Institute for Justice Notifies Court of Appeals that Sale of Doughnut Shop Business Moots Free Speech Case

John Kramer
John Kramer · May 22, 2006

Phoenix, AZ—Last week, the Institute for Justice Arizona Chapter filed a notice of changed circumstances with the Arizona Court of Appeals in the case of Salib v. City of Mesa informing the Court that small businessman Edward Salib has sold his doughnut shop as a result of ill-health. The Institute also filed a motion to have the Court’s decision vacated because the sale of the shop occurred several months prior to the Court’s opinion being released, meaning the case was moot several months ago.

The case was originally filed in January 2003 on behalf of Salib and involved his challenge to a City of Mesa sign ordinance that prevented Salib from advertising in his doughnut shop’s windows. The City of Mesa’s enforcement officers had secretly created a file of more than 80 photographs of Salib’s windows alleging violations of the City’s sign ordinance because he swapped out posters given to him by Winchell’s corporate office. The City said that Salib covered up too much of his window, despite the fact that the City doesn’t require businesses to have windows and allows them to cover the windows entirely with shades and other items.

After the Court of Appeals decision earlier this month upholding the ordinance, it was discovered that Salib had sold the shop several months ago due to severe illness. (He had suffered two severe heart attacks and moved to Canada where he remains in hopes of receiving a heart transplant.) Salib did not understand that absent his ownership interest in the shop, he had no option but to drop the case. Had the sale been noted earlier, the Institute would have advised Salib to voluntarily dismiss the case. As soon as IJ was made aware of the situation, it notified both the court and the City of Mesa.

“It is regrettable that we are unable to appeal this decision to the Arizona Supreme Court,” declared Tim Keller, the Institute for Justice Arizona Chapter’s Executive Director. “We feel strongly that the Court of Appeal’s ruling was ripe for review by our State’s high court, but with Mr. Salib’s decision to sell his shop he no longer has legal standing to further pursue his claim.”

The City of Mesa now has an opportunity to respond to the Institute’s notice and motion, but regardless of the Court of Appeals ruling on the motion there will be no further appeals in the case.