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Contest Promotions, LLC v. City and County of San Francisco

United States Court of Appeals, Ninth Circuit

October 23, 2017

Contest Promotions, LLC, Plaintiff-Appellant,
v.
City and County of San Francisco, Defendant-Appellee.

          Argued and Submitted July 12, 2017 San Francisco, California

          Amended October 23, 2017

         Appeal 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 Plaintiff-Appellant.

          James 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.

         SUMMARY [**]

         Civil Rights

         The 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 regulations.

         Through 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.

         The 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.

         ORDER

         The 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 it.

         Appellant's petition for rehearing and rehearing en banc is DENIED. No further petitions for rehearing ...


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