The plaintiff, Bench Billboard Company (“BBC”), has a business running advertising benches throughout Kentucky. The defendant city of Covington enacted an ordinance prohibiting advertising benches on the public right of way. BBC failed to remove their benches to comply with the ordinance and, subsequently, the city confiscated BBC’s benches. BBC commenced this action to challenge the constitutionality of the city’s ordinance. A few years after commencement, the city repealed the ordinance and enacted a new ordinance imposing the same requirements but with some exceptions for: sandwich boards and setouts of merchandise abutting a business, news racks, temporary signs for upcoming events, things placed by quasi-governmental organizations, and temporary scaffolding. The parties settled all claims under the initial ordinance and the city sought declaratory judgment of the present ordinance’s constitutionality. BBC revised its suit, alleging the current ordinance violated their First and Fourteenth Amendment rights and sued the Transit Authority of Northern Kentucky (“TANK”) under equal protection claims. The district court granted summary judgment for TANK and for the city; BBC appealed.
The court first deals with BBC’s claim against TANK. TANK argues, and the district court agreed, that BBC lacked standing to bring a suit against TANK. To find standing, the court must find that BBC suffered an injury, there is a causal link between the injury and the defendant’s conduct, and that it is likely there will be a favorable decision for the plaintiff. The city contacted TANK and requested that they voluntarily remove advertising panels from their buses. Although TANK, a public utility is not subject to the ordinance, they voluntarily complied with the city’s request and also erected their own benches. BBC argues that TANK, as exempt from the zoning laws, could have adopted BBC’s benches as its own, thus circumventing the ordinance. The court finds that TANK had no say in the enactment of the ordinance and took no affirmative steps to remove BBC’s benches. Similarly, TANK had no authority to permit BBC to install benches that would be exempt from the ordinance. Thus, the court finds no causal link between TANK’s action and BBC’s alleged injury, therefore, holds that BBC lacks standing as against TANK.
Next, the court turns to BBC’s claims against the city. The court initially deals with BBC’s as-applied First Amendment claims. The court finds that regulation of expression must be narrowly tailored to serve a “significant government interest” and must also “leave open ample alternative channels for communication of the information.” Here, the court finds that the government’s interest in aesthetics and safety are significant interests. BBC argues that the ordinance is underinclusive because the various exceptions make the ordinance meaningless. The court rejects this argument, finding that some of the exceptions, such as that for something placed by a quasi-governmental organization is actually exempt from the ordinance anyway. Further, allowing small things such as news racks could outweigh the city’s governmental interests. Thus, the court finds that the ordinance is narrowly tailored. Next, the court discusses whether there are “ample alternative channels for communication.” The court points out that BBC is still able to distribute literature, advertise on the radio, television, or print, and can also place benches on private property. Thus, the court finds there there are “ample channels of communication, and since the ordinance is narrowly tailored, the court holds it is constitutional.
Next, the court discusses BBC’s equal protection claims. Equal protection requires laws to not classify people arbitrarily and to meet a rational basis test. BBC again argues that the ordinance is underinclusive because of the exceptions. The court finds “that an exception [in an ordinance] will rarely . . . invalidate a statute, unless the distinction . . . is the result of invidious discrimination.” Here, the court points out that BBC has offered no evidence of invidious intent by the city. Further, there are rational reasons for the city to grant certain exceptions such as the size and temporary nature of the things under the exceptions. Thus, the court holds that the ordinance does not violate the Equal Protection clause.
Finally, the court examines BBC’s argument that since their benches have been in continuous existence for over ten years, it was entitled to non-conforming use. The court finds that non-conforming use applies only to zoning ordinance. Here, although the ordinance affects land use, the ordinance is not a zoning ordinance. The ordinance is in the city’s Code of Ordinances, not the zoning code, and further, the enactment procedure reflects that the ordinance was not meant to be a zoning ordinance. Thus, since the court finds the ordinance is not a zoning ordinance, BBC is not entitled to non-conforming use. Further, since BBC was only licensing the land, they did not have an actual vested property right; a prior land use right may not be asserted on a personal right or license. Thus, the court holds, BBC has no rights by prior land use.
Bench Billboard Co. v. City of Covington, Ky., 2012 WL 447486 (6th Cir. 02/13/2012)
The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/12a0179n-06.pdf