Lamar-Orlando Outdoor Advertising v. City of Ormond Beach

• Decision Date: 09 June 1982
• Docket Number: Nos. 80-526,LAMAR-ORLANDO,80-530,s. 80-526
• Citation: 415 So.2d 1312
• Court: Florida District Court of Appeals
• Parties: OUTDOOR ADVERTISING, Melweb Signs, Inc., Peterson Outdoor Advertising Corporation, Outdoor Advertising Art, Inc., and National Advertising Company, a subsidiary corporation of Minnesota Mining and Manufacturing Company, Appellants/Cross-Appellees, v. CITY OF ORMOND BEACH, a municipal corporation, Appellee/Cross-Appellant.

Page 1312

415 So.2d 1312

LAMAR-ORLANDO OUTDOOR ADVERTISING, Melweb Signs, Inc., Peterson Outdoor Advertising Corporation, Outdoor Advertising Art, Inc., and National Advertising Company, a subsidiary corporation of Minnesota Mining and Manufacturing Company, Appellants/Cross-Appellees, v. CITY OF ORMOND BEACH, a municipal corporation, Appellee/Cross-Appellant.

Nos. 80-526, 80-530.

District Court of Appeal of Florida Fifth District.

June 9, 1982.

Rehearing Denied July 6, 1982.

Michael D. Martin, Lakeland, for appellant/cross-appellee Lamar-Orlando Advertising.

Gerald S. Livingston, Orlando, for appellants/cross-appellees Melweb Signs, Inc., Peterson Outdoor Advertising Corp., Outdoor Advertising Art and Nat. Advertising Co.

Fred S. Disselkoen, Ormond Beach, for appellee/cross-appellant.

SHARP, Judge.

Appellants are owners of outdoor advertising signs, or billboards, located on U.S. Highway # 1 (a federal aid primary highway) in the City of Ormond Beach, Florida. Their signs were lawfully erected and permitted by applicable State and Federal laws. In 1968, the City enacted an ordinance which made appellants' signs non-conforming and required that they be removed within ten years. ¹ When appellants failed to remove their signs by 1978, the City sought a declaratory judgment to construe the ordinance and enforce removal of the signs. While the litigation was pending in the lower court, the City amended its sign ordinance by adopting a comprehensive zoning code. The parties amended their pleadings and stipulated that the court should construe and apply the new ordinance. It continued the ten year amortization period for removing appellants' nonconforming signs, and continued to prohibit appellants' signs within the City. ² Section 200.00 of the Ordinance defines "billboard" and "off-site" signs as follows:

Sign, Billboard. Any sign that is erected and maintained by an advertising business or service for the purpose of advertised services, accommodations or activities that are not available on the premises on which the sign is located.

Sign, Off-Site. Any sign other than a billboard relating in its subject matter to the commodities, accommodations, services, or activities on premises other than the premises on which the sign is located.

"Sign, On-Site," which is not among the prohibited group, is defined as: "Any sign relating in its subject matter to the commodities, accommodations, services or activities on the premises on which it is located."

The lower court entered a final summary judgment in favor of the City, upholding the validity of Ormond's Ordinance against appellants' attacks on its constitutionality and its possible preemption by state and federal laws. ³ However, the court ruled in favor of the appellants that the enforcement remedy sought by the City had been preempted by section 479.15(3), Florida Statutes (1979). ⁴ We sustain the lower court in all respects, except for its conclusions regarding enforcement.

The parties raise four issues in this case:

I. Does an ordinance which prohibits all off-site advertising by billboards exceed the legitimate scope of a City's police-powers because it is based primarily on aesthetic considerations?

II. Does an ordinance which allows on-site advertising signs (including billboards within various limits), but which prohibits all off-site advertising signs (including billboards), constitute an unreasonable and hence unconstitutional classification?

III. Are the appellants entitled to receive compensation upon the forced removal of their signs?

IV. Do the Federal Highway Beautification Act and the Florida Outdoor Advertising Act preempt the power of the cities to enact ordinances regulating or prohibiting signs more strictly than those laws; and do they preempt the enforcement provision of the ordinance?

We will discuss each point in the balance of this opinion.

I. DOES AN ORDINANCE WHICH PROHIBITS ALL OFF-SITE ADVERTISING BY BILLBOARDS EXCEED THE LEGITIMATE SCOPE OF A CITY'S POLICE-POWERS BECAUSE IT IS BASED PRIMARILY ON AESTHETIC CONSIDERATIONS?

The appellants argue that prohibition of billboards by a city's zoning ordinance throughout the entire city exceeds the city's police-power because the prohibition must be justified on aesthetic grounds rather than public safety, health and welfare. Earlier in the 20th century aesthetics was deemed by some courts as a suspect or second-rate basis for the exercise of the police-power. ⁵ But urban living has become increasingly complex and has produced problems of crowding and blight unforeseen in those simpler times. Those changes have brought about an expanded view of the police power, ⁶ and most courts in this decade recognize aesthetics as a valid part of the general welfare for the preservation of which, the police power may legitimately be exercised. ⁷ Justice Douglas wrote in Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954), that:

The concept of the public welfare is broad and inclusive .... [T]he values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.

And in the Federal Supreme Court's most recent pronouncement on the subject, four Justices in the plurality opinion said there could be no "substantial doubt" that the "twin goals" of "traffic safety and appearance of the city are substantial governmental goals." Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 69 L.Ed.2d 800, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981).

In this case, the lower court found that the sign ordinance under attack sought to enhance Ormond's scenic qualities for aesthetic purposes, and that "as related to tourism, economic and cultural development, ... [the ordinance] has a legitimate purpose in advancement of the community as a social, economic, and political entity." ⁸

The record shows that the City of Ormond Beach is primarily a residential community which contains some commercial areas but no heavy industry, and tourism is one of its primary businesses. It has several buildings and places of historic interest and contains much natural scenic beauty. In communities like Ormond, the Florida Courts have recognized aesthetics as a valid basis for zoning and sign ordinances, such as the one involved in this case. ⁹ In Merritt v. Peters, 65 So.2d 861 (Fla.1953), the Florida Supreme Court sustained the validity of a zoning ordinance which limited the size of signs in a special business district in Miami. The court held:

We have no hesitancy in agreeing with him that the factors of health, safety, and morals are not involved in restricting the proportions of a sign board, but we disagree with him in his position that the restriction cannot be sustained on aesthetic grounds alone.

65 So.2d at 862. Most recently, our Supreme Court has held aesthetics alone is a legitimate justification for the exercise of the police power in this context. City of Lake Wales v. Lamar Advertising Association, 414 So.2d 1030 (Fla.1982).

The appellants argue that although aesthetics may be a valid basis today for limiting or regulating signs, it is not a sufficiently strong ground to prohibit them. Most courts which have considered this issue have rejected making any distinction between the power to regulate and the power to prohibit, with regard to the scope of the police power or legislative discretion given cities to pass zoning ordinances. ¹⁰

However, the Florida Supreme Court in Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960), suggested that zoning for aesthetic purposes may fail if it has the effect of putting a person "out of business" or severely "crippling" his business. In this case the record shows that the appellants do business on a multi-state basis, and that less than one percent of their respective gross incomes will be affected by Ormond's ordinance. We conclude the appellants have failed to carry their burden to show the ordinance exceeds the scope of the City's police powers. ¹¹

II. DOES AN ORDINANCE WHICH ALLOWS ON-SITE ADVERTISING SIGNS (INCLUDING BILLBOARDS WITHIN VARIOUS LIMITS) BUT WHICH PROHIBITS ALL OFF-SITE ADVERTISING SIGNS (INCLUDING BILLBOARDS), CONSTITUTE AN UNREASONABLE AND HENCE UNCONSTITUTIONAL CLASSIFICATION?

The appellants argue that it is unreasonable and discriminatory ¹² for an ordinance to permit on-site advertising signs under circumstances where the same kinds of off-site advertising signs are prohibited. Ormond's earlier Ordinance No. 68-3 prohibited all "billboard type signs", ¹³ which were generally described as signs which advertised "goods or services not sold or available on the premises on which the sign is located." ¹⁴ Although it may have been debatable under Ordinance No. 68-3 whether on-site billboards were also barred, the Amended Ordinance No. 78-35, which controls this case, makes it very clear that the term "billboards" only means off-site advertising signs, and only "billboards" and other kinds of off-site advertising signs are completely prohibited. ¹⁵

Most state courts that have considered the question of whether or not off-site advertising signs can be treated differently than on-site signs have concluded there are practical and valid distinctions between the two kinds of signs, justifying their separate classification. ¹⁶ Some courts reason that since the discrimination does not involve a "suspect" class, the proper judicial measure is whether or not there is any reasonable basis for the classification, and if there is, it should be upheld. ¹⁷ In State v. National Advertising Co., 387 A.2d 745, 750 (Me.1978), the court quoted the U.S. Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 55 L.Ed. 369, 31 S.Ct. 337 (1911):

A classification having some reasonable basis does not offend against that clause [14th...