The following article originally appeared in the February 2004 issue of Signs of the Times magazine.
Were you an attorney first, who became interested in sign codes, or did you have an interest in signs that ended up being sign-code based?
I majored in interpersonal relationships (literary related) during my undergraduate work at Pepperdine University. I served two years in the military (Korea) and finished my post-graduate law studies at Southwestern University in late 1954.
During law school, directly related to my military experience, I became deeply involved with the United States Constitution, particularly the First and Fourteenth Amendments. Though, at the time, I didn’t take (nor were they offered) studies which specifically emphasized signage, I began to follow signage issues where governmental activities and intrusions might effect First Amendment rights. Those types of cases weren’t plentiful, but that area of law was always one of my keenest interests.
I became a licensed California lawyer in early 1955 and maintained my First Amendment interest. Yet I didn’t handle a First Amendment sign case until 1966.
Discount Duds v. City of Palm Springs consolidated for trial with Canton dba Motel Six Fifty v. City of Palm Springs. The owner of a small business in Palm Springs, CA, was prohibited from posting any prices, inside the windows, for any products sold in his discount retail store. The city’s very restrictive sign code disallowed displaying any price signs viewable from the street.
In the companion case, a small motel, Motel Six Fifty, was denied using its name on a sign pole because its name was interpreted to be a “rate” sign. The city wasn’t very happy to have such lodging, period, as it didn’t fit into the image the city wanted to display.
Both cases were won in the lower court and on appeal because the restrictions were strictly based on content First Amendment rights. The city’s ordinance was declared unconstitutional. My activity in the Discount Duds case brought me together with the then California Electric Sign Assn. (CESA), now the California Sign Assn. (CSA), in 1972.
Following that case, I built quite a following within the Coachella Valley business community of Southern California, which included such cities as Indio, Indian Wells, Palm Desert, Rancho Mirage, Cathedral City and Palm Springs. Most had followed Palm Springs’ highly restrictive sign code. I ultimately sued most of them and either had their ordinances declared unconstitutional, or they backed off enforcement against my clients.
For example, in Indian Wells, vehicles that had any kind of business identification were forbidden to park in public sight for more than 15 minutes. Again, a content-based code was declared unconstitutional. The court also said that the restrictions were overly broad and not narrowly tailored to achieve the stated effect.
As soon as that code was declared unconstitutional, the city adopted a code that restricted real-estate, open-house and for sale signs to 3 x 13 in. The city didn’t like for-sale signs because they created a sense of community dissatisfaction. I referred to them as “postage-stamp” signs, and the court utilized my label. This code also was declared unconstitutional.
Were there any sign-code lawyers who (in)directly served as your mentor(s), or did you have to pave your own road?
In the mid to later 1970’s, California became a hotbed for highly restrictive local sign codes. However, when I first began defending signage, the legal field was minuscule compared to other areas of private uses and rights. Legislation for on-premise sign usage changed drastically when courts embraced the concept of aesthetics as a valid, police-power, local activity (i.e. , time, manner and location) for municipal intrusion into private rights.
I can’t recall a single lawyer who acted as a mentor to me in this field of law. A few First Amendment lawyers were active, and the National Electric Sign Assn. (NESA), now the International Sign Assn. (ISA), had counsel; I had little or no contact with anyone. I paved and cemented my own sign road in California, which ultimately led to nationwide involvement.
How did you become CESA’s legal counsel?
In early 1972, I was interviewed by Jeny Jackson, then CESA’s executive director. The association had a lawyer, who had retired from CESA, but his expertise was mostly labor law, not necessarily sign-code or constitutional law. Jerry knew about me from my original Palm Springs case.
I was retained a week or two after the initial interview. In those days, CESA’s board mostly had fun, but, within two years, that attitude was gone, and CESA’s direction realigned. CESA became a really viable, hard-working association. I worked my tail off, but enjoyed almost every minute. CESA’s realignment is a long story, and I’m happy to have been part of the reason for the change and its execution.
What percentage of your work was directly for CESA and how much was for outside work?
That greatly varied throughout my career. Roughly, when I first began, approximately 5% was related to signs, and 95% to other matters. As of my retirement, 95% was sign related, and 5% was other concerns.
What are your greatest legal achievements?
Two or three stand out in my mind. My authorship in 1983 (and subsequent amendments in 1986) of a legislative enactment, designated as Chapter 2.5 Sections 5490 through 5499 of the California Business and Professions Code, provided the first important legal protection for on-premise-sign users and the California sign industry. I also provided expert testimony, to the state’s legislature, in helping pass the bill.
Much of it addressed just compensation, amortization, etc., but Section 5491.1 uniquely required cities to inventory all illegal/abandoned signs before any new restrictive code could be enforced. Plus, the city had to hold a public hearing to see if the removal of all illegal, abandoned signs would satisfy the needs the new code would attempt to address. Fresno, for example, backed off on a new code when faced with having to meet these requirements.
Section 5498.2 allowed the new business owners to change the copy in a legal, non-conforming sign, as long as there was no structural changes. Prior to this, cities often refused to issue permits for copy changes.
Similarly, Section 5498.1 said that new business owners couldn’t be denied the right to construct a new sign, solely because a different business within the same commercial complex had a legal, non-conforming sign.
Section 5499, which acknowledges topographical aspects of visibility, was bitterly opposed by the League of California Cities. Through much give and take, we squeaked that through the state senate by one vote. Its passage proved monumental.
In 1996-1997, I successfully litigated for several sign users, including a major McDonalds’ franchisee, a large lumber yard, a Do-It home improvement center and several smaller businesses, against Agoura Hills, CA. In that action, for the first time, Section 5499 of the California Business and Professions Code (a section I had authored in 1983) was validated by both the lower and appellate courts. My client’s 100-ft., freeway-oriented pole sign (though non-conforming to city law), along with other prominent, tall, nonconforming, freeway-oriented pole signs (or at least viewable from the freeway), were all deemed conforming to city law because of topographical conditions.
The court extended, for the first time, Section 5499’s reach to include obstacles beyond mere land conditions, contours, rolling hills, trees, brush, etc., and embrace area construction, other buildings, other on- or off-premise signs, bridges, fences and general area improvements. It was a resounding victory (Denny’s Inc et al v. City of Agoura Hills (1997)). http://fasi.org/2016/06/10/what-happened-in-the-dennys-v-agoura-hills-pole-sign-case/
I have used Section 5499, since the Agoura Hills case, on several occasions, including federal court. Every state should adopt similar language.
I also helped reduce State of California sales and property tax for on-premise-sign manufacturers. We eliminated certain applications of those taxes altogether and created more favorable formulae for others. In effect, I assisted California industry members to equalize two previously unjust taxes.
Can you pinpoint other specific cases/decision that altered California sign codes?
Other than Chapter 2.5 of the California Business and Professions Code, and Denny’s Inc. et al v. City of Agoura Hills (56 CAL.AP 4th 1312, 66 CAL RPTR 2nd 382) (1997)). California, as a state, really has no meaningful sign code, though it does, to a degree, regulate signs through zoning or by its Department of Transportation (CALTRANS) regulations.
However, several U. S. Supreme Court decisions have significantly impacted California and other states’ sign codes, as well as local municipalities.
The following case decisions aren’t in any particular order, but they all bear heavily on commercial-speech sign codes:
Virginia Pharmacy Board v. Virginia Citizens Consumer Council (425 U.S. 748, 761-62) (1976) was the first real decision that extended First Amendment protection to commercial speech, even if only on a limited basis.
Later, Central Hudson Gas & Electric Corp v. Public Services (447 U.S. 557) (1980) established a four-part test for analyzing restrictions imposed on commercial speech. It required that, among many things, a city’s speech-control regulations must directly (without speculation or conjecture) advance a valid city interest in no more restrictive manner than necessary. Additionally, Central Hudson requires government regulations that restrict commercial speech to provide adequate safeguards to limit the potential infringement of First Amendment rights.
Though only a plurality decision, Metromedia v. City of San Diego (453 U.S. 490, 513) (1981) has distinguished non-commercial speech from commercial speech and held that an ordinance may not impose greater restrictions on non-commercial billboards than on commercial billboards, or regulate non-commercial billboards based on their content.
Elrod v. Burns (427 U.S. 347, 373) (1976) establishes that the loss of First Amendment freedoms, for even minimal periods, unquestionably constitutes restrictive irreparable injury.
Linmark v. Township of Willingboro (431 U.S. 75) (1977) required that ordinances must provide reasonable alternative means or channels of communication so sign users can communicate with the public in an adequate, noticeable and effective manner.
Who are the sign-industry people you have admired the most during your career?
That’s difficult, because I’ll leave someone out. I think very highly of Kozell Boren; Leo March (deceased); Kirk Brimley; Bill Moore; Frank Montroy (deceased); Jeff Tanielian; Roy Flahive; Mark Gastineau; Noel Yarger and Kevin Stotmeister.
I also admire my son, Jeffrey Aran, who is filling my shoes for CSA as its legal counsel, effective January 1 , 2004. I am extremely confident he brings to GSA great legal ability, competency, maturity, knowledge, legislative skill and the desire to relentlessly fight for industry needs.
What’s the biggest legislative problem facing the sign industry? Has it changed since your career began?
Yes, it’s changed, but not significantly. Government still meddles with private guaranteed rights under the guise of “general welfare.” It still adopts sign regulations designed to improve aesthetic, as opposed to substantive, concerns.
Courts still waffle from one case decision to another, justifying erosive conduct by some non-viewable magical light, which shines only when a court robe is worn. The Federal Appellate Circuit system’s inconsistency is very frustrating. The U. S. Supreme Court functions to eliminate disparate circuit activity but it can’t do so and still resolve its major issues.
The single most necessary national legislation is eliminating amortization as fair and just compensation for on-premise signs. Amortization must die. Make cities pay hard cash for structural change, conformity or any removal of a perfectly useable, on-premise sign. Let cities demonstrate that a sign, after 5 to 25 years, has no value. They can’t.
Our U. S. Constitution supports such elimination. We will need industry unity to bring it about.
While some industry members pursue federal-agency assistance, such as the Small Business Administration (which undoubtedly will be helpful), the industry needs to focus its legislative effort at amortization elimination. The sign industry would save billions of dollars, and sign users could operate with much less governmental interference. I will be the first in line at the wake for amortization when legislature sounds the death knell.
A united front means the whole industry working together, not one segment trying to outdo the other. The effort to kill amortization will be monumental; however, it can be done, and it would be the single most important, national-legislative enactment this industry could ever accomplish.
What are your future plans?
I would certainly like to help eliminate amortization. I don’t want my law license to become inactive. I’ll stay current with all changing legislation that affects the on-premise sign industry and survival. While I currently have pending sign litigation in federal court on behalf of a major sign user, I will be carefully screening any future litigation. Unless any new potential litigation involves important issues dear to my heart, I will limit active litigation involvement.
However, I’m available for consultations regarding legal sign and incidental issues to anyone who wishes to review problems (including lawyers). I’ll assist CSA or other sign associations, if called on.