For years, the use of billboards throughout the City of Los Angeles proliferated at a substantial rate. In a town where so many people are driving vehicles and which is a huge media market, the use of billboards and other commercial signage has spawned a mega-million dollar industry. However, while these types of signage are great for certain advertising, they have their critics. Indeed people have increasingly complained in the last decade that these billboards have become ubiquitous eyesores, another kind of urban “blight.” Moreover, as in many other municipalities, billboards have been blamed for distracting motorists and leading to numerous traffic accidents.
To address the situation in Los Angeles and with a goal to significantly restrict billboard use for commercial advertising, the Los Angeles City Council (the “Council”) has enacted a number of ordinances, some passed more than 10 years ago. Predictably, the signage industry and landlords who rent out billboard space to offsite commercial enterprises have opposed those ordinances.
Three lawsuits were filed over the years in the federal court in Los Angeles challenging the constitutionality of one or more of these ordinances on free speech grounds based on the First Amendment to the United States Constitution. All three reached the appellate level and were heard by the federal appellate tribunal for the Los Angeles region, the Ninth Circuit Court of Appeals. In all three, the Ninth Circuit ruled that the ordinance involved passed constitutional muster. Based thereon, the city’s planners and staff worked on guidelines and felt that the legal challenges were ended. They were wrong!
One of the enactments, dating back to 2002, applied only to commercial advertising on new “offsite billboards”; that is, billboards advertising commercial messages were permitted after 2002 only if they were at the actual site of the business being advertised while being prohibited if at any other location. As an example, one which was pointed out in an editorial in the Los Angeles Times this past Sunday, the 2002 ordinance if construed literally would have permitted a billboard stating “Joe’s Bagels Sold Here” but not a sign at the same site saying “Joe’s Bagels – One Mile Ahead.”
Fast forward to March of 2013. One billboard firm, Lamar Central Outdoor LLC (“Lamar”), decided to try a different approach to challenge that 2002 ordinance. Lamar filed suit against the City in the Los Angeles County Superior Court, a state forum rather than a federal one. That case was decided last month by Superior Court Judge Luis A. Lavin. Saying that he “respectfully disagrees” with the Ninth Circuit and that he is not bound by that federal tribunal’s rulings in his state court, Judge Lavin struck down the City ordinance saying that it violated the free speech protections of the California Constitution, which he found to be broader than the First Amendment to the United States Constitution. The key passage in Judge Lavin’s ruling reads as follows:
“To prohibit a sign or billboard because it displays a commercial passage advertising a product or business that is sold or conducted at a location other than where the sign or billboard is located, while permitting a structurally identical sign … that displays a noncommercial message … is to restrict speech based on its content.…”
What added to Judge Lavin’s decision to reject the 2002 ordinance is the factual inconsistency which has transpired since 2002 in the application of the law. Judge Lavin noted that, while stressing the traffic hazards and visual “blight” which billboards have created in the City, for some reason the City planners have in the 12 years since the 2002 ordinance was enacted nevertheless selectively authorized about 15,000 signs throughout Los Angeles!
Moreover, Judge Lavin took note of another inconsistent application of the City’s billboard legislation. After 2002, the City targeted two specific types of signage – digital and electronic billboards – as especially distracting and annoying. Hoping to reach a settlement in respect to those categories of signage and to avoid more litigation, the City had entered into a little publicized (some say “surreptitious”) pact with some of the major sign companies to let about 100 digital and electronic billboards be “grandfathered.” Prior to the decision in the Lamar case, that pact was found to be illegal and void, resulting (1) in an order that all those signs “go dark” and (2) with many in the City’s bureaucracy being quite embarrassed.
To say that Judge Lavin’s decision has shocked and dismayed local politicians and city planners here in Los Angeles would be an understatement. They had been confident that they could placate everyone and avoid future legal attacks with a compromise which would maintain the 2002 ordinance except that it would be modified to set out specifically defined “sign districts,” locations where billboards could continue to be added while keeping the ban on new billboards elsewhere. Judge Lavin’s policy has, for the moment, torpedoed that modification effort.
Where does that leave us? Naturally, we expect appellate review of Judge Lavin’s ruling. To that end, City Attorney Mike Feuer has already said that the City will pursue such an appeal promptly, concurrently requesting a stay allowing the ordinance to be enforced until the appellate decision is final. The next step almost certainly would be a petition to the California Supreme Court. Regardless of who wins and who loses the appeal, it is not a certainty that the justices of our highest state tribunal will agree to review such a “hot potato.”
In the meantime, will the Council try an “end run” by voting to amend the ordinance in some way to try to get it to satisfy the courts? Will the Council invite public commentary? And who is lining up on each side of the controversy? Environmentalists, residential property owners and law enforcement groups have been the most vocal proponents of tough restrictions. Opponents are not limited to the sign companies and commercial landlords but also a number of other groups and individuals who possess a huge economic stake here and who may be guided principally by their financial considerations. They include:
1. some nonprofits who are jumping in to support the signage with the hope that they can negotiate free or subsidized advertising in the process;
2. public unions and contractors, among others, who have been citing the potential increase in City revenue additional signage could bring; and
3. Los Angeles taxpayers and others who think that the City could use billboard approval as a means to get the sign companies to pay for landscaping, sidewalk repair, street paving and such as a quid pro quo (thereby enabling the City to apply funds usually spent for those services to other municipal needs).
We have not seen the end of this controversy by a long shot. Follow The Joe Cobert Report for updates.