Anoka County District Court File No. TX0213083
Considered and decided by Schumacher, Presiding Judge; Willis, Judge;
and Wright, Judge.
A content-neutral provision of law enacted to further a substantial governmental interest without entirely foreclosing a means of communication is valid so long as the legislative body reasonably determined its goal would be less effectively achieved without the provision.
The opinion of the court was delivered by: Robert H. Schumacher, Judge
Appellant Wayne Earl Dahl challenges his conviction of violating Fridley, Minn., City Code § 214.04.6 (2002), which prohibits the use of"motion signs" throughout Fridley.*fn1 He argues the ordinance is facially unconstitutional under the First Amendment of the United States Constitution. We conclude the ordinance is a valid time, place, or manner regulation under the test set out in Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746 (1989). We also conclude the evidence was not"insufficient as a matter of law," and because the issue was not properly raised before this court, we decline to address Dahl's argument that the trial court erred in excluding a defense witness. We affirm.
Dahl operates a chiropractic clinic on the corner of Osborne Road and Highway 65 in Fridley. For many years he displayed an alternating"time and temperature" sign on top of a traditional, flat advertising sign at his clinic. Between December 2000 and January 2001, Dahl decided he wanted an automatic changeable sign"so that we could provide public service messages, et cetera."
In early 2001, Dahl applied for, and Fridley granted him, a special use permit to operate an automatic changeable sign. Under Fridley, Minn., City Code 214.07.1.A (2002), the special use permit is issued subject to"[c]onformance to the sign requirements within that district." Fridley, Minn., City Code § 214.04.6, which prohibits the use of"motion signs," applies to all districts within Fridley. Scott Hickok, Fridley's community development director, testified that Dahl had obtained a special use permit to operate an automatic changeable sign, but the special use permit was granted upon the conditions that (1) the sign be operated within all of the confines of the law, (2) a building permit be obtained, and (3) the sign be constructed in accordance with the law. Hickok is responsible for enforcing Fridley's city code.
Dahl's new sign was installed in late December 2001. Dahl testified he initially let the sign sit blank because he was unsure what the sign could display. In March 2002, Dahl turned the sign on, displaying the message"Walk In For Better Health," accompanied by flickering snowflakes. That evening, Sergeant Crestik of the Fridley police issued Dahl two citations for violating Fridley's sign ordinances.
On Monday morning, Dahl contacted Hickok to discuss his situation. Dahl attended a meeting that day with Hickok, the city attorney, and Paul Bolin. Dahl testified that at this meeting the city told him the citations had been issued because the snowflakes"flash[ed]" and that when the message spread apart before changing, the sign created the illusion of motion and therefore violated the city's sign ordinances.
At this meeting, the discussion moved from the message that was displayed to whether Fridley would cite Dahl for displaying a waving American flag. Dahl testified that he was told,"If you [display the flag] we want to know when you're going to do it because we don't want the police to have to be on over-time when they arrest you." Dahl then countered with,"How about seven o'clock on Thursday night?" Hickok, however, testified to a very different version of the flag discussion. He testified, Fridley's statement was,"The American flag is fine, but don't run contrary to those two elements that have been discussed." Hickok testified that Dahl responded,"I'm going to turn it on. As a matter of fact, let me give you the date and time. . . . And if the city doesn't want to change the code, I will embarrass them into doing so."
At approximately 7 p.m. on Thursday, April 3, 2002, Dahl turned on the sign displaying a waving American flag. He was issued a citation for violating the sign ordinances. He ...