ON-PREMISE VS. OFF-PREMISE

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ENGRAVING BY ASHLEY BRAYREGULATIONS | BY DAVID HICKEY

There is a distinction in capabilities and purpose between on-premise and off-premise EMC signs. Shown: Wildwoods, NJ Convention Center.

On-premise vs. O -premise

Sign code cases meet the Supreme Court.

Anumber of sign code cases that are swirling throughout the lower federal courts could end up before the Supreme Court of the United States. For those keeping score, this would be the second time in less than a decade that the court has taken up a major sign code case.

In 2015, Reed v. the Town of Gilbert had a significant impact on the sign, graphics, and visual communications industry and forced communities throughout the country to revisit their sign codes.

As communities revisited the codes to ensure they met the Reed requirements, the International Sign Association (ISA) and the Sign Research Foundation (SRF) were able to help. That meant that many communities were able to develop reasonable sign codes, allowing businesses to thrive.

However, in the aftermath of the Reed decision, billboard companies have been suing cities and states to invalidate sign regulations that treat off-premise signs differently than on-premise signs. ISA has strongly supported maintaining the longstanding distinction between onpremise and off-premise signs (https://bit. ly/3mn6Gbu). On-premise signs have different owners and locations and very distinct capabilities and purposes.

In addition, on-premise signs target a specific audience and have traditionally been treated under separate legal and regulatory regimes. ISA believes that categorizing signs as on-premise or off-premise is not a content-based distinction.

However, many of the efforts by billboard companies to invalidate regulations treating on- and off-premise signs differently have been successful. These cases, such as Thomas v. Bright in the 6th Circuit Court of Appeals, have the potential to disrupt how signs are regulated.

The International Sign Association filed a “friend of the court” brief in one of the first post-Reed cases on this issue, Lamar v. City of Los Angeles. The California state Supreme Court found in 2016 that the city could regulate the billboards differently than on-premise signs. The ISA urged the U.S. Supreme Court to hear a similar case, Reagan v. City of Austin, which may rise to SCOTUS in the next term (which begins in the fall).

In both the Reagan and Lamar cases, ISA sided with local governments and organizations such as the American Planning Association and Scenic America, both of whom we typically find ourselves on opposite sides of sign code issues. However, in this case, we are in mutual agreement of maintaining the traditional

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REGULATIONS | BY DAVID HICKEY

regulatory distinction of on-premise signs and billboards.

In the Austin, Texas case, the issue has been a prohibition on digital billboards while digital on-premise signs (EMCs) were allowed. Reagan Outdoor Advertising successfully persuaded the 5th U.S. Circuit Court of Appeals that prohibiting off-premise digital billboards was a violation of the First Amendment’s protections on freedom of speech.

As it stands currently, all communities within the 5th Circuit’s jurisdiction (which includes Texas, Mississippi, and Louisiana) will have to adjust their local sign regulations to treat EMCs the same as digital billboards. This could result in all digital signs being required to comply with the Texas Department of Transportation requirements for digital billboards, which include an eight-second hold time, no animation, or other requirements that could reduce the ability for sign users to use digital signs. In addition, local jurisdictions could decide to treat digital billboards and signs the same by not allowing them at all.

By the time this column runs, we may know whether the Supreme Court will hear the Reagan v. Austin case. The International Sign Association believes there are compelling arguments to maintain the distinction between on- and offpremise signs.

There is precedent on this issue, including Metromedia v. San Diego (1981) and with Reed, where Justice Alito’s concurring opinion (joined by two other justices) explicitly listed this distinction as a form of sign regulation that is not content-based, writing, “I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content-based…[r]ules distinguishing between on-premises and off-premises signs.” In the meantime, ISA will continue to monitor developments in these cases (Signs.org); advocate on behalf of the sign, graphics, and visual communications industry; and work with local codes officials to craft reasonable—and Supreme Courtcompliant—sign codes.

David Hickey is vice president of Government A airs with the International Sign Association.