LEGAL: “Federal appeals court backs Florida man in religious sign dispute”

LEGAL: “Federal appeals court backs Florida man in religious sign dispute”

“A federal appeals court Tuesday sided with a man who challenged a Fort Myers Beach ordinance that prevented him from carrying a sign with a Christian message on the town’s streets.

A three-judge panel of the 11th U.S. Circuit Court of Appeals said a district judge should have granted a request by Adam LaCroix for a preliminary injunction against the ordinance, which barred portable signs.

The panel did not agree with an argument by LaCroix that the ordinance was a ‘content-based’ constitutional violation. But the judges said the town’s prohibition on portable signs likely violated the First Amendment.

‘The rich tradition of political lawn signs perhaps is surpassed only by America’s history of marches and rallies dotted with handheld signs and placards of every imaginable description and covering every conceivable political message,’ Judge Stanley Marcus wrote in a 26-page opinion joined by Judges Jill Pryor and Britt Grant. ‘Images of demonstrators holding portable signs immediately spring to mind: the March on Washington, the Women’s March, the 2000 presidential election protests in Dade County and Tallahassee, the Black Lives Matter protests in nearly every city in the country, the Tea Party protests, the Women’s Suffrage March and many more. All of them involved people carrying portable signs. And all were easy to create and customize. If the town’s prohibition on carrying all portable signs were to stand, all kinds of expressive speech protected by the First Amendment would be barred.’

The opinion said Fort Myers Beach passed a sign ordinance to try to prevent visual blight and barred portable signs. It said LaCroix in October 2020 was ‘peaceably attempting to share his religious message on a public sidewalk’ when he received a warning from a code-compliance officer about violating the sign ordinance. In December 2020, he received a citation.

‘Although the record (in the case) does not tell us precisely the dimensions of the sign LaCroix held nor its exact message, we know that LaCroix said he shared his ‘religious, political and social message’ which ‘is one of hope and salvation that Christianity offers,” Marcus wrote.

A town official subsequently dismissed the citation, but LaCroix filed a federal lawsuit alleging violations of the First Amendment, the Equal Protection Clause of the U.S. Constitution and a state law known as the Religious Freedom Restoration Act.

U.S. District Judge Sheri Polster Chappell last year rejected the request for a preliminary injunction, spurring LaCroix and his attorneys from the American Liberties Institute to take the case to the Atlanta-based appeals court.

The opinion Tuesday sent the case back to district court…”

— CBS Miami Team

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“Here’s your hurricane to-do list for large trees on the Space Coast”

“Here’s your hurricane to-do list for large trees on the Space Coast”

Photo: Sally Scalera, Florida Today
A tree that is too close to sidewalks, driveways or streets is prone to blowing over in a storm.

Photo: Sally Scalera, Florida Today
Call in a certified arborist if you find a root girdling a large tree in your yard.

“…Though I do not expect a bad hurricane season (blame it on optimism), it is always best to be prepared. If you own large trees that are 50 feet or taller, complete this checklist as soon as you can.

Location. Check to see if any large trees are planted less than 12 feet from a sidewalk, driveway or street. Any closer is not recommended, because trees can cause damage by lifting and cracking cement. If you do have a large tree planted too close, consider consulting a certified arborist to determine if the tree needs the canopy thinned because of a lack of proper rooting area.

Look for girdling roots. Walk around your trees to see if any girdling roots are visible. A girdling root will be growing on the surface of the soil, close to and around the trunk. Girdling roots can eventually strangle a portion of the trunk, which, if it wraps half-way around the trunk or more, could kill the tree. If a girdling root is present, consult a certified arborist…

Know your roots. Has there been any construction activity within approximately 20 feet of the tree trunk within the past 10 years? If large roots have been cut close to the trunk to make way for things such as a sidewalk or utilities, the tree may be prone to falling in the direction where the roots were cut.

Don’t scalp your palms. Never let anyone do a “hurricane cut” on your palms to protect them from being blown over during a hurricane. Palms, in general, fair well through hurricanes, but the practice of removing all but a few of the fronds can make the palm more vulnerable to damage during straight line winds or a hurricane.

A large canopy of fronds protects the terminal bud, but when most of the fronds are removed, the bud is more vulnerable to being snapped by the wind. Once the bud is snapped, the entire palm will die. So, do not let anyone remove green fronds, or fronds with both green and yellow tissue in the same frond. Only totally brown fronds should be removed.”

— Sally Scalera, Florida Today

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Tree Canopy: Key West editorial on mitigating the damage caused by preemption of local control

Tree Canopy: Key West editorial on mitigating the damage caused by preemption of local control

Photo: Linda Grist Cunningham, in Key West Island News

“Historically, the Key West tree canopy boasted little in the way of shade trees. We are an inhospitable, oolite limestone island in the middle of salt water. What green things we had were more scraggly than soaring, the results of birds and other creatures using the island as a bathroom while stopping over on ways elsewhere.

Then came the 1920s and 1930s, when garden clubs and botanical societies held tree giveaways and encouraged folks to bring back seedlings from their travels.

That’s how we ended up with so many mahoganies, royal poincianas and other canopy trees. They didn’t spring up magically; we planted them. Sadly, most often, not in the right place. Then we built houses and pools and streets right on top of their roots. We assumed they’d live forever.

Today, the Key West tree canopy faces two life-threatening challenges: (1) The trees planted 75-100 years ago are struggling; and (2) Florida’s determination to strip municipalities of their home rule powers…

On June 26, 2019, Gov. Ron DeSantis gutted Florida tree commission regulations when he signed HB 1159…

… during its 2022 regular session, the Legislature amended the 2019 law to replace “danger” with “unacceptable risk.” It said a tree poses an unacceptable risk “if removal is the only means of practically mitigating its risk below moderate as determined by the tree risk assessment procedures outlined in (ISA) Best Management Practices — Tree Risk Assessment, Second Edition (2017).” That complicated wording means some very specific things.

On July 1, when the amended law is in place, municipalities can use it to claw back some local control over tree removal. The amendment can become the first of three ways we can strengthen the Key West tree canopy:

1. File ethics violations with the ISA. Florida’s law now requires an ISA tree risk assessment, which now includes a detailed, on-site review by ISA-certified tree experts. Signing a deliberately inaccurate assessment is an ISA ethics violation. ISA will investigate and can pull the certification…

2. Approve removal permit requests and require replacement — on property whenever possible. The amended law, like its predecessor, forbids municipalities from requiring replacements for trees taken down under the law. But, if a homeowner can’t get a certified tree expert to certify that a protected tree is an “unacceptable risk,” then said homeowner needs a permit from the tree commission. If the tree commission says “no,” and if there’s an unethical tree expert or some fly-by-night dude with a chainsaw, that tree is coming down. No replacement. If the tree commission grants the permit, it can (and does) require replacement…

3. Declare a ceasefire on blaming the city. The state’s preemption appetite is the enemy. Let’s direct our frustrations where they belong. Join other groups in other Florida municipalities to advocate for our canopy. Plant the right tree in the right place — and take care of it…”

— Linda Grist Cunningham, Special To The Citizen

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Key West: City recognized by Tree City USA ten times!

Key West: City recognized by Tree City USA ten times!

Photo: Chamber of Commerce showing Key West’s official tree: the royal poinciana.

“…’Your community should be proud to live in a place that makes the planting and care of trees a priority, and you should be proud of a job well done!’ wrote the Tree City team in a letter announcing the recognition.

Karen DeMaria, the City’s Urban Forester, says she’s grateful for the recognition, one that the City has received ten times.

‘Our island’s canopy is vital to the quality of life of our residents and visitors,’ said DeMaria.

Each year on Arbor Day, the City urges property owners to plant a tree.

‘Trees on publicly and privately owned property within the city are economic and aesthetic asset to the citizens,’ says DeMaria, ‘because of their important and meaningful contribution to a healthy and beautiful community.’

Key West achieved Tree City USA recognition by meeting the program’s four requirements: a tree board or department, a tree-care ordinance, an annual community forestry budget of at least $2 per capita and an Arbor Day observance and proclamation.

The Tree City USA program is sponsored by the Arbor Day Foundation in partnership with the U.S. Forest Service and the National Association of State Foresters…”

— Key West Chamber of Commerce

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Legal: Supreme Court Victory!

Legal: Supreme Court Victory!

Photo: Mack Male, in Austin Monitor through a Creative Commons license

City wins digital billboard battle at Supreme Court in City of Austin v. Reagan National Advertising

“On a vote of 6-3, the U.S. Supreme Court decided Thursday that the city of Austin’s regulations prohibiting digital billboards and other off-premises digital signs are content-neutral and therefore do not violate the First Amendment.

Reagan National Advertising and Lamar Advertising Company sued the city in a Travis County District Court after attempting to get permission to make some of its billboards digital in 2017. In 2019, Judge Robert Pitman of the U.S. District Court in Austin sided with the city, saying that the on-/off-premises distinction did not depend on the content of the sign. The billboard companies appealed to the 5th Circuit, which reversed Pitman’s ruling. The city then appealed to the Supreme Court.

But the 5th U.S. Circuit Court of Appeals disagreed, ruling that the distinction between on-premises signs and off-premises signs violated the First Amendment because the building official had to look at the sign in order to determine whether it was on- or off-premises. The opinion was based on the appeals court’s interpretation of a 2015 case, Reed v. Town of Gilbert.

A city spokesperson told the Austin Monitor, ‘The city of Austin is gratified by the Supreme Court’s recognition that the city’s regulation of off-premise signage is a content-neutral measure designed to serve safety and esthetic interests, consistent with thousands of similar regulations nationwide, including the Federal Highway Beautification Act.’

Justice Sonia Sotomayor authored Thursday’s decision. Joining her were Chief Justice John Roberts and justices Stephen Breyer, Elena Kagan and Brett Kavanaugh. Justice Samuel Alito filed an opinion concurring on the major issue, but dissenting in part. Justice Clarence Thomas, joined by Neil Gorsuch and Amy Coney Barrett, dissented.

The Supreme Court opinion stated, ‘Reed held that a regulation of speech is content based under the First Amendment if it ‘target[s] speech based on its communicative content,’ i.e., if it ‘applies to particular speech because of the topic discussed or the idea or message expressed.’ … The Court of Appeals’ interpretation of Reed – to mean that a regulation cannot be content neutral if its application requires reading the sign at issue – is too extreme an interpretation of this court’s precedent.’

They ordered the case to be returned to the appeals court for further consideration. That would include considering whether Austin’s regulations violate a lower standard of legal scrutiny.

Reagan spokesman Eric Wetzel told the Monitor via email, ‘This case isn’t over. The Supreme Court simply sent the matter back to the Fifth Circuit Court of Appeals, so that its panel of judges can decide if Austin’s digital-advertising restrictions survive the constitutionality test known as intermediate scrutiny. We believe those restrictions violate the First Amendment, and we look forward to making that argument before the Fifth Circuit.’

Attorney Renea Hicks, who led the city’s legal team on the case, said despite the high court’s language directing the case back to the 5th Circuit, he believes that court will take no further action because Reagan did not raise that issue on appeal. He said District Judge Robert Pitman has already held that Austin’s rules ‘satisfy intermediate scrutiny,’ and that the rules meet the test even if Reagan didn’t bring it up at the appellate court…

Scenic America and its allies filed a friend of the court brief supporting Austin before the case was heard last November.

According to Scenic America President Mark Falzone, the organization was concerned that a win by Reagan would not only jeopardize local regulations but would “chip away at the sacred legacy of the Highway Beautification Act.” The Supreme Court ruling, he said, ‘affirms a city’s right to have a say on what its streetscape looks like.’

— Jo Clifton, Austin Monitor

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“Alachua county reaches agreement to preserve Native American land in Micanopy”

“Alachua county reaches agreement to preserve Native American land in Micanopy”

Video and Text: myCBS4.com

“During a meeting on March 22, Alachua county commissioners passed a motion to buy a parcel of land at the intersection of U.S. 441 and Tuscawilla Road, in order to preserve Native American history.

A developer wanted to turn the 5-acre property into a Dollar General store. The land holds historical significance because it is where the second Seminole war started. Micanopy resident Aaron Weber has been fighting to preserve this land since March of 2020.

‘Everyone told us we couldn’t do it, from former county commissioners to hired experts, and something just kept us persevering and pushing along. It was like the spirit of Osceola was with us, that spirit of never surrendering and never quitting,’ Weber said.

Weber said along the process more people joined like Micanopy resident Robert Rosa.

‘It was a difficult process. Most of our people are unseen, our voices are invisible or even ourselves are invisible to the common people, the government. They just don’t realize that we are still here,’ Rosa said.

Martha Tommie, member of the Seminole tribe, feels thankful.

‘He said, we won. And I just started being humble and just respecting our elders and our ancestors and our Seminole tribe of today,’ Tommie said.

Weber said with this gesture the board of county commissioners in Alachua county showed they care.

‘The county motto is Where nature and culture meet and they exemplified that and they care about nature,’ Weber said…”

— Massiel Leyva, myCBS4.com

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Citizens for a Scenic Florida