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UNITED STATES DISTRICT COURT
DISTRICT OF OREGONPORTLAND DIVISIONMASONRY BUILDING OWNERS OF
OREGON, an Oregon mutual benefit
nonprofit corporation; FOUNTAINVILLAGE DEVELOPMENT LLC, an
Oregon limited liability company; and JIM A.
ATWOOD, in his capacity as trustee of the
Jim A. Atwood Trust dated August 10, 2017,
Plaintiffs,v.
TED WHEELER, in his official capacity as
Mayor of the City of Portland andCommissioner in charge of the Bureau ofDevelopment Services; JO ANN
HARDESTY, in her official capacity as
Commissioner in charge of the Fire Bureau;
and CITY OF PORTLAND, an Oregon
municipal corporation,
Defendants.

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Case No. 3:18-cv-02194-AC
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ACOSTA, Magistrate Judge:
Plaintiffs Masonry Building Owners of Oregon ("MBOO"), Fountain Village Development
LLC ("Fountain Village"), and Jim A. Atwood ("Atwood"), (collectively "Plaintiffs") bring thisaction against Defendants Mayor Ted Wheeler ("Mayor Wheeler"), Commissioner Jo Ann Hardesty("Hardesty''), and the City of Portland ("the City") (collectively "Defendants"), seeking declarat01y
and injunctive relief under 28 U.S.C. §§ 2201-2202 and 42 U.S.C. §§ 1983 and 1988. (Second Am.
Compl., ECF No. 4 3.) Plaintiffs argue that the City's ordinance requiring all owners of umeinforced
masonry buildings that do not meet specified seismic standards post a placard and provide notice toprospective tenants stating that the buildings may be unsafe in a major earthquake violates the First
Amendment and the Due Process Clause of the Fourteenth Amendment.
The court has jurisdiction under 28 U.S.C. § 1331, and all parties consent to the jurisdictionof a U.S. Magistrate Judge under Federal Rule of Civil Procedure 73(b). The court conducted apreliminary injunction hearing on May 14, 15, and 21, 2019. For the reasons that follow, the court
GRANTS Plaintiffs preliminary injunction.

Background
I.

Histoiy of the Ordinance
The City of Portland has determined that since 1995 when it required seismic upgrades toumeinforced masomy buildings under certain circumstances, less than 20 percent of Portland's URM
building inventmy has been retrofitted. (Hr'g Ex. 6 at 1.) In December 2014, the Portland City
Council directed the Portland Bureau of Emergency Management, the Pmtland Development
Commission, and the Portland Bureau of Development Services ("BDS") to work\ with community
stakeholders to develop recommendations to reduce Portland's seismic risk from umeinforced

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masonry buildings. (Hr'g Ex. 13 at 4; Hr'g Ex. 6 at 1.) An unreinforced masonry building or"URM" has been described as "a building with one or more walls that are made of adobe, clay, brickor blocks, with no steel reinforcement inside." (Hr'g Ex. 13 at 17.) URM buildings are "highly
vulnerable to seismic damage" and are among the poorest performing buildings in any seismic event.
(Hr'g Ex. 13 at 4; Tr. Prelim. Inj. Hearing May 14-15, 2019 ("Hr'g Tr.") at 334.)

The

recommendations were developed by three committees. The Support Committee developed financial
incentives for performing seismic upgrades to URM buildings. (Hr'g Ex. 133 ~ 5.) The Retrofit
Standards Committee ("Standards Committee") comprised of expe1is in the fields of structural
engineering, architecture, and geology, worked with BDS staff to identify best practices from otherwest coast jurisdictions. (Hr'g Ex. 6 at 1.) The Standards Committee recommended that P01iland
adopt a "mandatory seismic strengthening program that would require some level of upgrade for all
URM structures with the exception of one and two family dwellings." (Id.) The Standards
Committee met six times between December 2014 to May 2015. (Id. at 5.) The Standards
Committee recognized that "it is neither practical nor financially feasible to retrofit all URM
buildings to one standard, or within a single time frame" and created a "prioritization system basedon factors such as the degree of risk posed by the building to its occupants and the public, theoccupancy type and occupant load of the building, and the function of the building both before andafter a seismic event." (Id. at 9.) Additionally, the Standards Committee recommended changes tothe existing building code that would include building placards, tenant notifications, and real estatetransaction disclosures. (Id. at 2.)
The URM Building Policy Committee ("the Policy Committee"), comprising members of
the Incentive Committee and the Standards -Committee, as well as advocates from historic

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preservation, affordable housing, schools, churches, and URM building owners, met from December
2015 through November 2017, to synthesize the technical recommendations and data to create an
overall policy repmi. The Policy Committee issued its final report in December 2017 (the "Final
Report"). (Hr'g Ex. 13.) In the Final Repmi, the Policy Committee indicated that URM buildingspose a life-safety risk to building occupants in an earthquake. (Id. at 4, 6.) The Policy Committee
indicated that URM buildings are seismically vulnerable because the roofs and floors can pull awayfrom walls. (Id. at 6.) "With even light shaking, chimneys, parapets, and architectural ornaments
may break off and fall." (Id.; see also Hr'g Ex. 6 at 5.)
The Final Report detailed that in 1995, the City adopted code changes requiring URM
building owners to seismically upgrade their buildings under certain circumstances, such as
substantial improvements and re-roofing, so-called "passive triggers." (Id. at 4, 7.) The Policy
Committee reported that since the retrofitting code change in 1995, about eight percent of Portland
URM buildings have been demolished, about five percent of the remaining URM buildings havebeen fully retrofitted, about nine percent have been partially retrofitted, and about 85 percent ofexisting URM buildings have had no retrofits at all. (Id. at 8.)
The Policy Committee recommended a limited, mandatory seismic strengthening programfor Portland URM buildings based on the seismic risks Portland faces, the need to ensure public
safety, and to address the lack of cmrent codes. (Id. at 5.) The Policy Committee proposed a tiered
approach that would require mandatory upgrades to critical buildings sooner and to a standard that"will enable their use after an eruihquake, and lower-risk buildings later, to a cost-effective standard.

.

that will still reduce the danger they pose to the public." (Id.) The Policy Committee proposed that
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increased funding for schools to retrofit, and an extended timeline for affordable housing retrofits.

(Id) For tax-exempt public assembly spaces, such as churches and synagogues, "which are
ineligible for public subsidy and do not benefit from tax exemptions, the Policy Committee
recommends a program of minimal upgrades plus warning placards." (Id.)·The Policy Committee further recommended that the City support a "public education.
campaign for building owners and tenants, a voluntary building placarding program to markretrofitted URM buildings, and an earthquake navigator to assist building owners in navigating thepermitting, financing, and design of seismic retrofits." (Id.)
The Policy Committee made its recommendations based on building class. Class 1 URM
buildings are those structures that are "essential to emergency response," such as hospitals, policeand fire stations, and water treatment plants. The Policy Committee recommended that Class 1
URM buildings meet the "highest proposed performance objective" because they are expected toremain operational after an earthquake event. (Id. at 18.) The Policy Committee identified six Class
1 buildings, five of which are owned by the City, and one by a private utility. (Id)Class 2 URM buildings are schools and high-occupancy buildings, such as schools, churches,
and theaters. The Policy Committee recommended that Class 2 URM buildings be retrofitted to"provide greater resistance to collapse or major structural damage" due to their substantiallife-safety
risk, and with the expectation that such buildings likely would suffer some damage that could be
repaired and made usable again with minor repairs immediately after an earthquake. (Id at 18.) The
Policy Committee estimated that there are 44 schools, 3 8 churches, and 10 other public assemblyClass 2 URM buildings. (Id. at 19.)

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Class 3URM buildings include most non-critical buildings with more than 10 occupants,
such as private offices, apartments, restaurants, retail, and storage.

The Policy Committee

recognized that Class 3 buildings represent the largest group ofURM buildings, numbering 1,332,
but that they pose somewhat less risk "because they have no critical uses or large assembly areas."· (Id.) The Policy Committee recommended that Class 3 URM buildings be retrofitted to a standardof "Collapse Risk Reduction." (Id.)
Class 4 URM buildings are low occupancy, with zero to ten occupants, and often are single
stmy. (Id. at 4.) The Policy Committee recommended that Class 4 URM buildings be required toperform upgrades that protect nearby structures and people outside the buildings. (Id. at 20.) The
Policy Committee estimated there are 201 Class 4 URM buildings. (Id.)
On June 13, 2018, the Portland City Council passed Resolution No. 37364 (the"Resolution"), which directed City staff to undertake a variety of measures to increase the safety of
URM buildings. (Hr'g Ex. 16.) In the Resolution, the City acknowledged that it faces a significant
risk from a "catastrophic earthquake" from the Cascadia Subduction Zone, and from smaller faults
beneath the City. (Id.) The Resolution provided that URM buildings are highly vulnerable toeaiihquake damage, including collapse and loss of life. (Id.) The Resolution acknowledged that aseries of volunteer committees met from December 2014 to November 2017 to review the inventory
ofURM buildings and a cost-benefit analysis of seismic retrofitting. (Id.) The Resolution provides
that seismic retrofitting to achieve collapse prevention is desirable, but a majority of the Policy
Committee supported mandatory seismic retrofitting to a "risk reduction standard" to increase public
safety in a cost-effective way. (Hr'g Ex. 13 at 1; Hr'g Ex. 16.) The Resolution further recognizedthat URM building retrofitting will present a financial hardship for many owners. (Hr'g Ex. 16.)
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The Resolution specifically recognized that URM buildings cannot be identified from the exterior
and the proposed retrofitting standards will not prevent collapse; therefore, building occupants may"benefit from knowing when they enter or occupy a URM building." (Id. at 2.) Thus, the Resolution
directed city staff to return to the City Council within three months with a proposed placarding
ordinance to be enforced by Portland Fire & Rescue with an appeal process administered byBDS.
(Id. at 3-4.)

II.

Ordinance 189201
On October 10, 2018, the City adopted Ordinance No. 189201 ("Ordinance 189201").

Ordinance 189201 applied to building owners the City designated as constructed of unreinforced
masomy that were not retrofitted to a designated level to prevent collapse in the event of anearthquake. (Hr'g Ex. 107.) Ordinance 189201 defined "unreinforced masonry" as:adobe, burned clay, concrete or sand-lime brick, hollow clay or concrete block,hollow clay tile, rubble and cut stone and unburned clay masonry that does not satisfy
the definition of reinforced masonry as defined herein. Plain unreinforced concrete
shall not be considered unreinforced masomy for the purpose of this Chapter.
(Hr'g Ex. 107 at 5.) It also defined an "unreinforced masomy bearing wall" as "a URM wall thatprovides ve1iical support for a floor or roof for which the total superimposed vertical load exceeds
100 pounds per lineal foot of wall." (Id.) Ordinance 189201 defined an "unreinforced masonry
bearing wall building" as "a building that contains at least one URM bearing wall." (Id.)
Ordinance 189201 contained three primary components. First, it required URM building
owners to post in a conspicuous place a placard in boldface SO-point type stating the following:"This is an unreinforced masonry building. Unreinforced masomy buildings may be unsafe in theevent of a major earthquake." (Id. at 7.) Failure to post the placard or undertake seismic upgrades

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would subject the URM building owner to fines. Second, Ordinance 189201 required URM building
owners to notify existing tenants and prospective tenants in writing that the building was constructed
ofumeinforced masonry. (Id. at 8.) Third, Ordinance 189201 required URM building owners torecord their compliance with the Ordinance as an exception to their titles in the county's real
property records. Some aspects of Ordinance 189201 were set to take effect March 1, 2019. (Id.)
Plaintiffs challenged Ordinance 189201 under the First and Fourteenth Amendments andmoved for a preliminary injunction. (Mem. Supp. Pls.' Mot. Prelim. Injunction at 1-2, ECF No. 25.)
Defendants' counsel stated in a February 12, 2019 email that a City commissioner had submitted a
proposed amended ordinance which, if passed, could moot some of the issues Plaintiffs' injunction
motion placed before the court. After a hearing on February 15, 2019, the court entered a 60-day
temporary injunction. (Order Temporary Injunction, ECF No. 34.)
III.

Ordinance 189399
On February 29, 2019, the City of Portland adopted Ordinance No. 189399 ("Ordinance

189399" or "the Ordinance'), codified at Portland City Code ("P.C.C.") 24.85.065. 1 (Hr'g Ex. 108.)On March 22, 2019, Plaintiffs filed an Amended Motion for Preliminaiy Injunction. The Ordinancedid not alter the definitions of "umeinforced masonry" or "umeinforced masorny bearing wallbuilding."
On May 1, 2019, the Portland City Council amended Ordinance No. 189399 by adopting
Ordinance No. 189479. (Hr'gEx. 105 at 9.) Ordinance No. 189479 clarifies language in Ordinance
No. 189399 to the acknowledgment provision, and requires that the posted placards cite to thePortland City Code. (Id.) Because the amendments are relatively minor, the court does not finiher
elaborate. The court and the parties' references to "the Ordinance" includes the most recent
amendments.
1

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The Ordinance, like its predecessor, contains three primary compliance provisions. First, theOrdinance requires URM building owners to place a placard at the entrance of their buildings stating
the following:
THIS IS AN UNREINFORCED MASONRY BUILDING. UNREINFORCED
MASONRY BUILDINGS MAY Bf UNSAFE IN THE EVENT OF A MAJOR
EARTHQUAKE. P.C.C. 24.85.065.
P.C.C. 24.85.065(C); Hr'gEx. 110 (attached as Appendix A to this Op. & Order). The placard must
be posted in a conspicuous place on the exterior of the building near the main entrance, be no smaller
than 8 by 10 inches, and the font must be at least 50-point bold type, legible sans serif. Id. The
placard must remain in place until BDS confirms that the building has been retrofitted to a certain
specification, or the building is demolished. Id. The estimated cost of a placard is between $30 to$60. Publicly owned URM buildings were required to post the placards by January 1, 2019; all other
URM buildings are required to post the placard by November 1, 2020. P.C.C. 24.85.065(C)(6).
Second, the Ordinance requires URM building owners to provide a statement in every leaseor rental application after June 1, 2019 that: "the building is an umeinforced masomy building, andumeinforced masomy buildings may be unsafe in the event of a major earthquake." P.C.C.
24.85.065(D).
Third, the Ordinance requires that URM building owners must not to remove the placard andacknowledge their compliance with the placarding requirement and the prospective tenant
notification requirement by completing a form provided by BDS.

P.C.C. 24.85.065(E).

Documentation of compliance must be completed by June 1, 2020. Id.
Buildings that have been retrofitted to the collapse prevention standard for BSE-2 seismic
hazards or life safety for BSE-1 seismic hazard as defined in the American Society of Civil

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Engineers ("ASCE") 41-17 or ASCE 41-13 are exempt from the Ordinance. P.C.C. 24.85.065(F).
Additionally, buildings that were retrofitted before January 1, 2018, to the Life Safety standard using
FEMA 178, FEMA 310, or ASCE 31; or the Oregon Structural Specialty Code 1993 edition or laterare exempt from the Ordinance. Id.
The Ordinance will be enforced through Portland Fire & Rescue's periodic inspections
program. P.C.C. 24.85.065(G). Under that program, the Fire Marshal will inspect URM buildings
for compliance. If the Fire Marshal determines there is a violation, the building owner has 40 days
to comply and the Fire Marshal then will reinspect. Id. If the violation persists at the time ofreinspection, the Fire Marshal will charge a reinspection fee and turn over enforcement to BDS. Id.
The BDS compliance division then will send a violation letter detailing the fines and process forcompliance. (Hr'g Tr. at 442.) The applicable fines vary based upon the use of the building and thenumber of units, up to $643 per unit per month. (Id.) At the hearing, Amit Kumar, the Engineering
Supervisor for the Engineering Plan Review Section at BDS, testified at the hearing that fines will
likely be imposed on a monthly basis, not a per-unit basis. (Hr'g Ex. 133.) However, Mr. Kumar
acknowledged that the precise amount of fines for noncompliance with the Ordinance had not yet
been determined. (Hr'g Tr. at 442-43.)
The Ordinance allows for building owners to appeal their designation as URM buildings andwhether they have been retrofitted to the requisite standards. P.C.C. 24.85.065(H).
IV.

The Plaintiffs
MBOO is an Oregon mutual benefit nonprofit corporation that advocates for the interests ofowners of masonry buildings, many of whom are subject to the Ordinance. (Mem. Supp. Pis.' Mot.
Prelim. Inj. at 2, ECF No. 25.) Fountain Village owns Western Rooms, a mixed use multi-family

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and commercial building that appears on the City's URM database, but has undergone significant
seismic retrofitting. (Hr'g Ex. 73 at 111, 3-8.) Jim A. Atwood, in his capacity as trustee, is an ownerof the Glade Hotel, a building that appears on the City's URM database and is subject to theOrdinance. (Hr'g Ex. 72 at 111, 3, 16.)
V.

The URM Database
BDS maintains a URM Building Database ("URM Database"). (Hr'g Exs. 131, 132.) The

URM Database is a list of buildings located within the City of Portland believed to be constructedof umeinforced masonry. (Id.) The City conducted a URM building inventory over the course of
three summers from 1994 to 1996, following adoption of the first URM building retrofit code
requirements. (Hr' g Ex. 13 at 12; Hr' g Ex. 132 at 12.) The URM Database originally was compiled
by City officials and engineering students at Portland State University ("PSU") who identified
buildings visually as those most likely constructed of umeinforced masomy, as well as by examining
building pe1mit documents and Sanborn2 maps. (Hr'g Ex. 132.) Michael Hagerty, a structural
engineer for the City of Portland from 1975 to 2003, testified at the hearing that he trained andsupervised the PSU students and performed random quality control checks of their work. (Hr' g Ex.
132.)
In 2014, the City updated the URM Database in conjunction with efforts to develop
recommendations to reduce Portland's risk from URM buildings. (Hr'g Ex. 131.) The URM
2 Sanborn Insurance Maps were originally created as a product to help insurance companies

assess the potential fire risks in underwriting policies in urban areas. Portland Sandborn Maps,
Portland Bureau of Planning, December 1, 2008, availableatwww.portlandoregon.gov/bps/article/
146947 (last visited May 29, 2019). The detail included in the maps was extensive, including street
plans, property lines, water and gas lines, and land uses. Id. The maps also included building
information such as, building heights, footprints, the number of stories, and construction materials.
Id. The first Portland maps were created in 1879, and the last were published in 1970. Id.
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database was updated using tools such as Mapworks, Google maps, cross-referencing against
permitted seismic upgrades, conducting building owner surveys, and performing site visits. (Id.)
The City's URM building data also has been converted into an interactive map. The City warns,
however, that "the accuracy of the database cannot be guaranteed due to a number of factors ....
Some of the buildings may not be of URM construction. Some of the buildings may have been
improved to better resist seismic loads." (Id.) In fact, the URM Database contains this disclaimer:
The City of Portland makes no representations, expressed or implied as to theaccuracy of this database. There are no assurances as to whether the information
presented is correct or comprehensive.
The presence of a building in this database is not a predictor of its performance in aseismic event. ... The services of a licensed professional engineer are needed todetermine the capacity of a building to resist seismic loads.
(Hr' g Ex. 39.) Shelly Duquette, a BDS structural engineer, testified that the City's practice is to keep
a building in the URM Database unless it can be conclusively determined that it is not URM
construction. (Hr' g Tr. at 346-48.) Additionally, Ms. Duquette explained that if a building has abearing wall ofURM, it will remain on the URM database and subject to the ordinance despite anyother seismic upgrades. (Hr'g Tr. at 351.)
The City initially identified as URM construction approximately 2,100 buildings. (Hr' g Ex.
131 ,r 13.) Of those, 250 buildings were removed aftei· confirming they were not URMs, and 185
buildings were removed after confirming they were demolished. (Id.) The URM buildings include
approximately 44 schools, 38 churches, and 248 multi-family structures, with more than 7,000
residential units.

(Hr'g Ex. 13 at 10.) Of those residential units, 1,800 are publicly-financed

affordable housing. (Id.) Currently, there are approximately 1,415 commercial URM buildings in
the database. (Id.)
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VI.

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Retrofitting Expenses and Removal From URM Database
Plaintiffs contend the City's standards for removing a building from the URM Database are

significantly more restrictive than the standards for determining whether a building must comply
with the Ordinance in the first instance. See P.C.C. 24.85.065(G). Plaintiff Fountain Village
completed a seismic upgrade of the Western Rooms building in 1979 to the 1977 seismic
requirement. (Hr' g Ex. 73 at ,r,r 1-5.) Although the seismic retrofitting was approved by the Cityand Portland Development Commission helped finance the project, the building remains subject tothe placarding requirement. (Id. ,r,r 5-6.)
Likewise, Walter McMonies, President ofMBOO, is an owner of Trinity Place Apartments,
LLC. (Hr' g Ex. 71 ,r 1.) Mr. McMonies testified that Trinity Place Apaiiments have undergone two
substantial seismic upgrades, including a three-year $1.2 million retrofitting project completed in2017 and approved by BDS, the State Historic Preservation Office, and the National Park Service.
(Id.

,r,r 6-8.) Despite the significant retrofitting, Trinity Place Apartments also remains subject to

the Ordinance. (Id. ,r,r 10-11.)
Retrofitting many historic URM buildings to the standards required in the Ordinance likely
exceeds their replacement value. (Hr' g Ex. 1.) For example, Mr. Atwood testified that the total costto seismically upgrade the Glade Hotel would be approximately $1.8 million, about twice thereplacement value of the building. (Id.; Hr'g Ex. 72; Hr'g Tr. at 95.)
The Policy Committee recommended "that the City should not move forward with amandatory seismic retrofit program" until financial assistance and support is in place. (Hr' g Ex. 13
at 22.) The Policy Committee identified multiple potential sources of financial suppoti for URM
building owners, including a retrofit tax exemption, federal rehabilitation tax credits, seismic

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rehabilitation grants, and a Seismic Commercial Property Assessed Clean Energy ("C-PACE")
Program. (Id. at 22-23.)
The Policy Committee noted in its December 2017 Report that for a "typical" URM building,the benefits of retrofitting exceed the costs. (Hr'g Ex. 13 at 30.) Additionally, the Policy Committee
noted that in general, "lower-cost retrofits to lower performance standards increase the benefit-cost
ratio." (Id. at 31.) The Policy Committee indicated that for schools and public assembly URM
buildings, the cost per square foot for retrofitting is $82.62 per square foot; the cost per square footfor most commercial URM buildings is $51.00 to $69.00 per square foot; and for small URM
buildings and low occupancy buildings, the cost per square foot is around $20. The Policy
Committee acknowledged that the benefit-cost ratio can vary significantly from building to building.
(Id.) The Policy Committee also noted that Oregon's Legislature adopted Senate Bill 311 ("SB311 "), which permitted local jurisdictions to create a 15-year property tax exemption program forseismic retrofits. (Hr' g Ex. 13 at 22.) At the hearing, the court heard testimony that the City had not
yet ratified SB 311 and, therefore, any property tax breaks remain unavailable. (Hr' g Tr. at 94.)
VII.

Exceptions to the Ordinance
The City initially delayed the implementation date of the Ordinance for thousands ofURM

buildings. BDS declared that Portland Public Schools would notify parents and staff in URM
buildings by January 1, 2019, but BDS has not specified a deadline for placarding or where thoseplacards must be placed, such as in auditoriums versus at main entrances. (Hr' g Ex. 23.) Ordinance
189201 contained different placarding implementation dates for non-profit URM building owners
compared to private entities. Ordinance 189399 eliminates the distinction; all private and non-profit

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URM building owners are required to post the placards by November 1, 2020. However, it is notclear whether any Portland Public School will be required to post placards by November 1, 2020.
Single-family and dual-family residences ofURM construction are not required to comply
with the Ordinance. (Papaefthimiou Dep. 75:3-23.) The Ordinance also does not require buildings
constructed of non-ductile concrete and soft-story construction to comply with the Ordinance, despite
posing seismic risks similar to URM construction in major earthquakes. (Hr' g Ex. 6 at 6; Hr' g Ex.
11.) The Standards Committee identified non-ductile concrete buildings in addition to URMs as'" generally the most dangerous types of buildings in an earthquake, and should not be allowed toremain in service indefinitely unless they are fully upgraded."' (Hr' g Ex. 6 at 6 (quoting the Oregon
Seismic Safety Policy Advisory Commission ("OSSPAC") report The Oregon Resilience Plan). The
Policy Committee making URM recommendations to City Council included "other risky buildings"
in its July 2017 draft report:
The committee recognizes that while URM buldings are dangerous in earthquakes,
they are not the only buildings to pose a significant life safety risk. Soft-story
buildings that lack a shear wall on the first floor are vulnerable to collapse for thatreason. Non-ductile concrete buildings are made of brittle umeinforced concrete andmay have many of the same risks as URM buildings. There are far fewer of thesebuilding types in Portland. However, in future years, the Committee recommends
that the City conduct a complete invento1y ofboth soft-story and non-ductile concretebuildings and consider enacting similar retrofit requirements for these buildings.
(Hr'g Ex. 10 at 32.)

However, one member of the Policy Committee recommended against

including this section at all in the URM Building Policy Committee Final Report because it "distracts
from the URM-specific message and could become a 'lightning rod' to be used by those opposing
the mandate as a reason to do nothing for URM buildings." (Hr'g Ex. 11.) City staff removed thesection on "other risky buildings" from the December 2017 final report. (Hr'g Ex. 13.)15 - OPINION AND ORDER

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Under the initial version of the Ordinance, URM buildings owned by non-profits (including
faith organizations) were given longer to comply than other URM building owners. At an October
3, 2018 City Council Meeting, Commissioner Saltzman explained that religious and non-profit
organizations should be given more time to comply with the Ordinance to permit those organizations
more "time to discuss the issue and to better understand the danger imposed by unreinforced
masonry buildings." (Hr'g Ex .. 19.) Jonna B. Papaefthimiou, Planning, Policy, and Community
Program Manager for the Pmiland Bureau of Emergency Management ("PBEM"), also agreed thatexemptions for churches and non-profits were provided because they have financial constraints that
other building owners do not have, and that it was a matter of "cultural sensitivity." (Deel. Chris
Swift Ex. 4, Dep. Joanna Papaefthimiou ("Papaefthimiou Dep.") at 77:6-78:21, ECF No. 26-4.)
VIII.

The Purpose of the OrdinanceAt an October 3, 2018 Pmiland City Council Hearing, Mayor Wheeler discussed the passage

of Resolution No. 37364 and adoption of Ordinance 189201. (Hr'g Ex. 19.) Commissioner
Saltzman explained that: "Giving Portlanders the placards I believe helps build awareness of seismic
risk, about what to do if you're in an unreinforced masonry building, to duck, cover, not to get out,
and it also builds market demand for seismic improvements to these buildings." (Id.) In his
deposition, Mr. Saltzman stated that it was fair to say that nothing in the placard and tenant
notifications that advises the public to duck, cover, and hold on in event of an earthquake. (Deel.
John DiLorenzo Supp. Am. Mot. Prelim. Inj. Ex. 1, Dep. Dan Saltzman ("Saltzman Dep." at 38:339: 16, ECF No. 77-1.) At the hearing, Commissioner Saltzman acknowledged that he prefe1red that
the City adopt mandatory retrofits for URM buildings instead of posting placards, but that theCouncil as a whole did not support mandatory retrofits. (Hr' g Ex. 21.)16 - OPINION AND ORDER

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The City highlights that California has required local jurisdictions to identify all potentially
dangerous buildings since the 1980s, and has required URM building owners to post placards. 3(Hr'g Ex. 6 at 5; Cal. Gov't Code§ 8875.8(a),(b).) Anecdotal evidence suggests placarding helps
inform the public, but there is no evidence nor are there studies to show that businesses have lost
revenue or tenants have not entered into lease agreements because of the law. (Hr' g Ex. 6 at 5.) The
City highlights that as of 2017, 98 percent of URM buildings in the City of Berkeley have been
reinforced, and only six URM buildings remained.

(Hr'g Ex. 114.)

At the hearing, Ms.

Papaefthimiou acknowledged that URM building retrofits were mandatmy in the City of Berkeley.
(Hr' g Tr. at 216-17.) The Ordinance at issue here does not require mandato1y retrofitting.
During her deposition on Januaiy 30, 2019, Ms. Papaefthimiou explained that the ordinance's
tenant notification provision informs tenants they are living in a URM building. (Papaefthimiou
Dep. at 50:11-23.) Ms. Papaefthimiou explained the Ordinance requires placarding to "let people
know they are in a building that has significant risk in an earthquake and have people think about
what to do, drop, cover and hold on," (id. at 52: 16-24), but she acknowledged that the placards do
not actually state that message.

(Id. at 53:5-10.) Ms. Papaefthimiou noted that the City isdeveloping an "informational poster that [tells] people what to do in an earthquake to say drop,
cover, and hold on." (Id. at 53:17-24.) She indicated that the message cunently required in theplacard is based on similar placards required in the State of California. (Id. at 53:11-18.) Indeed,
Ms. Papaethimiou believes the informational poster "will be more effective than the placard." (Id.
at 54: 10-11.)
The California statute provides for initial administrative fines of $250 for failing to post theplacard, with additional fines of up to $1,000. Cal. Gov't Code § 8875.8.
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On February 1, 2019, Commissioner Jo Ann Hardesty, who oversees Portland Fire & Rescue,announced that she was pausing enforcement of Ordinance 189201, stating that "A placard is a bandaid for a much larger problem. Until we have better support in place, especially in the fmm offunding assistance for these projects, I want placarding enforcement on hold for businesses and nonprofit organizations." (Swift Deel. Ex. 12, ECF No. 26-12.)
On February 19, 2019, now former Commissioner Dan Saltzman penned an opinion pieceto The Oregonian in which he urged current City Commissioners to continue to support theOrdinance. (Deel. John DiLorenzo Opp'n Defs.' Mot. Protective Order Ex. 1 at 2-4, ECF No. 71-1.)
In the piece, Commissioner Saltzman contends the City has an obligation to provide Portlanders withinformation about the risk of collapse. (Id.) Additionally, Commissioner Saltzman appeared toacknowledge that the cost of retrofitting is so high it may force some building owners to demolish,
sell, or redevelop. (Id.) Commissioner Saltzman suggested that demolition is more desirable forbuildings whose owners are unable to afford the retrofitting- "better that it happen intentionally andunoccupied than in an earthquake." (Id. at 3.)
IX.

The Lawsuit
Plaintiffs seek declaratory and injunctive relief, contending that the Ordinance s~eks tocompel speech that is not narrowly tailored to address a compelling government interest. Plaintiffs
argue that the Ordinance violates the First Amendment on its face and cannot survive strict scrutiny,
or even a lower standard of scrutiny. Alternatively, Plaintiffs argue that the Ordinance is so vague
and overbroad it violates the Due Process Clause of the Fourteenth Amendment. According to
Plaintiffs, because they are likely to succeed on the merits, a preliminaiy injunction should issue.

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Defendants argue that the Ordinance is government speech and· is rationally related to alegitimate governmental interest. Alternatively, Defendants contend that the Ordinance's tenant
notification provision is a permissible health and safety warning because it is purely factual,noncontroversial and not unduly burdensome. Defendants also argue that Plaintiffs cannot
demonstrate a Due Process violation. Thus, Defendants contend Plaintiffs are not likely to succeedon the merits and fail to demonstrate in-eparable harm; thus, a preliminary injunction is unnecessary.
In evaluating the Ordinance, the court must determine whether the Ordinance implicates theFirst Amendment and, if so, what level of scrutiny applies to the Ordinance, and whether Plaintiffs
have.demonstrated that a preliminary injunction is appropriate.
Legal Standards"A preliminaiy injunction is an extraordinary remedy never awarded as of right." Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008); Mazurekv. Armstrong, 520 U.S.

968, 972 (1997). A plaintiff seeking a preliminary injunction must establish: (1) likelihood of
success on the merits; (2) irreparable harm in the absence of preliminaiy relief; (3) the balance ofequities tips in his favor; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20;
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In the Ninth Circuit,a preliminaiy injunction also may be appropriate if a plaintiff demonstrates "serious questions goingto the merits [are] raised and the balance of hardships tips sharply in the plaintiffs favor," as longas the second and third Winter factors are satisfied. Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d
848, 856 (9th Cir. 2017); Alliance for the Wild Rockies, 632 F.3d at 1131-35 ('"serious questions'approach survives Winter when applied as part of the four-element Winter test"); accord Alliance

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for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017) (discussing sliding scale
standard).
The Ninth Circuit has recognized that application of preliminaiy injunction standards in theface of a First Amendment challenge involves "' an inherent tension: the moving party bears theburden of showing likely success on the merits - a high burden if the injunction changes the status
quo before trial - and yet within that merits determination the government bears the burden ofjustifying its speech-restrictive law."' Doe v. Harris, 772 F.3d 563,570 (9th Cir. 2014) (quoting

Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011)). Therefore, '"in the First
Amendment context, the moving party bears the initial burden of making a colorable claim that its
First Amendment rights have been infringed, or are threatened with infringement, at which point theburden shifts to the government to justify the restriction."' Id. (quoting Thalheimer, 645 F.3d at1116).

Discussion
I.

The Ordinance Is Not Government Speech
According to the City, the Ordinance is akin to all public safety signs, such as "emergency

exit," "no smoking," and signs requiring employees to wash their hands. Thus, the City argues, theOrdinance's provisions are "government speech," and pose no First Amendment issues. The City
relies on Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), andPleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), for its contention.
The premise of the "government speech" doctrine is that the government's own speech islexempt from First Amendment scrutiny. See Johanns v. Livestock Mktg. Ass 'n, 544 U.S. 550, 553(2005). According to Defendants, there are three factors the court must consider when determining

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whether certain expression constitutes government speech: ( 1) the government's history of using theparticular mode of expression to communicate with the public; (2) whether that mode of expression
is closely identified by the public with the state; and (3) the extent to which the state has regulated
the content of messages in the mode of expression and has exercised final approval authority overthe messages. Walker, 135 S. Ct. 2248-49; Summum, 555 U.S. at 472-73.
Defendants' reliance on Walker and Sum mum is misplaced. Walker and Sum mum involved
private speech on government property.

In Walker, the private speaker's expression was aconfederate flag on a government-issued license plate. Walker, 135 S. Ct. at 2248. In Summum, theprivate speaker wanted to place a privately-donated permanent monument in a government-owned
public park. Summum, 555 U.S. at 472-73.
Unlike either Walker or Summum, Plaintiffs here do not seek to impose their speech on theCity. Instead, the issue here is whether the City can compel private citizens to convey the City's
message on private property. Contra1y to Defendant's contention, both Walker and Summum
recognized that "the Free Speech Clause itself may constrain the government's speech, if, forexample, the government seeks to compel private persons to convey the government's speech."Walker, 135 S. Ct. at 2246; see also Summum, 555 U.S. at 467.
As Plaintiffs conectly indicate, avoiding First Amendment scrutiny requires showing: (1)the government itself is the speaker; and (2) the government appropriates public funds to transmit
its message thtough private speakers. See Legal Servs. C01p. v. Velazquez, 531 U.S. 533, 540-42(2001) (discussing that viewpoint based funding decisions can be sustained in some instances where
the government is the speaker); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819,
833 (1995) ("[W]hen the government appropriates public funds to promote a particular policy of

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its own it is entitled to say what it wishes."). Although the Ordinance is a government-mandated
script for placard and lease applications, the g,overnment itself is not the speaker.

Instead,Defendants are requiring Plaintiffs to cany their message, a message not occurring on public
property. Additionally, the Ordinance does not provide for public funds to private entities to convey
the government's message. See Rosenberger, 515 U.S. at 833 ("When the government disburses
public funds to private entities to convey a governmental message, it may take legitimate andappropriate steps to ensure that its message is neither garbled nor distorted by the grantee."); PSEGLong Island LLCv. Town ofNorth Hempstead, 158 F. Supp. 3d 149, 166 (E.D.N.Y. 2016)(holding
government speech did not apply to ordinance requiring placard with warning about chemicallytreated wood be posted on privately owned utility poles). Accordingly, the court rejects Defendants'
argument that the Ordinance is somehow protected from First Amendment scrutiny as government
speech.
ILFirst Amendment Principles
The First Amendment; applied to the states through the Fourteenth Amendment, prohibits

laws "abridging the freedom of speech." U.S. CONST. amend. I. The First Amendment includes "theright to speak freely, and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S.
705, 714 (1977) (citing Board of Education v. Barnette, 319 U.S. 624, 633-34 (1943)). "Itsprotection is broad, and the Supreme Court has 'been reluctant to mark off new categories of speech
for diminished constitutional protection.'" Am. Beverage Ass 'n v. City & Cty. ofSan Francisco, 916
F.3d 749,755 (9th Cir. 2019) (quoting Nat'! Inst. ofFamily&LifeAdvocatesv. Becerra ("NIFLA"),
138 S. Ct. 2361, 2372 (2018)).

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Generally speaking, laws that target speech based on its content "' are presumptively
unconstitutional and may be justified only if the government proves that they are narrowly tailored
to serve compelling state interests."" NIFLA, 138 S. Ct. at 2371 (quoting Reed v. Town of Gilbert,
135 S. Ct. 2218, 2226 (2015)). "Laws that compel speakers to utter or distribute speech bearing apaiiicular message are subject to the same rigorous scrutiny." Turner Broadcasting System, Inc. v.
F.C.C., 512 U.S. 622, 642 (1994). As recognized in NIFLA, "compelling individuals to speak aparticular message" is a content based regulation because it "'alters the content of their speech."'NIFLA, 138 S. Ct. at2371 (quotingRileyv. Nat'lFed'nofBlindofNC., Inc.,487U.S. 781,795(1988) (alterations omitted)). Thus, a regulation that compels a disclosure is a content-based
regulation of speech, subject to heightened scrutiny, unless an exception applies. NIFLA, 13 8 S. Ct.
at 2371; Am. Beverage, 916 F.3d at *4, *6.
The Supreme Court has recognized that the First Amendment "accords a lesser protection
to commercial speech than to other constitutionally guaranteed expression." Central Hudson Gas& Elec. Cmp. v. Pub. Serv. Comm 'n ofN Y., 447 U.S. 557,563 (1980); NIFLA, 138 S. Ct. at 2372.

And, the Supreme Cami and the Ninth Circuit have determined that a lower level of scrutiny may
apply in certain contexts to laws compelling disclosure of factual, noncontroversial information incommercial speech. NIFLA, 138 S. Ct. at 2372; Zauderer v. Office of Disciplinary Counsel, 471
U.S. 626,651 (1985); Am. Beverage, 916 F.3d at 755.
To succeed on a typical facial attack on First Amendment grounds, the paiiy challenging thegovernment's action needs "to establish that no set of circumstances exists under which [the statute]
would be valid, or that the statute lacks any plainly legitimate sweep." United States v. Stevens, 559
U.S. 460,472 (2010) (internal quotation marks and citations omitted).
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Likelihood of Success on First Amendment Claims

A.

Content-Based

Here, there can be no debate that the Ordinance is content-based because it regulates only
URM building owners' speech.

By requiring URM building owners to speak a particulargovernment-drafted message through placards, lease application disclosures, and acknowledgments,
the Ordinance "alters the content of their speech." NIFLA, 138 S. Ct. 2371; see also Dex Media

West, Inc. v. City ofSeattle, 696 F.3d 952, 957 (9th Cir. 2012) (holding regulation that applied only
to yellow pages directories was a content based restriction); Berger v. City ofSeattle, 569 F.3d 1029,
1051 (9th Cir. 2009) (holding that"[a] regulation is content-based if either the underlying purposeof the regulation is to suppress particular ideas or if the regulation, by its very te1ms, singles out
particular content for differential treatment."). Because the Ordinance seeks to regulate only URM
building owners' speech, the Ordinance is subject to strict scrutiny unless it falls within an exception.

B.

Commercial Speech

The Ninth Circuit recently confirmed that the Zauderer analysis governs First Amendment
challenges to compelled commercial speech - even when the "government requires health and safety
warnings, rather than warnings to prevent the deception of consumers." Am. ,Beverage, 916 F. 3d at
756. InAmerican Beverage, beverage retailers challenged a city and county ordinance that required
them to place a warning on some advertisements for their beverages containing the following
message: "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes andtooth decay. This is a message from the City and County of San Francisco." Am. Beverage, 916 F .3d
at 753. There, the parties did not dispute that the required sugary beverage warnings involved
commercial speech because the ordinance specifically applied to advertisements on billboards,

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stadiums, transit shelters, vehicles, or walls and surfaces. Id. Thus, the American Beverage decision
did not address whether the compelled speech there involved "commercial speech" in the wake of
NIFLA.

The American Beverage court determined that "Zauderer provides the proper analyticalframework for considering required warnings on commercial products: '[T]he government maycompel truthful disclosure in commercial speech as long as the compelled disclosure is 'reasonably
related' to a substantial governmental interest." Id. at 755 (quoting CTIA-The Wireless Ass'n v.
City ofBerkeley, 854 F.3d 1105, 1115 (9th Cir. 2017), vacated by 138 S. Ct. 2708 (2018)); NIFLA,

138 S. Ct. at 2377. Under Zauderer, the court examines whether the compelled speech is: "(1)purely factual, (2) noncontroversial, and (3) not unjustified or unduly burdensome." Am. Beverage,
916 F.3d at 757. "A compelled disclosure accompanying a related product or service must meet all
three criteria to be constitutional." Id. (citing NIFLA, 138 S. Ct. at 2372).
Here, Plaintiffs argue that none of the Ordinance's provisions are commercial speech, andtherefore, the lower Zauderer level of scrutiny does not apply. Alternatively, Plaintiffs assert that
if the lease application provision could be viewed as commercial speech, that provision fails tosatisfy any of the three Zauderer prongs. Defendants respond that health and safety disclosures in
the lease applications readily satisfy Zauderer because the required disclosure is purely factual,noncontroversial, and is not unjustified or unduly burdensome. 4 The court begins its analysis byaddressing whether any provision of the Ordinance is commercial speech, and thus subject to a lower
level of scrutiny:
4 Defendants concede that the placards do not involve commercial speech.

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1.

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the placard provision is not commercial speech

The Supreme Comi has indicated that "the core notion of commercial speech" is that "it does
no more than propose a commercial transaction." United States v. United Foods, Inc., 533 U.S. 405,
409 (2001); Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013); Hunt v. City of Los
Angeles, 638 F.3d 703, 715 (9th Cir. 2011).

Commercial speech also has been defined as"expression related solely to the economic interests of the speaker and its audience." Cent. Hudson,
44 7 U.S. at 561. Whether any patiicular expression is "commercial speech" is a fact-driven analysis
due to the difficulty of drawing bright lines. First Resort, Inc. v. Herrera, 860 F.3d 1263,1272 (9thCir. 2017). "Where the facts present a close question," comis typically find commercial speech if
the Bolger factors are present: (1) the speech is an adve1iisement, (2) the speech refers to a patiicular
product, and (3) the speaker has an economic motivation. Hunt, 638 F.3d at 715 (quoting Bolger
v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983)). Whether speech is commercial or
noncommerical should rest on "'the commonsense' distinction between speech_ proposing acommercial transaction ... and other varieties of speech." Bolger, 463 U.S. at 64; Dex Media, 696
F.3d at 958-59 (finding Yellow Pages not commercial speech because it did not refer to a specificproduct and the paid adve1iisements inside the directory comprised less than half the content); Hunt,
638 F.3d at 716 (upholding restriction on number of boardwalk vendors as time, place, and manner
restriction on commercial speech because the core of vendors' activity was directed to their products
and why consumers should by them).
Turning to the placard provision of the Ordinance, the court readily finds that the placards
are not commercial speech. While placards are to be posted in conspicuous places near the front of
the buildings, they are not in an advertising format. They bear none of the indicia _typically

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associated with advetiising, either in design or content. And, unlike advertisements, the placards
display citation to a municipal ordinance. This is the very "commonsense distinction" the Supreme
Court has encouraged lower comis to make.
Moreover, the placards do not propose any kind of commercial transaction, and do notconvey any discernable relationship to any products or services offered by Plaintiffs. Indeed,
Plaintiffs have no economic motivation to display the placards because they compel Plaintiffs to statea message they wish to avoid. The couti finds that the placards fall outside any commonsense
understanding ofcommercial speech. See PSEG, 158 F. Supp. 3d at 164-65 (holding ordinance thatcompelled placards to be posted on privately owned utility poles warning of hazardous chemicaltreatment was not commercial speech). Thus, the court examines the placard provision under strict
scrutiny in section C infra.
2.

the tenant notification provision is commercial speech

Whether the tenant notification provision is commercial speech poses a more difficult
question. The tenant notification provision requires that for"[ e]very application for lease or rental
supplied to a prospective tenant after June 1, 2019, involving a [URM] building ... must containa statement that: the building is an unreinforced masonry building and unreinforced masomy
buildings may be unsafe in the event of a major earthquake." P.C.C. 24.85.065(D). According to
Plaintiffs, a lease application is not an adve1iisement because lease applications are not circulated
to the public, but rather are the among the final steps before a transaction is consummated. (Pls.'
Mem. Supp. Am. Mot. Prelim. Inj. at 22.) Plaintiffs argue that lease applications do not referencea specific product because landlords often use standardized forms across multiple properties.
Plaintiffs also ~rgue that landlords utilize lease applications to garner information from prospective

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tenants, not for tenants to learn about the landlords' properties. (Hr' g Ex. 5 at ,r 4.) Plaintiffs appear
to aclrnowledge that landlords have an economic motivation in providing lease applications but
contend that lease applications are not advertisements that refer to particular products, and thus the remaining Bolger factors for commercial speech are absent.
Defendants contend that the tenant notification provision of the Ordinance is compelledcommercial speech, and should be analyzyd as a health and safety warning under Zauderer.
Defendants argue that health and safety regulations need not be part of a commercial advertisement
or part of a commercial transaction for Zauderer to apply.
The court finds that the tenant notification provision is commercial speech. Considering th~

Bolger factors, the court finds that URM building owners have an economic interest in entering into
leases with prospective tenants. Plaintiffs' contention that lease applications do not identify a
specific product is not persuasive. Some URM building owners may own several buildings and use
the same lease application across multiple buildings; as Mr. Beardsley testified, he obtains his leaseapplications from a local management company. (Tr. at 109.) It appears more likely, however, thata URM building owner will have one property with a single lease, or that the specific lease enteredirito by the_prospective tenant will have been tailored to a particular building. See Hr'g Ex. 5(attaching standard lease application); Bolger, 463 U.S. at 66-67 (examining combination of factors
to determine that informational pamphlets were commercial speech, applying Central Hudson); seealso San Francisco Apartment Ass 'n v. City and County ofSan Francisco, 881 F.3d 1169, 1176-77(9th Cir. 2018) (finding that ordinance requiring landlords prior to beginning buyout negotiations
for condominium conversions to provide notice to tenants that ~ncluded contact information fortenants' rights organizations was commercial speech, applying Central Hudson). Therefore, broadly

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considering the Bolger factors, the court finds that the tenant notification provision of the Ordinanceis commercial speech.
The court now examines whether Central Hudson or Zauderer applies. In American

Beverage, the parties did not dispute that the sugary beverage warning targeted commercial speechand compelled certain disclosures. Am. Beverage, 916 F.3d at 755. Instead, the parties there
disputed whether the ordinance should be examined under the Central Hudson test for commer~ial
speech, or whether a more relaxed standard for health and safety warnings under Zauderer applied.

Id. at 755-56. The American Beverage court concluded that NIFLA required it to "reexamine how
we approach a First Amendment claim concerning compelled speech." Id. at 7 56. The Ninth Circuit
concluded that "NIFLA preserved the exception to heightened scrutiny for health and safety
warnings" and thatZauderer provides the proper framework. Am. Beverage, 916 F.3d at 755. This
court is not wholly convinced that the Zauderer exception to heightened scrutiny for commercial
speech provides the correct test. See San Francisco Apartment Ass 'n, 881 F.3d at 1177-78 (applying

Central Hudson to tenant buyout disclosure provision). But much like the Supreme Court in NIFLA
with respect to the unlicensed notices, the court recognizes that if the tenant notification provisionof the Ordinance cannot withstand First Amendment scrutiny under Zauderer, it cannot survive
heightened scrutiny. See NIFLA, 138 S. Ct. at 2376-77; see Am. Beverage, 916 F.3d at 759 (Ikuta,
Circuit Judge, concmring) (noting that NIFLA did not determine whether strict scrutiny orintermediate scrutiny applies to government-compelled commercial disclosures that do not fall under

Zauderer).

/Ill
/Ill
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Zauderer application to the tenant notification provision

Defendants must show that the tenant notification provision is purely factual,noncontroversial, and is not unjustified or unduly burdensome. Am. Beverage, 916 F.3d at 756.
Additionally, the disclosure must be reasonably related to a substantial governmental interest. Id.
at 755. The court concludes that on this preliminaiy record, Defendants have failed to demonstratethat the tenant notification provision in the Ordinance satisfies Zauderer.

a.

purely factual

Defendants contend that the tenant notification provision of the Ordinance is purely factual
because it requires that URM building owners disclose to prospective tenants that the building isconstructed of unreinforced masonry, and that it may be unsafe in the event of a major earthquake.
Defendants contend that "whether a particular building qualifies as a URM building is beside thepoint" because the URM database has been updated, and there is a mechanism to remove a building
from the URM list if it is erroneously included or if the building has been retrofitted to the seismiccode standards in Code 24.85.065(F). (Defs.' Resp. Am. Mot. at 21, ECF No. 61.) Defendants
contend that the tenant notification provision is purely factual despite identifying buildings that haveundertaken some seismic upgrades, but have not yet completed enough retrofitting to be exempt as"unreinforced masomy buildings" because they are so defined in the Ordinance.
The compelled disclosures are not purely factual. Some URM buildings have undergone
significant seismic upgrades, but are not exempt under the Ordinance. The Ordinance provides an
exemption for buildings that are fully retrofitted to the collapse-prevention standai·ds set out in the
Ordinance, or were retrofitted to a Life-Safety performance level prior to January 1, 2018, or to the
Oregon Structural Specialty Code 1993 standards. P.C.C. 24.85.065(F). But, the tenant notification

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provisions do not distinguish between URM buildings that have undergone some significant
retrofitting even ifless than the level required for exemption under the Ordinance, and those URM
buildings that remain completely umeinforced. In so doing, the Ordinance requires some URM
building owners to notify tenants that their buildings are umeinforced when, in fact, that is not thecase.
For example, Plaintiff Fountain Village underwent significant seismic upgrading in 1979,
with approval from the City and financial assistance from Portland Development Commission.
(Hr'g Ex. 73 at ,r,r 5-7.) Under the Ordinance, however, it does not qualify for an exemption.
Nevertheless, Fountain Village is required to. falsely infmm prospective tenants that it is an"umeinforced masonry building." (Id ,r,r 1-5.) As John Beardsley testified, the Ordinance will makehim "a liar." (Hr'g Tr. at 109.)
Likewise, the President ofMBOO, Walter McMonies, will be required to inform prospective
tenants for Trinity Place Apartments that the building is umeinforced masonry despite that it has
undergone significant seismic retrofitting from 2014 to 2017. (Hr'g Ex. 71 at ,r,r 1-3.) Trinity
Place's seismic upgrade was undertaken to survive a "major earthquake," but less than a 9.0
magnitude, was approved by BDS, and cost approximately $1.1 million. (Id. ,r,r 6-8.) Thus, theOrdinance falsely requires McMonies to inform prospective tenants that Trinity Place Apartments
is an umeinforced masonry building and is unsafe in the event of a major earthquake. 5
Additionally, whether buildings are constructed of URM and subject to the Ordinance's
tenant notification provisions is premised on a faulty URM database. The court heard testimony
The Ordinance does not define "major earthquake" or provide criteria for determining whenand how this standard is met.
5

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from Michael Hagerty, a structural engineer and the Engineering Plan Review Supervisor for the Cityof Portland from 1979 to 2003. (Hr' g Tr. at 252.) Mr. Hagerty testified that he oversaw the process
by which the City compiled its initial URM inventory in conjunction with Portland State University
engineering students. (Id. at 254-55.) His testimony revealed that the methods used to gather
infmmation for the database were neither scientific nor reliable.
Mr. Hagerty testified that student lead teams identified URM buildings visually and that thestudents were not encouraged to enter private buildings to assess them. (Id. at 280-81.) The students
identified over 2,100 buildings as being constructed of URM, but there were errors. Indeed,approximately 250 buildings have been removed after "conclusive evidence" showed they were infact not URM buildings. (Hr'g Ex. 133 ,r 15.) Students were sent out in groups of three but it was
unclear whether all three examined each building or whether they covered their assigned area
individually. (Hr'g Tr. at 281-83.) If the students conferred, they kept no notes or documentation
which explained how they concluded a building was ofURM construction. (Hr'g Tr. at 282-83.)
Also, the PSU students kept no records of the buildings they examined unless they determined thebuilding was ofURM construction. (Hr'g Tr. at 284-85.)
Another structural engineer with the City, Shelly Duquette, testified that absent "conclusive
evidence" that a building is not constructed of unreinforced masonry, the building will remain in theCity's URM database, and consequently, subject to the Ordinance. (Hr'g Ex. 131 ,r 10.) Ms.
Duquette suggested that building owners could hire licensed engineers to investigate whether theirbuildings are URM. (Hr'g Tr. at 346.) Adam Jongeward, a structural engineer working for DCI
Engineers, testified that it is often ve1y difficult to dete1mine whether a building is URM from theoutside, and that it is difficult to remove a building from the URM database. (Hr'g Tr. at 521-22.)

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Finally, the City's own website disclaims the accuracy of URM database: "The City of Portland
makes no representations, express or implied, as to the accuracy of this database." (Hr'g Ex. 39.)
In short, the URM database is flawed, and erroneously puts the burden on building owners todisprove its accuracy.
Therefore, the court concludes that the Ordinance does not compel purely factual information
because it falsely identifies some buildings as unreinforced and erroneously identifies some buildings
as constructed ofURM, even in situations where such a statement is patently untrue. "Zauderer andsubsequent case law leave no doubt that any government-compelled speech must be, at the very least,
factually accurate." Am. Beverage, 916 F.3d at 764 (Christen, J., and Thomas, C.J., concurring)(concluding that sugary beverage disclosure was not factually accurate because not eve1y consumer
will acquire diabetes, suffer tooth decay, or become obese). The court finds the tenant notification
provision fails to satisfy the Zauderer exception for that reason alone.

b.

noncontroversial

Defendants contend that the disclosure requirement is noncontroversial because "it is not
subject to reasonable debate" that URM buildings are not safe in the event of a major eaiihquake.
(Defs.' Resp. Am. Mot. Prelim. Injunction at 21.) According to Defendants, that URM buildings
are uniquely dangerous in earthquakes is purely factual information, and thus the Ordinance isnoncontroversial.
Courts have described "uncontroversial" as refen'ing to the "factual accuracy of thecompelled disclosure." Nat'!Ass'n ofWheaiGrowersv. Zeise, 309 F. Supp. 3d 842,851 (E.D. Cal.
2018) (citing CTIA, 854 F.3d at 1117, and applyingZaudererto California warning requirement for
herbicide). In National Wheat Growers, the court discussed that a compelled disclosure may be

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literally true, but nevertheless misleading, and in that sense untrue; and thus unconstitutional
compelled speech under Zauderer. Id. The court concludes that the compelled disclosure here ismisleading. Even if it is factually true that a subject building that has undertaken some retrofitting
but below the level required for exemption under the Ordinance, the building owner is required to
notify tenants that it is unreinforced masonry. While structural engineers may understand that
"unreinforced masonry" has a particular meaning under the Ordinance, the average prospective
tenant likely will not. "Ordinary consumers do not interpret warnings in accordance with a complex
web of statutes, regulations, and court decisions[.]" Wheat Growers, 309 F. Supp. 3d at 851(striking down warning that herbicide "known to cause cancer" as controversial because a reasonableconsumer would not understand difference between a substance that causes cancer, and those"probably carcinogenic"underregulations); accord Am. Beverage, 916 F.3d at 766 (Christen, J. andThomas, C.J., concurring) ("Because the message would be conveyed to sophisticated andunsophisticated consumers, we must read it literally."). Thus, the court finds the tenant notificationin the Ordinance misleading because it does not distinguish between a building that has-unde1iakensome retrofitting yet remains technically "unreinforced" and a building that has completed no
retrofitting whatsoever.
Moreover, it is misleading to require all URM buildings to state that they may be unsafe ina major earthquake. As the Standards Committee observed, in the 6.5 magnitude Paso Robles
eaiihquake in 2003, none of the nine retrofitted URM buildings there experienced major damage,whereas the URM buildings without any retrofitting experienced extensive damage. (Hr' g Ex. 6 at
8.) As discussed above, by requiring all URM building owners to disclose in the lease applications

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that their buildings may be unsafe, when in fact the buildings may have undergone extensive seismic
retrofitting and may perform well in an earthquake, the compelled disclosure is misleading.
Further, the court finds that the compelled disclosure is controversial because it singles out
URM buildings despite evidence that other buildings are at significant risk in the event of a major
earthquake. Defendants exempted from the Ordinance all buildings constructed of non-ductile
concrete, all buildings of soft-story construction, and all construction in liquifaction zones. (Hr' g
Ex. IO at 32.) The Standards Committee found that "'[u]nreinforced [m]asonry (URM) and nonductile concrete buildings are generally the most dangerous types of buildings in an earthquake, andshould not be allowed to remain in service indefinitely unless they are fully upgraded."' (Hr' g Ex.
6 at 6 (quoting OSSPAC's The Oregon Resilience Plan).) The Standards Committee made no .
distinction between the two forms of construction for this purpose. At the hearing, Mr. Kumar
testified that soft-story construction, non-ductile concrete, and all buildings in liquefaction zones will
perfmm poorly in a major earthquake, such as a 9.0 magnitude Cascadian Subduction Zone
earthquake. (Tr. at 22, May 15, 2019 pm.) Thus, to the extent that Defendants have singled out
URM buildings for compelled disclosures, the Ordinance is misleading, controversial, andinflammato1y. See Video Software Dealers Ass 'n v. Schwarzenegger, 556 F.3d 950, 966-67 (9th Cir.
2009) (holding that labeling requirement for videogame retailers was not purely factual or
uncontroversial because the "18" sticker did not convey factual information), aff'd sub nom Brown
v. Entm 't Merchants Ass 'n, 564 U.S. 786 (2011). Accordingly, the tenant notification provision of

the Ordinance is not purely factual and noncontroversial under Zauderer.

Ill/
/Ill
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justified and not unduly burdensome

In American Beverage, the Ninth Circuit determined that to be justified, the defendants must
demonstrate that the compelled disclosure is reasonably related to a substantial government interest.
Am. Beverage, 916 F.3d at 755. And, American Beverage suggested that protecting the health andsafety of consumers promotes a substantial government interest. Id. at 756. The Supreme Comi
described that for compelled disclosures to not be unduly burdensome under Zauderer, thedisclosures must "remedy a harm that is 'potentially real not purely hypothetical,"' and that thedisclosures not extend broader than reasonably necessaty. NIFLA, 138 S. Ct. at 2377 (quoting
Ibanez v. Florida Dep 't ofBusiness and Professional Regulation, Bd. ofAccountancy, 512 U.S. 136,
146 (1994). There, the NIFLA Court determined that the unlicensed notice was targeting a "purely
hypothetical" problem that women may enter an unlicensed pregnancy center and not understand that
it was staffed by unlicensed medical professionals. Id. Additionally, the NIFLA Court determined
the notice unduly burdened protected speech by requiring the clinics to post the government-drafted
script despite what the facility may have provided about its services. Id. And, the NIFLA Court
found that the regulation targeted a "curiously natTow subset of speakers" noting that the regulation
targeted clinics providing "pregnancy-related" services, but not other clinics. Id. at 2378. The
NIFLA Court also found that the unlicensed notice was unduly burdensome because it required thegovernment-drafted script be provided on eve1y advertisement, in as.many as 13 different languages,
and thus would drown out the speaker's own message. Id.
In this case, Defendants have proffered various and shifting reasons for the Ordinance. At
the time the original Ordinance was adopted, former Commissioner Saltzman explained that the
purposes of the Ordinance were two-fold: (1) to "build awareness of seismic risk, about what to do

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if you're in an unreinforced masonry building, to duck and cover, not to get out" and (2) to "build
market demand for seismic improvements to these buildings." (Hr'g Ex. 19.) Defendants now
contend that the tenant notification provision allows prospective tenants, including those who "mayreside outside Portland or Oregon and may not be reached through websites, mailings, or meetings"
to make "an informed choice regarding their rental unit before they are financially invested in therental process." (Hr'g Ex. 134 at 17.) Defendants argue that the tenant notification provision in the
Ordinance is not unduly burdensome because the compelled speech is one sentence long, does notcompete with Plaintiffs' own message, and thus does not "drown out" Plaintiffs' speech. NIFLA,
138 S. Ct. at 2378.
Plaintiffs argue that the justifications offered by Defendants for the Ordinance - such as
informing the public about safety in the event of earthquake and creating demand for seismic
improvements, are not advanced by the tenant notification provision. Additionally, Plaintiffs
contend that the tenant notification provision is unduly burdensome because it does not offer
Plaintiffs an opportunity to provide a competing message.
The court concludes that Defendants' primary justification for the tenant notification
provision is akin to the purely hypothetical concern addressed inNIFLA. While the concern about
earthquakes may be real, Defendants offer no support for their justification that URM building
owners need to provide the required notice because prospective tenants are unable to access that
information via "websites, mailings or meetings." Defendants offer no evidence. to support theircontention that prospective out-of-state tenants are having difficulty accessing information about
URM buildings. See NIFLA, 138 S. Ct. at 2377 (finding that the unlicensed disclosure requirement
was not justified byevidence);Am. Beverage, 916 F.3d at 757 (findingthatsugarybeveragewarning
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covering 20 percent of the image was not more effective than a warning covering 10 percent of theimage; holding ordinance was unjustified and unduly burdensome under Zauderer).
With respect to the other justification - to build market demand for seismic improvements- the court similarly finds that Defendants offer no support for their contention. At the Hearing,Commissioner Saltzman testified that by providing prospective tenants information about URM
buildings, prospective tenants could factor that information into their decisions about whether toenter into a lease. (Hr'g Tr. at 228-29.) Commissioner Saltzman also stated that he hoped theOrdinance would put economic pressures on building owners. (Id. at 229-30.) Ms. Papaefthimiou
testified at the hearing that the City surveyed URM tenants at an open house they sponsored andfound that a majority of the tenants who attended did not know it was a URM building at the timethey rented. (Hr'g Tr. at 212.) Defendants' theory appears to be that by providing additional
information to prospective tenants that buildings are constructed of URM, they may choose not tolive there, thereby increasing vacancies in URM buildings, which would in turn put pressure on
URM building owners to retrofit or demolish their buildings.
The court finds that the Defendants have failed to proffer any evidence to support the theory
that by informing prospective tenants in the lease applications that URM vacancies will increase andcause URM building owners to unde1iake expensive retrofits or demolition. Aside from purely
anecdotal information, Defendants cite no empirical support con-elating tenant notifications toincreased vacancies. While the court agrees that the City's goal ofreducing the invent01y ofriskybuildings is beneficial, as discussed above, the tenant notification provision does not distinguishI11

between completely unreinforced URM buildings and URM buildings that have undertaken s0me

i

II

I

retrofitting already but remain subject to the Ordinance. Nor does the tenant notification provision

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apply to other non-URM buildings that are hazardous in major earthquakes. Thus, the tenant
notification requirement of the Ordinance provides misinformation and a false sense of security
under the guise of building market demand. The court finds that on this record, the tenant
notification provision in the Ordinance is not substantially justified.
Additionally, the court finds that the Ordinance is unduly burdensome. In American

Beverage, the Ninth Circuit enjoined enforcement ofthe sugaiy beverage warning because there wasno empirical support that the warning's design and content improved understanding of the healthharms associated with over-consumption of sugary beverages than other smaller, less intrusive
warnings. Am. Beverage, 916 F.3d at 757. Thus, the American Beverage court determined that as
in NIFLA, a "government-compelled disclosure that imposes an undue burden fails for that reason
alone." Id. at 757. Here, the City provides no empirical support for its contention that tenant
notifications are necessary because prospective tenants cannot be reached through websites, mailings
or meetings. Indeed, the court is not convinced that a public relations campaign informing the public
might not reach more Pmilanders and prospective tenants outside of Portland about seismic risks.
(Hr'g Ex. 13 at 25) (suggesting that the City unde1iake a comprehensive outreach and awarenesscampaign about URM buildings). The comi concludes the tenant notification provision is notjustified and is unduly burdensome when balanced against its likely burden on free speech.
On this record at this preliminaiy stage, the comi concludes that Defendants have not carried
their burden of demonstrating that the tenant notification provision is purely factual,noncontroversial, justified and not unduly burdensome. Accordingly, Plaintiffs have demonstrated
they are likely to succeed on the merits of their First Amendment claim with respect to the tenant
notification provision in the Ordinance.

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Placard Provision Does Not Satisfy Strict Scrutiny

As noted above, the placard provision in the Ordinance is a content based regulation of noncommercial speech, and therefore, is invalid unless Defendants can survive strict scrutiny. Brown
v. Entm 't Merchants Ass 'n, 564 U.S. 786, 99 (2011). To demonstrate strict scrutiny, the placard
provision must be nairnwly drawn to serve a compelling government interest. Id.; Williams-Yulee
v. Florida Bar, 135 S. Ct. 1656, 1665-66 (2015). The government must identify an actual problem
that is in need of solving, and the compelled speech must be necessary to the solution. Id.; Frudden
v. Pilling, 877 F.3d 821, 828 (9th Cir. 2017) (applying strict scrutiny to requirement that motto be
displayed on school uniform).
At the time the original version of the Ordinance was adopted, Commissioner Saltzman
identified two interests in support of the placard provision: (1) to "build awareness of seismic risk,
about what to do if you're in an unreinforced masomy building, to duck and cover, not to get out,"and (2) to "build market demand for seismic improvements to these buildings." (Hr'g Ex. 19.)
During the course ofthis litigation, Defendants have offered additional rationales for the placard thatthey attempt to fit under the broader goal of "public safety." By the time of briefing for the Hearing,
Mr. Kumar proffered that URM buildings are seismically more vulnerable than other buildings, andthus are more dangerous to their occupants and "passers-by" than any other type of construction.
(Hr'g Ex. 133 at ,r,r 9-16.) According to Defendants, because of this unique risk, Defendants havea compelling interest in ensuring that the building occupants and persons nearby are protected fromthe unique dangers that URM buildings pose. (Id.) Thus, Defendants contend that promoting public
safety is a core function of the City, and is a compelling government interest. However, at the

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Hearing, Defendants were unable to define "passers-by" or explain how a placard posted at thebuilding entrance would accomplish the purpose of protecting them.
The court finds that while promoting public safety is a compelling governmental interest, theCity's shifting post-hoc rationalizations do little to advance the City's stated purposes for passing
the Ordinance. Even presuming that Defendants' stated interests in "building awareness of seismicrisk" and promoting public safety are compelling, they have not demonstrated that the placard
provision is natTowly tailored to achieve those interests. 6
For example, Plaintiffs asked former Commissioner Saltzman during his deposition how theplacard provision advances his first stated purpose of building seismic awareness and what to do in
the event of an earthquake. (Deel. John DiLorenzo Ex. 1, Dep. Dan Saltzman ("Saltzman Dep.")
36:16-37:19.)

In response, Commissioner Saltzman indicated that "given the nature of theunreinforced masonry buildings that the parapets and walls are going to fall off the building," it may
be safer for building occupants to stay put, as opposed to running out. (Saltzman Dep. 37:3-11.)
Continuing, Commissioner Saltzman stated:Q.
Let's kind of focus on that point. What is it about the placard that tells a
person that, that tells them don't run out, duck and cover? Does the placard say that?
A.

No.

Q.

Then how does the placard further that purpose?

A.
I think the placard instills a daily awareness on residents of buildings orworkers of buildings, ... that's potentially unsafe in an earth quake .. what to dowhen the event happens.
Defendants do not contend and submit no authority to support Commissioner Saltzman's
second stated purpose - building mai·ket demand for seismic improvements - as a compelling
government interest. The court concludes that Defendants have failed to show that building market
demand for retrofitting is a compelling interest and declines to address that contention further.
6

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Q.
Okay. So let's assume that because of the placard someone is now aware thatthey are in a building that could have difficulty in an earthquake. How is it, though,that that awareness educates a person as to now what they should avoid that is
instinctual on their part? You said their instinct would be to run out. What is it
about the ordinance that helps them avoid furthering their instinct?
A.
Well, as you said, the placard does not do that, but I think there is ce1iainly
a lot of public awareness campaigns that the City, Red Cross, others participate in ona regular basis to help people be prepared in an emergency.

Q.

I agree with you.

A.

Which includes a lot of, you know, what to do.

Q.
. ... I'm at a loss, though, to try to figure out what is it in this ordinance that
does that. So I think you'll acknowledge the placards don't tell people to do that?
A.

Right.

(Saltzman Dep. 37: 15-3 8 :24.) Commissioner Saltzman agreed that it was "fair to say" that nothing
in the Ordinance furthers the paiiicular purpose to "duck, cover, and not run out." (Saltzman Dep.
39:11-16.) At the hearing, Commissioner Saltzman attempted to clarify that answer by testifyingthat the "the ordinance is simply designed to raise awareness of the risk." (Hr'g Tr. at 228.)
Commissioner Saltzman appeared to distance himself from his previously stated purpose that theOrdinance is designed to inform people about what to· do if they are in a URM building - to duck,cover and not get out.
Moreover, Ms. Papaefthimiou in her deposition testified that the placard itselfwould not saveany lives, and that she was in favor of mandatory retrofitting:[W]e have talked about that a lot internally that in an indirect way placards can save
lives if they motivate people to do retrofits or if people pay attention to them andtherefore remember to drop, cover and hold on; then that could save lives. But theplacard itself doesn't save any lives and I mean, I guess I would add that's been afrustration of us working on the project is that placards were a compi·omise. We
really wanted people to retrofit their buildings and save lives.

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Page 43 of 54(Papaefthimiou Dep. 82:2-9, ECF No. 26-4.) In a tacit acknowledgment that the placards do notfurther the City's purpose about what to in the event of an eaiihquake, Ms. Papaefthimiou discussed
that the City is developing an informational poster that explains what to do if an eaiihquake occurs
with graphics, which Ms. Papaefthimiou noted "will be more effective than the placard."(Papaethimiou Dep. at 52:16-53:7, 53:10-11.) Thus, the placard requirement in the Ordinancesimply is not naiTowly tailored to achieving Defendants' stated purpose of informing the public toduck, cover and not get out.
Defendants argue that placarding is "[t]he only practical way to inform most people who live
· in, work in, or enter URM buildings of the risks posed by such building is by placards affixed tothose buildings." (Hr'g Ex. 134 at ,r 6.) Defendants contend that:[i]nformation on the City website fails to reach many URM building users or
potential owners because they may not know to look for the website; underserved
communities in particular may also not have easy access to the internet, or may not
be fluent in English. Mailings also do not reach many URM building users or
potential owners; ... In addition, many people who receive mailings may not readthem. Many people do not choose to attend a public meeting; they may not learn ofthem if they do not read their mail. Other media campaigns fail to reach many
individuals, including some ofthe most vulnerable populations because they may not
regularly read local media.

(Id.) In sho1i, Defendants argue - without evidence - that a public relations campaign will not work
because URM building users are not fluent in English, are not likely to read a mailing, or do not
regularly read local media. Yet, Defendants offer no justification for their contention that these same
URM building users and occupants actually will read a placard, and will read one that is posted onlyin English. This glai'ing contradiction demonstrates that simply posting a placard is not narrowly
tailored to informing URM building users and occupants to its purpmted compelling interest of

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increasing awareness -of seismic risk. See Prudden, 877 F.3d at 829 (holding school failed'to
demonstrate how logo on school uniform was connected to improving student achievement).
And, Defendants have made no attempt to explain how other plausible, less restrictive meansof raising awareness about the seismic risks posed by URM buildings are ineffective. See UnitedStates v. Playboy Entm 't G,p., Inc,, 529 U.S. 803, 826 (2000) (providing that government failed toshow that regulation was the least restrictive means for addressing problem of signal bleed).
Defendants have not shown that a public relations campaign would be ineffective in raisingawareness or ineffective in providing appropriate instruction about what to do in the event ofearthquake. At the Hearing, Commissioner Saltzman acknowledged that if the City was interested
in only building awareness, it could maintain a public awareness campaign on its own. (Hr' g Tr.
228.) See alsoNIFLA, 138 S. Ct. at2376 (finding that California had not shown public relations wasineffective in reaching individuals simply because it received a tepid response to its advertising
campaign).
Defendants contend that the Ordinance is modeled after a similar law in California, andsuggest that the "California law has proved successful in warning visitors and tenants of the risks
ofURM buildings an providing an incentive to retrofit." (Defs.' Resp. Am. Mot. Prelim. Injunction
at 6, citing Vannier Deel. Ex. 3.) Defendants rely on information from the City of Berkeley
indicating that since 1991, it has reduced its inventory ofURM buildings from 587 to six. (Vannier
Deel. Ex. 3 at 1.) However, that information provides no support for Defendants' proposition thatthe placards and tenant notifications are responsible for the reduction of the URM building
inventory. To the contrary, Ms. Papaefthimiou testified at the hearing that Berkeley adopted
mandatory retrofitting standards and a suite of options to assist with financing retrofits. (Hr'g Tr.
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at 216.) And, the City of Berkeley's information provides at least two hyperlinks to financial
assistance available to owners ofURM buildings for retrofitting, suggesting on this record that the
mandato1y retrofitting requirement and the financial assistance are the more credible reasons for the
reduction in URM building inventory. (Hr'g Ex. 114.) Thus, Defendants information provides nocausal effect, or even a correlation between posting placards and reducing the City's URM building
inventmy.
Furthermore, the placarding requirement targets a "curiously narrow subset of speakers."

NIFLA, 13 8 S. Ct. at 23 77. "Underinclusiveness raises serious doubts about whether the governmentis in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint."

Brown, 564 U.S. at 802. Here, the Ordinance has singled out URM building owners for treatment
without adequate explanation. As the Policy Committee pointed out, soft-stmy construction, nonductile concrete construction, and construction in liquefaction zones pose risks similar to URM
buildings in major eaiihquakes. (Hr'g Ex. 10 at 32.) The Standards Committee identified nonductile concrete and URMS as "the most dangerous building types" and recommended that they not
be allowed to remain in service indefinitely unless they are fully upgraded. (Hr' g Ex. 6 at 6.) Thus,
if Defendants' justification for the placard requirement is to build awareness of seismic risk, clearly
that risk extends to soft-story construction, non-ductile concrete construction, and construction inliquefaction zones. But these building types were removed from the Policy Committee's Final
Repmi, undermining Defendant's proffered purpose. (Hr'g Exs. 10, 11.)Further undermining Defendants' rationale that the placarding provision is narrowly tailored,
it exempts thousands of single- and dual-family residential URM buildings from the Ordinance.
Additionally, Commissioner Saltzman delayed enforcement of the placarding provision for all

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Portland Public Schools, which the Policy Committee identified as high-occupancy structures posing"substantial life-safety risk." (Hr'g Ex. 13 at 18; Tr. 227-28; Saltzman Dep. 60:9-61 :8.) Thus, theOrdinance is "wildly underinclusive when judged against its asserted justification, which in our viewis alone enough to defeat it." Brown, 564 U.S. at 802; NIFLA, 138 S. Ct. at 2376 (noting that
underinclusiveness calls into question the government's true purpose).
Finally, the Ordinance is also demonstrably overinclusive because it mandates that all
targeted building owners declare that their buildings are constructed of umeinforced masomy andmay be unsafe in the event of an earthquake, despite that those compelled statements may be false
in some instances. See Comite de Jornaleros de Redondo Beach v. City ofRedondo Beach, 657 F.3d
936, 948 (9th Cir. 2011) (discussing that ordinance was overinclusive because it restrictedsignificantly more speech than is necessaiy to achieve its goals). As discussed above, Trinity PlaceApartments have been retrofitted to withstand a major earthquake, but are covered by the Ordinance.
(Hr'g Ex. 71 at ,r,r 6-8.) Likewise, Fountain Village has undertaken some retrofitting, yet remains
covered by the Ordinance. (Hr'g Ex. 72 ,r,r 1-5.) And, as noted previously, the Ordinance relies on
a URM database that the City itself disclaims is wholly accurate: "The City of Portland makes norepresentations, express or implied as to the accuracy of this database. There are no assurances as
to whether the information presented is correct or comprehensive." (Hr'g Ex. 39.) Therefore,
Defendants have not demonstrated that the placard provision does not restrict more speech thannecessary to achieve their stated goals.
After reviewing the extensive record and listening to two full days oftestimony in this action,
at bottom it appears to this court that Defendants lacked the political will or public support toachieve its desired goal: mandatory retrofits for URM buildings. The Policy Committee, the46 - OPINION AND ORDER

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Standards Committee, and the City's structural engineers Mr. Kumar and Mr. Hagerty recommended
mandat01y retrofits. Several California jurisdictions had success in reducing their URM inventories
because they enacted mandat01y retrofitting. As Commissioner Saltzman acknowledged, he did nothave enough support on the Portland City Council to require mandatory retrofits. (Hr' g Exs. 21, 29.)
And Ms. Papaefthimiou agreed that the placards were a compromise.
However, Defendants may not burden speech to accomplish indirectly what the City Council
lacked the political will or public support to accomplish directly. NIFLA, 138 S. Ct. at 2376("California cannot co-opt the licensed facilities to deliver its message for it."); see Sorrell v. IMS

Health Inc., 564 U.S. 552, 578-79 (2011) ("[A] State's failure to persuade does not allow it tohamstring the opposition. The State may not burden the speech of others in order to tilt publicdebate in a preferred direction."). The City's failure to gamer support for mandatory retrofitting does
not give it permission to burden URM building owners with its message in a manner contra1y to theFirst Amendment:
On this record at this preliminaiy stage, the court concludes that Defendants have not carried
their burden of demonstrating that the Ordinance furthers a compelling governmental interest andis nan-owly tailored to further that interest. Accordingly, Plaintiffs have demonstrated they are likely
to succeed on the merits of their First Amendment claim with respect to the placard provision in the
Ordinance.
IV.

IlTeparable Injury. Eg_uities. Public Interest
Because Plaintiffs have demonstrated that they are likely to succeed on the merits of theirFirst Amendment claim as to the placard and tenan~ notification provisions, the court addresses theremaining preliminary injunction factors. Am. Beverage, 916 F.3d at 755 (listing elements of
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preliminary injunction as (1) likely to succeed on the merits, (2) likely to suffer irreparable harm, (3)balance of equities tips in his favor, and (4) an injunction is in the public interest).
A plaintiff seeking preliminary relief must "demonstrate that irreparable injury is likely inthe absence of an injunction." Winter, 555 U.S. at 22 (emphasis omitted). The court's analysis
focuses onhTeparability, "'irrespective ofthe magnitude of the injury."' Californiav. Azar, 911 F.3d
558,581 (9th Cir. 2018) (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)).
"A threat ofi1Teparable harm is sufficiently immediate to warrant preliminary injunctive reliefif theplaintiff 'is likely to suffer irreparable harm before a decision on the merits can be rendered."'Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting Winter, 555 U.S. at
22).
The Ninth Circuit has recognized that a loss of First Amendment freedoms; for even minimal
amounts oftime, constitutes an irreparable injmy. Harris, 772 F .3d at 5 83 (quoting Associated Press

v. Otter, 682 F.3d 821, 826 (9th Cir. 2012)); Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The lossof First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injmy."). Additionally,"' [t]he fact that [Plaintiffs] have raised serious First Amendment
questions compels a finding that ... the balance of hardships tips sharply in [Plaintiffs'] favor."'Am. Beverage, 916 F.3dat 758 (quoting Cmty. House, Inc. v. City ofBoise, 490 F.3d 1041, 1059 (9thCir. 2007) (internal quotation marks omitted) (alterations in American Beverage). Where thegovernment is a party, the balance of equities merges with the public interest factor. Drakes Bay

Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
Defendants argue that Plaintiffs cannot demonstrate irreparable injmy because the potential
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effect until November 1, 2020. Additionally, Defendants argue that fines are economic damages thatcan be remedied by an award of damages after resolution on the merits. Defendants maintain thata preliminary injunction is not wananted because Plaintiffs have not shown that they will suffer
immediate or imminent harm.
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 theplacard and tenant notification provisions of the Ordinance. The court finds that Plaintiffs havedemonstrated they likely will suffer ineparable harm if the Ordinance takes effect. Plaintiffs havedemonstrated 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 leaseapplications. 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-cv00317-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 thelease 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 ismisleading at best. Washington Post v. McManus, 355 F. Supp. 3d 272, 305-06 (D. Md. Jan. 13,
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Page 50 of 542019) (granting preliminary injunction on First Amendment grounds). Clearly, this factor weighsin 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 todemonstrably increase awareness of seismic risk or inf01m the public about how to "drop, cover, andhold 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 failingto 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 infavor of an injunction. The Ninth Circuit "consistently recognize[ s] the significant public interestin upholding free speech principles." Klein v. City ofSan 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 t~e public interest to preventthe violation of a patiy's constitutional rights.") In summary, Plaintiffs have satisfied each of therequirements for a preliminary injunction.
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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 theacknowledgment 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 Fomieenth Amendment.
V.

Bond
Rule 65 of the Federal Rules of Civil Procedure instructs that "[t]he comi may issue a

preliminaiy injunction or a temporary restraining order only if the movant gives security in an
amount that the comi considers proper to pay the costs and damages sustained by any paiiy foundto have been wrongfully enjoined or restrained." FED. R. CIV. P. 65(c). However, federal comis
have discretion to determine the amount of security, or forego the security requirement altogether.
Our Sonoran, Inc. v. Flavvers, 408 F.3d 1113, 1126 (9th Cir. 2005); Innovation Law Lab, 342 F.

Supp. 3d at 1082; see also Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (" Rule 65(c)invests the district court with discretion as to the amount of security required, if any.") (internal
quotation omitted). The court has considered the relative hardships and the likelihood of success on
the merits and concludes that requiring security is unwan-anted. If Plaintiffs do not prevail,Defendants, and each of them, will suffer no damages.
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Prelimina,y Injunction
Having considered the record, the parties respective arguments and positions, and the relevant
equities, the court HEREBY ORDERS:
1. Pursuant to Federal Rule of Civil Procedure 65, the court imposes a preliminary injunction

to prohibit enforcement of the City of Portland Ordinance No. 189399, as amended by Ordinance
No. 1894 79, until this court or another court of competent jurisdiction orders otherwise.
2. All public and private persons, businesses, entities, and organizations who or which are
subject to the Ordinance are not required to comply with any provision of the Ordinance, including
but not limited to provisions requiring the posting of placards, the disclosures of information toprospective tenants, and the requirement that an acknowledgment of compliance be filed with the
Bureau of Development Services.
3. During the pendency of this injunction, the City may not take action in reliance on the
Ordinance, including but not limited to infmming owners of URM buildings that they must comply
with the Ordinance, that they are not in compliance with the Ordinance, or that they shall or may be
fined for noncompliance with the Ordinance.
4. A preliminmy injunction is necessmy because Plaintiffs have demonstrated a substantial
likelihood of success on their First Amendment Claim and enjoining enforcement of the Ordinanceis necessmy to prevent violations of Plaintiffs' constitutional rights. Plaintiffs have demonstrated
that they will suffer imminent irreparable harm if they are required to comply with the Ordinance,
and that the balance of equities tips favors Plaintiffs and it is in the public interest to prevent theviolation of Plaintiffs constitutional rights.

Ill/
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Conclusion

Based on the foregoing, Plaintiffs' Amended Motion for Preliminaiy Injunction (ECF No.
44) is GRANTED.
IT IS SO ORDERED.
DATED this, :?U~ofMay, 2019.
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