and Submitted July 12, 2017 San Francisco, California
Amended October 23, 2017
from the United States District Court for the Northern
District of California D.C. No. 3:16-cv-06539-SI Susan
Illston, Senior District Judge, Presiding
Michael F. Wright (argued), Los Angeles, California, for
M. Emery (argued) and Victoria Wong, Deputy City Attorneys;
Dennis J. Herrera, City Attorney; Office of the City
Attorney, San Francisco, California; for Defendant-Appellee.
Before: Susan P. Graber and Michelle T. Friedland, Circuit
Judges, and Consuelo B. Marshall, [*] District Judge.
panel affirmed the district court's Fed.R.Civ.P. 12(b)(6)
dismissal of an action brought pursuant to 42 U.S.C. §
1983 challenging San Francisco's sign-related
its Planning Code, San Francisco prohibits new billboards but
allows onsite business signs relating to activities
undertaken on the premises, subject to various rules.
Noncommercial signs are exempt from the rules. Plaintiff, an
advertiser that rents the right to post signs on the premises
of third-party businesses, alleged that the City's
Planning Code violates the First Amendment by exempting
noncommercial signs from its regulatory ambit.
panel held that the distinction drawn between commercial and
noncommercial signs in the City's Planning Code survived
intermediate scrutiny under Central Hudson Gas &
Electric Corp. v. Public Service Commission, 447 U.S.
557 (1980). The panel held that the distinctions directly
advanced the City's substantial interests in safety and
aesthetics and was not impermissibly underinclusive.
opinion filed on August 16, 2017, and published at 867 F.3d
1171, is amended by the opinion filed concurrently with this
order, as follows:
On slip opinion page 14, footnote 4, delete the last
sentence: "For the reasons given by the district court,
see Contest Promotions, LLC v. City of San
Francisco, No. 16-cv-06539-SI, 2017 WL 1493277, at *5
(N.D. Cal. Apr. 26, 2017) (order), we affirm the dismissal of
that claim as well." Substitute the following for the
deleted sentence: "This claim is moot because no
penalties ever were assessed."
With this amendment, the panel has voted to deny
Appellant's petition for rehearing. Judges Graber and
Friedland have voted to deny Appellant's petition for
rehearing en banc, and Judge Marshall has so recommended.
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on
petition for rehearing and rehearing en banc is DENIED. No
further petitions for rehearing ...