Thursday, May 30, 2019

Portland Unreinforced Masonry Owners Prevail in Fight for Preliminary Injunction Against City of Portland

Unreinforced masonry owners have been granted a preliminary injunction against the City of Portland's placard ordinance pending trial. 

Beginning on page 49, Judge Acosta makes his final closing argument of his opinion as follows:
In this case, Plaintiffs readily satisfy the elements for a preliminary injunction. Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim on the placard and tenant notification provisions of the Ordinance. The court finds that Plaintiffs have demonstrated they likely will suffer ineparable harm if the Ordinance takes effect. Plaintiffs have demonstrated they will be injured beginning June 1, 2019, when they are required to provide a potentially factually inaccurate and misleading statement to prospective tenants in their lease applications. Harris, 772 F.3d at 583 ("[A] colorable First Amendment claim is ineparable injury sufficient to merit the grant of [preliminary injunctive] relief.") Mr. McMonies and Mr. Beardsley testified that if the Ordinance goes into effect, they will be forced to provide false, or at least inaccurate and misleading, information to prospective tenants that their buildings are umeinforced when their buildings have undertaken seismic upgrades. See Oregon v. Azar, Case No. 6:19-cv-00317-MC, 2019 WL 1897475, at 15-16 (D. Or. Apr. 29, 2019) (discussing that plaintiffs demonstrated ineparable injury because of massive cuts to Title X funding if the final rule went into effect). Defendants' contention that the effort for Plaintiffs to provide the URM disclosure in the lease applications is relatively modest in light of other disclosures already required by law, misses the point. The question for the court is not the severity of the harm, but whether the harm is ineparable. Here, Plaintiffs will be required to speak a government-drafted message that is misleading at best. Washington Post v. McManus, 355 F. Supp. 3d 272, 305-06 (D. Md. Jan. 13, 49 -2019) (granting preliminary injunction on First Amendment grounds). Clearly, this factor weighs in Plaintiffs' favor.
Furthermore, the Ordinance CatTies the risk of substantial fines for failing to comply, raising the risk for extraordinary harm. See Harris, 772 F.3d at 583 (finding the risk of criminal penalties for failing to comply with rep01iing requirement weighed in favor of granting preliminary injunction). Thus, the court finds that Plaintiffs are likely to suffer in-eparable harm without injunctive relief because if the Ordinance is permitted to take effect, it will violate Plaintiffs' First Amendment rights.
The balance of equities and the public interest also weigh in favor of granting the injunction, Insisting that URM building owners post a placard and inform tenants has not been shown to demonstrably increase awareness of seismic risk or inform the public about how to "drop, cover, and hold on." Requiring URM building owners to display and distribute a factually inaccurate message would permit Defendants to infringe on the speech rights of a handful of P01ilanders while failing to take steps to actually increase seismic awareness for all Portlanders. Thus, the significant public interest in upholding First Amendment principles is acutely on display in this case, and weighs in favor of an injunction. The Ninth Circuit "consistently recognize[s] the significant public interest in upholding free speech principles." Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (finding "balance of equities and the public interest thus tip sharply in favor of enjoining" where plaintiff likely to succeed on merits of First Amendment claim); Innovation Law Lab v. Nielson, 342 F. Supp. 3d 1067, 1082 (D. Or. 2018) ("[I]t is always in the public interest to prevent the violation of a patiy's constitutional rights.") In summary, Plaintiffs have satisfied each of the requirements for a preliminary injunction.
Because the court concludes that Plaintiffs have demonstrated colorable First Amendment violations pertaining to the placarding and tenant notification provisions and that a preliminary injunction should issue on that basis, the comi consequently enjoins enforcement of the acknowledgment provision of the Ordinance. The acknowledgment provision requires URM building owners to document their compliance with the placarding and tenant notification provisions on a BDS form. P.C.C. 24.85.65(E). The court is enjoining enforcement of the placard and tenant notification provisions, therefore practically speaking, there is no compliance to acknowledge.
Similarly, because Plaintiffs have demonstrated colorable First Amendment violations, the court declines to address Plaintiffs' argument that the Ordinance also violates the Due Process Clause under the Fourteenth Amendment.

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