Summary
flashing portable advertising signs
Summary of this case from Robert L. Rieke Bldg. Co. v. City of Overland ParkOpinion
No. 79-1304
Decided June 18, 1980.
Municipal corporations — Prohibition of flashing portable advertising signs — Constitutional.
Chapter 43 of the Toledo Municipal Code, insofar as it prohibits the display of flashing portable advertising signs, is a constitutional exercise of the municipality's police power.
APPEAL from the Court of Appeals for Lucas County.
This cause was initiated as a class action filed by appellees, Tommy L. Hilton, d.b.a. Porta-Signs of Ohio, and three other owners of portable advertising signs, challenging the constitutionality of sections of Chapter 43 of appellant-Toledo's municipal code which prohibit the use of flashing portable advertising signs within that city.
On August 30, 1977, appellant's city council enacted a uniform sign code, the effect of which established standards for the fabrication, erection and use of signs, symbols, markings and advertising devices within the city. Among other things, the enactment set forth the procedure for the inspection and licensing of all signs to be used in the municipal area. Under Section 43-8-1 of Article VII of the sign code, the display of any sign animated by means of "flashing, scintillating, blinking or traveling lights or any other means not providing constant illumination" is prohibited. Section 43-8-3 of Article VII prohibits the use of any sign "which moves or assumes any motion constituting a non-stationary or non-fixed condition" except as provided therein. Furthermore, portable or wheeled signs are prohibited, except to the extent allowed by Section 43-8-7(b), which authorizes the use of such signs "in a commercial or industrial district for a total period not to exceed 15 days." Enforcement of the code is relegated to the Commissioner of Building Inspection, or his authorized representative, both of whom are empowered to locate violators and obtain from them an "assurance of discontinuance" of any prohibited act. In addition, persons who fail to comply may be charged with a minor misdemeanor, as defined by R.C. 2929.21 and 2929.31, for the first offense, and with a fourth degree misdemeanor, as defined by R.C. 2929.21 and 2929.31, if a second offense occurs within a 12-month period.
Appellees are owners of flashing portable advertising signs which are either leased to other businesses or used by the owner for advertising on his own business premises. With the enactment of the sign code, and the expiration of the outstanding permits authorizing the display of these devices, appellees were unable to lease or use their signs within the municipality. Appellees instituted this action, seeking a declaratory judgment that the sign code is unconstitutional insofar as it prohibits the use of flashing portable advertising signs in the city of Toledo, and requesting an order permanently enjoining appellant's officials from enforcing the code as to appellees and others similarly situated. The trial court disallowed the class action, but decreed that, insofar as the sign code prohibited the use of animated, flashing, scintillating, blinking or traveling lighted portable signs, the code was unconstitutional. Appellants were permanently enjoined from enforcing those provisions.
In affirming the trial court's judgment, the Court of Appeals held that the sign code's prohibition against flashing portable advertising signs did not bear a real and substantial relationship to the public health, safety, morals or general welfare.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. James D. Nestroff and Mr. Morton E. Leveton, for appellees.
Mr. John A. DeVictor, Jr., assistant director of law, for appellants.
The initial question presented herein is whether appellant is empowered, by virtue of the police power conferred upon it in Section 3 of Article XVIII of the Constitution of Ohio, to regulate the use of flashing portable signs within its territorial boundaries.
At the outset, appellant asserts that the lower courts failed to accord its exercise of municipal police power the presumption of constitutionality to which it is entitled and, therefore, erroneously shifted the burden of proof to appellant.
An enactment of the legislative body of a municipality is entitled to a presumption of constitutionality. The presumption may be rebutted by showing that the ordinance lacks a real or substantial relationship to the public health, safety, morals or general welfare, or that it is unreasonable or arbitrary. Dayton v. S.S. Kresge Co. (1926), 114 Ohio St. 624, 151 N.E. 775 (paragraph one of the syllabus); Alsensas v. Brecksville (1972), 29 Ohio App.2d 255, 281 N.E.2d 21. Furthermore, it is incumbent upon the party alleging unconstitutionality to bear the burden of proof, and to establish his assertion beyond a reasonable doubt. State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 383 N.E.2d 892; State, ex rel. Ohio Hair Products Co., v. Rendigs (1918), 98 Ohio St. 251, 120 N.E. 836; East Cleveland v. Palmer (1974), 40 Ohio App.2d 10, 317 N.E.2d 246; Cincinnati v. Criterion Advt. Co. (1929), 32 Ohio App. 472, 168 N.E. 227.
In State v. Renalist, supra, this court stated, at page 278:
"***[W]hen an enactment under attack is a legislative exercise pursuant to the police power, a party opposing such action must demonstrate a clear and palpable abuse of that power in order for a reviewing court to substitute its own judgment for legislative discretion. Allion v. Toledo (1919), 99 Ohio St. 416; Dayton v. S.S. Kresge Co. (1926), 114 Ohio St. 624.***" In Dayton v. S.S. Kresge Co., supra, it is observed at page 629:
"The determination of the question whether or not this ordinance was reasonably necessary for the safety of the public is committed in the first instance to the judgment and discretion of the legislative body of the city, and if it acted reasonably and not arbitrarily the authorities should not be restrained by the process of injunction from carrying the provisions of such ordinance into effect.***"
A review of the instant record shows that, at trial, appellant was required to "justify their regulation." This constituted an impermissible shifting of the burden of proof concerning the question of the constitutionality of this enactment. As stated in Renalist, supra, at page 281, the focus of inquiries in these matters is "not***on whether the state had affirmatively established, `in the record,' the public interest involved," but the crucial question is whether the party challenging the validity of the legislative enactment has "rebutted the presumption of constitutionality `beyond a reasonable doubt.'" See State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59; Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 55 N.E.2d 629 (paragraph six of the syllabus).
The authority of a municipality to regulate the use of outdoor advertising through its police powers is well settled. E.g., Lehman v. Shaker Heights (1973), 34 Ohio St.2d 143, 296 N.E.2d 683, affirmed 418 U.S. 298; Ghaster Properties, Inc., v. Preston (1964), 176 Ohio St. 425, 200 N.E.2d 328; Opinion of the Justices (1961), 103 N.H. 268, 169 A.2d 762. The nature of these restrictions has been generally viewed as a necessary corollary of a legislative body's power to regulate the use of streets and other thoroughfares. Ghaster v. Preston, supra; General Outdoor Advt. Co. v. Dept. of Public Works (1935), 289 Mass. 149, 193 N.E. 799, 814, certiorari denied 296 U.S. 543; State, ex rel. Euclid-Doan Building Co., v. Cunningham (1918), 97 Ohio St. 130, 134, 119 N.E. 361; see State, ex rel. Schiederer, v. Preston (1960), 170 Ohio St. 542, 166 N.E.2d 748.
Appellees argue in essence, however, that the provisions of the sign code, insofar as they prohibit flashing portable signs, but allow permanent electric signs, are unreasonable and arbitrary, as this differentiation is not, on its face, rationally related to the public health, safety, morals or general welfare.
Numerous authorities have recognized the validity of regulations which permit "on premise advertising," such signs for the most part being of a permanent nature, but which at the same time restrict or prohibit other forms of commercial advertising. State v. National Advt. Co. (La.App. 1978), 356 So.2d 557; E.B. Elliot Advt. Co. v. Metropolitan Dade County (C.A. 5, 1970), 425 F.2d 1141, 1152, certiorari denied 400 U.S. 805; Schloss v. Jamison (1964), 262 N.C. 108, 136 S.E.2d 691.
Moreover, appellant's evidence demonstrates that the differentiation between permanent and portable signs is predicated upon, inter alia, the difference in the degree to which the signs distract motorists and potentially interfere with the safe operation of motor vehicles. Appellant's expert witnesses testified that portable signs are generally positioned at a lower level than permanent signs and offer more of a distraction to motorists. Appellees complain also that it is arbitrary to permit these devices to be displayed for 15 days, but prohibit their use thereafter. A legislative body, however, is not constitutionally required, in the exercise of its police powers, to legislate with respect to an entire field of possible abuse. Instead, it may recognize varying degrees of the iniquity, New Orleans v. Dukes (1976), 427 U.S. 297; Packer Corp. v. Utah (1932), 285 U.S. 105; Longbrake v. State (1925), 112 Ohio St. 13, 146 N.E. 417, and choose to eliminate or reasonably regulate the area step by step, only partially ameliorating a perceived problem, and deferring its complete elimination to future legislative action. See, e.g., Williamson v. Lee Optical (1955), 348 U.S. 483, 489.
Appellant has chosen to partially limit the extent to which portable signs may be displayed. In our view, such action rationally furthers a legitimate purpose and is not arbitrary merely because the enactment failed to reach as far as it could have. Cf. Katzenbach v. Morgan (1966), 384 U.S. 641, 657.
It is our conclusion that Chapter 43 of the Toledo Municipal Code, insofar as it prohibits the display of flashing portable advertising signs, is a constitutional exercise of the municipality's police power. Therefore, the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, O'NEILL, SWEENEY, LOCHER and HOLMES, JJ., concur.
O'NEILL, J., of the Seventh Appellate District, sitting for P. BROWN, J.