color of state law, deprived [him or her] of a right secured by the Constitution or laws of the United States." Beauty of Flowers al- leged that the city's enforcement of its sign ordinance-through the ac- tions of the inspector who removed the'sign-v-iolated its First and 14th .Amendment rights. That was all that was needed for the claim to sur- vive the request to dismiss based on the city's affirmative defenses. Because the city raised no separate arguments against the free speech claims, that claim was allowed to proceed. However, the city challenged the store's due process and equal protection claims on grounds other than the affirmative defenses, so the court had to exam- ine those claims more closely. With regard to t.h.e equal protection claim, the store alleged that other businesses were allowed to display signs similar to the one that . was removed by the zoning inspector. However, to show that an equal protection violation occurred, the store had to show that it was dis- 11 169