Lamar Cent. Outdoor, LLC v. City of L. A.

• Decision Date: 10 March 2016
• Docket Number: B260074
• Citation: 199 Cal.Rptr.3d 620,245 Cal.App.4th 610
• Court: California Court of Appeals
• Parties: LAMAR CENTRAL OUTDOOR, LLC, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

245 Cal.App.4th 610

199 Cal.Rptr.3d 620

LAMAR CENTRAL OUTDOOR, LLC, Plaintiff and Respondent,

v.CITY OF LOS ANGELES, Defendant and Appellant.

B260074

Court of Appeal, Second District, Division 8, California.

Filed March 10, 2016

Michael N. Feuer, City Attorney, Terry Kaufmann Macias, Assistant City Attorney, Kenneth T. Fong and Michael J. Bostrom, Deputy City Attorneys, for Defendant and Appellant.

Best Best & Krieger, Irvine, Todd R. Leishman ; Greene Espel and John M. Baker for American Planning Association and International Municipal Lawyers Association as Amici Curiae for Defendant and Appellant.

Law Offices of Jeffrey L. Aran and Jeffrey L. Aran for California Sign Association and International Sign Association as Amici Curiae for Defendant and Appellant.

Meyers, Nave, Riback, Silver & Wilson, Los Angeles, Deborah J. Fox and Margaret Rosequist for League of California Cities, California State Association of Counties, and American Planning Association California Chapter as Amici Curiae for Defendant and Appellant.

Michael F. Wright for Plaintiff and Respondent.

GRIMES, J.

SUMMARY

This is another round in the continuing litigation between outdoor advertising companies and the City of Los Angeles over "offsite signs"—billboards with commercial messages in locations other than at a property owner's business.In 2002, the city established a permanent ban, with some exceptions, on new offsite signs, including a ban on alterations of legally existing offsite signs (the sign ban).In 2009, the city explicitly banned offsite signs with digital displays.

In this lawsuit, filed in March 2013, plaintiffLamar Central Outdoor LLC challenged the city's denial of 45 applications to convert existing offsite signs to digital signs.Plaintiff contended the sign ban violates the free speech clause of the California Constitution(article I or the free speech clause).Plaintiff argued the distinctions between commercial and noncommercial signs, and between onsite and offsite signs, are content-based and subject to strict scrutiny under United States Supreme Court precedents construing the First Amendment, and that California's free speech clause provides more protection than the First Amendment.Plaintiff also contended that the ban's "pervasive exceptions" caused the ban to fail even under an intermediate scrutiny test.

The trial court agreed with plaintiff, but we do not.Many authorities have upheld the constitutionality of this sign ban and other comparable laws.At its core, plaintiff's argument is that these authorities do not control decisions under the California Constitution, and that they pre-date recent high court precedents—Reed v. Town of Gilbert(2015)––– U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236(Reed )andSorrell v. IMS Health Inc.(2011)564 U.S. 552, ––––, 131 S.Ct. 2653, 180 L.Ed.2d 544(Sorrell )—that require a different conclusion.We disagree with plaintiff's analysis, and find no constitutional infirmity in the sign ban.We therefore reverse the judgment.

FACTS AND LEGAL BACKGROUND

1.The Sign Ban

The sign ban in the Los Angeles Municipal Code(LAMC or municipal code) prohibits signs if they"[a]re off-site signs, including off-site digital displays, except when off-site signs are specifically permitted pursuant to a relocation agreement....This prohibition shall also apply to alterations, enlargements or conversions to digital displays of legally existing off-site signs, except for alterations that conform to ... this Code."(LAMC, § 14.4.4.B.11.)

The municipal code defines an offsite sign as a sign "that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution or any other commercial message, which is generally conducted, sold, manufactured, produced, offered or occurs elsewhere than on the premises where the sign is located."(LAMC, § 14.4.2.)An onsite sign is "[a] sign that is other than an off-site sign."(Ibid. )The city does not prohibit "an ideological, political or other noncommercial message on a sign otherwise permitted by" its sign regulations.(LAMC, § 14.4.4.A.)

The sign ban contains exceptions.It does not apply "to off-site signs, including off-site digital displays, that are specifically permitted pursuant to a legally adopted specific plan, supplemental use district or an approved development agreement."(LAMC, § 14.4.4.B.11.)In addition, under the city's building code, the sign ban does not apply to "work located primarily in a public way"(LAMC, § 91.101.4), such as public transit shelters and other facilities.

The objectives of the city's sign regulations include that "the design, construction, installation, repair and maintenance of signs will not interfere with traffic safety or otherwise endanger public safety," and that the regulations "will provide reasonable protection to the visual environment by controlling the size, height, spacing and location of signs."(LAMC, § 14.4.1.A. & B.)

2.The Legal Background

Among the many lawsuits generated by the city's sign ban and related ordinances were three challenges in federal court, in differing contexts, to the constitutionality of the sign ban.In each case, the Ninth Circuit found no constitutional violation.(SeeMetro Lights, L.L.C. v. City of Los Angeles(9th Cir.2009)551 F.3d 898, 900, 902, 914(Metro Lights )[the city did not violate the First Amendment"by prohibiting most offsite commercial advertising while simultaneously contracting with a private party to permit sale of such advertising at city-owned transit stops"(of which there were approximately 18,500)];World Wide Rush, LLC v. City of Los Angeles(9th Cir.2010)606 F.3d 676, 679, 686–687, 690[the city's ban on freeway facing billboards was not an unconstitutionally underinclusive restriction on commercial speech; the exceptions to the ban for billboards at Staples Center and in a special use district did not undermine the city's traffic safety and aesthetics objectives; bans on supergraphic and offsite signs were not unconstitutional prior restraints on speech];Vanguard Outdoor, LLC v. City of Los Angeles(9th Cir.2011)648 F.3d 737, 745, 746–748(Vanguard )[concluding the city's distinction between offsite and onsite signs "has been repeatedly upheld as content-neutral and valid," and rejecting the plaintiff's contention that the protections for commercial speech under the California Constitution are different from the protections under the First Amendment].)

The Ninth Circuit cases relied on high court jurisprudence, particularly Central Hudson Gas & Electric Corp. v. Public Service Commission(1980)447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341(Central Hudson )andMetromedia, Inc. v. City of San Diego(1981)453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800(Metromedia II ).

In Central Hudson, the high court reiterated its previously recognized " ‘ "commonsense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.’ "(Central Hudson, supra,447 U.S. at p. 562, 100 S.Ct. 2343;id. at pp. 562–563, 100 S.Ct. 2343["The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression."].)The court summarized a "four-step analysis for commercial speech" as follows: "At the outset, we must determine whether the expression is protected by the First Amendment.For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.Next, we ask whether the asserted governmental interest is substantial.If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."(Id. at p. 566, 100 S.Ct. 2343;see alsoBoard of Trustees v. Fox(1989)492 U.S. 469, 471, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388(Fox )[restrictions on commercial speech may "go beyond the least restrictive means to achieve the desired end"; high court's decisions require "a fit [between the legislature's ends and the means chosen to accomplish those ends] that is not necessarily perfect, but reasonable"].)

In Metromedia II, the high court considered the constitutionality of a San Diego ordinance that banned offsite signs, with 12 exemptions (including "government signs" and "signs located at public bus stops"), but allowed onsite commercial signs.(Metromedia II, supra,453 U.S. at p. 494, 101 S.Ct. 2882.)(The ordinance had been upheld by our Supreme Court in Metromedia, Inc. v. City of San Diego(1980)26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407(Metromedia I ) against First Amendmentandarticle I challenges.)In a four-justice plurality opinion, the court considered separately the effect of the ordinance on commercial and noncommercial speech, observing that its cases"consistently distinguished between the constitutional protection afforded commercial as opposed to noncommercial speech...."(Metromedia II,at pp. 504–505, 101 S.Ct. 2882.)The court concluded that, "insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of Central Hudson, supra[, 447 U.S. 557, 100 S.Ct. 2343 ]."(Id. at p. 512, 101 S.Ct. 2882;seeid. at p. 511, 101 S.Ct. 2882[agreeing with "all of the cases sustaining the distinction between offsite and onsite commercial advertising"];id. at p. 512, 101 S.Ct. 2882["offsite commercial billboards may be prohibited while onsite commercial billboards are permitted"].)Justice Stevens, dissenting in part, expressly agreed with this portion of the plurality opinion: "I agree with the conclusion that the constitutionality of this prohibition is not undercut by the distinction San Diego has drawn between onsite and offsite commercial signs, ... and I therefore join Parts I through IV of Justice White's...