Localities around the country continued to implement outdoor advertising restrictions throughout 2000, although a number of these were struck down.

    Communities on the East Coast enacted a number of bans, such as Baltimore’s prohibition on new billboard construction passed in March 2000. Baltimore’s council president lauded the bill as a sequel to the city’s 1994 ban on tobacco and liquor billboard advertising. In May, Warwick, R.I., prohibited cigarette advertising within a half-mile of any public or private school. Violators may be fined up to $300 for the first three offenses; after more than three offenses, sellers of tobacco products may lose their licenses.

    In June, the Hempstead town board on Long Island banned tobacco advertising within 1,000 feet of schools, parks, playgrounds, and licensed daycare centers. The towns of Huntington and Babylon, both located on Long Island, also passed similar legislation. Additionally, Palm Beach County (Fla.) voted in September to draft an ordinance that would prohibit any tobacco advertising less than four feet from the ground. The date for the proposed new law was not set in 2000. The county already prohibits tobacco advertising on certain buses, shelters, and benches.

    California localities have also been particularly active in banning outdoor advertising. In April, National City, in the South Bay area of California, banned self-service for tobacco products and restricted the placement of tobacco products and advertising in stores near schools. National City’s ordinance prohibits stores from placing tobacco products or advertising within two feet of candy, snacks, and non-alcoholic beverages.

    In July, the City of Orinda’s city council tentatively approved controls that include barring outdoor advertising within 1,200 feet of schools and playgrounds. Orinda also tentatively agreed to ban tobacco ads next to windows and doors of businesses located within 1,200 feet of schools and playgrounds. The ban would also prohibit self-service displays of tobacco products, require that they be kept in locked cases, and mandate that they be sold only with the assistance of a store clerk. Merchants who violate the law would have to obtain a tobacco retailers’ license, renewable annually, from the city, and the city would suspend licenses of repeat offenders.

    Likewise, in October San Diego’s city council banned alcohol advertising on billboards within 1,000 feet of schools, libraries, and recreation facilities frequented by minors. This law affects more than half of the billboards in San Diego. One small but positive note: Despite pressure to do so, the council declined to enact more stringent advertising regulations after the city attorney informed the council that such laws might be subject to legal challenges.

    In Cleveland, the city and Eller Media finally came to an agreement regarding Cleveland’s billboard restrictions. Eller had sued the city over its billboard restrictions in February 1999. As a result of the agreement, Eller Media consented to remove 700 billboards attached to buildings in return for erecting six new highway billboards, and to provide 20 billboards per month for five years with public service messages against underage drinking. About 500 of the billboards to be removed advertise alcohol. The agreement also prohibits alcohol billboards within 500 feet of churches, schools, playgrounds, and recreation centers.

    On a positive note, the Snohomish Health District in Washington State voted in April 2000 to repeal its ban on most outdoor tobacco advertising to conform with a November 1999 ruling made by the U.S. Court of Appeals for the Ninth Circuit in Lindsey v. Tacoma-Pierce County Health Department, 195 F.3d 1065 (9th Cir. 1999). That ruling struck down a county board of health resolution that banned outdoor tobacco advertising. The decision did not rely on any First Amendment grounds, but instead determined that the resolution was preempted by a federal law, the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1331 et seq.

    Snohomish’s action came immediately after the U.S. Supreme Court announced that it would not hear appeals from Second and Seventh circuit decisions that reached opposite decisions from the Lindsey court -- permitting local governments to regulate the placement of ads. Greater New York Metro. Food Council, Inc. v. Giuliani, 195 F.3d 100 (2d Cir. 1999), cert. denied, 120 S. Ct. 1671 (2000); Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 189 F.3d 633 (7th Cir. 1999), cert. denied, 120 S. Ct. 1671 (2000).

    The Second and Seventh circuit cases will now return to the trial courts so that a determination may be made as to whether those advertising restrictions violate free speech protections. After the courts rule on that issue, the cases could possibly return to the Supreme Court. If the High Court decides to review the cases at that time, and if it rules in favor of the cities, the ban could possibly be reinstated. Meanwhile, the California ordinances discussed above may be susceptible to legal challenge as contrary to Lindsey.

    The response of state courts to challenges of ordinances on First Amendment grounds has been mixed. The Ohio Supreme Court struck down, on First Amendment grounds, a city ordinance imposing durational limits on temporary political signs. City of Painesville Bldg. Dep’t v. Dworken & Bernstein Co., 733 N.E.2d 1152 (Ohio 2000). Specifically, the ordinance prohibited private property owners from posting political signs on their property except during the 17-day period prior to any election and the two-day period after any election. Relying on the U.S. Supreme Court’s decision in City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Ohio Supreme Court declined to categorize the ordinance as either content based or content neutral.

    The court then noted that "the overwhelming majority of courts that have reviewed sign ordinances imposing durational limits for temporary political signs tied to a specific election date have found them to be unconstitutional." Painesville Bldg. Dep’t, 733 N.E.2d at 1157. The court determined that the ordinance in question was not narrowly tailored to meet the city’s legitimate government interests and that it was overly restrictive as to traditional campaign signs. Based on this analysis, the court found that the ordinance violated the First Amendment and was thus unconstitutional.

    Considering a different challenge, the Appellate Court of Connecticut ruled that a municipal regulation controlling the size of signs that may be displayed on any building does not violate the Supreme Court’s ruling in Ladue. Kroll v. Steere, 759 A.2d 541 (Conn. App. Ct. 2000). The ordinance in question provides that only one sign of not over one square foot in area may be displayed on any building.

    The appellate court distinguished the law adjudicated in Ladue on the ground that it almost totally banned all residential signs in the interest of minimizing visual clutter and, thus, discriminated based on the sign’s content. By contrast, the appellate court determined that the Connecticut regulation makes no attempt to regulate the content of residential signs. Moreover, the appellate court ruled that the government had a significant interest in the regulation of signs to maintain the safety of vehicular traffic.

    In an opinion that does not mention the Supreme Court’s decision in Ladue, a trial court in New York dismissed a defendant’s First Amendment claim against a town code section addressing signs in residential districts. People v. Weinkselbaum, 714 N.Y.S.2d 860 (N.Y. Crim. Ct. 2000). The Babylon town code prohibits the posting of signs in any residential district with five exceptions: aviation signs; professional name plates; signs in connection with the sale, rental, construction, or improvement of the premises; house numbers and name plates; and signs containing cautionary messages such as "beware of dogs." Citing the Supreme Court’s decision in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the New York trial court concluded that the government may properly limit the non-communicative qualities of signs to promote government goals of aesthetics and traffic safety.

    Federal courts were generally more protective of free speech in 2000. Like the Ohio Supreme Court in Painesville Building Dept., a New York federal trial court held that municipal sign ordinances in the Town of Mamakating violated the First Amendment. Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322 (S.D.N.Y. 2000). The first ordinance permitted signs for on-site advertising, address signs, identification signs for hotels and non-dwelling buildings, and sale or rental signs, but required a permit -- issued at the discretion of the zoning board -- for signs in the interest of the public information and convenience. The second ordinance, which amended the first, uniformly required permits for all signs, whether commercial or noncommercial, but exempted numerous categories of signs from the permit requirements (such as traffic control signs, flags, and memorial plaques).

    The Knoeffler court held that both ordinances violated the First Amendment. It found that the first ordinance was content based because it distinguished between commercial and noncommercial signs. It then strictly scrutinized the ordinance and determined that it was not narrowly tailored to the town’s interest in safety and aesthetics. The court further determined that the first ordinance vested unbridled discretion in the zoning board to grant or deny temporary permits for signs in the public interest.

    As to the second ordinance, the court found that it was not content based on its face. However, relying on the U.S. Court of Appeals for the Second Circuit’s adoption of the Supreme Court’s plurality opinion in Metromedia, Inc., the trial court found that the ordinance was content based because of its exception provisions. Like the first ordinance, the second ordinance did not survive strict scrutiny because it was not narrowly tailored enough to the town’s interest in improving the overall appearance of the town.

    In a similar case, a federal trial court in Ohio struck down the City of North Olmstead’s sign ordinance as violative of the First Amendment. North Olmstead Chamber of Commerce v. City of North Olmstead, 86 F. Supp. 2d 755 (N.D. Ohio 2000). The court found that the ordinance, which classified and limited signs according to their types (such as "directional sign," "identification sign," and "informational sign") was content based. The court further held that, even if the city’s interests in safety and aesthetics could be considered compelling, the ordinance was not narrowly tailored to achieve the city’s goals.

    Moreover, a California federal trial court, in Burkow v. City of Los Angeles, 119 F. Supp. 2d 1076 (C.D. Cal. 2000), preliminarily enjoined the enforcement of a Los Angeles municipal ordinance that prohibits the advertising, offering, selling, or renting of a bicycle or "any vehicle which is subject to regulation under the California Vehicle Code from or upon any public or private property which is not the place of business or a bicycle retailer or duly licensed vehicle dealer." L.A.M.C. Sec. 80.75.

    The court concluded that the restriction, which prohibited a citizen from displaying a "for sale" sign in his car while parked in Los Angeles, would probably violate the third and fourth prongs of the commercial speech test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), because the restriction was not reasonably tailored to serve a substantial government interest. Based on this finding and its finding that the plaintiff would suffer irreparable injury if an injunction were not granted, the court enjoined enforcement of the law.