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HomeMy WebLinkAbout11-03-2005 Political Sign and Campaign AccountsRECEIVED NOV 0 3 2005 BROWN, GARGANESE, WEISS & UAGRESTA, 94 OWINTER ITY CLERK Usher L. Brown • Suzanne D'Agresta° Anthony A. Garganese° Jeffrey S. Weiss *Board Certified Civil Trial Lawyer Board Certified City, County & Local Government Law Andrea Lorenzo-luaces City Clerk of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Attorneys at Lam Offices in Orlando, Kissimmee, Cocoa & Vera November 3, 2005 Re: Political Sign and Campaign Accounts Dear Andrea: Debra S. Babb-Nutcher° Joseph E. Butch Victoria L. Cecil Scott J. Domstein Andrew M. Fisher Katherine W. Latorre Amy J. Pitsch Erin J. O'Leary J. W. Taylor Of Counsel I am writing to follow-up regarding our teleconference on Monday where I responded to your request for a legal opinion with respect to the following two questions which I have paraphrased: 1. Whether the City can prohibit, in accordance with Section 16-80 of the Winter Springs Code, a candidate for elected office from erecting a campaign sign until the candidate officially qualifies for elected office? 2. Whether a candidate for elected office can open a campaign account for the 2006 Winter Springs city commission election prior to that candidate officially qualifying for the election? QUESTON 1 With respect to the first question, based on my comprehensive review of the City's current sign code and the absence of a controlling decision by the United States Supreme Court, it is my opinion that a candidate for elected office can apparently erect a campaign sign prior to qualifying for elected office despite the apparent prohibition set forth in section 16-80 of the Winter Springs Code. The posting of political signs are afforded significant protection under the United States Constitution because political speech is at the apex of protected First Amendment speech. See City of Ladue v. Gilleo, 512 U.S. 43 (1994). Thus, establishing a period before an election during which 225 East Robinson Street, Suite 660 • P.O. Box 2873. Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.oriandolaw.net - Email: firm@oriandolaw.net November 3, 2005 Page 2 political signs cannot be displayed presents great constitutional difficulties. As a result, many courts have held that precise time limitations which are applicable to political signs, but not to commercial signs are content -based restrictions on speech that are unconstitutional. See e.g., Granite State Outdoor Advertising, Inc. v. City of Clearwater, 2002 WL 1748597 (M.D. Fla. July 23, 2002) (declaring sixty day time limit for temporary political yard signs unconstitutional); Whitten v. City of Gladstone, 54 F. 3d 1400, 1403- 04 (8' Cir. 1995) (thirty day time restriction before elections on political signs unconstitutional); see also, Collier v. City of Tacoma, 854 P. 2d 1046 (Wash. 1993) (such restrictions infringe on the rights of those individuals who are considering entering a political race); Curry v. Prince George's County, 33 F. Supp. 2d 447 (D. Md. 1999) (Stating in dicta that if an individual wishes to promote a candidate, candidates cause, or both by posting signs on residential property several months or years before the next political election, logic of Ladue would certainly seem to permit it). Therefore, unless judicially determined otherwise by a court with jurisdiction over Florida, I am of the opinion that the City should not enforce the provisions of section 16-80 of the Winter Springs Code.' QUESTION 2 Regarding the second question, it is my opinion that a candidate for the City Commission can open a campaign account prior to officially qualifying for office. Section 106.021, Florida Statutes, provides, in relevant part, that "[e]ach person who seeks to qualify for nomination or election to, or retention in, office shall appoint a campaign treasurer and designate a primary campaign depository prior to qualifying for office." (underlined emphasis added). The Florida Division of Elections has interpreted section 106.021 to mean that a candidate for sheriff could begin accepting contributions and making expenditures in a campaign prior to the time the candidate was required to qualify for the office of sheriff as long as the candidate complied with the requirements of the election laws including appointing a campaign treasurer and designating a campaign depository. See Division of Elections Opinion 84-15. ' My opinion should not be interpreted to mean that it is impossible for a municipality to impose reasonable time restrictions on political signs. Unless the United Supreme Court holds to the contrary, a municipality may be able to impose uniform durational restrictions on ALL temporary signs after it has seriously and comprehensively addressed the aesthetic and safety concerns of the municipality relative to such signs. This task will, however, be very difficult in a constitutional sense. 225 East Robinson Street, Sufte 680 - P.O. Box 2873.Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-Vaa96 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9560 Websits: www.orlandolaw.net • Email: firm@odandolow.net November 3, 2005 Page 3 Therefore, a candidate for city commission can open a campaign account prior to officially qualifying as a candidate for city commission.2 If I can be of any additional assistance, please do not hesitate to ask. Sin el , Anthony A. Garganese, City Attorney cc: Mayor and City Commission City Manager ` My interpretation of section 106.021, Florida Statutes, is for your purposes only and should not be relied on by any candidate for political office including a candidate for city commission. Candidates for political office should consult their own attorney for legal advice regarding compliance with the Florida Election Laws. 225 East Robinson Street, Suite 880 • P.O. Box 2873.Orlando, Florida 32802-2873 Orlando (407) 425-9588 Fax (407) 425-9596 • Kissimmee (321) 402-M 44 • Cocoa & Mars (868) 425-9588 Website: www.oriandolaw.net • Email: firm@oriandolaw.net