(CN) – A Colorado city violated a business owner’s free-speech rights when it ordered a painted mural removed based on a municipal sign code, the Colorado Court of Appeals found.
Mike Mahaney runs Headed West, a smoke shop in Englewood. In an effort to deter graffiti, Mahaney commissioned local artists to paint a mural on the outside of the building.
The painting depicts scenes from “Alice in Wonderland” and musicians such as Jerry Garcia and Jimi Hendrix.
Englewood claimed Mahaney’s mural violated the city’s sign code, as he failed to obtain a permit or approval from a city manager. In addition, the mural exceeded the city’s maximum sign area.
Mahaney refused to remove the mural, claiming it was exempt under the sign code’s “works of art” exception. Englewood’s actions, he claimed, violated the state and federal Constitutions. The issue went to municipal court.
At trial, the judge granted Englewood summary judgment, saying Mahaney’s mural was not exempt as a “work of art” and the city properly used the sign code in ordering the mural removed.
On appeal, Judge Robert Hawthorne found the sign code’s special review procedure a “constitutionally impermissible prior restraint on free speech,” declining to address Mahaney’s claim that his mural is a work of art.
Englewood’s review procedure for signs does not provide a time period in which the city manager can approve or deny a sign. Therefore, the procedure “lacks an essential procedural safeguard” to prevent violations of free speech, Hawthorne found.
Because Englewood’s special review procedure constituted an unpermitted prior restraint on free speech, the trial court improperly granted summary judgment to the city, Hawthorne ruled, reversing the judgment.