Contest Promotions, LLC v. City & County of San Francisco, 704 F. App'x 665

Background

Contest Promotions, LLC sued the City and County of San Francisco challenging portions of the San Francisco Planning Code that regulate outdoor signs.
The Code distinguishes between "general advertising signs" (off-site ads) and "business signs" (on-site ads); new general advertising signs are barred, while business signs are permitted but must relate to the primary business activity on the premises (Planning Code § 602).
Plaintiff alleged the definition and restrictions in § 602 violate the First Amendment (content-based restriction), are unconstitutionally vague, and violate equal protection and substantive due process.
The district court dismissed the complaint for failure to state a claim; the Ninth Circuit reviewed the dismissal de novo and affirmed.
The court applied the Central Hudson commercial-speech test and held the ordinance survives intermediate scrutiny because it advances substantial interests in safety and aesthetics and is appropriately tailored.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
First Amendment (commercial speech) — is § 602 a content-based restriction requiring heightened scrutiny?	§ 602 is content-based because it requires business signs to reference the primary on-site activity; thus strict or heightened scrutiny should apply and the ordinance fails defendant’s justifications.	Regulation concerns commercial speech; Central Hudson governs and intermediate scrutiny applies. The ordinance advances substantial interests (safety, aesthetics) and is narrowly tailored to on-site vs. off-site distinctions.	Applying Central Hudson, the ordinance survives: speech is lawful, interests are substantial, the regulation directly advances them, and is not more extensive than necessary.
Vagueness — is § 602 unconstitutionally vague about what counts as the on-site "use" occupying the greatest area?	The terms defining which use occupies the greatest area are unclear, leaving sign owners unable to know what is permitted.	Plaintiff’s proposed conduct is clearly proscribed by the regulation; the vagueness challenge is unavailable because the challenged provision clearly applies.	Vagueness claim fails; plaintiff’s conduct is clearly covered, so the challenge is barred.
Equal protection — does the ordinance unlawfully single out plaintiff or permit arbitrary classifications?	The ordinance targets creative advertisers and selectively burdens plaintiff; it denies equal protection.	The ordinance applies generally to all sign owners; plaintiff did not plausibly allege it was singled out or treated differently without a rational basis.	Equal protection claims fail: plaintiff abandoned selective-prosecution theory; "class-of-one" claim not plausibly alleged; ordinance has a rational basis and survives intermediate scrutiny.
Substantive due process — does the ordinance lack any legitimate purpose or rational basis?	The ordinance furthers no legitimate government purpose and violates a freestanding right to conduct business.	The ordinance advances legitimate interests in safety and aesthetics; rational-basis review applies and is satisfied.	Claim fails: where an explicit constitutional provision governs (First Amendment), substantive-due-process argument collapses; if analyzed independently, the ordinance survives rational-basis review.

Key Cases Cited

Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980) (establishes four-factor test for commercial-speech restrictions)
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (recognizes governmental interests in traffic safety and aesthetics when regulating signs)
Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898 (9th Cir. 2009) (upholds distinctions between on-site and off-site signs as advancing aesthetics and safety)
Retail Digital Network, LLC v. Prieto, 861 F.3d 839 (9th Cir. 2017) (confirms Central Hudson governs commercial-speech analysis despite later Supreme Court decisions)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (vagueness doctrine: certain challenges unavailable when conduct is clearly proscribed)
Hunt v. City of Los Angeles, 638 F.3d 703 (9th Cir. 2011) (discusses limits on vagueness challenges)
Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591 (2008) (explains class-of-one equal protection limitations)
Gerhart v. Lake County, 637 F.3d 1013 (9th Cir. 2011) (elements required to state a class-of-one equal protection claim)
Kim v. United States, 121 F.3d 1269 (9th Cir. 1997) (rational-basis standard for substantive-due-process challenges)
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (addresses speech restrictions but does not displace Central Hudson for commercial speech)
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based regulation principles; does not supplant Central Hudson for commercial speech)