This appeal addresses the severability of a municipal ordinance section and the constitutionality of a content-neutral restriction on the posting of signs on public property. The defendant, On Sight Mobile Opticians, had placed a sign advertising its business on public property. The Town of Brookhaven’s investigator filed informations charging the defendant with violation a section of the Town Code prohibiting the posting of signs on public property. The defendant moved for dismissal on the ground that the Town Code chapter at issue was unconstitutional.
The district court denied the motion, holding that the chapter was constitutional. The defendant pleaded guilty and then appealed to the appellate term. The appellate term found the section itself constitutional, but it held that the entire chapter “unconstitutionally favor[ed] commercial speech over noncommercial speech.” It then found that the unconstitutional parts of that chapter could not be severed and as a result reversed the convictions, dismissed the informations, and ordered any fines returned.
Here, the Court held that the code section at issue dealt only with the posting of signs on public property and thus had a discrete, independent legislative purpose. It could therefore be severed from the rest of the chapter in which it appeared.
Considering the constitutionality of the code section in isolation from the rest of the chapter, the Court found it to be a ban that affected both commercial and non-commercial signs without regard to content. It also found the section to “serve[ ] the Town’s valid interest in traffic safety and aesthetics.” Since it was content-neutral and served a valid government interest, the Court held the section constitutional and reversed the order of the appellate term.
2 N.Y.S.3d 406 (N.Y. 2014)