Opinion
Case No. 2:99CV528K
May 26, 2000
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT
This matter came on for trial on May 1, 2000 and continued until May 3, 2000. Plaintiff J.J. Wang ("Mr. Wang") was represented by Kristine M. Rogers, and Defendant City of Moab ("Moab") was represented by Benson L. Hathaway, Jr. The court, having heard the testimony of witnesses, reviewed the evidence, and considered the arguments of counsel, and being fully advised now makes and enters its findings of fact and conclusions of law and judgment.
FINDINGS OF FACT
1. Mr. Wang owns the Best Western Greenwell Inn (the "Greenwell Inn") in the City of Moab.
2. The City of Moab issued a sign permit for the Greenwell Inn on August 4, 1995, which allowed a changeable copy sign of certain size and proportion to operate on the property of the Greenwell Inn.
3. The application for the sign permit, which contained a computer-generated illustration of the sign, stated that the sign to be erected included "137 square foot Best Western illuminated display," and "21 square feet of 4.85 watt illuminated changeable copy reader board display."
4. Mr. Wang, relying on the permit, subsequently expended over $24,000 to build and install an electronic changeable copy reader board sign for the Greenwell Inn. The sign was installed according to specifications. By mid-April 1997, Mr. Wang had put into operation the new sign.
5. The City of Moab had notice of the type of sign that Mr. Wang was installing, both from the sign permit application and from the Zoning Compliance Officer's having repeatedly seen the sign in operation for at least nine months.
6. Despite the fact that the City of Moab knew about Mr. Wang's sign for at least nine months, the City notified Mr. Wang by letter dated February 5, 1998 that his sign violated the Sign Code. The letter stated that he had violated section 15.44.070 for having "flashing and changing lights on the sign."
7. The Moab City Sign Code (the "Sign Code") is ambiguous as to whether Mr. Wang's sign, which displays various computer-programmed messages, is permitted. Specifically, changeable copy signs are permitted under the Sign Code. Section 12 of the Sign Code, in its definition of changeable copy signs, explicitly contemplates the erection of signs on which copy is changed "automatically on a lamp bank or through mechanical means; e.g., electrical or electronic time and temperature units." However, section 15.44.070 of the Sign Code states that "[l]ighted signs shall have stationary and constant lighting." Further creating ambiguity is the fact that the Moab City Council voted to delete the ban on flashing lights when it adopted the Sign Code.
8. In the sign industry, it is generally accepted that displays characterized by changing light patterns, animation, flashing, and other movement do not have stationary and constant lighting. However, electronic information displays that have stationary messages, a constant background, and lighting that reappears at a constant level of brightness are considered to be "constant and stationary."
9. Steve Wang, son of Mr. Wang, responded to the February 5, 1998 letter on February 9, 1998. He explained that he had researched the issue and determined that the City of Moab was aware of the specifications of the sign when it issued the sign permit. He also stated that the Zoning Compliance Officer had seen the sign after it had been installed, but she questioned only the height of the sign.
10. After further correspondence from the Zoning Compliance Officer, who insisted that the sign violated the Sign Code, on April 13, 1998, Mr. Wang wrote to the Mayor of Moab to explain his position. He also provided a video of the sign's capabilities and assured the Mayor that he would use only the automatic change copy feature of the sign and not the flashing or blinking features.
11. From February 1998 through March 1999, Mr. Wang and his son, Steve Wang, after consulting with experts in the sign industry, diligently provided Moab City officials with information to support their assertion that the Greenwell Inn sign operated lawfully.
12. Despite these efforts, Mr. Wang was notified by Information dated October 14, 1998, that he was being charged with criminal violation of the Sign Code for "having a flashing sign when said code states lighted signs shall have stationary and constant lighting."
13. A trial for the criminal charges took place on February 11, 1999, and Mr. Wang was convicted of violating § 15.44.070 of the Sign Code and fined $100.00.
14. During Mr. Wang's trial, Grand County Justice Court Judge Paul Cox ruled that a sign is not considered to be "flashing" if its message remained constant for a period of three seconds.
15. In a letter dated March 31, 1999, Grand County Justice Court Judge Paul Cox wrote:
Due to the lack of definition on "FLASHING SIGNS" in the City ordinance, this Court made a ruling. The ruling that was made was that a sign was only considered a FLASHING SIGN" if it changed its appearance in under three (3) seconds. If it maintained the same appearance for more than three (3) seconds, it is not considered a "FLASHING SIGN."
16. On February 11, 1999, Mr. Wang programmed the sign to change messages at four-second intervals, thereby complying with Judge Cox's ruling.
17. By letter dated March 18, 1999, and despite Judge Cox's ruling, the Moab City Attorney informed Mr. Wang that he was in continued violation of the Sign Code. The letter threatened to initiate proceedings to revoke Mr. Wang's business license if Mr. Wang did not bring the Greenwell Inn sign into compliance by March 24, 1999.
18. Mr. Wang turned off the electronic variable message portion of his sign.
19. A special workshop meeting of the Moab City Council was held on March 30, 1999, in which the City Council convened to discuss the revocation of Mr. Wang's business license. Mr. Wang attended the special workshop meeting to defend his position that the Greenwell sign was in compliance with the Moab City Sign Code. Although Mr. Wang had turned off his sign, thus obviating the need to revoke his business license, the City Council proceeded to discuss whether Mr. Wang's sign, when turned on, violated the Sign Code.
20. At the March 30, 1999 meeting, the City Council disregarded Mr. Wang's defense and persisted in its position that the Greenwell Inn sign violated the Sign Code, ordering Plaintiff to either turn off his sign, leave a single, constantly lit message on the reader board, or face revocation of his business license. During the meeting, the City Council members and the mayor constantly interrupted Mr. Wang, instructed him on what words he could use or not use, and generally treated him rudely and with a lack of respect.
21. Rather than risk losing his business license, Mr. Wang turned his sign off until July 29, 1999, after this court granted Mr. Wang's Motion for a Preliminary Injunction.
CONCLUSIONS OF LAW
1. After April 13, 1998, and certainly after Judge Cox's ruling on February 11, 1999, Mr. Wang's sign did not violate the Moab City Sign Code.
2. Although Utah has not specifically recognized a protectable property interest in validly issued business licenses or sign permits, it has not declined to find such an interest. This court finds that Utah would recognize such rights if presented with the opportunity. See, e.g., Celebrity Club Inc. v. Utah Liquor Control Comm'n, 657 P.2d 1293 (Utah 1982) (recognizing property interest in liquor licenses); Anderson v. Utah County Bd. of County Comm'rs, 589 P.2d 1214 (Utah 1979) (rejecting assertion that the plaintiff held no property interest in the expected renewal of his country-granted beer license). See also Mt. Sinai Medical Center of Greater Miami v. Miami Beach, 706 F. Supp. 1525, 1530 (S.D. Fla. 1989) ("property rights, which include a property owner's reliance upon issued building permits, are protected rights under the Fourteenth Amendment").
3. Mr. Wang has a constitutionally protected property interest in his sign permit and business license.
4. Mr. Wang was deprived of his constitutionally protected property interests. Although neither his sign permit nor business license was ever actually revoked, he was repeatedly threatened with revocation of his sign permit and business license if he did not comply with the City of Moab's illegitimate requests. The fact that Mr. Wang chose to comply with the City of Moab's request by turning his sign off — rather than lose his business license or sign permit — does not moot his deprivation claim. Mr. Wang's existing legal right to operate his sign was altered, especially after Judge Cox issued his February 11, 1998 ruling.
5. The City of Moab deliberately deprived Mr. Wang of his constitutionally protected rights, acting with more than mere negligence in its deprivation of these particular rights. See Daniels v. Williams, 474 U.S. 327 (1986).
6. The City of Moab's conduct toward Mr. Wang was arbitrary and capricious, and it shocks the conscience of the court. See Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir. 1995), cert. denied, 516 U.S. 1118 (1996). Specifically, the City permitted Mr. Wang to operate his sign for longer than nine months before notifying him that his sign allegedly violated the Sign Code. In addition, because of the ambiguity in the Sign Code, the City should not have prosecuted Mr. Wang for violating the Sign Code. At the very least, it should have investigated the "legislative history" of the Sign Code — which the Mayor testified would have taken less than an hour — and consulted industry experts regarding the meaning of the language contained in the Sign Code before prosecuting Mr. Wang. Most egregiously, the City of Moab completely disregarded the ruling of Judge Cox, whose rulings are binding on the City of Moab. Mr. Wang was entitled to rely on that ruling. The fact that the City of Moab threatened Mr. Wang with the loss of his business license if he continued to operate the sign in conformity with Judge Cox's ruling is shocking.
7. Mr. Wang is entitled to nominal damages in the amount of $10.
8. Mr. Wang is entitled to damages for emotional distress, public humiliation, frustration, and loss of trust in local government in the amount of $2,500.
9. The City of Moab is permanently enjoined from interfering with Mr. Wang's use of the sign for which he holds Permit Number S268 issued by the City of Moab on August 4, 1995, to the extent that Mr. Wang operates the sign in accordance with the specifications set forth in the letter dated March 31, 1999, signed by Grand County Justice Court Judge Paul C. Cox.
10. The City of Moab is permanently enjoined from threatening to revoke Mr. Wang's business license in connection with his operation of the sign.
11. Mr. Wang is entitled to reasonable attorneys fees and costs, which will be determined at a later date pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988, and Rule 54(d) of the Federal Rules of Civil Procedure.
JUDGMENT AND ORDER
After considering all of the evidence and the law as it applies to this case, the court hereby enters judgment in favor of Mr. Wang. It is the conclusion of this court that the City of Moab is liable for nominal damages in the amount of $10, emotional suffering damages in the amount of $2,500, and attorneys fees and costs to be determined upon the submission of the required documents. Furthermore, the City of Moab is permanently enjoined from (1) interfering with Mr. Wang's use of the sign for which he holds Permit Number S268 issued by the City of Moab on August 4, 1995, to the extent that Mr. Wang operates the sign in accordance with the specifications set forth in the letter dated March 31, 1999, signed by Grand County Justice Court Judge Paul C. Cox, and (2) threatening to revoke Mr. Wang's business license in connection with his operation of the sign.
ORDER
This matter is before the court on Plaintiff's Motion for Attorneys' Fees. The court has considered all pleadings, memoranda, and other materials submitted by the parties. The court has further considered the law and facts relevant to the motion and has determined that oral argument would not substantially assist the court. Now being fully advised, the court enters the following Order.
Pursuant to 42 U.S.C. § 1988, Plaintiff has requested attorneys' fees in the amount of $38,467.50. This amount is based upon 122.5 hours at a rate of $110.00 per hour from May 1999 through November 28, 1999, and 192.25 hours from November 29, 1999 through May 2000 at a rate of $130.00 per hour. Defendants recommend that the court award no more than $23,376.50 in fees because, they claim, Plaintiff's counsel included items in her affidavit that were not in fact billed to the client and because some of the hours appear to represent duplicative work, nonbillable background work, an excessive number of hours for a given project, and work unrelated to the instant litigation. They also claim that the time summaries lack evidence of meticulously kept contemporaneous records of specific detail identifying the tasks performed and the people involved.
The court finds that Plaintiff's requested fees are reasonable in that the number of hours expended on this litigation and the hourly rate charged are both reasonable — with two minor exceptions. The court deducts 5% of the total fees ($1,923.38) because it is likely that at least some of the work was unnecessarily duplicative, given the number of attorneys involved and the numerous entries that appear to cover the same or similar tasks. In addition, the court deducts 10.3 hours (at a rate of $130.00 per hour, for a total of $1,339.00) from Ms. Rogers' time on 3/14/00-3/17/00 for the depositions taken on those days, based upon the fact that Defendants' counsel billed 10.7 hours for those depositions and Plaintiff's counsel billed for 23 hours for the same depositions. Therefore, the court awards attorneys' fees in the amount of $35,205.12.