State v. Jacobson, 1

• Citation: 121 Ariz. 65,588 P.2d 358
• Decision Date: 26 September 1978
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. Harlan L. JACOBSON, Appellant. 3002.
• Court: Arizona Court of Appeals

Page 358

588 P.2d 358

121 Ariz. 65

STATE of Arizona, Appellee, v. Harlan L. JACOBSON, Appellant.

No. 1 CA-CR 3002.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 26, 1978.

Rehearing Denied Nov. 15, 1978.

Review Denied Dec. 12, 1978.

Andrew Baumert, City Atty. by Harry Rubinoff, Asst. City Prosecutor, Phoenix, for appellee

Theodore C. Jarvi, Scottsdale, for appellant.

OPINION

HAIRE, Presiding Judge.

The appellant was charged in Phoenix City Court with violations of §§ 29-10, 29-11, and 29-60 of the Phoenix Sign Ordinance No. G-1508 (Nov. 18, 1975), Codified at ch. 29 of the Phoenix City Code. The charges related to the display of commercial sign boards mounted on appellant's vehicle, a Toyota pickup truck. Evidence produced in city court indicated that on various dates appellant had left his vehicle parked on private property adjacent to city streets without having obtained permits for the display of his commercial signs at those locations.

After finding appellant guilty of all charges, the city magistrate suspended the imposition of sentence and placed appellant on summary probation for a period of 180 days. Appellant appealed his conviction to the superior court pursuant to A.R.S. § 22-371. His conviction was affirmed. ¹ Appellant has now appealed to this Court pursuant to A.R.S. § 22-375, and raises four questions for our consideration: (1) Does Ordinance G-1508 exceed the power of the City of Phoenix insofar as it attempts to regulate signs attached to operational motor vehicles? (2) Are the provisions of Ordinance G-1508 which regulate signs on operational motor vehicles preempted by the State motor vehicle laws? (3) Are the provisions of Ordinance G-1508 regulating signs on motor vehicles unconstitutionally vague? and (4) Did the trial court err in determining that appellant failed to meet the conditions for an exemption from the ordinance's permit requirements?

Appellant's right to appeal his conviction is found in A.R.S. § 22-375, which restricts our review to questions involving the validity of the challenged ordinance. State v. Jean, 98 Ariz. 375, 405 P.2d 808 (1965). Beyond the scope of our review are questions relating to the sufficiency of the evidence to sustain appellant's conviction. See State v. Owens, 114 Ariz. 565, 562 P.2d 738 (Ct.App.1977). Consequently, we will not consider appellant's fourth question.

Before considering the first three questions raised by appellant, we will briefly describe the regulatory scheme of Ordinance G-1508. Section 29-11 provides that:

"Except as provided in Section 29-3 of this ordinance, it shall be unlawful to display, erect, relocate, or alter, except for copy changes, any sign without first obtaining a permit from the Building Official."

"Sign" is defined in § 29-10 as:

"Any identification, description, illustration, symbol or device which is affixed directly or indirectly upon a building, vehicle, structure or land and which identifies or directs attention to a product, place, activity, person, institution, or business."

Sections 29-46 to 29-57 regulate the types of signs that may exist in the city's various zoning districts. Section 29-11(e) requires that the Building Official (Director of Building Safety) review each sign application to insure conformity with the sign ordinance. Section 29-60 declares violation of the sign ordinance a misdemeanor and makes each day that the offense continues a separate violation. A number of exceptions are made to the application of this ordinance in § 29-3. An exception relevant to the issues presented on this appeal is 29-3(a)(8) which states that the ordinance shall not apply to "Signs on a truck, bus, car, boat, trailer or other motorized vehicle and equipment provided all the following conditions are adhered to:

A. Primary purpose of such vehicle or equipment is not the display of signs.

B. Signs are painted upon or applied directly to an integral part of the vehicle or equipment.

C. Vehicle/equipment is in operating conditions, currently registered and licensed to operate on public streets when applicable, and actively used in the daily function of the business to which such signs relate.

D. Vehicles and equipment are not used primarily as static displays, advertising a product or service, nor utilized as storage, shelter or distribution points for commercial products or services for the general public.

E. During periods of inactivity exceeding five work days such vehicle/equipment are not so parked or placed that the signs thereon are displayed to the public. Vehicles and equipment engaged in active construction projects and the on-premise storage of equipment and vehicles offered to the general public for rent or lease shall not be subjected to this condition."

I. DOES THE ORDINANCE EXCEED THE CITY'S POWERS?

It is a fundamental rule that municipal corporations have no inherent police power, and that their powers must be delegated to them by the constitution or laws of the state. E. g., City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968). The city of Phoenix, as authorized by Ariz.Const. art. 13, § 2, has adopted a city charter as its organic law. As a "charter" city, Phoenix may exercise all the powers authorized by its charter, provided those powers are not inconsistent with the Arizona Constitution or the general laws of this state. See A.R.S. § 9-284; Shaffer v. Allt, 25 Ariz.App. 565, 567, 545 P.2d 76, 78 (1976); Gardenhire v. State, 26 Ariz. 14, 221 P. 228 (1923). Chapter 4, § 2(17) of the Phoenix Charter provides that the city council shall have the power "to regulate, license or prohibit the construction and use of billboards and signs." Subsection 2(70) of ch. 4 provides:

"The City of Phoenix shall have all the rights and powers granted or to be granted to charter cities, and to cities and towns incorporated under the provisions of Title 9, Arizona Revised Statutes."

Within Title 9, A.R.S. § 9-462.01(A)(2) grants to the legislative body of any municipality the power to "(r)egulate signs and billboards". ²

The city's general power to regulate signs is thus established. However, appellant asks the more particular question: Is the city empowered to regulate signs on operational motor vehicles? Appellant contends that the sign ordinance, being an exercise of the city's zoning power, is limited to the traditional objects of zoning regulations land, land use and buildings. He argues that the grant of authority to regulate signs and billboards in A.R.S. § 9-462.01 is part of a general grant of zoning power and does not include the regulation of signs on motor vehicles. We are unable to agree with this limitation on the city's power. First, we note that A.R.S. § 9-462.01 makes no distinction between signs affixed to land or buildings and signs placed on movable vehicles. Second, the power of the city of Phoenix to regulate signs is also conferred by ch. 4, § 2(17) of the city charter. This latter grant of authority is not even implicitly tied to the zoning power. Third, the regulation of signs is not invariably an exercise of zoning power, See Railway Express Agency v. People of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), even where the signs are firmly planted in the ground. See City of Escondido v. Desert Outdoor Advertising, Inc., 8 Cal.3d 785, 505 P.2d 1012, 106 Cal.Rptr. 172 Cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973). The subject ordinance, although similar in many ways to a zoning ordinance, is in many respects unlike traditional zoning regulations. Finally, we need not consider whether the city of Phoenix has the power to regulate the signs that may be displayed on vehicles using the public streets. Appellant was cited for sign violations after he had parked his sign-laden vehicle in full public view

on private land for substantial periods of time. II. IS THE CITY'S ORDINANCE PREEMPTED BY STATE LAW REGULATING MOTOR VEHICLES?

The precise issue presented is whether state statutes concerning motor vehicles have preempted the subject of the regulation of signs on motor vehicles which have been parked on private property. Appellant argues that Title 28 of the Arizona Revised Statutes, and particularly §§ 28-921 to 28-964 (which specify various types of equipment which are required or prohibited on motor vehicles), is such a complete and comprehensive scheme of motor vehicle regulation that municipalities may not enact ordinances regulating signs that may be placed on motor vehicles. Appellant directs our attention to A.R.S. § 28-626, which provides that "no local authority shall enact or enforce any ordinance, rule or regulation in conflict with the provisions of this chapter unless expressly authorized by this chapter."

This Court has stated the rule regarding preemption:

"(B)oth a city and state may legislate on the same subject when that subject is of local concern or when, though the subject is not of local concern, the charter or particular state legislation confers on the city express power to legislate thereon; but where the subject is of statewide concern, and the legislature has appropriated the field by enacting a statute pertaining thereto, that statute governs throughout the state, and local ordinances contrary thereto are invalid." Phoenix Respirator & Ambulance Service, Inc. v. McWilliams, 12 Ariz.App. 186, 188, 468 P.2d 951, 953 (1970).

See, e. g., Clayton v. State, 38 Ariz. 466, 300 P. 1010 (1931); City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 164 P.2d 598 (1945). Thus, for state legislation to preempt local legislation two conditions must concur: (1) the subject must be of statewide concern; and (2) the state legislation must have appropriated the field.

We need not decide whether the regulation of vehicle signs is a matter of statewide concern, since we conclude that the state has not appropriated the field of sign regulation presented by the facts of this case. ³

There is no direct...