April 14, 2016 - From the April, 2016 issue

Feuer: LA City’s Billboard Court Victory Confirms Signs Can Be Regulated

 In March, Los Angeles won a case allowing the city to continue its current practices in regulating billboards--a significant win in the context of several related signage battles over the past decade. City Attorney Mike Feuer explains to TPR the significance of the decision for LA and cities throughout the state. His comments are particularly relevant as LA City Council weighs how to address unpermitted billboards in an ongoing attempt to balance public safety, aesthetics, and business.


Mike Feuer

"The decision of the court was based on a very basic, simple premise: that the location of a sign can be regulated.” -Mike Feuer

In March, the City of LA, represented by your City Attorney’s Office, was handed a legal victory in an appellate court decision involving digital billboards. What did the appellate court decide? 

Mike Feuer: The court decided that LA’s off-site sign ban was constitutional, and in doing so, prevented the city from being littered with billboards that are now unlawful. The decision of the court was based on a very basic, simple premise: that the location of a sign can be regulated. The plaintiffs in the case had argued that LA’s billboard ban was based on the content of the sign. The court agreed with the city that that was wrong. In fact, the city’s billboard ban is based on the location of the sign.

In hailing the court’s ruling, you asserted that it affirmed the power of cities across California to control the proliferation of new billboards—and that, had the court ruled in the other direction, we would have seen an uncontrollable avalanche of billboards erected throughout the City of LA.  Could you elaborate on the importance of the court’s ruling?

The importance of this case cannot be overstated. The significance of the case is reflected in the amicus briefs submitted by the League of Cities and counties in California in support of the city’s position. They knew that the outcome of this case would have implications not merely here in Los Angeles.

In validating the billboard ban in Los Angeles, the court approved of the rationale underlying similar rules throughout the state of California. Had the court ruled in the opposite direction, as the lower court did, we would have seen a proliferation of billboards throughout the city with very few meaningful restrictions. Fortunately for the residents of Los Angeles, the court ruled the way it did. 

TPR has covered the billboard-proliferation issue for more than a decade. Why do you suppose it has taken so long to secure a legal resolution regarding the authority of cities to regulate where billboards may appear?

Throughout the history of billboard litigation, the issues have been subtly different from one another. For example, there was a question as to whether a settlement that would have allowed digital billboards throughout the city was, in fact, a lawful exercise of authority by the city. That’s a different issue from the extent of the city’s authority to ban billboards.

The Lamar decision—the one that just came down from the appellate court—most squarely addresses the raw authority of a city to regulate the location of signs. It arose from a situation in which Lamar sought to site about 45 digital billboards in the City of Los Angeles. It squarely brought before the court the question: Is this ban lawful?

The ban is about 15 or so years old. I can’t speak to why a billboard company didn’t try to create the conditions for challenging that ordinance previously, but we took this challenge very seriously. I’m anticipating that the Lamar Company is going to seek review in the California Supreme Court. I also anticipate that the court will reject that attempt.

How will the City of Los Angeles enforce this appellate court decision? 

The same way the city has enforced its billboard ban prior to Lamar’s challenge, which it has been doing for a number of years.

I have been a strong supporter of vigorous enforcement of all the city’s laws, including the ones that govern billboards. I have been an opponent of the proposal that there be some form of amnesty granted to violators of the city’s sign ordinance. I think the rules are created for a reason, and I think that they ought to be enforced evenly, irrespective of the party against whom enforcement is sought. From my standpoint, enforcement needs to be vigorous, effective, fair, even-handed, and reflective of an enforcement strategy throughout the City of Los Angeles. Every neighborhood deserves to have strong public safety and strong aesthetic qualities. 

There are reportedly a large number of unpermitted billboards within the city of Los Angeles. What is the City of LA’s present enforcement regime for dealing with the unpermitted signs?

We are provided with an underlying investigation by the Department of Building and Safety, and if that investigation is sufficient on which to predicate an enforcement action, we will proceed.

As I mentioned, some sought to create a regime in which companies would be insulated from enforcement by some form of amnesty. That argument rests on the presumption that if a billboard has been in its current location for five years, it’s lawful. Through state law, however, that is a rebuttable presumption—it could be overturned, were there evidence to the contrary.

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I don’t think that there should be any lack of clarity around the city’s enforcement regime. You abide by the rules, and if you don’t, the city will enforce. Others who have been abiding by the rules shouldn’t suffer a disadvantage in the marketplace because they are properly adhering to the requirements of the city. 

The city attorney, obviously, has no formal authority to dictate what the City Council and mayor should do regarding billboard policy. That said, sign ordinances are constantly being introduced in Council and, indeed, are now pending before the City Council of Los Angeles in various forms. As a former member of the Council and also of the State Legislature, what are your views on how cities could best plan for and manage billboards?

I will speak very generally, because given my current role as City Attorney, I need to defer to the lawful policymaking prerogatives of the City Council and the mayor. Formerly, as a policymaker, I had views on a whole array of issues and expressed them strongly.

At 10,000 feet, I will say that, for a long time, the city has needed a clear, understandable, enforceable set of rules that surround billboards. I’m hopeful that the Council will adopt an ordinance that reflects those principles.

Will this appellate court decision impact the Council’s deliberations?

That’s an interesting question.

I don’t think that this case and its outcome informs the debate, except on one extremely fundamental level: Had the case resulted in the overturning of the city’s billboard ban, then the ordinance that the Council is contemplating would have been based on false premises, which would have required going back to the drawing board. But because the court affirmed the billboard ban, it should have little impact on what the Council does next—except give confidence that we will effectively advocate on the City’s behalf in my office. 

The decisions about amnesty and permitting have been very political, often involving policymakers who have received the benefits of support from outdoor billboard companies. Now it seems that the law has trumped those political complications. Do you agree? 

This sends a message to the residents of our city that, in the end, the City can establish strong laws regulating billboards, and those laws can stand up in court.   I think that the real proof will now be in the city’s efficacy in enforcing its existing rules. This ruling will be an empty one if there is not vigorous enforcement. By contrast, if there is, this ruling will be viewed by many in the city as a vindication of key safety and aesthetic principles.

Finally, could you comment or speculate on what other cities confronted by similar challenges will do as a result of the decision in this Los Angeles case? 

Most cities that have location-focused billboard bans are going to simply continue to enforce the rules they have on the books.

Because I anticipate the Lamar Company will seek review in the California Supreme Court, I would anticipate that, as happened in the appellate court, cities and counties around California will join us shoulder-to-shoulder in urging the court to reject that request from Lamar.

The court should reject it, because the Supreme Court of the State takes cases where there is a difference of opinion between courts of appeal in different divisions, among other situations. In this instance, this court’s decision is consistent with another appellate court decision from a different district. Because of that consistency, as well as the consistency between this outcome and federal law in California, I’m anticipating that the Supreme Court will reject review of the lower court case.

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