(6th Cir. 1987), the court stated:
Furthermore, the on-premise/off-premise distinction does not constitute an impermissible regulation of content just because the determination of whether a sign is permitted at a given location is a function of the signs message.
Id. at 591. In addition, the distinction between on-site and off- site advertising is not aimed toward the suppression of an idea or viewpoint. See Member of City council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 2128, 80 L. Ed. 2d 772 (1984). Thus, the very type of on-site/off-site distinction which National finds objectionable has been found to be constitutionally permissible.
In addition, to be certain that non-commercial speech is treated no less favorably by the City of Chicago's laws than commercial speech, the City's new ordinance states that, "Any business sign authorized in this section is allowed to contain noncommercial copy in lieu of other copy." Ordinance §§ 8.9(6), 9.9(6), and 10.4(6). Virtually identical "in lieu of" provisions have been found to satisfy Metromedia. The court found in National Advertising Co. v. Babylon, 900 F.2d 551 (2d Cir 1990), that such "in lieu of" language would be a "simple solution to the First Amendment implications like the ones alleges here." Id. at 557.
On its face, the City's ordinance is content neutral and, therefore, is subject to the time place and manner restriction test. The zoning ordinance and electrical code pass that test - the substantial government interest of safety and aesthetics are directly advanced, while the regulations are narrowly tailored to achieve those goals. Because the test is satisfied, National fails to state a First Amendment claim.
C. EQUAL PROTECTION
To state a discriminatory enforcement claim under § 1983, National must allege "intentional or purposeful discrimination," Snowden v. Hughes, 321 U.S. 1, 8, 88 L. Ed. 497, 64 S. Ct. 397 (1944); Scudder v. Greendale, 704 F.2d 999, 1002 (7th Cir, 1983), "purposefully directed' toward plaintiffs." Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7th Cir. 1980). As the Supreme Court stated in Snowden:
[Intentional or purposeful discrimination] may appear on the face of the action taken with respect to a particular class or person, or it may bee shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself.
321 U.S. at 8 (emphasis added). In order to show discrimination, a party must show that a person is being treated unfairly with respect to some category or characteristic, in contrast to another person in a different category or with different characteristics. Shango v. Jurich 681 F.2d 1091, 1104 (7th Cir. 1982).
National also seems to be alleging its claim based on the doctrine of "selective enforcement." The law on this doctrine which disapproves the unequal administration of a facially neutral legislation is summarized in Shango as follows:
'Not every denial of a right conferred by state law involves a denial of the equal protection of the laws. . . .' Snowden v. Hughes, 321 U.S. 1, 8, 88 L. Ed. 497, 64 S. Ct. 397 [additional citations omitted]. Rather, the 'Equal Protection Clause has long been limited to instances of purposeful or invidious discrimination rather than erroneous or even arbitrary administration of state powers. The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state's action.' [citation omitted] A plaintiff 'must demonstrate intentional or purposeful discrimination' to show an equal protection violation. [citation omitted] "'Discriminatory purpose,' however, implies more than intent as volition or intent as awareness of consequences." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 [citations omitted] It implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identified group.
Shango, 681 F.2d at 1104 (7th Cir 1982).
National alleges that the City has purposefully engaged in a course of conduct with a discriminatory intent to favor Ad-Ex over National. National does not, however, define any category or characteristics which underlie its claim.
Absent any identifiable category or characteristic that would support a basis of discrimination, National cannot maintain its Equal Protection claim. Given these circumstances, National's challenge to the constitutionality of the City's ordinance and code should be dismissed for failure to state a claim upon which relief can be granted.
The City of Chicago's motion to dismiss Counts I-IV of National's complaint as moot is granted. The City of Chicago's motion to dismiss Counts V and VI for failure to state a claim upon which relief can be granted is also granted. This order is final and appealable as of this date.
IT IS SO ORDERED.
DATED: November 8, 1991
JAMES B. PARSONS
United States District Court Judge
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