10th Circuit: Kansas Cheeseburger Mural Case Finds Salina Sign Code Unconstitutional

• The 10th Circuit ruled that Salina, Kansas, unconstitutionally applied its sign code to a cheeseburger mural at the Cozy Inn restaurant.
• The city failed to provide sufficient evidence to justify distinguishing between regulated commercial signs and unregulated murals based on safety, aesthetics, or property values.
• The court found that the city's indefinite delay in processing owner Stephen Howard's permit application amounted to an unconstitutional prior restraint on speech.
• The ruling clarifies that municipal sign ordinances must be narrowly tailored and cannot arbitrarily restrict First Amendment commercial speech.

The court found no demonstration that signs inherently posed a greater threat to the city's interests in safety, aesthetics, or property values compared to other forms of artwork.

The U.S. Court of Appeals for the Tenth Circuit recently sided with a Kansas restaurant owner in a dispute over a whimsical cheeseburger mural, ruling that the city of Salina's sign code was unconstitutionally applied. The case centered on the Cozy Inn, a local eatery in Salina, Kansas, and its owner, Stephen Howard, who commissioned a unique painting for the side of his building. This decision from the 10th Circuit regarding the Kansas cheeseburger mural highlights critical issues in municipal regulation of commercial speech.

Howard had engaged local artist Colin Benson in November 2023 to create a vibrant, UFO-themed mural depicting "whimsical hamburger-esque flying saucers piloted by aliens attacking the Cozy Inn with blasts of ketchup and mustard." The artwork also included text inviting passersby to "follow the smells" emanating from inside the establishment. However, the city of Salina classified this artwork as a "sign" rather than a "mural," specifically because it advertised the restaurant's food.

Citing its municipal sign code and concerns related to "traffic and pedestrian safety, aesthetics, and property value," Salina officials issued an order for Howard to cease work on the painting until he secured a permit. Despite the city's assertion that "Hamburgers are basically the same thing [Cozy Inn] sells, and therefore, it would be signage," Howard's subsequent application for a permit was placed on an indefinite hold by the city. This led Howard to initiate legal action in February 2024, contending that the Salina sign code unconstitutionally restricted speech and that the city had infringed upon his First Amendment rights through the prolonged delay in processing his application.

Both the district court and the Tenth Circuit found the city's actions problematic, agreeing that Salina's distinction between signs and murals lacked the necessary narrow tailoring to serve its stated interests. U.S. Circuit Judge Scott Matheson, writing the 27-page opinion for the panel, emphasized that Salina's evidence failed to justify its differential treatment of regulated signs versus unregulated murals. The court found no demonstration that signs inherently posed a greater threat to the city's interests in safety, aesthetics, or property values compared to other forms of artwork. This ruling directly addresses the constitutionality of the Salina sign ordinance.

The city's attempts to substantiate its position were deemed insufficient. Salina presented a student law review article, a presentation containing statistics on distracted driving, and testimony from city planner Dustin Herrs. However, Judge Matheson noted that none of this evidence effectively supported the city's argument that regulating signs, but not murals, advanced its stated interests. When questioned directly, Herrs declined to confirm whether painted wall signs were more dangerous to pedestrians than painted murals.

Furthermore, expert testimony provided by attorney Mark White, who held a master's degree in regional planning, also failed to sway the court. White cited research on neurological responses to public artwork versus commercial advertisements. Yet, the court determined that White did not adequately explain why the Cozy Inn's proposed artwork would threaten the city's interests more significantly than other unregulated displays. The panel, which included U.S. District Judge David Urias and U.S. Circuit Judge Gregory Phillips, unanimously concluded that the city had not met its burden.

Beyond the issue of content-based distinctions, the Tenth Circuit also affirmed the lower court's finding that the city's indefinite delay in processing Stephen Howard's permit application constituted an unconstitutional prior restraint on his speech. Judge Matheson explicitly stated that, given the application had "aged for three years without his consent," Salina had indeed imposed a prior restraint. This aspect of the ruling underscores the importance of timely governmental action when regulating First Amendment commercial speech.

This decision from the 10th Circuit, stemming from Stephen Howard's challenge, provides crucial guidance for municipalities and businesses alike. It clarifies that local sign codes must be narrowly tailored and supported by concrete evidence when differentiating between commercial messages and other forms of expression. The ruling reinforces that arbitrary distinctions, especially those based on the commercial nature of content, are unlikely to withstand judicial scrutiny under the First Amendment. Moreover, the finding on the prior restraint sign permit emphasizes that indefinite delays in the permitting process can be as problematic as outright denials, effectively stifling protected speech.

Lawyers advising businesses on signage or challenging local ordinances should review this 10th Circuit precedent, which clarifies that municipal sign codes distinguishing between commercial signs and murals must be narrowly tailored and justified to avoid First Amendment violations, including issues of prior restraint. Compliance officers in municipalities should assess their sign codes for similar constitutional vulnerabilities.

Source: Original reporting via Courthouse News Service