Taxi Cabvertising, Inc. v. City of Myrtle Beach , 26 F. App'x 206 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TAXI CABVERTISING, INCORPORATED, 
Plaintiff-Appellant,
v.  No. 01-1525
CITY OF MYRTLE BEACH,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Patrick Michael Duffy, District Judge.
(CA-00-1315)
Argued: December 6, 2001
Decided: January 9, 2002
Before WILKINS and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Douglas Michael Zayicek, BELLAMY, RUTENBERG,
COPELAND, EPPS, GRAVELY & BOWERS, P.A., Myrtle Beach,
South Carolina, for Appellant. Charles Bernhart Jordan, Jr.,
VAN OSDELL, LESTER, HOWE & JORDAN, P.A., Myrtle Beach,
South Carolina, for Appellee. ON BRIEF: Howell V. Bellamy, Jr.,
BELLAMY, RUTENBERG, COPELAND, EPPS, GRAVELY &
BOWERS, P.A., Myrtle Beach, South Carolina, for Appellant.
2 TAXI CABVERTISING v. CITY OF MYRTLE BEACH
Charles B. Jordan, Jr., VAN OSDELL, LESTER, HOWE & JOR-
DAN, P.A., Myrtle Beach, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Taxi Cabvertising, Incorporated (Cabvertising) appeals a decision
of the district court upholding a Myrtle Beach, South Carolina ordi-
nance banning roof-mounted advertising signs on taxis. We affirm.
I.
Cabvertising is in the business of placing roof-mounted advertise-
ments on taxi cabs. The company operates in several cities in the Car-
olinas, including Myrtle Beach.
Myrtle Beach closely regulates displays on vehicles. Until 1996, no
sign was permitted on any vehicle unless, inter alia, the sign was
"painted upon or applied directly to an integral part of the vehicle."
J.A. 48. The city relaxed this rule in 1996 by passing Ordinance 96-
91, which allowed licensed taxis to "display one dual-faced, unlighted
rectangular advertising sign." Id. at 156. After less than two years,
however, the city council passed Ordinance 98-21, under which taxis
were once again subjected to the general prohibition against protrud-
ing signs. One councilwoman supporting Ordinance 98-21 explained
that she opposed roof-mounted signs because they "add[] to visual
clutter." Id. at 122.*
*Another provision of the Myrtle Beach code limits signs to vehicles
—other than buses—that are "actively used in the daily function of the
business to which such signs relate." Id. at 49. Ordinance 96-91 allowed
taxis to carry advertisements unrelated to their own businesses, but this
authorization was withdrawn by Ordinance 98-21. Cabvertising, which
only supplies roof-mounted signs, has not challenged this aspect of Ordi-
nance 98-21.
TAXI CABVERTISING v. CITY OF MYRTLE BEACH 3
The council provided that Ordinance 98-21 would not become
effective for two years, in order to allow Cabvertising to fulfill its
existing contracts. Before Ordinance 98-21 took effect (and after a
repeal effort failed), Cabvertising sued to block implementation of the
ordinance. Following discovery, the district court granted summary
judgment in favor of Myrtle Beach. See Taxi Cabvertising, Inc. v.
City of Myrtle Beach, No. 00-1315-23 (D.S.C. Mar. 20, 2001).
II.
Cabvertising contends that Ordinance 98-21 (a) impairs free
speech, in violation of the First Amendment; (b) denies Cabvertising
equal protection of the laws, in violation of the Fourteenth Amend-
ment; (c) deprives Cabvertising of vested rights under South Carolina
law; and (d) restrains interstate commerce, in violation of the Com-
merce Clause. We affirm the decision of the district court holding to
the contrary.
A.
Cabvertising asserts that Ordinance 98-21 regulates speech in a
public forum and therefore must face strict scrutiny under the First
Amendment. While acknowledging that Ordinance 98-21 applies in
public forums (the streets of Myrtle Beach), the district court rejected
the application of strict scrutiny on the basis that Ordinance 98-21 is
a time, place, and manner restriction ("TPM restriction") subject to
intermediate scrutiny. This holding was correct, as demonstrated by
the application of intermediate scrutiny to TPM restrictions affecting
a public forum in Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989).
To withstand a First Amendment challenge, a TPM restriction must
be "justified without reference to the content of the regulated speech"
and "narrowly tailored to serve a significant governmental interest,"
and it must "leave open ample alternative channels for communica-
tion of the information." Id. (internal quotation marks omitted). We
affirm the decision of the district court holding that Ordinance 98-21
satisfies these requirements.
4 TAXI CABVERTISING v. CITY OF MYRTLE BEACH
B.
With respect to its equal protection claim, Cabvertising again
asserts that strict scrutiny applies, on the basis that Ordinance 98-21
burdens free speech rights. In the context of equal protection chal-
lenges, however, courts generally reserve strict scrutiny for content-
based speech restrictions. See, e.g., Jones Intercable of San Diego,
Inc. v. City of Chula Vista, 80 F.3d 320, 327 (9th Cir. 1996). Because
Ordinance 98-21 is content-neutral, strict scrutiny does not apply.
Instead, the ordinance is valid under the Equal Protection Clause if
"the classification drawn by the [ordinance] is rationally related to a
legitimate state interest." City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 440 (1985). For the reasons stated by the district
court, we find no equal protection violation.
C.
In its third claim, Cabvertising asserts that Ordinance 98-21
impairs vested rights protected by South Carolina law. The district
court rejected this claim on the ground that the vested rights doctrine
invoked by Cabvertising applies only to land use regulations. We
agree, again for the reasons stated by the district court.
D.
Finally, we reject Cabvertising’s Dormant Commerce Clause chal-
lenge to Ordinance 98-21. The ordinance "regulates evenhandedly
and only indirectly affects interstate commerce," and it is therefore
valid "unless the burdens on commerce are clearly excessive in rela-
tion to the putative local benefits." Waste Mgmt. Holdings, Inc. v. Gil-
more, 252 F.3d 316, 333 (4th Cir. 2001) (internal quotation marks
omitted), petition for cert. filed, No. 01-808 (U.S. Oct. 30, 2001). For
the reasons stated by the district court, we hold that Ordinance 98-21
does not unlawfully interfere with interstate commerce.
III.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED