Does yesterday’s decision by the 9th Circuit Court of Appeals upholding the city’s right to ban off-site, supergraphic, and freeway-facing advertising signs mean that impresarios of blight like Barry Rush of World Wide Rush and Michael McNeilly of Skytag, Inc. will be packing up their multi-story building wraps and heading out of town? To shed some light on that question, and other issues relevant to yesterday’s eagerly-awaited court ruling, we conducted the following Q&A with ourselves.
Disclaimer: We have no law degrees or special knowledge beyond that gathered from attending court hearings, talking to attorneys, and reading thousands of pages of documents filed in billboard company lawsuits.
U.S. District Court Judge Audrey Collins ruled in 2008 that the city’s ban on off-site and supergraphic signs, and its prohibition of signs within 2,000 feet and primarily viewed from a freeway, were unconstitutional because the city had granted exceptions to those bans. Why did the three-judge panel of the 9th Circuit reverse her ruling?
The appellate judges said that they city could make those exceptions because they were within its legislative authority and didn’t undermine the stated purpose of the bans, to enhance traffic safety and protect the city’s visual environment. Judge Collins cited exceptions for advertising signs the city allowed in the Staples Center/L.A. Live area and in the MTA bus lot alongside the 10 freeway, but the appellate judges said those signs were permissible exceptions because they were an integral part of projects that actually reduced blight and visual clutter and were consistent with the purpose of the bans.
Does the ruling affect all supergraphic signs put up in the city without permits?
The ruling lifts permanent injunctions issued by Judge Collins to World Wide Rush and Skytag at a total of 41 locations. She has also issued injunctions to other sign companies, Vanguard Outdoor and Community Redevelopment Association, at a total of six locations, and those were not parties in the 9th Circuit ruling. However, the issues raised by those and a number of other lawsuits pending against the city are nearly identical to those in the World Wide Rush case, and the city will undoubtedly seek dismissal of those lawsuits. As to the total number of unpermitted supergraphics in the city, nobody knows exactly, but estimates have ranged as high as 150.
Does the ruling mean the World Wide Rush and Skytag supergraphics will have to be immediately taken down?
The companies can petition for an “en banc” hearing of the case before 11 justices of the 29-judge circuit. There is no time limit for granting or denying such a petition, but it could take several months, during which the ruling of the three-judge panel isn’t final, and therefore can’t be enforced. In practice, the court seldom grants such a hearing, and isn’t expected to do so in this case. If the petition is denied, the only other recourse is to ask the U.S. Supreme Court to review the case.
What is the likelihood that the Supreme Court would actually review the 9th Circuit ruling?
Last year, the 9th Circuit made a similar ruling in favor of the city in the Metrolights v. City of Los Angeles case, in which the sign company claimed that allowing advertising in bus shelters and other items of “street furniture” on public property undermined the city’s ban on off-site signs. A three judge panel rejected that claim, a petition for an “en banc” hearing was denied, and the U.S. Supreme Court declined to review the ruling.
The ruling says that the city was within its rights to grant exceptions to the off-site and supergraphic sign bans? But didn’t the sign ban adopted by the City Council in August of last year remove all the exceptions, and therefore make that point moot?
The sign ban adopted last year actually retained the provision allowing exceptions for sign districts, specific plans, and approved development agreements, but said those exceptions would become available only if the 9th Circuit ruled in favor of the city in the World Wide Rush case. So once the court decision becomes final, they’re back in play.
Unless….(see next question).
Last year, the City Planning Commission adopted a revised sign ordinance that significantly changed the provision for sign districts. What’s happened with that?
After City Attorney Carmen Trutanich took office last summer, he asked the City Council to delay consideration of the new ordinance until after the 9th Circuit ruled in World Wide Rush. Now his staff will undoubtedly be advising the planning department and council members on how they should proceed in light of the ruling. The revised ordinance removes the exceptions for specific plans and development agreements, and greatly limits where sign districts can be located, as well as makes the procedures for establishing them much more rigorous.
Can we now expect an end to the flood of lawsuits challenging the city’s sign ban?
Kim Wardlaw, the 9th Circuit judge who authored the World Wide Rush ruling, departed from the usual legalese in her introduction to make some observations about the signage wars, including the fact that one of the earliest rulings upholding a city’s right to control and regulate billboard advertising was by the Missouri Supreme Court in 1911. Now, 99 years later, the courts are still hearing challenges to this right. The moral: Never underestimate the litigious tenacity of the outdoor advertising industry.Dennis Hathaway