Outdoor Media Dimensions, Inc. v. Dept. of Transp., ODOT 88691.

CourtSupreme Court of Oregon
Citation340 Or. 275,132 P.3d 5
Docket NumberDMV 66981.,ODOT 85185.,CA A116814.,DMV 74889.,CA A113875 (control).,DMV 74573.,CA A100658 (control).,SC S50007.,DMV 61907.,ODOT 90588.,DMV 70642.,CA A102328.,SC S49978.,ODOT 79817.,ODOT 90589.,DMV 58118.,SC S50044.,SC S50003.,DMV 68677.,SC S50458.,A114027.,ODOT 88691.,ODOT 89838.,DMV 63047.,A100659.,ODOT 91564.,CA A106450.,ODOT 90587.
PartiesOUTDOOR MEDIA DIMENSIONS, INC., Petitioner on Review, v. DEPARTMENT OF TRANSPORTATION, Respondent on Review. Outdoor Media Dimensions, Inc., Petitioner on Review, v. Department of Transportation, Respondent on Review. Outdoor Media Dimensions, Inc., Petitioner on Review, v. Driver and Motor Vehicle Services Branch (DMV), Respondent on Review. Outdoor Media Dimensions, Inc., Petitioner on Review, v. Driver and Motor Vehicle Services Branch (DMV), Respondent on Review. Outdoor Media Dimensions, Inc., Petitioner on Review, v. Driver and Motor Vehicle Services Branch (DMV), Respondent on Review.
Decision Date23 March 2006

Alan R. Herson, Jacksonville, argued the cause and filed the briefs for petitioner on review.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. With her on the briefs were Kelly Knivila, Assistant Attorney General, Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Russell L. Baldwin, Lincoln City, argued the cause and filed the brief for amicus curiae Ray Drayton.

Michael T. Garone, of Schwabe, Williamson & Wyatt, P.C., Portland, filed the brief for amicus curiae Oregon Outdoor Advertising Association. With him on the brief were Donald Joe Willis and Jill S. Gelineau.

Margarita Molina, of Davis Wright Tremaine, Portland, filed the brief for amicus curiae ACLU Foundation of Oregon. With her on the brief was Patricia McGuire.

Before CARSON, Chief Justice,** and GILLETTE, DURHAM, RIGGS, De MUNIZ,*** and BALMER, Justices.****

BALMER, J.

Article I, section 8, of the Oregon Constitution provides, in part, that "[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever[.]" In these five consolidated cases, we consider the relationship between that provision and the state's regulation of signs along highways under the Oregon Motorist Information Act, ORS 377.700 to 377.840 and ORS 377.992 (1999) (OMIA).1 For the reasons that we discuss below, we conclude that (1) many of the OMIA's restrictions on highway signs, including the imposition of certain permit and fee requirements, are reasonable time, place, and manner restrictions that are unrelated to the substance of any particular message and therefore do not violate Article I, section 8; but (2) the OMIA unconstitutionally restricts the "subject" of expression in violation of Article I, section 8, by requiring a permit for a sign whose message does not relate to the premises on which the sign is located while providing an exemption for a sign whose message does relate to the premises on which the sign is located.

I. BACKGROUND

Petitioner, Outdoor Media Dimensions, Inc., is an outdoor advertising company that owns signs visible from state highways. In each of these cases, the state cited petitioner for displaying one or more of its outdoor advertising signs without a permit in violation of the OMIA and ordered the removal of the signs.2 The state issued one of those citations under the 1999 version of the OMIA and the other citations under earlier versions.3 Petitioner challenged each citation on several state and federal constitutional grounds, and, in each case, the agency upheld the citation and ordered petitioner to remove the signs. On judicial review, the Court of Appeals affirmed each agency decision. Outdoor Media Dimensions v. Dept. of Transportation, 187 Or.App. 503, 68 P.3d 274 (2003); Outdoor Media Dimensions v. ODOT, 185 Or.App. 161, 57 P.3d 970 (2002); Outdoor Media Dimensions v. DMV (A106450), 184 Or.App. 502, 56 P.3d 935 (2002); Outdoor Media Dimensions v. DMV (A102328), 184 Or.App. 501, 56 P.3d 522 (2002); Outdoor Media Dimensions v. DMV (A100658, A100659), 184 Or.App. 495, 56 P.3d 935 (2002). Petitioner petitioned for review of each decision in this court, and we allowed those petitions.

We begin with an overview of the OMIA. As this court explained in an earlier case brought by petitioner, Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 20 P.3d 180 (2001) (Outdoor Media I), the legislature enacted the OMIA in 1971 to comply with the federal Highway Beautification Act of 1965 (HBA), 23 USC § 131. The HBA established federal standards for erecting and maintaining advertising signs along interstate and federally aided primary highways. The HBA requires each state to provide "effective control" of outdoor advertising signs. 23 USC § 131(b), (c). If a state fails to do so, then it may lose 10 percent of its federal highway funds. 23 USC § 131(b). "Effective control" essentially requires states to prohibit all outdoor advertising signs that are visible from an interstate or primary highway, unless a particular sign meets one of five statutory exceptions or is located in an industrial or commercial zone. Outdoor Media I, 331 Or. at 637, 20 P.3d 180. Those exceptions include "on-premises" signs that advertise "activities conducted on the property on which they are located," "directional and official signs and notices," and "signs * * * advertising the sale or lease of property upon which they are located." 23 USC § 131(c).

The OMIA comprehensively regulates signs visible from public highways for the purposes of "promot[ing] the public safety," "preserv[ing] the recreational value of public travel on the state's highways," and "preserv[ing] the natural beauty and aesthetic features of such highways." ORS 377.705. It does so by prohibiting some kinds of signs, setting size and other limitations on signs that are not prohibited, and establishing a permit requirement for certain signs. The OMIA, for example, prohibits signs that prevent a driver from having a clear and unobstructed view of approaching or merging traffic, ORS 377.720(2); that include flashing or moving lights, ORS 377.720(3); that are not maintained "in a neat, clean and attractive condition and in good repair," ORS 377.720(8); or that are on a vehicle or trailer, unless the vehicle or trailer is used for transportation by the owner or person in control of the property on which it is located, ORS 377.720(10). The OMIA requires certain minimum spacing between "outdoor advertising signs," ORS 377.750, and provides that those signs may not exceed a length of 48 feet and a height, excluding foundation and supports, of 14 feet. ORS 377.745(1).

Of particular relevance to these cases, the OMIA establishes a permit requirement for outdoor advertising signs,4 regulates the permissible location of those signs, ORS 377.765(1), and effectively caps the number of permits at the number of outdoor advertising signs located in commercial or industrial zones as of June 12, 1975. See Outdoor Media I, 331 Or. at 638, 20 P.3d 180 (citing ORS 377.712). In contrast, "on-premises" signs specifically are exempted from the permit requirement, ORS 377.735(1)(c),5 although they are subject to certain other parts of the OMIA described above, such as the prohibition on flashing lights and the requirement that they be maintained in a neat and clean condition. The permits required for outdoor advertising signs may be transferred as of right by notifying the state, ORS 377.725(2), and the message on any such sign may be changed without a new permit and without state approval. ORS 377.725(8). The permit fee is set at a level to recover the cost to the state of administering the regulatory program. ORS 377.729 (2001).

The OMIA's definitions of "on-premises sign" and "outdoor advertising sign" are central to the Article I, section 8, issues in this case. The legislature defined those terms in ORS 377.710:

"(22) `On-premises sign' means a sign designed, intended or used to advertise, inform or attract the attention of the public as to:

"(a) Activities conducted on the premises on which the sign is located; or

"(b) The sale or lease of the premises on which the sign is located.

"(23) `Outdoor advertising sign' means a sign designed, intended or used to advertise, inform or attract the attention of the public as to:

"(a) Goods, products or services which are not sold, manufactured or distributed on or from the premises on which the sign is located;

"(b) Facilities not located on the premises on which the sign is located; or

"(c) Activities not conducted on the premises on which the sign is located."

As a result of the definitions just quoted and the substantive provisions of the OMIA that we outlined previously, a person who wants to erect an on-premises sign need not obtain a permit from the state, while a person who wants to erect an outdoor advertising sign must obtain one of the limited number of available permits.6

II. PROCEEDINGS BELOW AND PETITIONER'S ARGUMENTS

With that summary of the OMIA's key provisions in mind, we return to petitioner's cases. Before the Court of Appeals, petitioner did not challenge any finding of fact in the agency orders, but it raised a number of constitutional arguments. Petitioner argued, among other things, that the administrative procedure that led to the final agency orders violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; that the OMIA permit and fee requirements are prior restraints in violation of Article I, section 8, and the First Amendment to the United States Constitution; that the OMIA violates the First Amendment by giving greater protection to commercial than to noncommercial speech; that the OMIA regulates speech, both generally and on the basis...

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