This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 222
The People &c.,
            Appellant,
        v.
On Sight Mobile Opticians,
            Respondent.




          Jonathan Sinnreich, for appellant.
          Raymond Negron, for respondent.




MEMORANDUM:
          The order of the Appellate Term should be reversed and
the judgments of District Court reinstated.
          On May 3, 2011, a town investigator with the Town of


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Brookhaven (Town), filed five informations (subsequently
superseded) against On Sight Mobile Opticians (On Sight).     Each
information charged On Sight with violating § 57A-11 of the Town
Code of the Town of Brookhaven (Town Code) by placing a sign
advertising its opticians' business on public property, and
included the precise address and location of the offending sign.
Section 57A-11, entitled "Signs, posters and stickers prohibited
on public property," states as follows:
          "Prohibitions. With the exception of any sign created
          by the Town, county, state or other governmental entity
          and all signs pertaining to traffic regulations,
          parking regulations and fire zones which are subject to
          the rules and regulations of the New York State Vehicle
          and Traffic Law, no sign, poster, sticker, flag or
          advertising device shall be located within or upon the
          right-of-way of any Town, state or county road or
          highway or upon any Town, county or state or other
          publicly owned land, or upon any utility pole, tree,
          fence, or any other structure or object thereupon"
          (Town Code § 57A-11 [B]).
Section 57A-11 is a section within the Town Code's chapter 57A,
entitled "Signs."
          By motion dated June 20, 2011, On Sight sought a
determination that chapter 57A is unconstitutional and a
dismissal of the accusatory instruments.   After District Court
rejected its constitutional challenge, On Sight pleaded guilty to
each of the informations on February 9, 2012, and then appealed.
By order dated July 8, 2013, the Appellate Term held that section
57A-11, "considered in isolation, represent[ed] a constitutional
exercise of the Town's zoning authority," but that "considered as
a whole, chapter 57A unconstitutionally favor[ed] commercial

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speech over noncommercial speech" (40 Misc 3d 95, 101 [App Term,
2d Dept 2013]); specifically, chapter 57A permitted commercial
advertising "in every zoning district aside from public lands and
roads, and bar[red] noncommercial speech in most contexts in
which commercial speech [was] allowed" (id. at 102).    After
concluding that the unconstitutional portions of chapter 57A
could not be severed from the constitutional parts, the court
reversed the judgments of conviction against On Sight, dismissed
the informations and remitted fines paid, if any.    A Judge of
this Court granted the People's application for leave to appeal
(22 NY3d 958 [2013]), and we now reverse.
          "In a statutory context, our test for severability has
been whether the Legislature would have wished the statute to be
enforced with the invalid part exscinded, or rejected altogether"
(Matter of New York State Superfund Coalition v New York State
Dept. of Envtl. Conservation, 75 NY2d 88, 94 [1989] [internal
quotations marks omitted]).   In Superfund Coalition, for example,
the unconstitutional portion was at the "core" of the statute,
and "interwoven inextricably through the entire regulatory
scheme" (id.).   By contrast, section 57A-11 deals only with signs
posted on public property, a discrete regulatory topic and
regime.   This is reinforced by section 57A-11 (A), which explains
the provision's purpose and focuses entirely on the unique
problems posed by signs on public right-of-ways.    In light of
section 57A-11's independent legislative purpose, this provision


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can be severed from any unconstitutional portions of chapter 57A.
We therefore need not and do not consider the constitutionality
of any part of chapter 57A except section 57A-11.
            The People argue that section 57A-11 is a content-
neutral ban on the placement of signs on public property within
the Town as a matter of law under the United States Supreme
Court's holding in Members of City Council of City of Los Angeles
v Taxpayers for Vincent (466 US 789 [1984]).    In that case,
section 28.04 of the Los Angeles Municipal Code, which prohibited
the posting of signs on public property, was challenged as an
unconstitutional abridgement of First Amendment rights (id. at
791-792).    The Court upheld the ordinance, reasoning that
"municipalities have a weighty, essentially esthetic interest in
proscribing intrusive and unpleasant formats for expression" (id.
at 806).    Accordingly, the Court held, "an accumulation of signs
posted on public property . . . constitutes a significant
substantive evil within the City's power to prohibit" (id. at
807).   In so holding, the Court emphasized that the ordinance was
content neutral, and that even though the City had eliminated
signs on public property, it had not extended this ban to private
property (id. at 811).
            Section 57A-11 of the Town Code is constitutionally
indistinguishable from the Los Angeles provision analyzed by the
Supreme Court in City of Los Angeles.    It imposes a content-
neutral ban on all signs on public property, and applies to both


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commercial and non-commercial signs without consideration of
their content.   Further, it directly serves the Town's valid
interests in traffic safety and aesthetics, as expressly
articulated in section 57A-11 (A).       Finally, we have reviewed On
Sight's remaining arguments and consider them to be without
merit.
*   *    *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed and judgments of the Sixth District Court, Suffolk
County, reinstated, in a memorandum. Chief Judge Lippman and
Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided December 16, 2014




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