Vono v. Lewis
| Decision Date | 27 January 2009 |
| Docket Number | No. 05-485 S.,05-485 S. |
| Citation | 594 F.Supp.2d 189 |
| Parties | Anthony Joseph VONO, d/b/a Specialty Promotions, Plaintiff, v. Michael P. LEWIS, individually and in his official capacity as Director, State of Rhode Island Department of Transportation, Defendant. |
| Court | U.S. District Court — District of Rhode Island |
John William Dineen, Providence, RI, for Plaintiff.
John J. Igliozzi, R.I. Department of Transportation, Michael W. Field, Rebecca Tedford Partington, Attorney General's Office, Providence, RI, for Defendant.
This civil rights action brought pursuant to 42 U.S.C. § 1983 challenges the constitutionality of the Rhode Island Outdoor Advertising Act ("RIOAA"), which regulates billboard advertising in the vicinity of interstate highways. The case has its genesis in an attempt by the Rhode Island Department of Transportation ("RIDOT" or "Department") to force the Plaintiff, Anthony J. Vono, the operator a small business close to the busy intersection of Interstates 95 and 195 in Providence, to remove a billboard advertisement. RDOT has determined Vono's billboard to be non-compliant with the RIOAA because it advertises a service or product that is not sold on the premises.
After negotiations between Vono and the RIDOT wound up in the breakdown lane, Vono filed this lawsuit against the RIDOT and its then Director, James R. Capaldi1, alleging that the statute and its implementing regulations violated the First Amendment.2
The RIOAA is a vestige of the 1960s era effort to "beautify" the expanding interstate highway system by limiting the proliferation of billboards. It generally prohibits outdoor advertising, but creates a number of exceptions for specific types of signs. The enforcement of one of those exceptions—the so-called on-premises exception—is at issue in this case. Because the exception for on-premises activities is essentially a content-based restriction, it violates the First Amendment of the United States Constitution. As the discussion below makes clear, however, the road of First Amendment jurisprudence that leads to this door is long and winding,3 and while the constitutional flaw is serious, the highway to a legislative cure (adopted by many states) is well marked and carefree if the Rhode Island General Assembly (and/or the RIDOT) were to choose to slip away on it.4
The facts are undisputed.5 Plaintiff, through his sole proprietorship, Specialty Promotions, designs and creates promotional and marketing materials such as T-shirts and cups. Plaintiff leases space in a commercial property zoned for industrial use located at 101 Poe Street in Providence.6 The lease allows Plaintiff to use the property's rooftop outdoor advertising sign (i.e., a billboard). The sign is visible from the northbound lanes of Interstate 95, immediately south of the junction with Interstate 195. In the course of his business, Plaintiff designs advertisements that appear on the sign. Plaintiff also arranges to have specialty items such as the aforementioned T-shirts and cups, as well as other items such as pens and hats, printed by outside vendors. The specialty items are often imprinted with the same advertising logo displayed on the sign. Since 2002, when Plaintiff began to make use of the sign, he has displayed advertising for several clients, including the Providence Tourism Council, Blockbuster Video, and other commercial and noncommercial entities.
On July 7, 2005, Plaintiff received a letter from the Department's Office of Legal Counsel notifying him that the sign violated the prohibition against "off-premise" signs. A flurry of correspondence followed in which the Department declared the sign to be a public nuisance. Plaintiff then unsuccessfully attempted to alter the sign to satisfy the demand that it be used only as an on-premise sign.
An informal resolution apparently out of reach, Plaintiff filed this lawsuit on November 21, 2005. Several detours impeded the progress of the case, however: first, the Department moved to dismiss the complaint on the ground that the United States is a necessary and indispensable party to the case; this motion was denied. The Department next twice moved to dismiss, but each time the Department withdrew the motion before it was heard. After a conference with the Court and upon agreement of the parties, Plaintiff filed an Amended and Supplemental Complaint ("Amended Complaint") to address the Department's issuance of its revised Outdoor Advertising Rules and Regulations ("RIDOT Rules"), which became effective on March 25, 2007.7 Plaintiff then moved for summary judgment against the Department on all claims made in the Amended Complaint and the Department filed a cross-motion. Throughout the progression of this lawsuit, Vono has continued to display off-premise advertisements on his sign. The Department has voluntarily stayed the public nuisance enforcement action pending the resolution of this case.
In 1965, Congress enacted 23 U.S.C. § 131, also known as the Federal Highway Beautification Act ("FHBA") or the "Lady Bird Johnson Act." The FHBA seeks to curb the proliferation of signs along the nation's highways and to "protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty." Id. § 131(a). To these ends, the act requires states to effectively control the erection and maintenance of signs within 660 feet of interstate and primary highways and beyond 660 feet in non-urban areas if the signs are designed to be and are visible from such highways. 23 U.S.C. § 131(a), (c). The FHBA provides that if states fail to make provisions for effectively controlling such signs, they risk losing ten percent of their federal highway funds. Id. § 131(b).
In 1966, Rhode Island adopted the Outdoor Advertising Act ("RIOAA"), R.I. Gen. Laws §§ 24-10.1-1 et seq., in order to comply with the FHBA. In so doing, the Rhode Island General Assembly declared as its purpose:
to prevent unreasonable distraction of operators of motor vehicles, to prevent confusion with respect to compliance with traffic lights, signs, signals and regulations, to promote the safety, convenience, and enjoyment of travel upon highways within this state and to protect the public investment therein, to preserve and enhance the natural scenic beauty or aesthetic features of the highways and adjacent areas, and in the general welfare of the people of this state.
Id. The RIOAA declares that outdoor advertising erected in violation of its provisions constitutes a "public nuisance," id., and that "[a]ny person, firm, corporation, or association who shall violate any of the provisions of this chapter shall, upon conviction, be fined not more than five hundred dollars ($500)." Id. § 24-10.1-8.
The RIOAA begins with a sweeping prohibition against "outdoor advertising" everywhere in the state, and then carves out a series of broad exceptions to the prohibition. R.I. Gen. Laws § 24-10.1-3. "Outdoor advertising" is defined as:
an outdoor sign, display, light, device, figure, painting, drawing, message, plaque, poster, billboard, structure, or other thing which is designed, intended or used to advertise or inform, any part of the advertising or information contents of which is visible from any place on the main-traveled way of the interstate, primary, or secondary systems.
R.I. Gen. Laws § 24-10.1-2(4). Exempt from this broad prohibition are numerous categories of signs:8
(1) Directional and other official signs and notices erected, maintained, or authorized by a public agency or body, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders and scenic and historic attractions, as authorized or required by law.
(2) Signs, displays, and devices advertising the sale or lease of property upon which they are located, subject, however, to the national standards as promulgated pursuant to the federal Highway Beautification Act of 1965.
(3) Signs, displays, and devices advertising activities conducted on the property upon which they are located, subject, however, to the national standards as promulgated pursuant to the federal Highway Beautification Act of 1965 including spacing requirements of the Rhode Island department of transportation rules and regulations governing outdoor advertising, except for signs that are allowed to be relocated as permitted in subsection (5).
(4) Bus shelters erected under the authority of the state department of transportation or Rhode Island public transit authority which shall be permitted no more than one two (2) sided sign. Each sign face shall be no more than twenty-four (24) square feet in size.
(5) Lawfully permitted signs, displays, and devices already in existence may be relocated to other permitted locations with the approval of the appropriate governmental agency(s), provided that the relocated outdoor advertising remains the same or smaller in size, and that such outdoor advertising conforms and is consistent with the municipal comprehensive plan and related zoning requirements.
(6) This chapter shall not preclude the maintenance of existing outdoor advertising.
R.I. Gen. Laws § 24-10.1-3.
The dispute in this case centers on the exception allowing the erection or maintenance of "[s]igns, displays, and devices advertising activities conducted on the property upon which they are located." Id. § 24-10.1-3(3). Such signs are known as "on-premise" signs.9 The RIDOT has adopted outdoor advertising rules, the RDOT Rules, that set forth more specific criteria for determining whether a particular sign is an on-premise sign:
The on-premise advertising sign shall have as its purpose [a] advertising of the sole and/or principal activity and/or it's [sic]...
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