By David L. Hudson, Jr.

A Los Angeles city ordinance banning “for sale” signs in parked cars except on the owner's personal property violates commercial speech rights, a federal judge has ruled.

Edward Burkow challenged the constitutionality of the law after receiving a $35 fine for placing two 8-1/2"x11" “for sale” signs in his parked car on Willoughby St. Burkow paid the fine and then unsuccessfully contested the citation before an administrative officer and in Los Angeles Municipal Court.

The ordinance provides that “no person shall display for the purpose of sale or rent ... any bicycle or vehicle ... upon any public or private property which is not the place of business of a bicycle retailer or a duly licensed vehicle dealer.”

The ordinance allows the signs to be displayed in moving vehicles or upon land owned by the seller.

In his federal lawsuit, Burkow contended the regulation violated his commercial speech rights. The city countered that the ordinance furthered its interests of preserving safety by reducing distractions, promoting the flow of traffic, protecting public streets from blight, and discouraging trafficking in stolen vehicles.

On Oct. 17, 2000, U.S. District Judge A. Howard Matz granted Burkow a preliminary injunction prohibiting enforcement of the ordinance. Matz analyzed the restriction under the Supreme Court's 1980 Central Hudson test.

The judge noted that the government failed to show any “objective” evidence that its ordinance was designed to address the city's four stated interests, but reasoned that the government had substantial interests in safety and aesthetics.

However, he ruled that the government failed to show that its ordinance directly and materially advanced its interests. In fact, the city's goals were undermined rather than furthered by the ordinance, Matz said.

Matz noted that the city failed to produce any studies or “even anecdotal evidence” showing any problems caused by allowing citizens to have “for sale” signs in their cars.

“Defendant employs circular reasoning to suggest that the mere act of passing the ordinance is evidence that there were 'serious' problems, ” he wrote in Burkow v. City of Los Angeles.

Matz also determined that the ordinance was not “reasonably tailored” to serve the city's substantial interests. He noted that the ordinance singled out ads for cars. Under the ordinance, the judge reasoned, “commercial advertisements on cars could offer anything for sale, such as ads depicting jewelry, drugs or sexually explicit magazines, except the car on which the sign is mounted.

“The Court cannot fathom how a sign in a parked car is more dangerous than the same sign in a moving car; indeed, there is a greater likelihood that a passing motorist will avert his eyes to read a sign posted in a moving vehicle,” Matz wrote.

The judge noted that the alleged harms to aesthetics the city recited in support of its ordinance could be addressed “with measures far short of outright prohibition,” such as limiting the time during which vehicles with “for sale” signs could remain in parked spaces.

The city argued that the ordinance was not a complete ban, because car owners could take out ads in the newspaper or sell the car at a dealer's lot. The judge noted these alternatives were more expensive and concluded they were “not satisfactory alternatives.”