San Francisco Loses Round in Legal Fight Over “Mom and Pop Store” Billboards

Contest Promotions sign in L.A. advertising movie "Repo Man." Sign has city permit for "on-site" advertising.

In 2002, voters in San Francisco overwhelmingly approved a no-exceptions ban on all new billboards and other forms of off-site advertising.  However, last week an L.A.-based sign company won a ruling in federal court that could seriously undermine that ban, and may have implications for the effort to limit outdoor advertising here in Los Angeles.

The case in U.S. District Court concerns advertising signs owned by a company called Contest Promotions, which are typically put up on small businesses like liquor stores, mini-markets, and donut shops.  The signs typically carry poster-style ads for movies, music CD’s, and other products not sold on the premises, but also include notices inviting persons to come into the establishments to enter a drawing to win the posters and other prizes.   The company, whose motto is “Helping Mom and Pop Compete”,  claims this helps small businesses suffering from the recession bring in more customers.

City inspectors cited a number of the signs for violating San Francisco’s ban on off-site advertising signs, and the company responded last year by filing a lawsuit claiming that the fact people could register for drawings inside the stores qualified the signs as on-site or business signs.  The lawsuit also attacked the constitutionality of the city’s sign ordinance, saying that it gave inspectors too much leeway in deciding what category a given sign fell within.  The judge agreed, and ruled that the city could not rely upon it in categorizing the Contest Promotion signs as off-site advertising.

The company has more than 100 such signs in L.A. that were permitted as on-site signs, although city officials have indicated that those signs were either blank, or only carried the name of the business, when the permits were issued.  The city hasn’t initiated any action against those signs, but if it does and the company responds by filing a lawsuit, it’s likely that the same kind of arguments used in San Francisco would be used in L.A.

An “on-site” sign in the San Francisco ordinance is defined as “a sign which directs attention to a business, commodity, service, industry, or other activity which is sold, offered, or conducted, other than incidentally, on the premises upon which such sign is located, or to which it is  affixed.”  In her ruling, the judge cited the phrase “other than incidentally” as being unconstitutionally vague and not providing objective criteria for inspectors make a decision about a given sign.

The L.A. sign ordinance takes a somewhat different approach, defining an “off-site” sign as “a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution or any other commercial message, which is generally conducted, sold, manufactured, produced, offered or occurs elsewhere than on the premises where the sign is located.”  On-site signs are then defined simply as other than off-site signs.

Where the L.A. ordinance might hit the same snag as the San Francisco law is with the phrase “generally conducted.”  Is that unconstitutionally vague and does it give inspectors too much discretion to determine what it means?   Would “generally conducted” have the same fuzziness in a judge’s view as “other than incidentally?”

Contest Promotions was established by the same persons who started National Promotions and Advertising, the company that affixes advertising posters to fences surrounding construction sites and vacant lots in a wide area of L.A.  Two of those men, Gary Shafner and Peter Zackery, were profiled in “The Mad Men of Los Angeles” in the L.A. Weekly this past March.

Ban Billboard Blight recently conducted a partial survey of businesses in L.A. with Contest Promotions signs.  Inside some of those business, free posters and slips for entering drawings were available, but in others, including a Laundromat, a small office building, and a car repair shop, nothing could be found regarding the drawings referred to on small placards on the sign frames.  See Contest Promotions Signs: Helping Mom & Pop Stores, Or Creating Illegal Blight?