LAMAR OUTDOOR ADVER. v. Mississippi State Tax Com'n

• Citation: 539 F. Supp. 817
• Decision Date: 08 February 1982
• Docket Number: Civ. A. No. J78-0472(R).
• Parties: LAMAR OUTDOOR ADVERTISING, INC. et al. v. MISSISSIPPI STATE TAX COMMISSION, et al.
• Court: United States District Courts. 5th Circuit. Southern District of Mississippi

539 F. Supp. 817

LAMAR OUTDOOR ADVERTISING, INC. et al. v. MISSISSIPPI STATE TAX COMMISSION, et al.

Civ. A. No. J78-0472(R).

United States District Court, S. D. Mississippi, Jackson Division.

February 8, 1982.

James K. Child, Henry E. Chatham, Jackson, Miss., Jack Pittman, Hattiesburg, Miss., for plaintiffs.

Bill Allain, Atty. Gen., Peter Stockett, Jr., Asst. Atty. Gen., W. Timothy Jones, John E. Milner, Jackson, Miss., for defendants.

OPINION

DAN M. RUSSELL, Jr., Chief Judge.

Fifty-six media Plaintiffs¹ have invoked the jurisdiction of this Court pursuant to 28 U.S.C. Sections 1331, 1343 and 42 U.S.C. Section 1983 in this non-class action suit in order to challenge the constitutionality of the Mississippi statutes and the regulations of the Alcoholic Beverage Control Division (hereinafter "ABC Division") of the Mississippi State Tax Commission² which control and effectively prohibit the advertisement of alcoholic beverages³ in this state. Specifically, Plaintiffs contend that: (1) the challenged statutes and regulations and their enforcement violate First Amendment guarantees of freedom of speech and press and Article 3, Section 13 of the Mississippi Constitution of 1890; (2) the challenged statutes and regulations and their enforcement deprive Plaintiffs of property without due process of law in violation of the due process clause of the Fourteenth Amendment and Article 3, Section 14 of the Mississippi Constitution of 1890; and (3) the challenged statutes and regulations and their enforcement deny Plaintiffs equal protection of the law in violation of the equal protection clause of the Fourteenth Amendment. To prevent further violation of their civil rights, Plaintiffs seek: (1) a declaratory judgment pursuant to 28 U.S.C. Sections 2201 and 2202 that the challenged laws are unconstitutional; (2) a prohibitory injunction enjoining defendants from attempting to enforce the challenged laws; (3) alternatively, a mandatory injunction requiring the defendants to enforce the challenged laws against any and all advertisers who advertise alcoholic beverages within Mississippi; (4) court costs; and (5) attorney's fees pursuant to 42 U.S.C. Section 1988.

Following discovery by both sides and extensive pre-trial proceedings before this Court, this action was tried before the Court without a jury on March 11-12, 1981. Having heard and considered the oral and documentary evidence presented by the parties, the Court hereby makes its Findings of Fact and Conclusions of Law as required by Fed.R.Civ.P. 52(a).

FINDINGS OF FACT

1. The Mississippi statutes and regulations which are challenged as unconstitutional in this action are as follows:

Miss.Code Ann. Section 67-1-85 (1972) effectively prohibits outdoor advertising of alcoholic beverages within Mississippi by proclaiming it "unlawful to advertise alcoholic beverages by means of signs, billboards, or displays on or along any road, highway, street, or building."

Miss.Code Ann. Section 67-1-87 (1972), the general provision, provides that violations of Section 67-1-85 are punishable as a misdemeanor by a fine of not more than one thousand dollars ($1,000.00) and/or imprisonment for not more than six months.

Miss.Code Ann. Section 67-1-37(e) (Supp. 1980) empowers the State Tax Commission "(t)o issue rules prohibiting the advertising of alcoholic beverages in the state in any class of media and to provide further that all advertising of the retail price of alcoholic beverages shall be prohibited except on placards or signs in the interior of licensed premises which are not visible from the exterior." (emphasis added).

Miss.Code Ann. Section 97-31-1 (1972) provides in pertinent part:

It shall be unlawful for any person, firm, corporation or association, or any servant, official or employee thereof, (1) to advertise upon any street car, railroad car, or other vehicle of transportation, or at any public place or resort, or upon any sign or billboard, or by circulars, poster, price lists, newspapers, periodicals, or otherwise, within this state, alcoholic, intoxicating or spirituous liquors, or intoxicating bitters or other drinks which if drunk to excess, will produce intoxication, including among others, brandy, whiskey, rum, gin, ale and porter, or to advertise the manufacture, sale, keeping for sale or furnishing of any of them, or the person from whom, or the firm or corporation from which, or the place where, or the method by which same, or any of them, may be obtained; (2) to circulate, publish, sell, offer for sale, or expose for sale, any newspaper, periodical, or other written printed matter in which any advertisement specified in this section shall appear, or to permit any sign or billboard containing such advertisement to remain upon one's premises; or (3) to circulate any price list, order blanks, or other matter, for the purpose of inducing or securing orders for said liquors, bitters, and drinks, or any of them hereinbefore mentioned, no matter where located...

Violations of Section 97-31-1 are considered to be criminal offenses and public nuisances which are subject to injunctive relief.

Regulation 6 of the Alcoholic Beverage Control Division of the Mississippi State Tax Commission states that

(n)o person, firm or corporation shall originate advertisement in this State, dealing with alcoholic beverages by any means whatsoever, including but not limited to newspapers, radio, television, circular, dodger, word of mouth, signs, billboards, displays or any other advertising media ...

Regulation 1 of the ABC Division precludes violators of Alcoholic Beverage Control Law from obtaining permits pursuant to Miss.Code Ann. Section 67-1-57 (1972) for a period of twelve months following the violation.

Regulation 36 of the ABC Division provides that the Mississippi State Tax Commission may, in its discretion, "delist" any size or brand of alcoholic beverages regardless of sales volume when, in its opinion, the "best interest of the Alcoholic Beverage Control Division may be served."

2. Mississippi enacted the "Local Option Alcoholic Beverage Control Law," Miss. Code Ann. Section 67-1-1 et seq., in 1966 to reannounce the state's policy "in favor of prohibition of the manufacture, sale, distribution, possession and transportation of intoxicating liquors" and to express its intent to

vigorously enforce the prohibition laws throughout the state, except in those counties voting themselves out from under the prohibition law in accordance with the provisions of this chapter, and, in those counties, to require strict regulation and supervision of the manufacture, sale, distribution, possession and transportation of intoxicating liquor under a system of state licensing of manufacturers, wholesalers, and retailers, which licenses shall be subject to revocation for violations of this chapter. Miss.Code Ann. Section 67-1-3.

3. The Local Option Law permits a county, or a judicial district within a county, to bring itself out from under the state-wide prohibition by a majority vote of the electors within the county or judicial district. Miss.Code Ann. Section 67-1-11—15. If the county or judicial district vote rejects coming out from under prohibition, or if an election is not held, the state-wide prohibition law remains in effect in that area. If a county or judicial district votes itself out from under the state-wide prohibition, then, subject to all of the "provisions and restrictions" of the Local Option Law, the "possession and transportation" of alcoholic beverages is legal throughout the county or judicial district while the "manufacture, sale and distribution" of alcoholic beverages is lawful only in incorporated municipalities, qualified resort areas and clubs within the county or judicial district. Miss.Code Ann. Section 67-1-7 (Supp.1980).

4. At the time of trial in this matter, of eighty-two counties in Mississippi, forty-three counties and four judicial districts in four other counties had exercised their option to legalize the possession, transportation, manufacture, sale and distribution of alcoholic beverages to the extent permitted by the Local Option Law.⁴ Thirty-five counties and four judicial districts in four other counties had chosen not to exercise their option under the Local Option Law.⁵

5. According to the testimony of the Director of the State Alcohol Beverage Control Division of the State Tax Commission, the vast majority of Mississippi's population reside in those counties which have elected to renounce the state's policy of prohibition.

6. Enforcement of the Alcoholic Beverage Control Law is the responsibility of the Mississippi State Tax Commission Alcoholic Beverage Control Division and the members thereof under penalty of possible forfeiture of office. Miss.Code Ann. Section 67-1-85, -91 (1972). The Attorney General of the State of Mississippi⁶ is also responsible for enforcing Miss.Code Ann. 67-1-85 which prohibits the advertisement of alcoholic beverages on outdoor signs and Section 97-31-1 which prohibits alcoholic beverage advertisement in newspapers and on billboards.

7. Regulation No. 6 is Defendants' primary legal basis for effectuating their interest in controlling alcoholic beverage advertising in this state. Regulation No. 6 provides in pertinent part that "(n)o person, firm or or corporation shall originate advertisement in this state, dealing with alcoholic beverages ..." (emphasis added). The policy of the State Tax Commission is not to enforce Regulation No. 6 and the other challenged statutes and regulations against any "person, firm or corporation" which does not "originate advertisements" of alcoholic beverages in this State, due to an absence of jurisdiction. The State Tax Commission has interpreted "originate advertisement in this State" to mean that the central place of publication or dissemination of alcoholic beverage advertisements must be within the physical boundaries of the state in order for the...