Legal Report, October 2018

General Counsel, Jennifer G. Ashton
Davis & Ashton, P.A.


1.         Burns v. Town of Palm Beach, 2018 U.S. Dist. LEXIS 167712, 2018 WL 4677682 (S.D. Fla. 2018). First Amendment; architectural and aesthetic review.

Plaintiff Donald Burns sought to replace his existing residence on Palm Beach with a more modern architectural-styled house. Plaintiff proposed his replacement to the Town of Palm Beach’s (“Town’s”) architectural review committee (“ARCOM”), which declined to approve the proposed design. ARCOM’s denial was based on Code § 18-205 which provides criteria for a building permit. Rather than appeal the ARCOM decision to Town Council or the circuit court, Plaintiff filed suit against the Town in federal court challenging the constitutionality of §§ 18-146 and 18-205 of the Town’s Code of Ordinances. Plaintiff’s suit alleged: 1) that the Town unconstitutionally denied him the right to have a residence of his chosen design in violation of 42 U.S.C. § 1983 and 2) that architecture and architectural design are forms of expression protected by the First Amendment.

The Town filed a Motion to Dismiss and/or for Summary Judgment, which was referred to a Magistrate Judge. In July 2018, the Magistrate Judge issued a Report and Recommendations, recommending that the District Court grant the motion and enter judgment for the Town. On the § 1983 claim, the Magistrate Judge found that it was not ripe because Plaintiff had not proven that the ordinance had been used to deprive him of a constitutional right since § 18-146 created no limits on individual rights and contained no enforcement mechanism. On the First Amendment claim, the Magistrate Judge evaluated two lines of First Amendment jurisprudence, expressive conduct (public actions that are intended by the actor to communicate an expressive message, and expressive merchandise (tangible objects that have a function independent of expression, but that also involve an element of expression). The Magistrate Judge found that the residential structure was best analogized to potentially-expressive merchandise, and derived and applied the following three-part test. In determining whether a particular residential structure receives First Amendment protection, the Court will employ the following test: 1) Is the owner of the structure subjectively intending to communicate a message?; 2) Is the predominant purpose of the structure to communicate a message?; and 3) Is there a great likelihood that a reasonable person observing the structure in the context of the surrounding circumstances would understand it to be predominantly communicating some message, albeit not necessarily the particularized message intended by the owner? While the first prong of the above test was satisfied, the Magistrate Judge held that the predominant purpose of Burns' structure was non-expressive and that the undisputed material facts failed to show that there is a great likelihood that a reasonable person observing the proposed structure in context would understand it to be predominantly communicating a message. The Magistrate Judge found that the predominant purpose of the structure was to serve as a residence, not as a piece of visual art. He also found that the context of the structure was to be a private residence largely concealed from the public and the neighbors, and that nothing about the structure identified Burns as the owner, so to the extent the structure communicated a message, the speaker was not readily identified, which affects the viewer's understanding of the reasons for any expressive message. Ultimately, the Magistrate Judge concluded that Burns’ asserted expression of personal beliefs through his home’s architecture is not protected by the First Amendment.  

Another important issue analyzed by the Magistrate Judge was whether the criteria set forth in § 18-205 are too vague and subject to "an individual's personal tastes or whim," thus affording ARCOM "unbridled discretion.” The Magistrate Judge determined that the ordinance was not void for vagueness because it contained explicit standards regarding the specific design elements that will judged, as well as the parameters for an acceptable proposal, concluding that the Town was adequately constrained so as to prevent arbitrary or discriminatory enforcement. The Report advised that a party must file written objections within 14 days.

The District Court Judge ultimately adopted the Magistrate Judge’s Report and Recommendations and granted the Town’s Motion to Dismiss and/or for Summary Judgment.  Regarding the First Amendment issue, the District Court Judge affirmed the conclusion of the Magistrate Judge that Burns’ failed to satisfy his initial burden of establishing that his conduct was protected by the First Amendment. The Court concluded that the underlying analysis was “well-reasoned and correct” based on the available jurisprudence of the Second and Eleventh Circuits and the Supreme Court for both expressive conduct and expressive merchandise. As for vagueness objection, the District Court Judge affirmed that the criteria in the Town’s ordinance are sufficiently clear and definite to withstand a vagueness challenge.  The court held that the criteria in § 18-205 are sufficiently clear for an ordinary person to understand what the ARCOM prohibits and that they provide parameters that constrain the ARCOM's discretion, preventing arbitrary and discriminatory enforcement.

This case establishes new precedent that there may not be a First Amendment right in the context of residential construction regarding the aesthetics of a house. The case is noteworthy because it specifically addresses whether residential architecture can qualify for First Amendment protection as a form of expression.