Banner Advertising, Inc. v. People of City of Boulder By and on Behalf of People of State of Colo.
| Decision Date | 14 February 1994 |
| Docket Number | Nos. 92SC796,93SC70,s. 92SC796 |
| Parties | BANNER ADVERTISING, INC., Petitioner, v. The PEOPLE OF the CITY OF BOULDER, By and on Behalf of The People of the State of Colorado, Respondent. A AERIAL ADVERTISING BANNERS, INC., d/b/a Banner Advertising, Inc., and Donald R. Mathews, Petitioners, v. The PEOPLE OF the CITY OF BOULDER, By and on Behalf of The People of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
J. Scott Hamilton, P.C., J. Scott Hamilton, Louisville, for petitioner.
Office of the City Atty., Joseph N. de Raismes, III, Claire M. Largesse, Boulder, for respondent.
Yodice Associates, John S. Yodice, Richard K. Ketler, Washington, DC, Treece, Alfrey & Musat, P.C., L. Richard Musat, Denver, for amicus curiae Aircraft Owners and Pilots Ass'n.
We granted certiorari to decide whether section 10-11-3 of the Boulder City Code prohibiting commercial signs towed by aircraft is preempted by federal law, by operation of the Supremacy Clause of the United States Constitution. A Aerial Advertising Banners, Inc., doing business as Banner Advertising, Inc., Banner Advertising, Inc., 1 and the corporations' president, Donald Mathews, petitioned this court to review two decisions of the Boulder District Court upholding the Boulder ordinance.
Banner was charged with violating the ordinance on two separate occasions. Both times the Boulder Municipal Court found Banner guilty of violating the ordinance and ordered Banner to pay a fine. Banner appealed each time to the Boulder District Court, which affirmed the lower court, ruling that federal law does not preempt the Boulder city ordinance. We disagree and reverse the ruling of the Boulder District Court. We hold that the Boulder city ordinance prohibiting commercial signs towed by aircraft is preempted by federal law and therefore the ordinance is not enforceable.
The relevant part of the preamble to the Boulder ordinance states:
Council finds that commercial signs towed over the City by aircraft are a distraction to motorists and other users of the public streets and ways, impairing traffic safety, and a source of noise created by multiple passes over the city and therefore should be prohibited for the health, safety, and welfare of the people of the city.
Boulder Revised Code (B.R.C.) § 10-11-1(e). The code further states:
(c) Specific Signs Prohibited. No person shall erect, install, post, display, or maintain any of the following signs:
(1) Airborne Advertising: A commercial sign towed aloft by aircraft.
B.R.C. § 10-11-3(c)(1) (footnote omitted). "Commercial sign" is defined in the code as
a sign which identifies, advertises, or directs attention to a business or is intended to induce a purchase of a good, property, or service, including without limitation, any sign naming a brand of good or service and any sign which is not a noncommercial sign.
Two separate violations of the ordinance by Banner underlie this action. 2 On September 4, 1991, a Banner pilot flew above the University of Colorado football stadium in Boulder towing a sign reading "WINSTON'S--BOULDER'S BEST FISH STORY," referring to a restaurant in downtown Boulder. Banner was charged with violating the ordinance and fined $500 on February 5, 1992. Banner appealed to the Boulder District Court, claiming that the Boulder ordinance was preempted by federal law. On November 4, 1992, the district court affirmed the judgment.
On May 2 and 3, 1992, Banner flew over Boulder with a sign advertising a sale at McGuckin Hardware. On August 26, 1992, the municipal court levied a $2,000 fine against Banner and issued a cease and desist order. Banner appealed the judgment, again claiming federal preemption. The same district court judge who had heard the appeal from the first case affirmed on December 30, 1992.
When these two violations took place, Banner was operating under a "Certificate of Waiver or Authorization" it had received from the Federal Aviation Administration (FAA), which authorized Banner to conduct "[b]anner [t]owing for the purpose of advertising." The certificate outlined sixteen provisions with which Banner was required to comply, including restrictions on the hours a banner could be towed and safety standards for the plane, towing mechanism, and pilot. The certificate also contained a paragraph stating:
This Certificate constitutes a waiver of those Federal Rules or Regulations specifically referred to above. It does not constitute a waiver of any state law or local ordinance not otherwise preempted by the United States Constitution or Federal Statute or Regulation.
Attached to its motion to dismiss, Banner submitted a copy of an opinion letter written by the chief counsel of the Federal Aviation Administration in Washington, D.C., specifically stating that, in the opinion of the agency, the Boulder city ordinance "represents an impermissible attempt to regulate in an area preempted by the Federal Government." The detailed, four-page letter explains that, by issuing the Certificate of Waiver or Authorization, the federal government, through the FAA, exclusively regulates banner-towing operations in navigable airspace.
On appeal, the Boulder District Court rejected Banner's preemption arguments. According to the court, the language of the certificate stating that it does not constitute a waiver of any state law or local ordinance "manifests a clear intent by the FAA not to preempt state and local regulation of towing objects by aircraft." Further, the court held: The opinion letter from the FAA chief counsel, the court found, was "wholly without merit." The court concluded that the regulation of signs towed by aircraft was not preempted by the federal government.
Banner claims that the federal government has preempted the area of regulation of signs towed by aircraft pursuant to the Supremacy Clause of the United States Constitution, and that the Boulder ordinance prohibiting aircraft from towing commercial signs is an impermissible attempt to regulate in this area. The City of Boulder contends that there is no basis for federal preemption.
The doctrine of preemption originates in the Supremacy Clause of the United States Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ..., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const., art. VI, cl. 2. See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824) (). State law that conflicts with federal law is without effect. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819).
Preemption is fundamentally a question of congressional intent. Congress' intent to monopolize an area is expressed in the authorizing statute and in the regulations enacted pursuant to that statute. Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). The preemptive effect of a federal regulation is equal to that of a federal statute. Fidelity Fed. Savs. & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).
A statute or regulation may be construed as being preemptive under three circumstances. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). First, Congress' intent to preempt state law may be explicitly stated in the statute. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Second, in the absence of express statutory language, preemption may be inferred from a "scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); see also Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2075. Implied preemption also occurs when " 'the Act of Congress ... touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.' " De La Cuesta, 458 U.S. at 153, 102 S.Ct. at 3022 (quoting Santa Fe Elevator Corp., 331 U.S. at 230, 67 S.Ct. at 1152). Third, preemption exists when state law conflicts with federal law. This last form of preemption is implicated when it is impossible for a private party to simultaneously comply with both state and federal laws, 3 or where the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).
A court must presume that "the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress." Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617 (quoting Santa Fe Elevator Corp., 331 U.S. at 230, 67 S.Ct. at 1152). This presumption is especially strong in matters related to health and safety, traditionally within the province of state and local governments. California v. ARC America Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989).
We consider the three types of federal preemption individually and apply their tests to the Boulder ordinance.
The Federal...
To continue reading
Request your trial
-
Arapahoe County Public Airport Authority v. Centennial Exp. Airlines, Inc.
...Express also points to the USDOT opinion letter in arguing that deference is warranted in this case. In Banner Advertising, Inc. v. People, 868 P.2d 1077, 1083 (Colo.1994), we addressed the level of deference we must afford an opinion letter issued by the FAA. Specifically, we [T]he opinion......
-
Lucas v. People's Counsel
...Ins. Corp., 726 F.Supp. 651 (N.D.Tex.1989) (state law concerning recordation of liens on aircraft pre-empted); Banner Advertising v. City of Boulder, 868 P.2d 1077 (Colo.1994) (city ordinance prohibiting airplanes from towing advertising banners was preempted); Gary Leasing, Inc. v. Town Bd......
-
City of Grand Junction v. Ute Water Conservancy Dist.
...(2) the federal law expressly preempts state law; or (3) the federal law implicitly preempts state law. Banner Advertising, Inc. v. City of Boulder, 868 P.2d 1077, 1080-84 (Colo.1994); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, ----, 112 S.Ct. 2608, 2617-18, 120 L.Ed.2d 407 (1......
-
Greenwood Trust Co. v. Conley
...by a federal statute absent a clear and manifest purpose of Congress. See Cipollone, 505 U.S. at 518, 112 S.Ct. at 2618; Banner, 868 P.2d at 1080-81. As the official comment to section 5-5-108 suggests, section 5-5-108 seeks to measure and ensure that businesses use acceptable conduct when ......
-
State Drone Laws: a Legitimate Answer to State Concerns or a Violation of Federal Sovereignty
...sign was preempted because the aircraft was operating under a certificate issued by the FAA); Banner Adver., Inc. v. City of Boulder, 868 P.2d 1077, 1082 (Colo. 1994) (stating that a state law prohibiting the towing of advertisements by aircraft was preempted because the "federal government......