Jeweler's suit challenges Concord sign ban

A jewelry store is suing Concord in federal court, challenging the city’s latest ordinance banning changeable electronic signs, arguing that it is a unconstitutional violation of commercial free speech.

In a suit filed Oct. 25, Naser Jewelers Inc. said that Barlo Signs applied for the permit on Oct. 3, and the city denied the request 10 days later, citing a temporary ban on “electronic message centers,” or EMCs.

Concord says that since the ban doesn’t dictate the content of the speech, it is not unconstitutional. “It doesn’t limit speech,” Roger Hawk, Concord’s director of Community Development, told NHBR Daily. “It limits how you may perform that speech.”

Hawk said that the ban differs from an earlier ban that a Merrimack County Superior Court judge threw out in April, saying it favored one type of speech over another. That ban allowed commercial signs to detail time and temperature. Concord appealed the decision to the state Supreme Court, arguing that the city should be allowed to distinguish between informational signs and commercial advertising. The state Supreme Court accepted the case, but a decision could be months away.

While the state case is pending, Concord has considered numerous ordinances – 24 to be exact – to regulate signs that would pass constitutional muster, but since it was unable to decide on one, the council voted in August to impose a temporary ban on all such signs.

City councilors have been reluctant to allow too many electronic signs. One councilor worried that the city “is going to look like Tokyo” if the ban is lifted.

The latest ban doesn’t affect permits approved under the old rules – pending a Supreme Court decision – that allow electronic signs for advertising products directly.

The recent ban only affects new permits, like the one filed by Naser Jewelers, which has operated a store under the name Joseph Michaels Diamonds since December 2005.

Store owner Tony Naser, in an affidavit filed with the suit, said that his Dover jewelry store business increased some 18 percent when it speeded up the message on an electronic sign on his store in that city, changing the message from one every 10 minutes to one every four seconds. Based on that experience, a sign in Concord would generate some $50,000 in revenue annually, Naser said.

Naser said he wanted the sign up by Nov. 14, prior to the Christmas shopping season, and he shouldn’t have to wait until the city council makes up its mind or the state Supreme Court rules. Since the state court has tossed out the previous ban, Naser’s attorney argued, the federal court should issue a preliminary injunction against the current ban as soon as possible. – BOB SANDERS/NEW HAMPSHIRE BUSINESS REVIEW