2001: A Billboard Odyssey
If you live in Miami, your city remains under siege by one of the most tenacious insurgencies of the modern era: the billboard industry. So far your troops on the frontlines -- the city's zoning enforcers, attorneys, and commissioners -- have been unable, unwilling, or just plain frightened to mount an all-out counteroffensive. Not one of the estimated illegal billboards -- including at least 31 highly lucrative signs along expressways in Miami -- has been removed in the year and ten months that have passed since the city's crackerjack zoning inspectors began to detect them (see "Everywhere a Sign," March 23, 2000).
Miami's anti-billboard units, however, did make a few small advances in 2001:
In March Neighborhood Enhancement Team (NET) inspectors began issuing, and in some cases reissuing, dozens of citations to owners of illegal expressway billboards. The apparent return to enforcement followed the city commission's rejection of proposals by a commission-appointed review board to weaken the sign ordinance, which severely restricts the number and placement of billboards. For example no more than ten billboards are supposed to stand along the stretches of I-95, I-195, I-395, and other expressways that run through Miami.
In June Gov. Jeb Bush vetoed a transportation bill containing a provision that would have eliminated local billboard laws. Eller Media (now Clear Channel Outdoor), Infinity Outdoor (now Viacom Outdoor Group), and other companies that own illegal billboards in Miami had lobbied heavily for the legislation.
At a July 10 Miami commission meeting, NET director Dennis Wheeler announced his office had completed a yearlong reconnaissance mission in search of all the city's billboards. After hearing for the second time in four months that 90 percent of them were illegal, Miami Commissioner Art Teele exclaimed that the billboard industry had "made a fool" of the city. "We have an industry that has basically become lawless," he fumed. Teele proposed, as a test case, that the city begin enforcing its laws by first removing the most valuable illegal signs: those along expressways. His fellow commissioners passed a resolution to do just that.
But the very next day the industry dropped a bomb: Lawyers hired by Infinity Outdoor filed a federal lawsuit against the City of Miami, under the name of National Advertising Company, a Delaware-registered subsidiary. Miami's sign ordinance "impermissibly infringes" on the billboard industry's right to free speech, argued the company's attorneys, who asked the judge to suspend the entire ordinance and require the city's taxpayers to pay the billboard company's legal fees. (Infinity Outdoor merged with TDI Worldwide to form Viacom Outdoor Group last August.) Lawyers in the city's legal department cringed, then halted the code-enforcement process.
To make matters worse, not only were dozens of illegal signs still standing but more of them went up, one right under the nose of NET director Wheeler. Even as Teele was excoriating the industry in July, its operatives erected a billboard in plain view of Wheeler's office at the Miami Riverside Center. Months earlier Atlanta-based Boardworks Outdoor Advertising had installed a very tall billboard stanchion on SW Sixth Street near the Miami River. The pole's location, in a zone designated industrial, was legal because billboards are allowed in such areas as long as they meet spacing and height requirements, and face away from expressways. Inspectors from the downtown NET office deemed it too tall, however, and the company lowered it to the requisite 30 feet. But when the two rectangular sign faces themselves finally went up, Boardworks oriented one of them toward the southern stretch of I-95's downtown overpass, thus violating the limit of ten expressway billboards.
Assistant NET director Francisco Garcia was surprised when he spied it from his office window several months ago, after New Times brought it to his attention during a telephone interview. "One face of it is clearly generally facing the expressway," he concurred. That orientation, he allowed, would render it illegal. "We're up against a formidable opponent, to say the least," he concluded. The billboard is still up, although advertising has yet to be plastered on it.
Boardworks was merely following the example of two local companies, Carter Outdoor and Miami Outdoor. This past summer Miami Outdoor president Andy Hancock confessed to New Times that when he learned Carter Outdoor had breached the expressway-billboard cap in 1998, he was inspired. "People said, Hey, Hancock. What's wrong with you?'" he recalled. "I see this other guy doing this down the street, and I say, Why not?'"
He admitted knowing that the two billboard structures he soon put up -- one in Overtown and another just west of I-95 at NW 74th Street -- were illegal. "Look, the city issued the permits," he shrugged. "The only way really to resolve it is to change the City of Miami ordinance, which you know is wrong and I know is wrong. Or leave it the same and take down the signs. Those are the two options. That's what it boils down to."
Carter Outdoor's Rex Hodges, meanwhile, has argued that his signs along I-95, I-195, and I-395 might actually be legal. Even if a billboard appears to be an expressway billboard, it might not really be one, he posited. "It all comes down to interpreting the ordinance," he asserted in an interview last year. "If you can see it [from the expressway], is it an expressway board' or is it a board over there on that secondary street?" When asked whether he receives expressway rates for the Carter billboards near the expressways, Hodges forced a smile. "What else would you like to know?" he countered. "I think you're trying to focus on some specific things, and I won't go there with you."
The city finally struck back when it hired Parker Thomson and Carol Licko, two highly regarded private attorneys, to fend off the National Advertising lawsuit. The company's claims, Thomson and Licko wrote in a court brief, are "marred by its continued bad faith, including its attempts to extort a settlement favorable to the billboard industry at the expense of city residents.
"The billboard industry's behavior," they continued, "has demonstrated a pattern of notoriously and openly flouting the city's police power. Such behavior can only be described as overt contempt for the city's intent to safeguard and enhance the quality of life of its inhabitants and visitors."
This past September 20 U.S. District Judge James Lawrence King rejected the billboard company's attempt to suspend the city's sign ordinance. "National Advertising cannot demonstrate the threat of irreparable harm today any more than it could have over six years ago," King wrote. The lawsuit provided the judge an opportunity to state the obvious: The city already had a forum for billboard disputes -- its code-enforcement board. King noted the board's rulings can be appealed to state courts. National Advertising immediately went to the U.S. Court of Appeals in Atlanta in hopes of overturning King's decision. A ruling was pending at press time.
The lawsuit failed to dislodge the sign ordinance but it did serve to stave off enforcement action for another four months. With each expressway sign bringing in $10,000 to $15,000 per month, nothing is more welcome to billboard companies than another enforcement delay.
Attorney MaryAnne Lukacs, the special master assigned to hear billboard disputes, finally began her task on November 29. None of the illegal expressway billboards, however, was on the docket. Neither were any of the hundreds of other billboards that should have come down by 1995 under a law intended to clear signs from commercial zones that border residential areas. "We decided to start with the ones that were the least controversial," explained Sergio Guadix, the NET chief of zoning enforcement. "We wanted to get our feet wet with the easier cases because we know it's going to be a tough fight." Under this strategy, violations involving expressway billboards will come last. "Those are the ones that [the billboard lawyers] are going to fight tooth and nail because those are the ones that make the big bucks," he added.
The first 79 cases brought before Lukacs by the city involved landscaping offenses, minor height violations, and permit problems. Thomas Julin, a local lawyer representing Viacom (a.k.a. National Advertising), and Douglas Halsey, who was hired by Clear Channel (formerly Eller), chipped away at the city's cases. "So your signs are too high and you don't have any irrigation," Lukacs said to Julin regarding a two-sided billboard at NE 29th Street and North Miami Avenue in Wynwood. "How do you plead?"
"Not guilty," responded Julin. He argued that the citation was too vague because it didn't specify which sections of the sign code covered those infractions.
"Insufficient notice," Lukacs determined. She ruled similarly on dozens of cases, meaning NET inspectors will have to reissue the citations.
In one case the city seemed to surrender some of the precious legal ground it gained this year. Halsey persuaded assistant city attorney Ruth Johnson to agree to negotiate, at a later date, a proposal that would allow billboard companies to circumvent one section of the sign ordinance. Under Halsey's deal Clear Channel would pay into a city-managed tree fund instead of providing the landscaping required by current law.
Afterward local billboard executives congratulated Julin for managing to defer several cases. New Times asked him why he thought the city was steering clear of the expressway billboard cases. "I think they want to avoid going right into the teeth of our lawsuit," he replied. "We're right," he added, referring to National Advertising's claim that the sign code is unconstitutional.
Lawyer Carol Licko thought otherwise. "It's unconscionable that the plaintiffs are filing constitutional challenges simply to evade the sign code," she maintained. "The city could say tomorrow we want no signs and it would be perfectly constitutional."
Even if the federal appeals court rejects the industry's attempt to subvert Miami's sign laws, the billboard companies still win. Considering the thousands of dollars per month each expressway billboard generates, they can't afford not to sue. Miami's glacial code-enforcement process promises to be equally lucrative for outdoor advertisers. NET administrators envision at least eight more monthly hearings. The next one is scheduled for January 29.
As with any insurgency, the outdoor-advertising industry has relied on local operatives in its campaign to topple Miami's sign laws and install a billboard-friendly regime. Here they are.
Viacom Outdoor (a.k.a. Infinity Outdoor and National Advertising)
Sergio Pereira, Esther Monzon-Aguirre, and Cliff Walters, lobbyists (Meridian International Group)
Thomas Julin and Patricia Wallace, attorneys (Hunton & Williams)
Carter Outdoor Advertising
George F. Knox, attorney and lobbyist (Adorno & Zeder)
Clear Channel Outdoor (a.k.a. Eller Media)
Steven Alexander, lobbyist (Clear Channel's director of government and community relations in South Florida)
Luis E. Rojas, attorney (Duane Morris)
Douglas Halsey, attorney
Charles C. Papy III, attorney (Duane Morris)
Nicolas Gutierrez, Jr., attorney
Sandy Walker, lobbyist
Miguel de Grandy, attorney (withdrew in November 2001)
Miami Outdoor Advertising
Bobbie Mumford, lobbyist (B Mumford & Company)
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