Lamar Advertising’s digital sign on Old Fort Parkway went dark after losing a five-year legal battle with the city of Murfreesboro. (TMP Photo/M. Willard)
Murfreesboro drivers may not have noticed something missing as they drove west on Old Fort Parkway between Memorial Boulevard and Thompson Lane during the past few weeks, but its disappearance has legal implications statewide.
The LCD digital billboard owned by Lamar Advertising near the Home Depot entrance had its power supply removed at 4 p.m. July 20 under orders from the Murfreesboro Codes Department. The event capped a five-year legal battle between the billboard advertising company and the city’s legal staff.
City Attorney Susan McGannon credited Murfreesboro Assistant Attorney David Ives, who assumed the lead in litigation, for seeing the case through to a successful outcome.
“Murfreesboro is somewhat unique in that we have an attorney like David (Ives) on staff who has extensive courtroom litigation experience in such matters,” she said. “It has been a long and tough battle, and he deserves much of the credit for this win.”
The win she speaks of is a summary judgement in Rutherford County Circuit Judge Royce Taylor’s courtroom on July 17, which effectively gave Murfreesboro officials the go ahead to shut down an illegally erected digital billboard, which had been operating in defiance of the city’s sign ordinance for more than five years.
“It is undisputed that presently no permit exists for the operation of the sign located at 1804 Old Fort Parkway,” Taylor wrote in his ruling. “Therefore, the sign is in violation of the city’s sign ordinance, and is illegal.”
Taylor granted the city a permanent injunction, noting “city codes and ordinances regarding signs are designed and intended to promote safety.”
The situation is another in a long list of cases nationwide in which Lamar Advertising has erected electronic or digital billboards, often in open defiance of local or state statutes, and dealing with the resulting litigation with an army of attorneys.
“It appears to be a national strategy by Lamar (Advertising) – put up electronic signs in any way possible, then litigate,” Ives said.
The attorney for Lamar Advertising in the case, Larry Liebowitz, did not return calls seeking comment.
The company has won many of its courtroom battles with municipalities across the country, and even more have been settled out of court.
Local governments who have no in-house legal services must hire outside attorneys, and often decide not to pursue costly litigation with its hundreds of hours in associated billable hours, opting instead to compromise with the advertising giant in out-of-court settlements.
Lamar sees gold in them there hills
Some citizens have chosen to fight Lamar Advertising’s attempts to build electronic billboards in their community, with opposition groups forming in neighborhoods from Los Angeles to the Black Hills of South Dakota.
The Coalition to Ban Billboard Blight is a registered nonprofit 501(c)(4) organization in Los Angeles, which defines its mission as “representing groups and individuals committed to defending the urban landscape of Los Angeles from a proliferation of billboards, supergraphic signs, and other forms of outdoor advertising that blight our public spaces. …
“Our mission includes education, outreach, and political and legal action to protect citizens’ rights to walk and drive their streets and congregate in public areas without a constant assault of advertising messages,” the group’s mission statement reads.
The group is currently focused on pressuring the L.A. City Council to include a ban on the signs within a new
sign ordinance making its way through committee.
In the Black Hills of South Dakota, a local chapter of Scenic America, which identifies itself as the "only national 501(c)(3) nonprofit organization dedicated solely to preserving and enhancing the visual character of America's communities and countryside," is waging its own war against Lamar Advertising in the frontier town of Rapid City.
Bordering the Black Hills National Forest, Badlands National Park and the bikers' mecca of Sturgis, city residents see the issue not only as a fight to preserve its scenery, but a safety issue as well.
The city denied Lamar Advertising two conditional-use permits to convert static billboards to digital in 2010, citing safety concerns arising from video and flashing images distracting drivers on major roadways.
Lamar filed suit almost immediately in federal and state courts, and Scenic Rapid City, meanwhile, gathered enough petitions to trigger a citywide vote on new billboard restrictions in early April 2011.
Lamar then applied for another six building permits to convert static billboards to digital faces, only a few days after the citizens' group filed its referendum petitions.
Rapid City voters overwhelmingly approved the two initiated measures in June 2011 to ban new digital billboards within city limits and further limit the size and spacing of new static billboards.
Lamar filed suit again, contending the city was required to issue the company the permits it sought, but to no avail.
Seventh Circuit Judge Wally Eklund saw it differently, ruling in favor of the city's right to deny the permits.
"It's a victory for the voters," Mayor Sam Kooiker told the Rapid City Journal at the time, but the victory was short lived.
Lamar and other billboard advertising interests sought relief from above, urging state lawmakers to disallow South Dakota's local governments to enforce new billboard restrictions. The bill passed but was vetoed by Gov. Dennis Daugaard.
It failed to meet the two-thirds majority vote needed in the South Dakota House of Representatives to override the veto in March 2012, falling only four votes short.
"Do you like local decision-making for the needs of the community?" asked state Rep. Jacqueline Sly (R-Rapid City) during floor debate, likening the proposed measure to a bailout of "big business" and "special interests."
But state Rep. Val Raush (R-Big Stone City) saw it as a free speech issue.
"It's a freedom of speech right for a business to advertise," he said. "They (digital signs) can be restricted, but they cannot be abolished."
Lamar Advertising's legal counsel has employed this Free Speech argument numerous times in courts throughout the nation as well, but subsequent attempts to employ such arguments were significantly weakened by a federal judge's ruling in July 2011.
U.S. District Judge Robert Holmes Bell was not impressed with Lamar's claim that their Free Speech was curtailed by the city of Grand Rapids, Mich., telling Lamar's attorney Adam Behrendt the billboards have remained operational as static displays.
"The question is whether or not they can up the ante and make a better billboard and charge a lot more for it," he said, calling the Free Speech argument a "Trojan Horse."
Permits? We don't need no stinkin' permits
In the case of Murfreesboro, Lamar simply sought and was awarded a permit to rebuild an existing static billboard display, and received final inspection approval from the city's codes department.
But an inspector just happened to drive by the next day and see further significant construction occurring at the site after the final inspection had been granted, which is not allowed.
When the inspector stopped and asked the work crew to cease and desist, the crew refused, saying they would continue work until they were shown an official stop-work order.
By the time the inspector returned from the codes department with the order, the illegal digital sign was fully operational, and the work crew had vanished.
What followed was a five-year legal battle in all manner of local and state courts in order to force Lamar Advertising into following local ordinances.
Lamar argued state law, which can be found in TCA 13-7-208, trumped local statutes and gave grandfathered sign owners the right to expand their operations without permits, and going digital was simply an expansion of their services.
After losing this argument in chancery court and appeals court, Lamar requested a hearing by the Tennessee Supreme Court, which was denied.
The subsequent ruling by Taylor does not end the legal wrangling, though.
Chancery Court hearings on related litigation is ongoing, and Ives does not rule out an attempt by Lamar to trump any court's ruling with legislation on the state level, much like the bill which came before the South Dakota legislature.
"The legislature could simply change the law and we're back to square one," he said.
Furthermore, although Murfreesboro was somewhat ahead of the curve in the matter than other communities due to its new sign ordinance passed in 2006, other communities in Rutherford County could be caught unaware.
"What's to stop Lamar from doing the exact same thing in Smyrna?" Ives asked.