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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Skagway v. Robertson (09/22/2006) sp-6046

City of Skagway v. Robertson (09/22/2006) sp-6046, 143 P3d 965

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


CITY OF SKAGWAY, )
) Supreme Court Nos. S- 11702/11741
Appellant/ )
Cross-Appellee, ) Superior Court No.
) 1JU-03-00532 CI
v. )
) O P I N I O N
TERRY ROBERTSON, d/b/a )
SKAGUAY TOUR COMPANY, ) No. 6046 - September 22, 2006
and DAVID A. LEE, d/b/a )
SOUTHEAST TOURS, )
)
Appellees/ )
Cross-Appellants. )
)



          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Larry C. Zervos, Judge.

          Appearances:  Robert P. Blasco and Amy Gurton
          Mead,  Robertson, Monagle & Eastaugh, Juneau,
          for Appellant and Cross-Appellee.  Robert  S.
          Spitzfaden,   Gruening  &  Spitzfaden,   APC,
          Juneau,   for  Appellee  and  Cross-Appellant
          Robertson.   Philip  M. Pallenberg,  Faulkner
          Banfield,  P.C.,  Juneau,  for  Appellee  and
          Cross-Appellant Lee.  James N. Leik,  Perkins
          Coie  LLP,  Anchorage, and Paul F.  Eckstein,
          Timothy   J.   Franks,  and  Christopher   S.
          Coleman,  Perkins  Coie Brown  &  Bain  P.A.,
          Phoenix, Arizona, for Amicus Curiae  City  of
          Sedona, Arizona.
          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.

I.   INTRODUCTION
          In  May  2003  the City of Skagway adopted a  municipal
ordinance  directed solely to the regulation of the time,  place,
and  manner  of certain limited forms of commercial speech.1   In
order to curb the proliferation of aggressive sales tactics aimed
at   pedestrians  and  tourists  and  to  preserve  the  historic
character  of  the  town, the ordinance confines person-to-person
solicitation activities within the historic district  of  Skagway
to enclosed structures or to areas containing at least 200 square
feet  of  vending space.2  Appellants Terry Robertson  and  David
Lee,  operators of tour companies in Skagway which  utilize  off-
premises  solicitation, challenged the ordinance in the  superior
court  as unconstitutional.  The superior court determined  that,
although  the  ordinance  was  an  appropriate  way  to  restrict
commercial  speech, its sweep is so broad that  it  impermissibly
affects  protected speech as well.  Because we believe  that  the
ordinance  can  be  construed  in  a  manner  which  limits   its
application to commercial speech, we reverse.
II.  FACTS AND PROCEEDINGS
     A.   Facts
            Appellants  David Lee and Terry Robertson  both  sell
tours  to visitors to Skagway.  Robertson characterizes his sales
strategy  as outcry, which works by sales persons stationed  near
City  sidewalks approaching pedestrians located on or  near  City
sidewalks,  describing the various tours available and convincing
the  pedestrians  to purchase a tour.  Lee has  rented  locations
along  Broadway, the main commercial street in Skagway,  to  sell
his tours, but does not characterize his business as off-premises
canvassing.
          The  City  of  Skagway passed Municipal Code  Ordinance
5.20.010 in May 2003.  The ordinance was passed
          [b]ecause of the proliferation of . . .  off-
          premises solicitation . . . and the fact that
          the volume of such activities has resulted in
          complaints by pedestrians and tourists  about
          the aggressive and persistent actions of such
          persons  attempting  to  engage  them  in   a
          conversation   in  order  to   consummate   a
          business transaction[.][3]
          
It  was  intended  that the ordinance preserve  and  protect  the
unique  charm and small town character of the Historic  District,
which serves as a major attraction to thousands of tourists every
year.4
          The ordinance specifies that it is
          directed  solely  to the  regulation  of  the
          time,  place,  and manner of certain  limited
          forms  of commercial speech with the  general
          goal   of   requiring  that  person-to-person
          solicitation   activities  in  the   Historic
          District  .  .  .  be  confined  to  enclosed
          structures or on the actual business premises
          of   the  soliciting  entity.   [It]  is  not
          intended to regulate any form of speech other
          than  speech  designed to  do  no  more  than
          propose a commercial transaction.[5]
          
Off-premises canvassing (OPC) is defined as
          person-to-person efforts solely  intended  to
          interest   pedestrians  in  or  solicit   the
          participation  of pedestrians  in  commercial
          transactions  for  private  profit   with   a
          business, except when done entirely within an
          enclosed structure.[6]
          
The  ordinance provides that no person shall engage in OPC within
the  Historic  District except in enclosed structures  and  areas
limited  to  200  square feet in size and not so situated  as  to
cause  sidewalk  obstructions, impede traffic, or interfere  with
traffic lines of sight.7  The term business within the definition
of  OPC is defined as any commercial activity in which any goods,
services, tours, or edibles are sold or offered for sale.8
     B.   Proceedings
          This  appeal  stems  from two distinct  superior  court
proceedings.  Appellant Lee filed a complaint alleging  that  the
ordinance  was  unconstitutional under  the  federal  and  Alaska
constitutions.   Appellant Robertson filed a  separate  complaint
alleging  that  the ordinance violated the federal  constitution.
The cases were consolidated before Superior Court Judge Larry  C.
Zervos.   Robertson filed a motion for summary judgment, claiming
that   his   right  to  commercial  speech  under   the   federal
constitution was violated.  Lee joined in Robertsons  motion  and
filed  his own motion for summary judgment on overbreadth,  which
Robertson in turn joined in.  Skagway filed a cross-motion on the
plaintiffs  commercial speech challenge, and a motion to  dismiss
the plaintiffs federal overbreadth claims.
          On  July  4, 2004, the superior court issued  an  order
deciding  all  pending  summary judgment motions.   The  superior
court  determined  that the ordinance was a valid  regulation  of
commercial speech under the test articulated by the United States
Supreme  Court  in Central Hudson Gas & Electric  Corporation  v.
Public  Service  Commission of New York.9  It reasoned  that  the
interest of Skagway in protecting citizens from disturbances  and
obstructions on city streets and sidewalks was well supported  by
the record and directly connected to the ordinance.  Further,  it
found  the ordinance to be a reasonable fit between the ends  and
the means chosen to accomplish the ends.
          The  superior  court  then addressed  the  argument  of
Robertson  and  Lee  that  the  ordinance  impermissibly  impacts
protected, non-commercial speech, and subjected the ordinance  to
an  overbreadth  analysis.  It found that  the  ordinance,  which
defines the term business as any commercial activity in which any
goods, services, tours, or edibles are sold or offered for sale10
          actually prohibits the sale of anything on public streets and
sidewalks in the central business area of Skagway.  The  superior
court concluded:
          No  matter what the prefatory language or the
          explanatory language used by the drafters is,
          the operative language means that not only is
          the sale of tours or tacos prohibited but  so
          is  the  sale  of newspapers, bibles,  books,
          art, and any other expressive item that might
          be sold for a profit.
          
The superior court explained:
          The ordinance has a legitimate purpose to the
          extent  it regulates commercial transactions.
          But  as  long  as the plain language  of  the
          ordinance  prohibits activity  that  involves
          protected   speech,   it   is   substantially
          overbroad.
          
The  superior  court then noted that, even if the  ordinance  was
overbroad,  it  could be upheld if a limiting construction  could
avoid  constitutional  problems.   However,  the  superior  court
declined to read the statute in a limited manner, reasoning:
          If  the  Citys  concern was  limited  to  the
          outcry sale of tours in the historic area, it
          should be a relatively straightforward job to
          restrict this activity in any number of ways.
          After   all,   this  is  clearly   commercial
          activity   and   does  not   usually   invoke
          protected speech.  But the City seems  intent
          on  regulating far more than just the  outcry
          tour  sales.   Given this  intent,  the  only
          permissible  ordinance  would  be  one   with
          significant exceptions to reduce the reach of
          the ordinance into protected areas.  This  is
          not something that can be done by striking  a
          portion  of the ordinance or adding a missing
          word   or   phrase.    Crafting   appropriate
          exceptions   will   take  careful   drafting,
          balancing  of  interests  and  selection   of
          appropriate  methods.   This  is  legislative
          work best reserved for the City Assembly, not
          for the court.
          
The  superior  court  also found that the  ordinance  was  not  a
reasonable time, place, and manner restriction, emphasizing  that
it  did  not  deem the ordinance to be narrowly tailored  because
[i]t  is a blanket ban on sales in a public forum no matter  what
is being sold.  Skagway filed a motion for reconsideration, which
the superior court denied.
          Skagway appeals, arguing that the superior court  erred
in  finding the municipal ordinance unconstitutionally overbroad.
Skagway  argues that the ordinance was limited to only commercial
speech  as defined by the United States Supreme Court, and claims
that  the  superior  court essentially redrafted  the  ordinance,
ignoring  the plain meaning of the statute, and then reached  the
conclusion  that the statute was overly broad based  on  its  own
erroneous interpretation.
          Robertson  and  Lee  urge that this  court  uphold  the
superior courts decision but advance several alternative  grounds
for  affirmance should we reject the superior courts finding that
the  ordinance is overbroad.  They argue that the ordinance fails
to  satisfy Central Hudson, that it violates the due process  and
equal  protection clauses of the United States Constitution,  and
that  it  is void for vagueness.  They contend that the  superior
courts  decision  could  be affirmed on  any  of  these  grounds.
Skagway  argues  that only the overbreadth issue is  before  this
court, and if the superior courts decision is reversed, voluntary
dismissals by Robertson and Lee of all their claims preclude them
from seeking relief on other grounds.
          Robertson   cross-appeals,  challenging  the   superior
courts  July  2004  order  that  Robertson  is  not  entitled  to
compensatory  damages  under  42 U.S.C.   1983  for  successfully
bringing  an  overbreadth challenge.  Finally, Lee and  Robertson
claim that they are entitled to attorneys fees if they prevail in
this appeal.
III. DISCUSSION
     A.   Standard of Review
          The  constitutionality  of a  statute  and  matters  of
constitutional or statutory interpretation are questions  of  law
to  which we apply our independent judgment, adopting the rule of
law  that  is most persuasive in light of precedent, reason,  and
policy.11
          When  interpreting a statute, courts look to the  plain
meaning  of the statute, the legislative purpose, and the  intent
of   the  statute.12   Statutes  should  be  construed,  wherever
possible,  so  as to conform to the constitutions of  the  United
States and Alaska.13
          A grant of summary judgment is reviewed de novo, and we
will  affirm if the record contains no genuine issue of  material
fact and the moving party is entitled to judgment as a matter  of
law.14
     B.   The Ordinance Is Not Unconstitutionally Overbroad.
          
          The  United States Supreme Court has defined commercial
speech  as  speech which does no more than propose  a  commercial
transaction.15  We have similarly characterized commercial speech
as communication proposing a commercial transaction.16  The First
Amendment, applicable in Alaska through the Fourteenth Amendment,
protects   commercial   speech  from   unwarranted   governmental
regulation.17   But the United States Constitution  accords  less
protection  to  commercial speech than to other  constitutionally
safeguarded  forms of expression.18  Generally, the  doctrine  of
overbreadth  is  inapplicable  to commercial  speech  unless  the
challenged  regulation also impacts non-commercial  speech.   The
theory  is  that commercial expression is not easily deterred  by
overbroad  regulation, and is considered more hardy, less  likely
to be chilled, and not in need of surrogate litigators.19
          In Alaska Transportation Commission v. Airpac, Inc., we
          adopted the Central Hudson test for assessing the validity of
restrictions  on commercial speech.20  The superior  court  found
that  the  ordinance  satisfied Central Hudson  as  it  concerned
commercial  speech,  but  because  the  ordinance  impacted  non-
commercial  speech  in  addition to  commercial  speech,  it  was
overbroad.   Whether the superior court properly  held  that  the
ordinance  was overbroad therefore turns on whether the ordinance
should  be  construed as applying to non-commercial  as  well  as
commercial speech.
          Section  A,  the findings and purposes section  of  the
ordinance, expressly provides that it is directed solely  to  the
regulation  of . . . certain limited forms of commercial  speech,
and not intended to regulate any form of speech other than speech
designed  to  do no more than propose a commercial transaction.21
Despite this language, the superior court construed the ordinance
to  prohibit the sale of anything on public streets and sidewalks
in  the  central  business  area of  Skagway.   In  reaching  its
conclusion,  the  superior court relied upon  the  definition  of
business in section B of the ordinance, which is defined  as  any
commercial  activity  in  which any  goods,  services,  tours  or
edibles are sold or offered for sale.22  The superior court stated
that  [n]o  matter what the prefatory language or the explanatory
language  used  by the drafters is, the operative language  means
that not only is the sale of tours or tacos prohibited but so  is
the  sale  of  newspapers,  bibles, books,  art,  and  any  other
expressive  item  that might be sold for a profit.   Because  the
superior  court  construed  the  ordinance  as  regulating   non-
commercial  speech as well as commercial speech,  it  deemed  the
ordinance  overbroad.  We disagree with the superior  court  that
the ordinance should be read to extend to non-commercial speech.
          The  definition  of business is incorporated  into  the
definition of Off Premises Canvassing.  OPC is defined as person-
to-person efforts solely intended to interest pedestrians  in  or
solicit   the   participation   of  pedestrians   in   commercial
transactions for private profit with a business, except when done
within an enclosed structure.23  Skagway notes that it is OPC, and
not  business  more broadly, that is regulated by the  ordinance.
In  section  C   entitled Limitations on Off-Premises  Canvassing
Activity   the  proscribed behavior is  outlined,  and  does  not
include  the  term  business, except in  the  sense  that  it  is
incorporated   into  the  definition  of  OPC  in  section   B.24
Therefore,  the superior courts determination that the  ordinance
prohibits the sale of anything on public streets and sidewalks in
the  central business area of Skagway based on the definition  of
business  is  not  supported directly  by  the  language  of  the
ordinance.
          Lee  further argues that the language in the definition
of OPC impermissibly focuses on the intent of the speaker when it
defines  OPC  as  solely  intended  to  interest  pedestrians  in
commercial  transactions.  He states that  this  includes  speech
that  is  fully constitutionally protected, including  expressive
items such as newspapers, message bearing T-shirts, or tarot card
readings,  so long as the speaker intends to make a profit.   But
Lees  interpretation of the term solely intended  would  conflict
          with the language in the findings and purposes section of the
statute  which states that this section is . . . directed  solely
to  the  regulation  of the time, place, and  manner  of  certain
limited  forms of commercial speech.25  Considering the ordinance
as  a  whole and its legislative purpose and intent, we interpret
the ordinance as applying solely26 to commercial speech.27
          To the extent that phrases such as solely intended have
created  any  ambiguity about whether the  ordinance  applies  to
expressive  items  which  enjoy full  protection,  we  limit  its
application.28  We recognize as valid the superior courts concerns
with the scope of the statute, and note that the ordinance should
not  be  construed  to  apply to the sale of newspapers,  bibles,
books, art, and any other expressive item that might be sold  for
a  profit.  As other courts have recognized, items such as music,
buttons,  and  bumper stickers bearing political, religious,  and
ideological messages . . . are expressive items, and they do  not
lose their constitutional protection simply because they are sold
rather than given away.29  And as the United States Supreme Court
has explained, speech that is commercial in the abstract does not
retain   its   commercial  character  when  it  is   inextricably
intertwined with otherwise fully protected speech.30   Expressive
items are therefore outside the scope of this ordinance, which is
limited  solely  to commercial speech.  Because we  construe  the
ordinance  to apply only to commercial speech that does  no  more
than  propose  a  commercial transaction,31 we do  not  deem  the
ordinance overbroad, and we reverse the order.32
     C.   We   Need  Not  Decide  Which,  if  Any,  of  Lees  and
          Robertsons Claims Remain Viable.
          
          Lee  and  Robertson argue that, even if we reverse  the
superior  courts  decision that the ordinance  is  overbroad,  we
should  affirm the superior courts holding because the  ordinance
fails  the Central Hudson test, it violates equal protection  and
substantive  due  process, and it is  void  for  vagueness.   But
Skagway argues that Robertson and Lee both waived their rights to
seek   relief   on  alternative  grounds  when  they  voluntarily
dismissed their claims.
          After  the  superior court decided in Robertsons  favor
with  respect  to  his  overbreadth claim, Robertson  decided  to
proceed to trial on his remaining federal claims.  On October 13,
2004,  before trial, the parties reached a settlement  agreement.
Robertson  agreed with Skagway that the first, third  and  fourth
causes  of  Robertsons  complaint  .  .  .  are  dismissed   with
prejudice.    This  included  claims  that  the   ordinance   was
unconstitutional  as applied to Robertson because  it  improperly
prohibits  commercial  speech,  and  that  the  ordinance  was  a
violation  of  federal  equal  protection  and  substantive   due
process.  The only claim that was preserved was the second  cause
of action, that the statute was overbroad.
          While Robertson casts his claim that the ordinance does
not  meet  the  test for regulations of commercial  speech  under
Central Hudson as an alternative ground upon which this court can
affirm  the  superior courts holding, Robertson  made  the  claim
below that the ordinance was a violation of commercial speech  as
          a separate claim.  Robertson and Lee each moved for summary
judgment  based  on  this separate commercial speech  claim,  and
their  motions were denied by the superior court because material
factual issues were raised.  Before those factual issues could be
resolved  at  trial, Robertson settled with Skagway, agreeing  to
dismiss  his commercial speech claim.  Robertson does not  appeal
the  denial  of  his  motion for summary  judgment  through  this
appeal.   Furthermore,  Robertson clearly limited  his  right  to
appeal  to  the  overbreadth  claim  when  he  entered  into  the
settlement agreement.  To allow Robertson to reopen the issue  of
whether   the  superior  court  correctly  determined  that   the
ordinance  met the Central Hudson test after having  settled  his
commercial speech claim would essentially give Robertson  another
bite at the apple, which we decline to do.
          The superior court did not reach Robertsons claims that
the  ordinance violated equal protection and due process and that
it  was void for vagueness.  Robertson therefore urges us to make
an  independent  determination that the ordinance violates  equal
protection and due process and is void for vagueness in the first
instance.   But  it  appears from the settlement  agreement  that
Robertson  could be precluded from making the same  arguments  on
remand.   We therefore decline to address these claims which  are
not properly before us in this case.  And since we reverse on the
overbreadth  issue, we need not address Robertsons argument  that
under 42 U.S.C.  1983 he is entitled to compensatory damages  for
successfully bringing an overbreadth challenge.
          Lee  raised  several state and federal  law  claims  in
addition to the overbreadth challenge to the ordinance.  On  July
23,  2004,  after  the  superior  court  declared  the  ordinance
unconstitutional, a pretrial conference was held to  discuss  any
remaining   claims  that  might  proceed  to  trial.    At   this
conference,  Lees  attorney  engaged  in  an  exchange  with  the
superior  court  about  whether he  could  forgo  trial  on  Lees
remaining  claims  pending  the outcome  of  any  appeal  on  the
overbreadth issue, yet preserve the right to restore  the  claims
should  this  court  reverse and remand  the  case  back  to  the
superior  court.   Ultimately,  while  stressing  that   he   was
intending to dismiss the claims without prejudice, Lees  attorney
agreed  to  dismissal of Lees remaining claims as moot, reasoning
that trying the claims would not result in any relief not already
granted  to Lee under the courts decision that the ordinance  was
overbroad, and that it was unnecessary for Lee to engage in  what
would   essentially  be an advisory trial.   Since  the  apparent
purpose  of the dismissal was to obtain a final judgment  on  the
overbreadth  claim, and we hold that the statute  is  not  overly
broad,  we  conclude that there are no remaining claims  in  this
case.   Of  course, the parties are entitled to have the superior
court decide whether their dismissed claims remain viable if they
choose  to  refile them.  But regardless of whether those  claims
can  be resuscitated if refiled, they are not presently ripe  for
resolution.
          Because  attorneys  fees would only  be  applicable  if
Robertson  and Lee prevailed in this appeal, we need not  address
any claimed entitlement to attorneys fees.
IV.  CONCLUSION
          We  REVERSE  the determination that the  ordinance  was
overly broad.

_______________________________
     1    SMC 5.20.010(A)(1).

     2    SMC 5.20.010.

     3    SMC 5.20.010(A)(1).

     4    Id.

     5    Id.

     6    SMC 5.20.010(B)(4).

     7    SMC 5.20.010(C)(3).

     8    SMC 5.20.010(B)(1).

     9    447 U.S. 557, 566 (1980).

     10    SMC 5.20.010(B)(4) and (B)(1).

     11     State Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 858 (Alaska 2003).

     12     W.  Star Trucks, Inc. v. Big Iron Equip. Serv., Inc.,
101 P.3d 1047, 1050 (Alaska 2004).

     13     Alaska Transp. Commn v. Airpac, Inc., 685 P.2d  1248,
1253  (Alaska 1984) (citing McCracken v. State, 518 P.2d  85,  88
(Alaska 1974)).

     14    Briggs v. Newton, 984 P.2d 1113, 1117 (Alaska 1999).

     15     Virginia Bd. of Pharmacy v.Virginia Citizens Consumer
Council,  Inc.,  425  U.S.  748,  762  (1976)  (quotation   marks
omitted).

     16    Alaska Transp. Commn, 685 P.2d at 1253 (citing Central
Hudson, 447 U.S. at 561-62).

     17    Virginia Bd. of Pharmacy, 425 U.S. at 761-63.

     18    Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 64-65
(1983).

     19     16B  C.J.S. Constitutional Law  812 (2005); see  also
Village  of  Hoffman Estates v. Flipside, Hoffman Estates,  Inc.,
455  U.S.  489, 497 (1982) (noting that the overbreadth  doctrine
does not apply to commercial speech).

     20     The  Central Hudson test, as adopted by  this  court,
asks:  (1)  whether the regulated commercial expression qualifies
as commercial speech in that it concern[s] lawful activity and is
not   misleading;  (2)  whether  the  governmental  interest   is
substantial; (3) if so, whether the regulation directly  advances
the  government interest asserted; and (4) whether it is not more
extensive than necessary to serve that interest.  Alaska  Transp.
Commn, 685 P.2d at 1253.

     21    SMC 5.20.010(A)(1).

     22    SMC 5.20.010(B)(1).

     23    SMC 5.20.010(B)(4).

     24    SMC 5.20.010(C).

     25    SMC 5.20.10(A)(1).

     26     The Skagway ordinance uses the term solely, which was
offered  as an example of proper limiting language by  the  Ninth
Circuit in S.O.C., Inc. v. County of Clark when it invalidated an
OPC  ordinance  because the explicit terms of  the  Clark  County
Ordinance  do  not  limit its restrictions to  purely  commercial
speech. 152 F.3d 1136, 1144 (9th Cir. 1998).

     27    See W. Star Trucks, 101 P.3d at 1050.

     28    As this court explained in VECO International, Inc. v.
Alaska Public Offices Commission:

               Analytically,  there  are  two  ways   a
          statute  could  be  overbroad,  which   might
          loosely  be  termed systemic and  local.   An
          overbroad statute is systematically overbroad
          if  there  is  no core of easily identifiable
          and   constitutionally  proscribable  conduct
          that  the  statute prohibits.  The separation
          of  powers  decreed by the state constitution
          requires  that  this  court  strike  such   a
          statute in its entirety, rather than re-draft
          it.
          
               On  the  other hand, a locally overbroad
          statute  is  one  where the  unconstitutional
          applications  can easily be  lumped  together
          and  severed.  To strike such a statute would
          be manifestly[] strong medicine, particularly
          when  the  litigants own activities  are  not
          protected,   and   the  legislation   clearly
          intended  to proscribe them.  In such  cases,
          most  courts  will  excise  or  construe  the
          challenged  portion,  whenever  possible,  to
          avoid an unconstitutional result.
          
753  P.2d  710, 713 (Alaska 1988) (citations omitted).  Robertson
and Lee argue that Skagway did not properly preserve the right to
request  a  limiting  construction,  but  since  it  is  a  well-
established  canon  of  construction that regulations  should  be
construed  wherever possible to conform to the  constitutions  of
the  United  States and Alaska, this argument is  without  merit.
See Alaska Transp. Commn, 685 P.2d at 1253.

     29     Perry v. Los Angeles Police Dept, 121 F.3d 1365, 1368
(9th Cir. 1997).

     30    Riley v. Natl Fed. of the Blind of N.C., 487 U.S. 781,
796 (1988).

     31    See Virginia Bd. of Pharmacy, 425 U.S. at 762 (defining
commercial  speech as speech which does no more  than  propose  a
commercial transaction) (quotation marks omitted); Alaska Transp.
Commn,  685  P.2d  at  1253  (describing  commercial  speech   as
communication proposing a commercial transaction).

     32     Because  we reverse the superior courts determination
that   the  ordinance  extends  to  non-commercial  as  well   as
commercial  speech, we need not address the question whether  the
ordinance  is  a  reasonable restriction on the time,  place,  or
manner of protected speech.
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