Donrey Communications Co., Inc. v. City of Fayetteville

• Decision Date: 17 October 1983
• Docket Number: No. 83-67,83-67
• Citation: 660 S.W.2d 900,280 Ark. 408
• Parties: DONREY COMMUNICATIONS COMPANY, INC. et al., Appellants, v. CITY OF FAYETTEVILLE, Ark., Appellee.
• Court: Arkansas Supreme Court

Page 900

660 S.W.2d 900

280 Ark. 408

DONREY COMMUNICATIONS COMPANY, INC. et al., Appellants, v. CITY OF FAYETTEVILLE, Ark., Appellee.

No. 83-67.

Supreme Court of Arkansas.

Oct. 17, 1983.

As Amended on Denial of Rehearing

Dec. 19, 1983.

Cypert & Roy by Michael H. Mashburn, Springdale, and Donrey Media Group by George O. Kleier and Richard F. Cooper, Fort Smith, for appellants.

James N. McCord, II, City Atty., Fayetteville, for appellee.

DUDLEY, Justice.

Appellant, Donrey Communications Company, Inc., maintains sixty billboards for commercial advertising and noncommercial messages within the City of Fayetteville. They are "off-site signs" as the advertising or message on each billboard is about something not sold or offered on the land where the billboards are located. They consist of "standard poster panels" which are twelve feet by twenty-five feet, or 300 square feet, and "painted bulletins" which are fourteen feet by forty-eight feet, or 672 square feet. Two Fayetteville ordinances restrict the size and location of appellant's billboards. One is a zoning ordinance and the other is a comprehensive sign ordinance.

The zoning ordinance, No. 1747, enacted in 1970, limits the location of billboards to property zoned C-2. Most of appellant's billboards are located on property zoned C-2, or thoroughfare commercial district, and a few are located on property zoned C-3, central business district, or I-1, light industrial and heavy commercial district.

The comprehensive sign ordinance, No. 1893, restricts the size of both on-site and off-site freestanding signs to a maximum of 75 square feet and prescribes minimum setback requirements from street right-of-way for the signs. Appellant's billboards conform neither to the size restrictions nor to the setback requirements. Its billboards were erected from 12 to 24 years ago at a cost of $500 to $1,000 per sign and, at the time of erection, complied with all applicable ordinances.

Section 17B-5(A)2 of the sign ordinance provides that off-site nonconforming signs shall be removed or shall be altered to conform with the provisions of the ordinance by January 19, 1977, which was four years' amortization from the effective date of the ordinance. The zoning ordinance, in Art. 4, § 5(g), requires that nonconforming signs be removed by the same date.

This case was filed July 2, 1971, over twelve years ago and came to this court in 1973. American Television Co., Inc., d/b/a Donrey Outdoor Advertising Co., et al. v. City of Fayetteville, 253 Ark. 760, 489 S.W.2d 754 (1973). It was reversed, and the pleadings were amended to test the constitutionality of the city's restrictions of the size and location of billboards. On cross-motions for summary judgment the trial court upheld the billboard restrictions and amortization requirement, as applied to appellant, and granted the city's prayer for a mandatory injunction ordering appellant to comply with the two ordinances. We affirm the decree. Rule 29(1)(c) provides that the appeal of cases testing the constitutionality of a municipal ordinance shall be heard in this court.

Appellant first contends that, when read together, the two ordinances violate appellant's right under the First Amendment to the United States Constitution.

Billboards are noncommunicative structures designed to stand out and apart from their surroundings, but also they are a medium of communication warranting First Amendment protection. The government has a legitimate interest in controlling the non-communicative aspects of the medium but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects. Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).

Alexander Meiklejohn in Free Speech and Its Relation to Self-Government 27 (1948) wrote that the First Amendment "does not forbid the abridging of speech. But ... it does forbid the abridging of the freedom of speech." He argues that the phrase "the freedom of speech" implies rules regarding procedure, or order. He used the New England town meeting as his model to demonstrate there could be no freedom of speech if everyone spoke at once but, at the same time, any argument relevant to the issue before the meeting, no matter how unpopular, is protected by the strong language of the amendment. In this context the Supreme Court of the United States has ruled that restrictions on time, place and manner are permissible if "they are justified without reference to the content of the regulated speech, ... serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 at 771, 96 S.Ct. 1817 at 1830, 48 L.Ed.2d 346 (1976).

"The freedom of speech" is not a self-defining phrase. The speech which cannot be abridged is that which is protected. Nor is the word "abridging" unambiguous. What is protected and how extensively it is protected is determined on a case by case basis by the courts. See Wellington, On Freedom of Expression, 88 Yale L.J. 1105 (1979).

The ordinances, as applied to appellant, its advertisers and the viewers of the billboards are content neutral; they merely restrict their size, height and location. The ordinances seek to implement a substantial governmental interest and they directly advance that interest. See Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) and Metromedia Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).

The preamble to the sign ordinance provides that the purpose of the ordinance is to promote the reasonable, orderly and effective display of signs, to promote safety and to preserve natural beauty. The city board of directors made the following findings:

That the uncontrolled proliferation of signs is hazardous to the users of streets and highways within the limits of the city of Fayetteville, Arkansas.

That a large and increasing number of tourists have been visiting the City of Fayetteville, Arkansas, and as a result the tourist industry is a direct source of income for citizens of said city, with an increasing number of persons directly or indirectly dependent upon the tourist industry for their livelihood.

Scenic resources are distributed throughout the city, and have contributed greatly to its economic development, by attracting tourists, permanent and part-time residents, and new industries and cultural facilities.

The scattering of signs throughout the city is detrimental to the preservation of those scenic resources, and so to the economic base of the city, and is also not an effective method of providing information to tourists about available facilities.

The goals which the city seeks to further are substantial governmental goals. This matter was laid to rest in Metromedia, id., 453 U.S. at 507, 508, 101 S.Ct. at 2892, 2893.

Nor can there be substantial doubt that the twin goals that the ordinance seeks to further--traffic safety and the appearance of the city--are substantial governmental goals. It is far too late to contend otherwise with respect to either traffic safety, Railway Express Agency, Inc. v. New York, 336 U.S. 106 [69 S.Ct. 463, 93 L.Ed. 533] (1949), or esthetics, see Penn Central Transportation Co. v. New York City, 438 U.S. 104 [98 S.Ct. 2646, 57 L.Ed.2d 631] (1978); Village of Belle Terre v. Boraas, 416 U.S. 1 [94 S.Ct. 1536, 39 L.Ed.2d 797] (1974); Berman v. Parker, 348 U.S. 26, 33 [75 S.Ct. 98, 102, 99 L.Ed. 27] (1954).

Hand in hand with aesthetics is tourism, one of Fayetteville's important industries and a substantial economic resource.

The ordinances under attack are as narrowly drawn as is practically and legally possible and the city has gone no further than necessary to meet its goals. This type of ordinance directly advances the legitimate governmental interests in traffic safety, the aesthetic landscape and the tourism industry. See Metromedia, Inc. v. San Diego, id. 453 U.S. pp. 508, 509, 510 and 511, 101 S.Ct. at p. 2893 and 2894.

The next First Amendment issue is, do the restrictions close a channel for communication? Initially, we note that this is not one of those cases where a channel of communication is completely prohibited in the name of some governmental purpose, such as prohibiting the circulation of handbills under the rationale of preventing litter. See Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). Here, the billboard channel of communication is not prohibited, it is only limited as to size and place. The only questionable aspect of the limitation in size is that advertisements or messages which are prepared for nationwide and statewide distribution are prepared for the 300 square feet standard poster panels and they will be eliminated. The use of the standard poster panel allows an inexpensive form of communication. However, the appellant has not demonstrated that the size cannot be reduced to 75 square feet without unduly increasing the cost of this channel. The affidavit of Lloyd E. Schuh, Jr. is explanative:

I develop and contract for all advertising by Educare Centers. Educare Centers has used standardized outdoor advertising poster panels on a regular basis since 1973. We now have 12-month contracts for outdoor advertising on standardized poster panels in all three cities where we operate.

Educare Centers currently has its advertisements on 10 poster panels in Little Rock, 6 poster panels in Fort Smith and 1 poster panel in Fayetteville, I design seven different advertisements and have 20 copies made of each design. All 17 poster panels, including the one in Fayetteville, will carry identical advertisements with the seven designs being rotated during the year.

By having 20 copies of each design printed, the average poster cost is $35.00. If I were forced to order single copies...