City of Indianapolis v. Campbell, 49A02-0208-CV-704.
| Decision Date | 05 August 2003 |
| Docket Number | No. 49A02-0208-CV-704.,49A02-0208-CV-704. |
| Citation | 792 N.E.2d 620 |
| Parties | CITY OF INDIANAPOLIS, Appellant-Plaintiff, v. Cary CAMPBELL, and the Cary Campbell Realty Alliance, Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
Jeffrey S. McQuary, Office of Corporation Counsel, Indianapolis, IN, Attorney for Appellant.
Brenda Franklin Rodeheffer, Monday Rodeheffer Jones & Albright, Indianapolis, IN, Attorney for Appellee.
The City of Indianapolis ("the City") appeals the trial court's order declaring that for the purposes of Section 361-504 of the Revised Code of the Consolidated City of Indianapolis and Marion County ("the Code"), which forbids placing handbills on certain premises, the Renter's Gazette published and distributed by Cary Campbell and Cary Campbell Realty Alliance, Inc. ("Realty") is a "newspaper" and, therefore, not subject to the prohibition.
We affirm.
Whether the trial court erred in holding that the Code did not forbid distribution of the Renter's Gazette, as modified and published in 2002, to apartments in the City.
FACTS
In 1975, the City enacted provisions of the Code that ban the distribution of handbills upon premises under certain circumstances, but the Code expressly excepted newspapers from this prohibition. Realty is an Indiana corporation that "sell[s] real estate to first time home buyers." (Tr. 361). Realty markets its services to apartment renters. Realty utilized independent contractors to distribute material to individual apartments in various apartment complexes in the City.
(App. 23).
After this order, Realty filed a Certificate of Assumed Business Name with the Marion County Recorders Office, stating that Realty would be doing business as Renter's Gazette.3 Realty began publishing the Renter's Gazette on a monthly basis.
Subsequent to the trial court's February 2001 order, the City filed petitions for contempt, alleging that the distribution of the Renter's Gazette violated the trial court's injunction. And Realty filed a motion to dissolve the injunction. The trial court again heard evidence. It noted that the non-advertising contents of the Renter's Gazette sometimes stayed the same from month to month and that the dictionary defined a newspaper as a paper printed at least "weekly" with "news, articles of opinions, features, and advertising." (App. 29). On September 21, 2001, the trial court denied Realty's motion to dissolve the injunction, found that the Renter's Gazette was not a newspaper, and held Realty in contempt of the injunction.
After this order, Realty again modified the Renter's Gazette. Specifically responding to the September 2001 order, it added content concerning the political process and matters of interest to renters and began issuing the Renter's Gazette on a weekly basis. It also added a masthead indicating the volume number and the date of publication.
On November 5, 2001, Realty filed an amended counterclaim for declaratory judgment seeking the court's "determination that the Renter's Gazette, as modified, is a newspaper and therefore not subject to enforcement under Section 361-504 of the Code." (App. 32-33). At the May 13, 2002 hearing on Realty's counterclaim, Campbell testified that the Renter's Gazette was being published weekly and being distributed in five central Indiana counties. The trial court admitted copies of 26 issues of the Renter's Gazette, "A Weekly Newspaper for Renters." (Exs. H-GG).
In its July 2, 2002 ruling, the trial court considered the following provisions in Chapter 361, the "Litter" chapter, of the Code. First, it looked at the prohibition, § 361-504, which states:
No person shall place any handbill upon any premises if requested by anyone thereon not to do so or if there is placed on the premises in a conspicuous position near any entrance thereof a sign bearing notice indicating in any manner that the occupants of said premises do not desire to have such handbills left upon said premises.
Next, the trial court noted that § 361-102(e), which defines "handbill," expressly excepts a "newspaper" from the "handbill" definition by stating that "handbill shall not include a newspaper." It further considered § 361-507, which states that the handbill distribution restrictions "shall not be deemed to apply ... to the distribution of newspapers." Finally, the trial court referred to the definition of "newspaper" in Chapter 361:
Newspaper shall mean and include any newspaper of general circulation, as defined by general law, any newspaper duly entered with the United States Postal Services in accordance with federal statute or regulation, and any newspaper filed and recorded with any recording officer, as provided by general law; and in addition thereto, shall mean and include any periodical or current magazine regularly published with not less than four (4) issues per year and sold or distributed to the public.
(App. 37). The trial court then concluded that "the unchallenged evidence" demonstrated that the Renter's Gazette "as modified, since the Court's September 21, 2001, Order" was a "newspaper" under § 361-102(i) and under "general law" based upon the frequency of its publication and its content. (App. 37). Because the trial court found that the Renter's Gazette, "as modified" was a newspaper, it held that the Renter's Gazette was not subject to the "handbilling restrictions" of the Code and that Realty was "entitled to declaratory relief." (App. 38).
As noted above, the issue was whether the Renter's Gazette, as modified, was a newspaper under the applicable provisions of the Code. Both parties submit that because our consideration thereof necessarily entails the interpretation of the ordinance, which is a question of law, a de novo standard of review applies. However, although the construction of the term "newspaper" as used in the ordinance is a question of law for the court to determine, whether a particular publication comes within the court's construction of the term "newspaper" is a question of fact. Emmis Publ'g Corp. v. Indiana Dep't of State Revenue, 612 N.E.2d 614, 623 (Ind. Tax Ct.1993).
When we construe an ordinance, we apply the rules applicable to statutory construction. Id. The primary rule of statutory construction is to ascertain and give effect to the intent of the statute's drafters. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind.2001). The best evidence of that intent is the language of the statute, and all words must be given their plain and ordinary meaning unless otherwise indicated by the statute. Id.
The City first argues that the trial court erred when it held that the Renter's Gazette was a newspaper under the language of the ordinance because in so doing, it "overlooked" the "additional, more specific, definition" of "commercial handbill." City's Br. at 9. It cites the "Definitions" section of the ordinance, providing as follows:
Commercial handbill shall mean and include any handbill which ... (4) while containing reading or pictorial matter other than advertising matter is predominantly and essentially an advertisement and is distributed or circulated for advertising purposes, or for the private benefit and gain of any person so engaged as advertiser or distributor.
Code Sec. 361-102(b). Indeed, Section 361 contains a "commercial handbill" definition as well as a definition of both "handbill"4 and "newspaper." However, only one provision in the balance of the ordinance refers to the distribution of a "commercial handbill" — to ban the distribution or sale of "any commercial handbill in any public place." Code Sec. 361-501. There was no allegation or evidence that the Renter's Gazette had been distributed or sold in a public place. Therefore, when considering the question of whether the ordinance forbade the distribution of the Renter's Gazette on private property, we do not find that the language of the ordinance expresses the intent that the Renter's Gazette should be reviewed not only as to whether it was a handbill or a newspaper but also whether it was a commercial handbill.
On reply, the City argues that "commercial handbill" is a "subset of all handbills" and all references to "handbills" in the ordinance necessarily include commercial handbills. Reply at 2. However, the...
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