PENN ADV. v. Mayor & City Council of Baltimore

• Citation: 862 F. Supp. 1402
• Decision Date: 11 August 1994
• Docket Number: Civ. No. HM-94-877.
• Parties: PENN ADVERTISING OF BALTIMORE, INC. v. The MAYOR AND CITY COUNCIL OF the CITY OF BALTIMORE, et al.
• Court: U.S. District Court — District of Maryland

862 F. Supp. 1402

PENN ADVERTISING OF BALTIMORE, INC. v. The MAYOR AND CITY COUNCIL OF the CITY OF BALTIMORE, et al.

Civ. No. HM-94-877.

United States District Court, D. Maryland.

August 11, 1994.

COPYRIGHT MATERIAL OMITTED

Jeffrey Harris, Eric M. Rubin, Walter E. Diercks, Rubin, Winston, Diercks, Harris & Cooke, Washington, DC, for plaintiff.

Burton H. Levin, Asst. City Sol., and Christopher J. Fritz, Stephen A. Goldberg, Thomas C. Dame, Julie E. Squire, Gallagher, Evelius and Jones, Baltimore, MD, for defendants.

MEMORANDUM

HERBERT F. MURRAY, Senior District Judge.

I. INTRODUCTION

Baltimore City Ordinance 307 (Council Bill No. 627) (hereinafter "Ordinance 307") was signed into law by Mayor Kurt L. Schmoke on March 7, 1994. This Ordinance prohibits cigarette advertising on billboards located in certain designated zones within Baltimore City. Plaintiff Penn Advertising of Baltimore, Inc. (hereinafter "Penn") is the owner of billboards located within these zones of prohibition. By its terms Ordinance 307 was to take effect on the 30th day after the date of its enactment. On the thirtieth day after enactment of Ordinance 307, Penn brought this action against defendants The Mayor and City Council of Baltimore, Kurt L. Schmoke, in his official capacity as Mayor of Baltimore City, and David Tanner, in his official capacity as General Superintendent of Zoning Administration and Enforcement of Baltimore City (hereinafter collectively referred to as "the City"). Penn seeks injunctive and declaratory relief.

In its complaint, Penn states three separate grounds upon which it seeks judgment. Penn first claims that Ordinance 307 is in violation of the First Amendment's protection of free speech. Second, Penn claims that Ordinance 307 is pre-empted by Section 5(b) of the Federal Cigarette Labeling and Advertising Act. Lastly, Penn claims that Ordinance 307 is pre-empted by Maryland State law.

On April 26, 1994, in lieu of filing an answer to Penn's complaint, the City filed a Motion to Dismiss, or in the Alternative, for Summary Judgment.¹ Penn responded by filing a Memorandum in Opposition. After reviewing the parties' memoranda and exhibits, this Court has determined that no hearing is necessary and is prepared to rule on the merits of the City's motion.

II. MOTION FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure permits a grant of summary judgment only if no genuine issues of material fact exist and the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The burden is on the moving party to demonstrate the absence of such issues of material fact. For the purposes of deciding the present motion, this Court must construe all facts and reasonable inferences in favor of the plaintiff. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

In opposition to summary judgment, however, a party must proffer more than "a mere scintilla of evidence" to raise a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Although not weighing the evidence or determining the truth for the purposes of these motions, the Court must consider "whether reasonable jurors could find by a preponderance of the evidence that the non-moving party is entitled to a verdict." Id. at 249, 252, 106 S.Ct. at 2510, 2512.

Despite Penn's assertions to the contrary, this Court concludes, after careful review of the pleadings and exhibits, that there is no genuine dispute of material fact in this case, and that the questions presented by plaintiff's Complaint are legal questions ripe for decision by this Court.

While Penn asserts that the parties vigorously dispute factual matters, this is not so. The parties vigorously dispute questions of law and it is proper for this Court to decide these questions. There are no factual issues to be decided because this case concerns a facial attack on the legal sufficiency of an ordinance. An example of Penn's mischaracterization of legal issues as factual ones is Penn's statement that "it should at least be clear ... that the question of whether Ordinance 307 is a prohibition or requirement based on smoking and health is something about which Plaintiff and Defendants sharply disagree." Plaintiff's Opp. to Def. Motion for Summ. Judg., at 9. While the parties do disagree on this issue, that disagreement is not relevant to the determination of whether summary judgment is appropriate because it concerns a legal question which is properly decided by this Court. Similarly, Penn's memorandum contains lengthy legal arguments in support of each of Penn's claims. At the end of each of these legal arguments, Penn asserts that a dispute of fact is involved. But Penn does not direct this Court to any such factual disputes; rather, Penn simply argues the law. This Court finds that there are no genuine disputes of material fact present in this case. Therefore, the Court will rule on the legal issues presented in the parties' memoranda.

A. Ordinance 307 is Constitutional

While it is true that "the First Amendment, as applied to the states through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation," Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557, 561, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341 (1980) (citing Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 761-762, 96 S.Ct. 1817, 1825-1826, 48 L.Ed.2d 346 (1976)), it is also well-settled that "commercial speech enjoys a limited measure of protection commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression." Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978).

The appropriate test for assessing the constitutionality of restrictions on commercial speech was established by the Supreme Court in Central Hudson:

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.

Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351 (1980).

In the instant case, the parties agree that the advertising in question is neither unlawful nor misleading, thereby satisfying the first prong of the Central Hudson test. The parties vigorously dispute whether the ordinance complies with the second, third and fourth prongs of the test.

1. The Second Prong: Substantial government interest

In order to satisfy the second prong of the Central Hudson test, the City must demonstrate a substantial government interest which the City seeks to achieve by its promulgation of Ordinance 307. The asserted interest of the City, as stated in both its memorandum and in the Preamble to Ordinance 307, is to promote compliance with the state law prohibition against the sale of cigarettes to minors, Md.Ann.Code art. 27, § 404 (1992), thereby also furthering the obvious public policy underlying this prohibition which is to prevent the purchase, and thus the consumption, of cigarettes by minors. This is certainly a sufficiently substantial interest for the purposes of the Central Hudson test.

Article 27, § 404 of the Maryland Code declares that "it is unlawful for any person engaged in the manufacture or sale of cigarettes to sell, barter or give cigarettes to any individual under the age of 18 years." Md. Ann.Code art. 27, § 404 (1992). While, as Penn asserts, a minor does not commit an act expressly prohibited by § 404 by purchasing cigarettes, the person selling the cigarettes to a minor is committing an act expressly prohibited by this ordinance. Thus, if the number of minors seeking to purchase cigarettes decreases, the number of transactions in violation of § 404 will also decrease. Ordinance 307 represents a legislative judgment by the Baltimore City Council that a reduction in the exposure of minors to stimuli encouraging the purchase of cigarettes will result in fewer minors seeking to purchase cigarettes and therefore fewer illegal transactions. Furthermore, the public policy behind § 404 of preventing the purchase, and thus the consumption, of cigarettes by minors would be advanced as well.

The City has a substantial interest both in promoting compliance with § 404 and in advancing the public policy which underlies § 404. Therefore, the second prong of the Central Hudson test is satisfied.

2. The Third Prong: Does Ordinance 307 directly advance this substantial interest?

In Edenfield v. Fane, ___ U.S. ___, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (holding that a Florida ordinance prohibiting Certified Public Accountants from in-person solicitation was an unconstitutional restraint on free speech), the Supreme Court elaborated upon the third prong of the constitutionality test for restrictions on commercial speech first set forth in Central Hudson. The Court stated that to withstand a First Amendment challenge, the state must demonstrate that "its restriction serves a substantial state interest and is designed in a reasonable way to accomplish that end." Id. at ___, 113 S.Ct. at 1799. The Court also cautioned that the state's burden

is not satisfied by mere speculation or conjecture; rather a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree.

Id. at ___, 113 S.Ct. at 1800.

The City...