John Donnelly & Sons v. Mallar

• Decision Date: 11 July 1978
• Docket Number: Civ. No. 77-284-SD.
• Citation: 453 F. Supp. 1272
• Parties: JOHN DONNELLY & SONS et al., Plaintiffs, v. Roger L. MALLAR, Commissioner of Transportation, State of Maine, Defendant.
• Court: U.S. District Court — District of Maine

453 F. Supp. 1272

JOHN DONNELLY & SONS et al., Plaintiffs, v. Roger L. MALLAR, Commissioner of Transportation, State of Maine, Defendant.

Civ. No. 77-284-SD.

United States District Court, D. Maine, S. D.

July 11, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard P. Holme, Denver, Colo., Ralph I. Lancaster, Jr., Donald W. Perkins, David T. Flanagan, Portland, Me., for plaintiffs.

H. Cabanne Howard, Allan A. Toubman, Asst. Attys. Gen., Thomas G. Reeves, Maine Dept. of Transportation, Augusta, Me., for defendant.

OPINION AND ORDER

GIGNOUX, District Judge.

In this action plaintiffs John Donnelly & Sons, National Advertising Company, and William S. Schaeffer challenge the constitutional validity of the recently enacted Maine Traveler Information Services Act, 23 M.R.S.A. §§ 1901-1925 (the "Maine Act" or the "Act") and seek declaratory and injunctive relief against defendant Roger L. Mallar who, as Commissioner of Transportation for the State of Maine, is charged with enforcement of the Act.

The Act provides, inter alia, for the state-wide elimination of off-premises, outdoor "billboard" advertising.¹ Plaintiffs, two national billboard companies which operate in Maine, and one of their employees, have challenged the Act on the grounds that it violates the First Amendment to the United States Constitution (First Claim of the complaint), that it constitutes an invalid exercise of the police power in contravention of the Due Process Clause of the Fourteenth Amendment to the United States Constitution (Second Claim of the complaint), that it deprives plaintiffs of their property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution (Third Claim of the complaint), and that the State is barred by the doctrine of equitable estoppel from requiring the removal of plaintiffs' billboards (Fourth Claim of the complaint). Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1343(3), 2201, and 2202, and under the doctrine of pendent jurisdiction.

Currently before the Court are the parties' cross-motions for summary judgment on the First, Second and Fourth Claims of the complaint.² For the reasons set forth below, the Court holds that the Act does not violate plaintiffs' First Amendment rights (First Claim), that the Act does not constitute an invalid exercise by the State of its police power (Second Claim), and that the State is not barred by the doctrine of equitable estoppel from requiring the removal of plaintiffs' billboards (Fourth Claim).

I

The factual and statutory background is uncomplicated and undisputed. At present there exist approximately 2520 off-premises billboards in the State of Maine, about half of which are standardized as to size and design and about half of which are not standardized. Though the vast majority of the billboards owned and operated by plaintiffs and other outdoor advertisers doing business in the State display signs purely commercial in nature, a number of billboards carry messages dealing with political, civic, religious and charitable subjects.

The purposes of the Act, as expressed in the legislative findings and statement of policy and purposes, 23 M.R.S.A. §§ 1901 and 1902, are threefold. First, the Act seeks to preserve and promote the general scenic character of the State of Maine. § 1902(4). The Maine Legislature expressly found that scattered outdoor advertising throughout the State is detrimental to the preservation of the State's scenic resources. § 1901(4). Second, the Act is intended to preserve the State's scenic beauties not only for their aesthetic value but because the visual attractiveness of the State substantially promotes tourism, one of the State's major industries, as well as its general economic and cultural development. § 1901(1), (3) and (4). Finally, the Act is intended to promote highway safety by eliminating distractions to motorists. § 1901(5).

To achieve these objectives, the Act prohibits the erection or maintenance of signs visible from any public way, 23 M.R.S.A. § 1908, with three general exceptions. First, the Act permits on-premises advertising not containing moving parts or flashing lights, subject to certain restrictions as to size, height, placement and number of signs. 23 M.R.S.A. § 1914. Second, in order to provide a means of disseminating information to the traveling public with respect to business facilities and points of historical, recreational, or cultural interest, the Act empowers the Commissioner to establish a system of "official business directional signs." 23 M.R.S.A. § 1906. Though these signs may be located off-premises, they are regulated as to type, size, location, color, lighting, and number. 23 M.R.S.A. §§ 1909-1912. In addition, the Commissioner is also to provide traveler information directories, guidebooks and maps and to establish tourist information centers at principal entrance points into the State. 23 M.R.S.A. §§ 1907, 1905. Finally, the Act exempts from its ban certain classes of off-premises signs including signs erected by churches and civic, historical and cultural organizations, signs promoting fairs and expositions, and signs which serve public functions. 23 M.R.S.A. § 1913. Included in the latter category are signs which pertain to activities such as charity drives and political campaigns. 23 M.R.S.A. § 1913(9).³

The Act provides two means for the removal of nonexempt off-premises bill-boards. The owners of signs located along the interstate or primary highway systems are to be compensated with billboard removal funds made available to the State by the federal government pursuant to the Highway Beautification Act of 1965, as amended, 23 U.S.C. § 131 et seq. (1976). 23 M.R.S.A. § 1915. Those signs eligible for such compensation are to be removed within four years of the effective date of the Act. 23 M.R.S.A. § 1921. All other nonexempt billboards are to be amortized over six years from the effective date of the Act; that is, they are to be permitted to remain in place until January 1, 1984, by which time the owners are assumed to have recouped their investments through profits. 23 M.R.S.A. § 1916.

II

Plaintiffs claim that by prohibiting the erection or maintenance of off-premises billboards, the Act impermissibly infringes upon their First Amendment guarantee of freedom of speech made applicable to the States by the Fourteenth Amendment. Bigelow v. Virginia, 421 U.S. 809, 811, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Plaintiffs anchor their First Amendment argument in the series of recent United States Supreme Court cases which have accorded commercial speech a measure of the protection previously reserved for so-called "pure" or noncommercial speech. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bigelow v. Virginia, supra. The State, however, does not defend the Act on the ground that it affects merely commercial speech.⁴ Rather, the State argues, and the Court agrees, that the Act is a permissible regulation of the time, place and manner of speech, having only a constitutionally permissive "incidental effect" on that activity.⁵

The power of a state or local government to regulate the time, place, or manner of speech is of long-standing duration, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), and of continuing validity, Linmark Associates, Inc. v. Willingboro, supra 431 U.S. at 93-94, 97 S.Ct. 1614; Virginia Pharmacy Board v. Virginia Consumer Council, supra 425 U.S. at 771, 96 S.Ct. 1817. To constitute a legitimate time, place, or manner restriction, a regulation must satisfy three criteria: (1) the restriction on speech must be "justified without reference to the content of the regulated speech," (2) the restriction must "serve a significant governmental interest," and (3) in so doing, the restriction must "leave open ample alternative channels for communication of the information." Virginia Pharmacy Board v. Virginia Consumer Council, supra; see Linmark Associates, Inc. v. Willingboro, supra; see also United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The Maine Act meets this three-pronged test.

A. The Act neither has the purpose nor the effect of regulating the content of speech. None of the express purposes of the Act — the enhancement of the State's scenic resources, the development of tourism and other economic growth, and the promotion of highway safety—pertain to the subject matter of a message displayed on an off-premises billboard. Nor do the various regulatory provisions of the Act purport to prohibit a particular message content. The purpose and effect of the Maine Act is to eliminate off-premises advertising, not to prohibit the transmission of any particular message. When ordinances or statutes attempt to regulate the content of speech, courts are swift to hold such restrictions unconstitutional. E. g., Linmark Associates, Inc. v. Willingboro, supra (municipal ordinance banning "For Sale" or "Sold" signs on homesites); Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976), cert. denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977) (city ordinances restricting, inter alia, the display of "political campaign signs"); Peltz v. City of South Euclid, 11 Ohio St.2d 128, 228 N.E.2d 320 (1967) (city ordinance prohibiting all "political signs"). On the other hand, although the Supreme Court has never ruled on the constitutionality of comprehensive anti-billboard legislation,⁶ every state court which has considered whether such a law violates the First Amendment...