Sign Supplies of Texas v. McConn

• Decision Date: 13 July 1981
• Docket Number: Civ. A. No. H-80-1713.
• Citation: 517 F. Supp. 778
• Parties: SIGN SUPPLIES OF TEXAS, INC., et al., Plaintiffs, v. Jim McCONN, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

517 F. Supp. 778

SIGN SUPPLIES OF TEXAS, INC., et al., Plaintiffs, v. Jim McCONN, et al., Defendants.

Civ. A. No. H-80-1713.

United States District Court, S. D. Texas, Houston Division.

October 31, 1980.

Order dated July 13, 1981.

COPYRIGHT MATERIAL OMITTED

Marian S. Rosen, Clyde W. Woody, Houston, Tex., for plaintiffs.

Robert J. Collins, Asst. City Atty., Houston, Tex., for defendants.

Affirmed by the Fifth Circuit Court of Appeals (Order dated July 13, 1981).

MEMORANDUM OPINION AND ORDER

CIRE, District Judge.

This is an action for permanent injunctive relief against the enforcement of Houston City Ordinances 80-351, 80-945, and 80-984, hereinafter collectively referred to as the ordinance or the sign ordinance. Plaintiffs challenge the constitutionality of the ordinance on First, Fifth, and Fourteenth Amendment grounds and also on the basis of Article I, Section 10 of the United States Constitution. The City of Houston defends its ordinance as being a valid exercise of its police power and reasonably related to the furtherance of significant governmental interests.

The Plaintiffs are various individuals and corporations engaged in the business of renting, leasing, and manufacturing portable signs. The ordinance in question represents an amendment to Chapters 46 and 59 of the City of Houston Building Code and it regulates the size, height, location, and construction of signs and billboards within the city limits of the City of Houston. As it refers to portable signs and the issues in this case, the ordinance requires a sign owner to secure a permit from the Sign Administrator of the City of Houston either within 180 days or prior to any alteration or change in use of a sign after the date of passage of the ordinance. It distinguishes between "off-premise" and "on-premise" signs and generally prohibits the placement of any new off-premise signs. Off-premise signs are defined as signs "advertising a business, person, activity, goods, products or services not usually located on the premises where the sign is installed and maintained, or which directs persons to any location not on the premises." Thus, the ordinance effectively prohibits the future use of a portable sign on an off-premise location immediately upon its removal from its present location.

"On-premise" signs are defined as signs "identifying or advertising the business, person, activity, goods, products or services primarily sold or offered for sale on the premises where the sign is installed and maintained when such premise is used for business purposes." Portable signs may continue to be used as "on-premise" signs only upon receipt of a permit. Before a permit is issued, the applicant must submit a permit fee in the approximate amount of $60.00 and demonstrate compliance with the ordinance's electrical, structural, construction, height, size, fire, and placement requirements. A person desiring to engage in the business of leasing or erecting signs in the City of Houston must first obtain a license to do so. The licensing provisions of the ordinance require the payment of an annual license fee of $300.00, submission of evidence of liability insurance, and the furnishing of a $25,000.00 "removal bond."

It is the plaintiffs' contention that the ordinance is unconstitutional on its face and particularly in its application to the portable sign business. Specifically, they maintain that the ordinance amounts to a taking of property without just compensation and without due process of law, that it is fatally vague, that it infringes upon their right to engage in a legitimate business, that it constitutes a prior restraint on freedom of speech, impairs contract rights, and denies equal protection of law. Plaintiffs have also asserted that enactment of the ordinance exceeds the power of Houston's City Council and endangers a prior agreement between Texas and the United States.

The City points to the reasons for passage of the sign ordinance as stated in its introductory provisions: "(T)he unregulated construction of signs, billboards, and other out-door advertising structures can present structural hazards which threaten the health and safety of the citizens of the City of Houston; and, ... can present impediments and dangers to traffic along City thoroughfares and easements." (...) "(T)he control of siting and placement of signs, billboards, and other advertising structures will promote and enhance the efficient and safe use of public thorough-fares." (...) "(T)he continued construction of off-premise signs leads to the diminution of property values for adjacent properties and thereby adversely impacts on the taxable value of such affected properties." (...) "(T)he continued construction of off-premise signs causes increased risk of distraction and danger to citizens driving and walking on streets and thoroughfares." (...) "(P)ortable or mobile signs present special traffic hazards when towed on public streets or displayed on public rights-of-way and present dangers to the health and safety of the citizens of the City of Houston because of their propensity to be blown about if not properly anchored."

As a home rule city, the City of Houston is empowered to enact any ordinance which is not inconsistent with the Constitution or laws of Texas. McDonald v. City of Houston, 577 S.W.2d 800 (Tex.Civ. App. — Houston 14th Dist. 1979, writ ref'd n. r. e.). The ordinance in question was enacted pursuant to the specific statutory authority of Article 1175(24), Tex.Rev.Civ. Stat.Ann., which empowers the City of Houston to "license, regulate, control or prohibit the erection of signs or billboards." Its passage was therefore, within the power of the Houston City Council.

It is settled that the regulation of outdoor advertising is a reasonable and proper exercise of the police power. Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977), appeal dismissed, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978); Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dismissed, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512, rehearing denied, 393 U.S. 1112, 89 S.Ct. 854, 21 L.Ed.2d 813 (1969); Lubbock Poster Company v. City of Lubbock, 569 S.W.2d 935 (Tex.Civ.App. — Amarillo 1978, writ ref'd n. r. e.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). Further, the promotion of highway safety and improvement of highway beautification are constitutionally permissible objectives under this police power. E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970), cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35 (1970). Because the ordinance in question is an exercise of the legislative power of the City of Houston, it is entitled to a presumption of validity unless its terms represent a clear abuse of municipal discretion, bearing no substantial relationship to the public health, safety, morals, or general welfare. Lubbock Poster Co. v. City of Lubbock, supra; Metromedia, Inc. v. Des Plaines, 26 Ill.App.3d 942, 326 N.E.2d 59 (1975); John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206, 339 N.E.2d 709 (Mass.1975); City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955). This Court initially finds that the ordinance as a whole sets forth a reasonable comprehensive plan for regulating all aspects of outdoor advertising in the City of Houston and that its provisions bear a substantial relationship to the public health, safety, and general welfare. The plaintiffs' constitutional arguments and discussion of the ordinance as it specifically relates thereto now follow with the Court's further conclusions of law.

DUE PROCESS

1. Taking of property without just compensation

Plaintiffs complain of the prohibition against new off-premise signs and the permit and fee requirements of the ordinance as they apply to the portable sign business. They assert that the effect of these provisions is to totally prohibit portable signs and that the City of Houston has, therefore, taken their property without just compensation. While the ordinance substantially curtails the future use of portable signs in the City of Houston, the Court finds that it does not completely prohibit their use nor does it effect a "taking" as the plaintiffs have contended.

A reduction in the value of property is not necessarily equated with a taking and the fact that the challenged regulation prevents the most profitable use of property is not dispositive. Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979). The fact that enforcement of an ordinance causes pecuniary loss to those affected by it does not require that it be held invalid. City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W.2d 774 (Tex.Civ.App. — Houston 14th Dist. 1972, writ ref'd n. r. e.). The sign ordinance in question does not effect a taking of the plaintiffs' signs but merely regulates a use of the signs which has been determined to be injurious and unlawful under the City's police power. Inhabitants of Boothbay v. National Advertising Co., 347 A.2d 419, 81 A.L.R.3d 474 (Me.1975). Since the essence of police power is the control of private interest for public welfare, an ordinance is not rendered unconstitutional merely because private rights are subject to restraint or that loss will result to individuals from its enforcement. Halsell v. Ferguson, 109 Tex. 144, 202 S.W. 317, 321 (1918); Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966).

Even if this Court were to find a taking in the instant case, the evidence presented by the City of Houston established that the ordinance provisions, as they relate to portable signs, bear a real and substantial relation to the public health, safety and general welfare. The Plaintiffs have not shown that these terms are clearly arbitrary and unreasonable and by reason of such proof, the ordinance must be upheld under this argument....