Posted by: Patricia Salkin | February 25, 2016

CA Appeals Court Holds Preliminary Injunction Requiring Removal of Noncompliant Billboard Did Not Violate Constitutional Free Speech Rights

Defendants AMG Outdoor Advertising, Inc. appealed from a January 23, 2015, order granting a preliminary injunction in favor of plaintiff and respondent, City of Corona. The injunction required defendants to cease using and immediately remove a billboard that AMG erected in the City without a city or state permit. Defendants claimed that the City enforced Ordinance No. 2729 (the 2004 ordinance) against them in an impermissibly discriminatory manner because the City allowed another billboard operator, Lamar Advertising Company, to erect new billboards in the City. Defendants also claimed the 2004 ordinance violated their equal protection rights, was an invalid prior restraint, and violated their free speech rights under the California Constitution.

Here, the City demonstrated with substantial, uncontradicted evidence that all of the off-site billboards currently in the City (nine owned by Lamar and two owned by another billboard operator, General Outdoor Advertising) were grandfathered billboards in that they were either in their current location before the 2004 ordinance went into effect, or were traceable to pre-September 1, 2004, grandfathered billboards. Unlike Lamar and General Outdoor Advertising, the defendants did not own any billboards erected in the City before the 2004 ordinance went into effect. Because of this, defendants were found not similarly situated comparators and the court therefore denied the equal protection claim.

Defendants next claimed the 2004 ordinance and the preliminary injunction amounted to unconstitutional prior restraints on their free speech rights. The 2004 ordinance banned all new off-site billboards, and the preliminary injunction required defendants to cease operating and remove their new off-site billboard. Because neither burdened more speech than necessary to accomplish the City’s interest in increased traffic safety and aesthetics and defendants could have availed themselves of other forms of communication, they were not prior restraints. Moreover, the 2004 ordinance allowed the city council, in the exercise of its legislative authority to regulate land use, to approve relocation agreements for grandfathered off-site billboards. Thus, the ordinance did not does not afford the City unbridled discretion.

Lastly, Defendants claimed the 2004 ordinance was facially invalid under the free speech clause of the California Constitution. However, the California courts have repeated found that a governing entity’s ban on all new off-site commercial billboards does not violate the First Amendment. The 2004 ordinance prohibited all new off-site billboards, regardless of their content and therefore did not treat noncommercial speech less favorably than commercial speech. Accordingly, the trial court’s order granting the preliminary injunction was affirmed.

City of Corona v. AMG Outdoor Advertising, Inc., 197 Cal.Rptr.3d 563 (1/26/2016)


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