Tenth Circuit: A City Needs Evidence Before It Regulates a Burger Joint's Wall Painting Differently From Murals

Nov 2, 2026 · 6 min read · By Brandon J. Grable

Case: Cozy Inn, Inc. v. City of Salina, No. 25-3225 (10th Cir. Oct. 30, 2026) (published; Matheson, J., joined by Phillips, J., and Urias, D.J., sitting by designation). Appeal from the U.S. District Court for the District of Kansas, No. 6:24-CV-01027-TC. Read the opinion.

The short version

On October 30, 2026, the Tenth Circuit, the federal appeals court for Kansas, Colorado, New Mexico, Oklahoma, Utah, and Wyoming, affirmed a judgment for The Cozy Inn, a hamburger restaurant in Salina, Kansas, and its owner, Stephen Howard.

The court held two things. First, Salina's sign code failed intermediate scrutiny under the First Amendment because the city's evidence did not show that regulating "signs" while leaving murals unregulated actually served its stated interests in safety, aesthetics, and property values. Second, the city imposed an unconstitutional prior restraint when it put Mr. Howard's permit application on indefinite hold instead of deciding it.

The court did not decide whether the painting is a "sign" under Salina's code. Its ruling turned on whether the city could justify treating regulated signs differently from unregulated murals.

What happened

According to the opinion, Salina regulates "signs" but does not regulate murals at all. The city does not limit their size or number and does not require a permit for them. Salina has many murals, including one on an abandoned grain elevator showing children playing Ring Around the Rosie and baseball scenes on the wall of a baseball training facility.

The Cozy Inn has served sliders in downtown Salina for more than 100 years. In November 2023, Mr. Howard hired an artist to paint a "UFO-themed" display on the restaurant's white exterior wall. Once finished, it would "include whimsical hamburger-esque flying saucers piloted by aliens attacking The Cozy [Inn] with blasts of ketchup and mustard," along with the words "Don't Fear the Smell![] The Fun is Inside!!"

City officials noticed the painting almost immediately and told Mr. Howard to pause the work. According to the opinion, they explained that the display was a regulated sign because the "hamburgers are basically the same thing [Cozy Inn] sells, and therefore, it would be signage." They also told him it was about eight times larger than the code allowed for a sign.

The city told Mr. Howard to apply for a permit, and he did so on November 13, 2023. Salina's sign code requires the city to grant or deny a permit within 10 days unless the applicant agrees to more time. Instead, about three months later, the city sent a letter saying it was reviewing its sign rules and was placing his application "on-hold" until that review was complete. Two weeks later, Cozy Inn sued.

The district court granted summary judgment to Cozy Inn on its First Amendment claims and issued declaratory relief, but it denied a permanent injunction. The city appealed.

What the court decided

The city had to prove its distinction works, not just say so. The parties disagreed about whether the sign code is content-based (strict scrutiny) or content-neutral (intermediate scrutiny). The court did not decide that question. It held that the code failed even the more forgiving intermediate-scrutiny test, which requires "a close fit between ends and means."

The court accepted that traffic safety, aesthetics, and property values are significant interests. But it explained that the fact that a city's interests are "substantial in the abstract" does not allow the city "to justify any regulation simply through talismanic invocation of that interest." The court rejected Salina's argument that "common sense," legislative deference, and the similar sign codes of other cities were enough. The court explained, citing an earlier Tenth Circuit decision, that the government "bears the burden of producing concrete evidence" to show "that its proposed restriction will actually achieve its asserted interest without burdening substantially more speech than necessary."

The evidence fell short. The court reviewed the city's evidence: a student law review article, a blog post, an excerpt from a presentation on digital signs and billboards, testimony from city officials, and a report and deposition testimony from a planner, Mark White. It found that none of it showed that a painted wall sign is more dangerous, less attractive, or worse for property values than a painted mural. When a city planner was asked whether the city was aware of "any facts showing that it, in fact, does have impacts on traffic safety," he answered: "I didn't research that in preparation." Mr. White was asked, "Are you aware of any evidence that would establish that a burger-esque UFO mural is more dangerous than a pizza-esque UFO mural?" He answered, "Again, I can't think of anything that specific." The court concluded: "Because the means-ends evidence is lacking, the sign code fails intermediate scrutiny."

An indefinite "hold" on a permit is a prior restraint. A permit requirement for speech is a type of prior restraint, and the court explained that "[a] prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible." Salina's 10-day deadline was fine on its face. The problem was that the city ignored it. The court found no evidence that Mr. Howard agreed to an indefinite hold. It wrote: "Given that Mr. Howard's application has aged for three years without his consent, Salina imposed a prior restraint on his speech." Quoting an earlier Tenth Circuit case, the court added that "[e]ach day of delay in acting on the application was a day in which [Mr. Howard] was forced to be silent."

Why this matters in Texas

This decision binds federal courts in the Tenth Circuit, not in Texas. The rules that decided it, on the government's burden to produce evidence and on permit delays, rest mainly on Tenth Circuit precedent, applying the First Amendment framework of the Supreme Court's decisions in Reed v. Town of Gilbert and City of Austin v. Reagan National Advertising of Austin, LLC. The court cited Reagan, a 2022 Supreme Court decision about Austin's sign code, in laying out that framework.

Texas cities and counties regulate signs, banners, and displays on private property, and permit offices can stall. Two lessons from this case stand out:

• When the government restricts speech, it generally carries the burden of justifying the restriction. Under this opinion, a city cannot rest on general appeals to safety or appearance; it needs evidence that its specific line-drawing serves those goals.
• A permit process for speech needs firm deadlines, and the government has to honor them. Leaving an application in limbo can itself violate the First Amendment.

If a city has told you to take down a sign, stop painting a display, or wait indefinitely for a permit to speak, talking with a lawyer can help you understand your rights and the deadlines that may apply.

Attorney advertising. This post is for general information only. It is not legal advice and does not create an attorney-client relationship. Every case depends on its own facts, and past results do not guarantee future outcomes.

Attorney responsible for content: Brandon J. Grable, Grable PLLC, 12451 Starcrest Dr, Suite 206, San Antonio, Texas.

Topics: First Amendment