National Advertising Co. v. Town of Babylon

• Decision Date: 04 January 1989
• Docket Number: No. CV 88-0105.,CV 88-0105.
• Citation: 703 F. Supp. 228
• Parties: NATIONAL ADVERTISING COMPANY, Plaintiff, v. TOWN OF BABYLON, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

703 F. Supp. 228

NATIONAL ADVERTISING COMPANY, Plaintiff, v. TOWN OF BABYLON, et al., Defendants.

No. CV 88-0105.

United States District Court, E.D. New York.

January 4, 1989.

COPYRIGHT MATERIAL OMITTED

Hunton & Williams, by Franklin H. Stone, New York City, for plaintiff.

Thomas F. Whalen, Babylon Town Atty., Lindenhurst, N.Y., for defendant Town of Babylon.

Guy W. Germano, Islip Town Atty. by Lawrence Dononue, Islip, N.Y., for defendant Town of Islip.

Robert Schmidt, Oyster Bay Town Atty., Oyster Bay, N.Y., for defendant Town of Oyster Bay.

W. Kenneth Chave, Hempstead Town Atty. by Daniel F. McCarthy, Hempstead, N.Y., for defendant Town of Hempstead.

William F. Glacken, Freeport, N.Y., for defendant Inc. Village of Freeport.

Edward Young, West Babylon, N.Y., for defendant Inc. Village of Lindenhurst.

WEXLER, District Judge.

BACKGROUND

Plaintiff National Advertising Company ("National"), a subsidiary of Minnesota Mining and Manufacturing Company ("3M"), a Delaware corporation, brings this action pursuant to 42 U.S.C. § 1983 against the Town of Babylon ("Babylon"), the Village of Freeport ("Freeport"), the Town of Hempstead ("Hempstead"), the Town of Islip ("Islip"), the Village of Lindenhurst ("Lindenhurst"), and the Town of Oyster Bay ("Oyster Bay")¹ claiming that various sign ordinances of the defendant towns and villages violate plaintiff's right to free speech under the First and Fourteenth Amendments to the United States Constitution. Plaintiff originally moved for the entry of a preliminary injunction barring defendants from enforcing their ordinances during the pendency of this case. After conducting a hearing on plaintiff's motion, this Court gave the parties notice that, pursuant to Fed.R.Civ.P. 56, the Court would treat plaintiff's preliminary injunction motion as a motion for summary judgment seeking permanently to enjoin defendants from enforcing the challenged ordinances.

National is a company engaged in the business of outdoor advertising. In order to conduct its business, National leases real estate upon which it erects and maintains outdoor sign structures commonly known as billboards. National in turn leases space on these billboards to persons or entities wishing to communicate messages to the viewing public. National is the second largest outdoor advertising company in the country with roughly a twenty percent market share of a billion dollar industry. Statistics indicate that approximately ninety-eight percent of the billboards National leases contain advertising displays of a commercial nature, while the remaining two percent convey non-commercial messages.

Within each of the defendant towns and villages, National has obtained leasehold interests in areas zoned for commercial or industrial use. National wishes to erect on these properties billboards which will carry both commercial and non-commercial messages that are unrelated to the products sold or activities conducted at these locations. National asserts that the defendants' ordinances prohibit it from erecting such signs. Furthermore, National contends that, since the ordinances favor commercial speech over non-commercial speech, they are facially unconstitutional in light of the Supreme Court's ruling in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) and, thus, may not be enforced so as to restrict plaintiff from erecting and maintaining its signs.

JURISDICTIONAL CONCERNS

Several of the defendant towns and villages raise one or more challenges to plaintiff's ability to pursue this action. This Court finds all of defendants' contentions in this regard to be completely without merit.

First, certain defendants argue that plaintiff lacks standing to challenge the ordinances at issue because it is not plaintiff's own speech that is allegedly being abridged and because only two percent of plaintiff's business is derived from the expression of non-commercial messages. The Supreme Court's plurality opinion in Metromedia addressed the issue of standing and rejected the same position defendants now urge this Court to adopt. Metromedia, 453 U.S. at 504, 101 S.Ct. at 2890.

In Metromedia v. City of San Diego, 26 Cal.3d 848, 869 n. 14, 164 Cal.Rptr. 510, 522 n. 14, 610 P.2d 407, 419 n. 14 (1980), rev'd, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), the California Supreme Court found the plaintiff, an outdoor advertising business, to be without standing to challenge San Diego's sign ordinance. In reversing this decision, the United States Supreme Court noted that, although the vast majority of plaintiff's signs were leased for the purpose of displaying commercial messages, plaintiff had standing to bring the suit pursuant to the overbreadth doctrine because its signs were also used to carry a host of non-commercial messages. The plurality opinion in Metromedia stated:

We have held that the overbreadth doctrine, under which a party whose own activities are unprotected may challenge a statute by showing that it substantially abridges the First Amendment rights of parties not before the court, will not be applied in cases involving "commercial speech." Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977). However, we have never held that one with a `commercial interest' in speech also cannot challenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment interests of others.

453 U.S. at 504 n. 11, 101 S.Ct. at 2891 n. 11. Therefore, National's standing is not impaired by the fact that it has a commercial motive for asserting the constitutional rights of others to engage in non-commercial communication or that displays of non-commercial messages comprise only two percent of its business.

In addition to satisfying the standing requirement under the overbreadth doctrine, plaintiff derives the ability to sue from the principle of third party standing. Clearly, National meets the threshold test of alleging an "injury in fact" sufficient to give rise to a case or controversy. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The remaining question, then, is whether National may assert the right of a third party adversely affected by the ordinances. The Court answers this question affirmatively. In Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), a plurality of the Supreme Court recognized the right of male doctors to seek injunctive and declaratory relief from a Missouri statute denying Medicaid benefits to patients who obtained abortions that were not medically required. In reaching its decision, the plurality examined the relationship between the litigant and those whose rights the litigant sought to assert on the theory that "if the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of the right is not unnecessary in the sense that the right's enjoyment will be unaffected by the outcome of the suit." 428 U.S. at 114-15, 96 S.Ct. at 2874. The Court further concluded that in many situations the relationship may be such that the litigant is just as effective an advocate of the right being asserted as is the party in whom the right is vested. 428 U.S. at 115, 96 S.Ct. at 2874. The Supreme Court reached a similar result in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), reh'g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed. 2d 574 (1977), upholding the standing of a plaintiff in the retail beer industry to assert the rights of male patrons to equal protection against a law prohibiting the sale of beer to males under age 21 and females under age 18.

In the instant case, the right of a person or entity wishing to display a non-commercial message on an outdoor sign structure is inextricably tied to the activity of the lessor of such space. Just as was true of the doctor in Singleton and the beer vendor in Craig, National, or a like company, offers a service that is essential to that third party's exercise of its constitutional right. Also, National would, in all likelihood, be as vigorous a proponent of the right being asserted as the right holder would be. Furthermore, defendants have failed to bring to this Court's attention any instance where a court faced with a First Amendment challenge to a sign ordinance by a plaintiff in the outdoor advertising business has dismissed the action for lack of standing. Therefore, this Court holds that National has standing to maintain its action.

This Court similarly rejects the position of those defendants that contend that plaintiff is not entitled to the relief sought due to its failure to exhaust its administrative remedies. These defendants argue that as a prerequisite to bringing this action National must have first sought and been denied a permit for the signs it desires to erect. This argument, however, ignores the fact that plaintiff's challenge to the various ordinances is that they are facially unconstitutional, not that they have been unconstitutionally applied. A plaintiff is not required to "test" a statute which is unconstitutional on its face. "The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality because he has not yet yielded to its demands." Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (quoting Jones v. Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1242, 86 L.Ed. 1691 (1942) (Stone, C.J. dissenting), adopted per curiam on reh'g, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290 (1943)). See also Natco Theatres, Inc. v. Ratner, 463 F.Supp. 1124, 1126 (S.D.N.Y.1979). In any event, the issue of exhaustion, like that of ripeness, "is now very much a matter of common sense." Seafarers Inter. Union of North America, AFL-CIO v. U.S. Coast Guard, 736 F.2d 19,...