You don’t pick and choose. That’s called selective enforcement, and that was the basis for my federal lawsuit.”

Michael DiPaola

We can definitely get a reasonable, enforceable, and constitutional sign ordinance, but it has to meet certain legal criteria.”

Town Planner Lea Hitchen

PORTSMOUTH — Four years after a federal judge ruled the town could not enforce its sign ordinance following a local resident’s claim his free speech rights had been violated, local officials are back at the drawing board in coming up with a new set of rules.

And during last week’s discussion on the matter, Town Council members were confronted by none other than Michael DiPaola, who’s had a running feud with town officials over zoning enforcement issues for years. DiPaola owns the “spite lot” at 1074 East Main Road that’s filled with broken toilet seats and placards excoriating certain town officials.

“I’m the sign guy,” said DiPaola after he took to the podium on June 23 to address council member Mary McDowell’s agenda item on potential future modifications and amendments to the town’s sign ordinance.

Back in 2021, DiPaola was served with a notice of violation after he displayed in front of a Bristol Ferry Road home a series of signs that accused the town of selectively enforcing its zoning ordinance. 

The town alleged DiPaola failed to obtain a permit to post the signs, that they weren’t allowed in a residential district, and that the display also violated a provision banning signs that “interfere with, mislead or confuse traffic.” He was given seven days to remove the signs or face a $500-a-day fine for each one left standing.

Shortly afterward, the American Civil Liberties Union (ACLU) of Rhode Island filed a federal lawsuit against the town on behalf of DiPaola, challenging the town ordinance that bans the posting of political signs on residential property. 

Under a consent judgement in April 2021 in U.S. District Court, the town was “permanently restrained and enjoined from enforcing and/or threatening to enforce” the town’s current sign ordinance as it related to any posting of signs by DiPaola on any of his properties and/or “any non-commercial speech signs posted in the town.”

Last week, DiPaola told the council to take great care in drafting a new ordinance.

If the town decides “to show up on my front door and take signs down on my personal property just because they think they can, it’s wrong. It’s against the First Amendment rights, it’s against the law, and it’s gonna bring a big … lawsuit against the town, and my lawyers are chomping at the bit,” said DiPaola. 

“You don’t pick and choose. That’s called selective enforcement, and that was the basis for my federal lawsuit.”

DiPaola pointed out another sign that once flew off a resident’s deck and was in full view of passing motorists on East Main Road near the Park Avenue intersection. 

“He had (a sign saying) ‘F Biden,’” said DiPaola. (The sign in question did not censor the offending word.) “Nobody attacked him, nobody issued him a violation, but they issued me a violation for my signs on Bristol Ferry Road. Why is that? Because I was speaking the truth.”

DiPaola called the town “corrupt” before leaving the lectern.

“We are not corrupt,” replied Council President Keith Hamilton. “And for the record, you don’t live at 1074 East Main Road.” (DiPaola’s home is on Col. Barton Drive, but he gave the address for his “spite lot” when he first identified himself, as he often does at public meetings.)

Larry Fitzmorris, president of Portsmouth Concerned Citizens, said he opposed any ordinance that would limit political speech, “which is the current problem with our sign ordinance.”

“Four years is a long time to fix this problem,” said Fitzmorris. “This is four years in which there has been a violation of our freedom of speech of all citizens in this town, that may or may not be exercising their freedom of speech.”

Hamilton disagreed, saying the issue with the Bristol Ferry Road signs was not about their content. “It was location, not content,” he said, before referring to DiPaola without stating his name. “No matter what we do with our sign ordinance, that person is still going to be the person that he is today. No matter what we do to the ordinance, it’s not going to affect the way that individual treats the town, its residents, and anybody who passes by.”

Fitzmorris said he made no reference to anyone in particular. “I’m not asking you to change personalities, I’m asking you to change the sign ordinance so it’s constitutional,” he said.

Needs to be enforceable, constitutional

McDowell put the matter on the agenda to get an update on the sign ordinance, four years after that federal court ruling.

“I just think our sign ordinance … can be shored up a bit,” she said. “It is difficult to get a sign ordinance that’s reasonable, enforceable and constitutional.”

Town Planner Lea Hitchen said her staff has been working to update the ordinance for the last couple of years. They had to pause the update due to state regulations that have trickled down to local municipalities, but staff members have been in recent discussions with their consultant, Weston & Sampson, to revamp the ordinance, she said. Her staff is now prioritizing that review and will update the council as soon as it can, she said.

“We can definitely get a reasonable, enforceable, and constitutional sign ordinance, but it has to meet certain legal criteria,” Hitchen said. “First and foremost it has to protect freedom of speech, it has to be applied evenly and fairly, it has to have clear guidelines, it has to have legitimate government interests such as traffic safety, aesthetics, preserving community character. So, we’d have to discuss: Do we want blinking signs, oscillating signs, flag signs — so on and so forth.”

The ordinance must also be “consistently enforced and (not) arbitrarily target certain individuals or messages,” she said.

Town Solicitor Giovanni Cicione agreed that an enforceable and constitutional sign ordinance can be implemented, but it won’t be easy.

“The rule of thumb is, if the administrative staff has to read the sign to decide whether it can stay or go, you’ve now violated the First Amendment,” Cicione said.

The most difficult part is enforcement, he said. “People don’t know when they’re violating the sign ordinance. They might put a sign up advertising an event, or pointing to a graduation, or whatever it is, and they put it on town property near an intersection near their house,” Cicione said.

It will be up to the council members to decide where they want the sign ordinance “to land,” said Cicione, adding he and Hitchen’s staff could get a draft to the council by the end of the summer. 

Exemption for farmers? 

Besides grappling with free speech issues, the town may also consider changing the types of signs that are allowed under a new ordinance.

McDowell said she has received calls about banner signs, which are technically not allowed under the current sign ordinance. She asked Hitchen if a new ordinance could allow such signs on a seasonable basis.

Hitchen confirmed that under the current ordinance, all signs with parts that move either by action or due to the wind — “inflatable tube men,” feather flags, razor sail signs, etc. — are prohibited in all districts.

However, some leeway could be given for those types of flags on farm-based property, said Hitchen, adding that staff has notified several businesses about the prohibition on such flags but has not instituted any fines or fees.

Steve Anderson, of Maplewood Farm on Hedly Street, told the council he has used seasonal flags to draw potential customers to his farm, which sells potatoes and sunflowers. They are essential for local farmers, said Anderson, who are all “struggling.”

“I am one of the farms that was targeted,” said Anderson, without naming names. “Forty percent is what my sales went down. I’m asking the council to give the farmers an exemption under the right to farm in the town of Portsmouth for our flags. I don’t want to be the last generation to farm because of a flag. The flags are what brings people into our farm.”

Cynthia Hanssen, of Sandy Point Avenue, said she was born in raised in Iowa where “farms are king.” She urged the council to add a seasonal exemption for farmers to use flags and banners to bring customers to their property.

“On both the main roads, it’s sometimes the only way you know what is being currently offered on these farms,” such as pick-your-own strawberries or sunflowers, Hanseen said.

Hamilton said the town supports its farmers, and Hitchen agreed to look at other sign ordinances that allow such exemptions with the intention of offering something similar in Portsmouth.

“By no means does this council — and I think I can speak for everyone — in any way want to hurt any of our farmers in any way, shape or form. It is not the council who has decided to target farmers; it is individuals,” Hamilton said.

Council Vice President David Gleason agreed, saying that while a complete overhaul of the sign ordinance may take time, something should be done as soon as possible to help local farmers better promote their business. 

Council member Sondra Blank said it’s an “unfortunate waste” of the town’s time to be “chasing after” such violations. Cicione, however, said while it’s good to be pro-business, neglecting to enforce the ordinance “is undermining the enforceability of the entire ordinance.” Enforcement shouldn’t be left to the discretion of a few staff members who are already in a difficult position, the attorney said.