Daily Development for Tuesday, March 6, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ZONING AND LAND USE; USE RESTRICTIONS; SIGNS: An ordinance governing exterior signs covers interior signs that are designed to be visible from the exterior.

State v. Schad, 160 N.J. 156, 733 A.2d 1159 (1999).

This appeal considered whether the restrictive provisions of a municipal ordinance applied to signs that were not physically located outside or affixed to the exterior of a commercial property and, if so, whether the ordinance unconstitutionally restricted commercial speech. Without securing a permit, the owner of two adult entertainment establishments erected eight displays at one of the locations and twelve at the other. Each display consisted of a backlit color transparency measuring about fortythree square feet, depicting a woman dressed in swimwear. The displays were placed twelve to twentyfour inches behind the windows, but were not attached directly to the windows. They were visible only from the outside of the buildings and were illuminated at night. The displays caused the owner to be issued summonses for various violations of the municipality's sign ordinance, including exceeding the maximum number permitted and the maximum gross square footage allowed at a given location, and failure to obtain permits for the transparency displays.

The municipal court and the Law Division each held that the business owner violated the municipality's ordinance.

The Appellate Division reversed all of the convictions and vacated all of the fines, holding that the transparency displays placed inside the windows were not "signs" within the meaning of the municipality's sign ordinance. Given its holding, the Appellate Division did not reach the constitutional issues raised by the property owner.

The New Jersey Supreme Court ruled otherwise. To it, the language of the municipality's sign ordinance applied to interior illuminated transparency displays that were intended to be visible from outside the premises. In addition, it held that the ordinance did not unconstitutionally limit the business owner's speech. It reinstated over $95,000 in fines that had been levied against the business, finding that these fines did not constitute "cruel and unusual punishment."

The ordinance in question defined a sign as "[a] structure and a land use, a building wall or other outdoor surface or any device used for visual communication, display, identification or publicity... ." Another section of the ordinance elaborated by saying, "[a] sign shall include banners, streamers, whirling or lighting devices or any other type of attention attracting device and may be a singlefaced, doublefaced or a Vtype structure." It also described several types of signs. For example, "(1) Business sign. A sign which directs attention to a business or commodity for sale, or a profession, service or entertainment rendered or offered upon the premises where such sign is located," and "(7) Illuminated Sign. Any sign which is designed to be seen at night by virtue of artificial light from within, behind or upon such sign, but not including reflectortype signs unless the source of light is made a part of, or is related to, such sign," and "(9) Wall sign. A sign attached to or painted on a wall and subject to all sign regulations herein." The ordinance continued by requiring a permit for nonresidential signs exceeding twelve square feet and any illuminated sign, regardless of size. The number of signs and the maximum total area of all permitted signs were limited. The ordinance made reference to temporary window signs which were not to be considered in computing the allowable sign area, "provided that such interior window signs do not cover more than ten percent (10%) of any single window and are not permanently affixed to the window."

The Court pointed out that the rules for interpretation of a municipal ordinance require that the ordinance be interpreted to "effectuate the legislative intent in light of the language used and the objects sought to be achieved." If the meaning derived from the language of the ordinance is susceptible to different interpretations, a court is required to consider extrinsic factors, such as the statute's purpose, legislative history, and statutory context to ascertain the legislature's intent. Thus, for example, where a statute or ordinance does not expressly address a specific situation, a court will interpret it "consonant with the probable intent of the draftsman 'had he anticipated the matter at hand'." Further, zoning ordinances generally are liberally construed in favor of a municipality.

The Court found the plain language of the ordinance to be unambiguous and indicated that the drafters intended to include interior signs designed to be viewed from the outside of the premises. It pointed to the broad catchall definition of "sign" as "any device used for visual communication... ." In doing so, it gave broad coverage to the term "any." It suggested that the formulation "used for" suggested that the identification of a device as a "sign" depends on its purpose.

The Court clearly considered the business owner's transparencies as devices used for visual communication, display, identification, and publicity. They had the obvious purpose of communicating a message and generating publicity by identifying and depicting the type of entertainment provided at the premises. The Court rejected the Appellate Division's conclusion to the contrary and stated that such a conclusion would allow a display attached to the external face of a window to qualify as a sign while excluding the exact same display mounted on the internal side of the window.

As to the qualifying term "outside" as found in the ordinance, the Court believed the term could be invested with a meaning that served the purpose and effectuated the basic intent of the ordinance by applying to all signs the requirement that the display be observable from outside the building by the public. There was no need to limit its definition to signs that were physically located outside a building. Consequently, the Court concluded that the language of the ordinance defining signs that are subject to its regulatory standards and restrictions included and applied to interior illuminated transparency displays that are intended to be visible from outside of the premises.

As to the constitutional argument, the Court held that the ordinance clearly involved commercial speech and that the ordinance was content neutral in its application to commercial communications. The Court further held that the ordinance did not restrict speech based on its content and that its regulatory restrictions examined under standards of intermediate scrutiny applicable to commercial speech were not an unconstitutional limitation of the business owner's speech.

Comment: The court was faced with a city that insisted on enforcing its ordinance in this case, and an ordinance that arguably permitted the City to do so, even though the ordinance clearly was written to cover outdoor signs, including those pasted on windows, and probably wasn't addressed to indoor displays. It would appear that the $95,000 in fines suggests that there was a little animosity in this case in the City's enforcement endeavor. Of course, everybody knows that adult businesses are the classic "bad guys," deserving no break and no pity, except, of course, when we represent them or when they represent our freedom of speech. But what does this case say about windows in commercial establishments generally? It would seem clear that any shop window falls within the ordinance, as all of them are intended to be viewed from outside. What about car dealerships? Don't they position the cars inside their display rooms so that passersby can view them?

Is it really appropriate to conclude that a sign ordinance that focuses primarily on outside signs ought to do "double duty" and regulate indoor displays as well? Maybe it's within the prosecutorial discretion of a city to so interpret its ordinance, but the editor is concerned that the city may not be quite so anxious to go after Macy's Christmas windows or the Corvette display at the Chevy dealer. At some point, equal protection comes into play.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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