THE BILLBOARD AMBUSH AND
THE SIGN CODE SHAKEDOWN
Randal Morrison – Sabine & Morrison,
San Diego
Michael Klekner – L.A. City Atty’s Ofc.
WHO WILL CHALLENGE?
• “Billboard” companies trying to bust the
“no offsite” policy
– Why they keep suing
• Political / protestors
• Commercial sign owners
• Most will challenge every aspect of the
sign ordinance
BILLBOARD AMBUSH
•
•
•
•
•
Construct billboards w/out permits
TRO – status quo
Then sue, challenging constitutionality
Desert Outdoor v. Moreno Valley
Valley Outdoor v. County of Riverside
SIGN CODE SHAKEDOWN
•
•
•
•
Sham applications for billboard permits
Federal lawsuit
Try to settle for permits or atty fees
Many challengers are only permit
peddlers
• “Gaming” the First Amendment
FOUNDATION CONCEPT #1
• Above all else, the FA means that gov’t
has no power to restrict expression
because of its message, its ideas, its
subject matter, or its content.
• Chicago Police v Mosley (1972) – p.644
FOUNDATION CONCEPT #2
• Time Place & Manner Rule: (Ward v.
Rock Against Racism, 1989) p.644
• Content neutral? Has gov’t adopted
reg’n because of disagreement w/
message?
• Justified w/out reference to content
• Test: content neutral, reasonable,
alternative
FOUNDATION CONCEPT #3
•
•
•
•
•
Content based = strict scrutiny
Content neutral = TPM
Content correlated?
Secondary effects?
Same test for commercial &
noncommercial speech?
Metromedia v San Diego (1981)
Suit to protect existing billboards
• 5 opinions, 90 pages, “Tower of Babel”
• Complete ban on billboards – justified by
esthetics / safety – 7 votes
• No favoring of commercial over
noncommercial speech – 4 votes + 2
concurring in result, not reasoning
• No favoring of certain noncommercial
messages over others
When Metromedia Applies
When gov’t is regulating private land, or
Managing “traditional public forum”
property
TOP TEN ERRORS / PROBLEMS
#10: AMORTIZATION
• Local code violates state law
– Billboards: Gov’t must pay just
compensation – B&P 5412.
• Exception: billboards in res’l, ag areas (5412.1,
5412.2)
– On site commercial: complex procedure,
state law confusing
• See B&P 5490 et. seq.
#9: “REAL ESTATE FOR SALE”
• State law: Civil Code 713
• City must allow “real estate for sale”
signs on private land
• Applies both onsite and offsite
• Reasonable limits allowed
#8 WHICH HAT?
• Is gov’t speaking as:
– Regulator of private land
– Proprietor of city-owned land / property
#7 POLITICAL / CAMPAIGN
• Special rules apply only to political signs
at election season
• Favors certain topics of public debate
over other topics
#6 SPECIAL COMMITTEE
APPROVALS
•
•
•
•
•
Architectural Review Committee
Downtown Merchants Ass’n
Historic Preservation Commission
Design Review Committee
No standards stated for approval or
denial
#5 STREET BANNER PROGRAMS
•
•
•
•
•
Case by case approval / denial
“Non profit”
Certain named groups okay, all others ?
Avoid controversy
No politics or religion
#4 PROCEDURAL SAFEGUARDS PERMITTING
•
•
•
•
•
•
•
Law unsettled, key case at USSC
Definite time for permit decision
Consequence of late/no decision
Status Quo during processing
Unbridled discretion
Grounds for denial / approval
Right to conforming permit?
#3 OFFSITE (BILLBOARD) BAN
•
•
•
•
Apply to both commercial and
noncommercial speech?
What is the location of an idea?
Is “offsite ban” a form of message
content regulation?
Source of much expensive litigation
#2 NO “MESSAGE SUBSTITUTION”
• Simple, easy to add
• Solves 50-60% of legal challenge
problems
#1 IGNORING THE S.O.
• Patchwork mess, built up over decades
• Full of copied errors
• “Sleeping dog” theory: expensive risk
Correction to written materials
•
•
•
•
P 646
Verilli v Concord
548 F2d 262 (Jan 77)
557 F2d 664 (July 77)
VERY BAD CASES
• Horizon v Industry, 228 FS2d 1113
• North Olmsted Chamber, 86 FS2d 755
EXEMPLARY CASES
• Infinity v NYC, 165 FS2d 403 (2001)
• National v Miami, 287 FS2d 1349; 288
FS2d 1282 (2003)
WEBSITES
•
•
•
•
•
•
•
signlaw.com – free email newsletter
planetizen.org (Planners network)
scenic.org (Scenic America)
oaaa.org (Outdoor Advertising Ass’n)
stmediagroup.com (Signs of Times)
funnysign.com (joke signs)
roadtripamerica.com/signs (more jokes)
RECOMMENDED READING
• Sign Regulation Bulletin – free email
newsletter. www.signlaw.com/register
• Protecting Free Speech & Expression –
the First Amendment and Land Use Law
(book – ABA Section on State & Local
Govt Law – Mandelker, Rubin (2001)
• Avoiding the Sign Code Shakedown –
Don Davis – Public Law Journal 27/1
City Attorneys Department Spring Conference
League of California Cities
May 2004
SIGN REGULATION:
DEFEATING THE SIGN CODE SHAKEDOWN
AND THE BILLBOARD AMBUSH
presented by:
Randal Morrison
Sabine & Morrison
110 Juniper St., PO Box 531518
San Diego CA 92153-1518
Tel.: 619.234.2864; Fax: 619.342.4136
Email: [email protected] or
[email protected]
Michael Klekner
Los Angeles City Attorney’s Office
1800 City Hall E
200 N Main St
Los Angeles CA 90012-4130
Tel. 213.978.8253; Fax 213.978.8090
Email: [email protected]
www.signlaw.com
National newsletter: SIGN REGULATION BULLETIN
to receive it free by email, register at www.signlaw.com/register
-1-
1.
WHO WILL SUE OVER THE SIGN ORDINANCE?
1.
Billboard companies determined to bust the “no new billboards” policy
2.
Political / protestor signs - especially if banned on public property or residential
property
3.
Commercial sign interests
4.
Most will challenge every part of the sign ordinance, not just the parts that apply
to them
2.
STANDARD SCRIPT FOR THE “SIGN CODE SHAKEDOWN”
1.
2.
3.
4.
5.
6.
7.
8.
Signco studies sign ordinance - most are on the internet - finds weaknesses
Signco enters leases with landowners (most are options)
Signco presents sign permits to city, knowing they will be denied
City denies permits - “we don’t allow billboards / offsite signs”
Signco sues in federal court, challenging the sign ordinance as unconstitutional both
facially and as applied. Example: National Advertising v. City of Orange, 861 F.2d
246 (9th Cir. 1988).
City scrambles to amend sign ord.
Signco seeks preliminary injunction - see Horizon Outdoor v. Industry, 228 FS2d
1113, Granite State Outdoor v. City of Clearwater, 213 F.Supp.2d 1312 (FL 2002)
Case (usually) decided on cross motions (dismiss / demurrer, summary jgt, etc.)
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3.
STANDARD SCRIPT FOR THE “BILLBOARD AMBUSH”
1.
Signco builds signs without permit, knowing they are unpermitted
2.
Signco immediately sues in federal court, claiming a vested right because there was
no constitutional sign ordinance on the books when the signs went up - “legal
vacuum” theory
3.
Signco will posture as civil disobedient / protestor
4.
City seeks preliminary injunction to block use of illegal billboards; signco sues
(usually in federal court), saying the sign ord is unenforceable
5.
Case is (usually) decided on cross motions for summary judgment
6.
Example / contrast cases [same factual script, same company building the signs,
same counsel, almost identical ordinances, but opposite results]:
Desert Outdoor v. Moreno Valley, 103 F.3d 814 (9th Cir. 1996)
Valley Outdoor v. County of Riverside, 337 F.3d 1111 (9th Cir. 2003)
4.
TYPICAL ELEMENTS OF THE SIGN ORDINANCE CHALLENGE
1.
STANDING
1.
shakedown script: “our permits were denied under unconstitutional ord”
2.
ambush script: “we have vested right in existing signs and contracts”
3.
third party / overbreadth / chilling effect standing: “we speak for
noncommercial speakers not before the court”
2.
MOOTNESS
1.
in spite of new ordinance, old one is still relevant
2.
due process requires that permit applications must be analyzed under law
in effect on date of application
3.
new ordinance is mere tweaking, does not fix the key problems
4.
city remains free to return to its oppressive ways at any time
3.
FIRST AMENDMENT
1.
Sign ord does not state what interests are to be served - gives court no basis
for analysis
2.
No evidence shows sign regulation actually advances traffic safety (contrast
Desert Outdoor v. Moreno Valley, 103 F.3d 814 (9th Cir. 1996) and
Ackerley of the Northwest v. Krochalis, 108 F.3d 1095 (9th Cir. 1997) - same
question, same court, decisions one year apart, opposite answers)
3.
Permitting procedure is draconian, oppressive, discriminates on the basis of
message content
4.
Permitting procedure is an unjustified prior restraint
5.
Sign ord confers unbridled discretion on bureaucrats and politicians who
want to suppress unpopular / minority / opposing points of view
6.
Sign ord favors commercial speech over noncommercial
7.
Sign ord favors certain noncommercial speakers over others
8.
Sign ordinance discriminates against commercial speech on basis of message
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9.
5.
4.
DUE PROCESS AND EQUAL PROTECTION
1.
Onsite / offsite distinction
2.
Commercial / noncommercial
3.
Temporary / permanent
4.
Freeway facing / street facing
5.
TAKING
1.
sign ord effects an unconstitutional taking
2.
leasehold rendered completely worthless
6.
PRAYER / REMEDIES
1.
Injunctions against enforcement of sign ord
2.
Injunction requiring issuance of permits
3.
Damages for violation of civil rights - 42 USC 1983
4.
Attorneys fees under 1988 and / or Cal’s private attorney general statute
STRATEGIES
1.
2.
3.
4.
6.
content, requires strict scrutiny
Onsite / offsite distinction is unjustified: both cause equal impact
Prevention: Fix the sign ordinance before the billboard apps come in or the
challengers file their lawsuit. By far the best and least expensive method.
No Instant Denials: When billboard apps arrive, do not turn them down flat
1.
Analyze apps for violations of noncommunicative rules (size, height,
spacing, locations)
2.
Analyze for completeness
Legal Triage: If needed, fix the sign ordinance - immediately! Do not dawdle!
Resolve: Is Council willing to fight? Risks of fighting, settling
FIXING THE SIGN ORDINANCE
1.
It MUST list, among the governmental interests to be served, traffic / pedestrian
safety and community esthetics (okay to list others)
2.
A message substitution provision will solve many of the problems indentified in
Metromedia v. San Diego, 453 U.S. 490 (1981) (see Outdoor Systems v. Mesa, 997
F.2d 604 (9th Cir. 1993).
3.
Onsite / offsite distinction: safer to make this applicable only to commercial
messages. See Southlake Property Associates v. Morrow, 112 F.3d 1114 (11th Cir. 1997)
(an idea does not have a location); contrast National Advertising v. City of Orange,
861 F.2d 246 (9th Cir. 1988). However, the onsite / offsite distinction is not a
content based regulation requiring strict scrutiny. Clear Channel Outdoor v. City of
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Los Angeles, 340 F.3d 810 (9th Cir. 2003), Lombardo v. Warner, 357 F.3d 774 (9th
Cir. 2003)
4.
Consider separating the regulatory material (city speaking as regulator of private
property) from the proprietary policies (city setting policies for use of its land by
private parties)
5.
Temporary political signs - safer to regulate these under the more general term
“temporary signs displaying noncommercial messages.” See listing of political /
campaign / election signs, below.
6.
Residential zones
1.
Political: city may not completely ban display of noncommercial message
signs. Ladue v. Gilleo, 512 U.S. 43 (1994)
2.
REFS: city may not completely ban onsite “real estate for sale” signs.
Linmark Realty v. Willingboro, 431 U.S. 85 (1977)
1.
Under state law, cities must allow real estate for sale signs on
private property, both onsite and offsite. Civil Code 713.
7.
Private party signs on city-owned properties: see “public forum cases” list below.
8.
Permitting process should satisfy the “procedural safeguards”
1.
Info: list info to be included on permit applications - avoid items related to
message content, although onsite/ offsite distinction is okay as to
commercial messages; avoid “such other info as the Director requests”
2.
Referrals: be wary of referrals out to special committees (architectural,
historical, etc.) whose approval is necessary, but no grounds for approval /
denial are stated in the ordinance
3.
Time: definite time period for decision on permit (if the time period starts
only when the application is deemed complete, then put a time limit on
notification of incompleteness).
4.
If decision is not made in the required time, what is the consequence?
5.
If decision is to deny, list the grounds of denial.
6.
No “unbridled discretion” - restrict the permit decision to
“noncommunicative aspects” of the signs - size, height, location, physical
structure rules, separation and density, view blockage, etc.
7.
If an internal appellate process is available, spell it out - at every step,
definite time periods for decision should be stated, as well as consequences
for failure to make a timely decision.
8.
Allow for judicial review after all internal appeals are exhausted - refer to
CCP 1094.8 (special procedures for permits related to First Amendment
activities).
9.
Unconventional option: dispense with permitting entirely, merely publish
-5-
the rules, provide for voluntarily approval process, and bust violators.
7.
9.
Billboards: time-based amortization requiring removal without compensation is
(generally) forbidden by state law (Business and Professions section 5412); but
billboards in residential and agricultural zones can be amortized without
compensation. B&P 5412.1, 5412.2. It is permissible and constitutional to ban
new or additional billboards.
10.
Amortization of nonconforming onsite signs: see B&P 5490 et seq. Complicated
procedure. Will the future council really follow through? Consider natural attrition,
programs offering incentives for voluntary removal of nonconforming signs.
11.
If a sign ordinance revision adds new restrictions to onsite commercial signs, then
an inventory of nonconforming signs must be completed, and the council must
reconfirm the new ordinance. See B&P 5491.1.
12.
Variances, exceptions, etc.: spell out factors, stick with those which are not related
to message content. This is a common source of the “unbridled discretion” claim.
13.
Severance clause: give the sign ordinance its own severance clause.
KEY CASES ON REGULATION OF SIGNS AND BILLBOARDS
1.
Early sign / billboard cases (all decided before FA protection extended to actions of
state or local governments, or before there was FA protection for commercial
speech)
1.
Fifth Avenue Coach v. NYC, 211 U.S. 467 (1911) (coaches displaying
general advertising banned from Fifth Avenue, NYC; valid)
2.
Thomas Cusack Co. v. Chicago, 242 U.S. 526 (1917) (neighbor consents
required before billboards could be built in residential areas; valid)
3.
St. Louis Poster v. St. Louis, 249 U.S. 269 (1919) (billboards may be put in
a class by themselves)
4.
Packer v. Utah, 285 U.S. 105 (1932) (ban on tobacco ads on billboards valid) (compare Lorillard Tobacco v. Reilly, 533 U.S. 525 (2001))
5.
Railway Express Agency v. NYC, 336 U.S. 106 (1949) (replay of Fifth
Avenue Coach - same result)
2.
Foundation cases - extending the First Amendment, validating zoning
1.
Gitlow v. NY, 268 U.S. 652 (1925) (dictum: FA applies to actions of state
-6-
2.
3.
4.
5.
3.
governments)
Near v. Minnesota, 283 U.S. 697 (1931) (holding: FA applies to actions of
states)
Lovell v. Griffin, 303 U.S. 444 (1938) (FA applies to actions of local
governments)
Euclid v. Ambler, 272 U.S. 365 (1926) (validation of zoning)
Berman v. Parker, 348 U.S. 26 (1954) (esthetics as a basis for zoning)
Public forum / political and protest cases
1.
Cases “explaining” the public forum doctrine:
1.
Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666
(1998)
2.
Clark v. Community for Creative Non-Violence, 468 U.S. 288
(1984)
3.
Cornelius v. NAACP, 473 U.S. 788 (1985)
4.
Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37
(1983)
2.
Police Dept. of Chicago v. Mosely, 408 U.S. 92 (1971) (sidewalk protestor government cannot pick and choose between various topics of public
debate, or favor certain speakers or certain messages)
3.
Greer v. Spock, 424 U.S. 828 (1976) (ban on protest signs on military
reservation; valid)
4.
Lehman v. Shaker Heights, 418 U.S. 298 (1977) (gov’t could refuse
political ads in certain lines of public transport system, even though
commercial ads were accepted on the same line, and political ads were
accepted on other lines in the same system)
5.
Boos v. Berry, 485 U.S. 312 (1988) (ban on political protest signs on public
streets in Washington DC, near foreign embassies; invalid)
6.
*Ward v. Rock Against Racism, 491 U.S. 781 (1989) (limits on sound
amplification for concerts in Central Park NYC- valid; best statement of the
“time, place and manner” rule)
7.
Grace v. U.S., 461 U.S. 171 (1983) (ban on protest signs on sidewalks
around U.S. Supreme Court building; invalid)
8.
*Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)
(city may ban all signs on utility poles and wires - property that is not
within the “traditional public forum” category)
9.
Frisby v. Schultz, 487 U.S. 474 (1988) (ban on street picketing focused on
one particular home in residential neighborhood; valid)
10.
U.S. v. Kokinda, 497 U.S. 720 (1990) (sidewalk connecting parking lot to
post office is not connected to main pedestrian circulation system, and so is
not “traditional public forum” (plurality))
11.
Burson v. Freeman, 504 U.S. 191 (1992) (no campaign signs within 100
feet of polling place on election day (plurality); valid)
12.
Ninth Circuit public forum / sign cases:
-7-
13.
DiLoreto v. Downy Unified School Dist., 196 F.3d 958 (1999)
1.
2.
Children of the Rosary v. Phoenix, 154 F.3d 1295 (9th Cir. 1998)
3.
Foti v. Menlo Park, 146 F.3d 629 (9th Cir. 1997)
4.
Gerritsen v. Los Angeles 994 F.2d 570 (1993).
Most challenging public forum / sign case: People for the Ethical Treatment
of Animals v. Giuliani, 105 F. Supp. 2d 294.
4.
Residential sign cases
1.
Linmark Realty v. Willingboro, 431 U.S. 85 (1977): city may not ban onsite “real estate for sale” signs in residential neighborhoods. One of the
earliest cases granting First Amendment protection to commercial speech.
California statutory law extends this principle. See Cal. Civil Code 713.
2.
Ladue v. Gilleo, 512 U.S. 43 (1994): gov’t may not completely ban political
protest signs in residential neighborhoods. See also: Frisby v. Schultz,
above.
3.
Other than onsite real estate for sale, most courts approve bans on
commercial signs in residential neighborhoods.
5.
Commercial speech cases
1.
Early view: commercial speech not protected. Most cited case: Valentine v.
Christensen, 316 U.S. 52 (1942)
2.
Granting limited protection to commercial speech:
1.
Bigelow v. Virginia, 421 U.S. 809 (1975)
2.
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425. U.S. 748 (1976)
3.
Linmark Realty v. Willingboro, 431 U.S. 85 (1977)
3.
Central Hudson Gas and Electric v. Public Service Comm’n, 447 U.S. 557
(1980) (established the standard 4 part test for restrictions on commercial
speech)
4.
Cincinatti v. Discovery Network, 507 U.S. 410 (1993) (newsrack regulation
failed Central Hudson test) (9th Circuit does not accept Discovery Network
as applying to billboard regulation - see Outdoor Systems v. Mesa, 997 F.2d
604 (9th Cir. 1993) and Ackerley of the Northwest v. Krochalis, 108 F.3d
1095 (9th Cir. 1997)
5.
Lorillard Tobacco v. Reilly, 533 U.S. 525 (2001) (confirming Central
Hudson test; rejecting calls to abandon it)
6.
The categorization problem:
1.
Nike v. Kasky, 27 Cal.4th 939 (2002); cert. dismissed as
improvidently granted, 123 S.Ct. 2554
2.
Gaudiya Vaishnava Soc'y v. City and County of San Francisco, 952
F.2d 1059 (9th Cir.1990), cert. denied, 504 U.S. 914 (1992)
-8-
3.
Children of the Rosary v. Phoenix, 154 F.3d 1295 (9th Cir. 1998)
(rejecting sham conversion of noncommercial to commercial speech compare Valentine v. Christensen, 316 U.S. 52 (1942))
6.
Billboard regulation
1.
Metromedia v. San Diego, 453 U.S. 490 (1981) - foundation case for
modern law of billboards, sign regulation. Five dueling opinions. Seven
votes for proposition that a city may completely ban billboards
(apparently meaning permanent structure signs displaying off-site
commercial messages.) The Ninth Circuit accepts the plurality decision as
the law of billboards. Ackerley v. Krochalis, 108 F.3d 1095 (9th Cir. 1997).
2.
Ninth Circuit cases:
1.
Desert Outdoor v. Moreno Valley, 103 F.3d 814 (9th Cir. 1996)
2.
Valley Outdoor v. County of Riverside, 337 F.3d 1111 (9th Cir. 2003)
3.
National Advertising v. City of Orange, 861 F.2d 246 (9th Cir. 1988)
4.
Outdoor Systems v. Mesa, 997 F.2d 604 (9th Cir. 1993)
5.
Ackerley of the Northwest v. Krochalis, 108 F.3d 1095 (9th Cir.
1997)
6.
Clear Channel Outdoor v. City of Los Angeles, 340 F.3d 810 (9th
Cir. 2003)
7.
Lombardo v. Warner, 353 F3d 774 (9th Cir. 2003)
7.
Political / campaign / election sign cases
1.
Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)
2.
Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976)
3.
Verilli v. Concord, 557 F.2d 664 (1977) (9th Cir. 1977)
4.
Arlington County Republic Party v. Arlington County, 983 F.2d 587 (4th Cir.
1993)
5.
Whitton v. Gladstone, 54 F.3d 1400 (8th Cir. 1995)
8.
Flags: no favoritism for U.S. or govt’l flags; size rules okay
1.
Brown v. Cal. Dept. Transportation, 321 F.3d 1217 (9th Cir. 2003)
2.
American Legion Post 7 v. City of Durham NC, 239 F.3d 601 (4th Cir. 2001)
9.
California state court sign cases
1.
Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848; 164 Cal.Rptr.
-9-
10.
510; 610 P.2d 407 ), reversed and remanded, 453 U.S. 490; 101 S.Ct. 2882;
69 L.Ed.2d 800 (1981)
2.
Rodriguez v. Solis (1991) 1 Cal.App.4th 495
3.
City & Co. of San Francisco v. Eller Outdoor Advertising (1987) 192
Cal.App.3d 643
4.
City of Salinas v. Ryan Outdoor Advertising, Inc. (1987) 189 Cal.App.3d
416
5.
United Business Commission v. City of San Diego (1979) 91 Cal.App.3d
156
6.
Bohannan v. City of San Diego (1973) 30 Cal.App.3d 416
7.
People (Dept. of Transportation) v. Outdoor Media Group, 13 Cal.App.4th
1067 (1993)
Equal Protection / Due Process - rational basis unless suspect class or fundamental
right
1.
(see “early sign and billboard cases, above)
2.
City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)
3.
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)
Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49, 54
4.
(1983)
5.
Rubin v. Santa Monica, 308 F.3d 1008, 1019 (9th Cir. 2002)
6.
Geary v. Renne, 880 F.2d 1062, 1082 (9th Cir. 1989)
7.
Roulette v. Seattle, 850 F.Supp. 1442, 1449 (WD Wash. 1994)
8.
Metromedia v. Pasadena (1963) 216 Cal.App.2d 270, 274 (point of sale v.
non-point of sale)
9.
National Advertising v. County of Monterey (1962) 211 Cal.App.2d 375,
378 (different sign rules in differing districts)
10.
United Business Commission v. San Diego (1979) 91 Cal.App.3d 156, 177
(onsite / offsite distinction)
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