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HomeMy WebLinkAboutAerial Advertising - City Attorney To Review Draft Ordinanc CERTIFIED TRANSCRIPT OF 11/6/02 CITY COUNCIL MEETING 1 2 Regarding banner towing Ordinance .3578 3 4 Council Member Connie Boardman: 5 This is an emergency H item that I am bringing 6 forward because of information shared with us 7 tonight in the closed session and I really hate to 8 have to bring this forward because I was, you know 9 such a strong proponent of the banner towing 10 ordinance - but the FAA has basically pulled the rug 11 out from underneath our ordinance by changing their 12 rules and that makes our ordinance now unenforceable 13 and I think problematic . So I would like to direct 14 staff to bring back an ordinance to repeal the 15 banner towing ordinance at the next meeting . 16 17 18 19 20 21 22 23 24 25 26 27 28 scl/transcrip/12/19/02 �Ce Wotes Office of the City CCerk .-Huntington. Beac�i, CaC�fornia - �3 -oZ_ ieCC9 Use- Swe""5 ORD a.C./C #O4 Us-e yr S S "s"L Lod.� Council/Agency Meeting Held:Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied _ City Clerk's Signature Council Meeting Date: November 18, 2002 Department ID Number: CA 27 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION = SUBMITTED TO`(0((!, , �NORABLE MAYOR AND CITY COUNCIL MEMBERS, SUBMITTED BY: �41L HUTTON, City Attorney PREPARED BY�1 GAIL HUTTON, City Attorney SUBJECT: Adopt Emergency Ordinance No. 3y3 An Emergency Ordinance of the City Of Huntington Beach Repealing Chapter 9.07 of the Huntington Beach Municipal Code Which Prohibited Aerial Advertising. Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Whether to adopt Emergency Ordinance No. 35�,3 An Emergency Ordinance of the City Of Huntington Beach Repealing Chapter 9.07 of the Huntington Beach Municipal Code Which Prohibited Aerial Advertising. Fundinq Source: N/A Recommended Action: Adopt Emergency Ordinance No. An Emergency Ordinance of the City Of Huntington Beach Repealing Chapter 9.07 of the Huntington Beach Municipal Code Which Prohibited Aerial Advertising. Alternative Action(s): Do not adopt Emergency Ordinance No. Analysis: The City's ordinance that prohibited aerial advertising was adopted after the United States Court of Appeals for the 9t" Circuit upheld a similar ban adopted by the City of Honolulu. The Huntington Beach ordinance emulated the Hawaii ordinance. � I � Rr-QUEST FOR COUNCIL ACTION MEETING DATE: November 18, 2002 DEPARTMENT ID NUMBER: One key element of the Honolulu decision was the fact that at that time, the Federal Aviation Administration (FAA) had not elected to pre-empt cities from regulating banner towing planes. This election was evidenced by a clause in the Certificate of Waiver issued by the FAA under which the banner towers fly; that clause specifically stated that as a condition of the permit to fly banners,-local regulations had to be obeyed. In analyzing whether or not the FAA had pre-empted the Honolulu ordinance, the Court relied heavily on that clause. Since the adoption of the Huntington Beach ordinance, the FAA has not only removed that clause, but added to its regulation of banner towing pilots a statement that the FAA is indeed exercising its authority and acting to pre-empt local ordinances. Due to this action by the FAA, it is recommended that the City's ordinance be repealed. Environmental Status: N/A Attachment(s): City Clerk's • •tion 1. Emergency Ordinance No. . S`j 2. Legislative Draft of HBMC Chapter 9.07 RCA Author: SCL 02 banner tow -2- 11/13/02 3:55 PM EMERGENCY ORDINANCE NO. 3593 AN EMERGENCY ORDINANCE OF THE CITY OF HUNTINGTON BEACH REPEALING CHAPTER 9.07. OF THE HUNTINGTON BEACH MUNICIPAL CODE WHICH PROHIBITED AERIAL ADVERTISING' The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Chapter 9.07 of the Huntington Beach Municipal Code is hereby repealed in its entirety. SECTION 2. The City Council declares that this emergency ordinance is required for the immediate preservation of the public peace, health or safety in that retaining the current ordinance leaves a pre-empted and therefore invalid ordinance in effect. Therefore, pursuant to Section 501 of the City Charter, this ordinance shall become effective immediately upon its affirmance by at least five of the members of the City Council. SECTION 3. This ordinance shall become effective immediately upon its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 1$t1, day of November , 2002. Mayor ATTEST: CONNIE BROCKWAY APPROVED AS TO FORM: City Clerk /t'-(3'6'�it Attorney ,1 y , REVIEWED AND APPROVED: `"'` INITIATED AND APPROVED: City Ai1ministrator. t1't 'v ity Attorney 02ord/repeal banner/11/13/02 1 Emergency Ord. No. 3593 STATE.OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on the 18th day of November, 2002 and was passed and adopted by at least four-fifths (4/5) affirmative vote of said City Council. AYES: Green;Dettloff, Boardman, Cook, Houchen,Winchell,Bauer NOES: None ABSENT: None ABSTAIN: None 1,Connie Brockway CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Eu►�\Z�7lt- Council,do hereby certify that a s jmopsis of this ordinance has been published in the Huntington Beach CONNIE BROCKWAY Fountain Valley Independent on November 28 12002 - In accordance with the City Charter of said City City Clerk and ex-officio Crerk Connie Brockway, City Clerk of the City Council of the City ;t�tcL Deputy City Clerk of Huntin on Beach, California Ordinance No. LEGISLATIVE DRAFT rag«T AERIAL A T ADNIER44SING DD 141BITED con+; n7 n1 n Definitions o nA� mn Aerial Advertising Prohibited TV w o n7 030 V iolalien Penalty o n7 n 1 n Definitions For-the ptffposes of this chapter, ( ) The {x "advertising" means the n+ f ealling or- the ' uluu t b Y to an event, per-son, per-sons, u r _ .tion, Eatts -ealling, product r busin Cv7 The-term r"sign-vra rcrcrarrrg- , means and ineludes, but , n poster-, > a, r , ra a, light, o J h 1 J other-form f advertising s,Qr, r d- 0 b � means, an but is not limited o general 7 for- profit eer-por-atio or-non f;+ n rn+,,.,+ a n7 020 A er-i l A dye ftisin.12r-ohibited. L (a) Exeept as allowed under- ..1� boundaries of the G•+ f LT +• ,+ „ u r,� r,or�„+ + i,o „ v .,+bove th-e o,t Ten Beach, operate or use,oofTU��ro be o er- 7 any type of air-er-A or other- self propelled or-buoyant air-bome objeet to display in any manner or-for any puTose what gn or-advei4ising deviee. (b)Exeepti6ns. Vl{,the display of ] y•nL7 mark,trade name, trade or-+ ,l l(1 I,t 1 L n the f a fr er-'Vr ., Vr Y b objeet's owner-. ) Subseetion(a) of this seetion shall not prohibit w4hin the llll.V'- 11 a deviee 1 wholly and visible � ft or- if r oflv,t r 1.,, r,+ a,r-bo-„e bj n+ legisdrft/chap 9 07 LD/11/13/02 1 (3) C`,.1....o t;,,n (a) of this ..o do shall not apply tE,the display f c�., r sign va a d„ergs;,, .do„;..o when r.l.,.,o,d o .,tt.,ehe d to a r,d 1.,,;1,d;.,.. or- , vuuuaaa�, vi stfuetiir-e ,d bje +t ro f t„l.,tio , „,dor Chapter-233 of TA In hi-g .,,dv ua� vv...J. Q 1, or-adveftising deviee shall be rmittv.d prohibited, or-.,the o regulated provided under-the ,f „tio„od Chapter-233.9.07.03 0 Violation Penalty. Any per-son violating an),pr-ovision of this ehapter- sh guilty f 'tl,er- a misdemeanor-or an inffaetion, and, pon eenvietion_thereof shall 1,Code. Puf suant to Seetion 1.16.04 5 of said Code, the City Attome),has the diser-etion to file a eomplaint eharging a violation of this ehapler-as either-a misdemeanor- or-a inr frcc.,,,ct; avir. legisdrft/chap 111 LD/11111112 2 ACV_ Council/Agency Meeting Held: U9 03-02- Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied Cit lerk's gignature Council Meeting Date: September 3, 2002 Department ID Num er: CA 09-(16-02 GK0c N NO CITY OF HUNT'INGTON BEACH t REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: RAY SILVER, City AdministratorGr4� PREPARED BY:el- IL HUTTON, City Attorney _ SUBJECT: Adoption of a Proposed Ordinance Prohibiting Aerial Advertising Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Should City Council enact into law an ordinance that would prohibit aerial advertising. Funding Source: Not applicable. Recommended Action: Introduce/give a first reading to Ordinance No.,-�5;7.qOan ordinance of the City of Huntington Beach amending the Huntington Beach Municipal Code by adding thereto Chapter 9.07, prohibiting aerial advertising. Alternative Action(s): Not to introduce/give a first reading to said proposed ordinance. Analysis: BACKGROUND On July 15, 2002, the City Council of the City of Huntington Beach ("City") reviewed an April 12, 2002 opinion of this office (RLS No. 2002-0044), and attachments, including a draft of a proposed ordinance that would ban aerial advertising; and referred the matter to this office for a preparation of a final report regarding the legal validity of such an ordinance, including how it would be enforced. This office has now completed its work on this issue. DRAFT OF PROPOSED ORDINANCE The first attachment to this Request for Council Action ("RCA") is the final draft of a proposed ordinance that would prohibit, with a minor exception, aerial advertising. RL-%JUEST FOR COUNCIL ACTI%,,4 MEETING DATE: September 3, 2002 DEPARTMENT ID NUMBER: CA CITY ATTORNEY'S REPORT The second attachment to this RCA is this office's August 29, 2002 final report, and attached Exhibits A, B and C. Exhibit A is a copy of the final draft of the proposed ordinance. In the report, we attempted to answer a number of questions; both legal and practical, that have arisen with respect to the proposed ordinance. This office is not taking an official position either recommending or not recommending that the proposed ordinance be enacted into law, as this is a decision for the City Council. However, if the ordinance is adopted, we have attempted to make the ordinance as strong as possible should it be attacked in court. We have also opined that the ordinance, if attacked in court, could successfully withstand federal preemption, First Amendment and Equal Protection arguments. CONCLUSION On September 3rd, we would be pleased to attempt to answer any questions that might arise. Environmental Status: Attachmentlfs): City Clerk's . Pa,gle NumberNo • • 1. An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal Code by Adding TheretoChapter 9.07, Prohibiting Aerial Advertising DrG�, No• ��S7B 2. Memo — RLS No. 2002-0449. Final Report From the City Attorney Regarding Enactment of an Ordinance Banning Aerial Advertising. RCA Author: Robert J.Wheeler, Special Counsel, City Attorney's Office G:\RCA\2002\Aerial Advertising Ban.doc -2- 8/29/2002 3:48 PM ATHMENTTAC ORDINANCE NO. 3578 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDNG THE HUNTINGTON BEACH MUNICIPAL CODE BY ADDING THERETO CHAPTER 9.07, PROHIBITING AERIAL ADVERTISING The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Statement of Legislative Intent. ' In recent years, the City of Huntington Beach ("City") has received a number of complaints from its residents concerning the presence of an increasing number of small, single-engine planes towing banners advertising any number of political, commercial, religious, public interest or personal messages. These planes constantly overfly certain areas of the City including, but not limited to, Golden West College, the southeast area of the City, the City's downtown area and-the Ciiy s-peaches adj acent-to the Pacific Ocean. These planes are noisy, fly at very low altitudes and pollute the air. Many times their engines sputter as these planes attempt to tow banners larger in size than the planes themselves. In addition to concerns regarding noise, aesthetics, and air pollution, these planes could crash into populated areas of the City, including the beaches and the Pacific Ocean where sunbathers or swimmers are present. In the recent decision of Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109(9th Cir. 2002), the federal appellate court upheld the validity of a similar Honolulu ordinance against an. attack that it was preempted by federal law and by Federal Aviation Administration regulations. Pursuant to its constitutional police power, as well as its constitutional power as a chartered city, the City(acting through its City Council) enacts this ordinance into law in order to protect the safety, health and welfare of not only its residents, but also of all other persons who work in or visit the City. SECTION 2. The Huntington Beach Municipal Code is hereby amended by adding thereto Chapter 9.07, to read as follows: Chapter 9.07 AERIAL ADVERTISING PROHIBITED Sections: 9.07.010 Definitions 9.07.020 Aerial Advertising Prohibited 9.07.030 Violation—Penalty 02ord/chap 9.07 1 Ord. No. 3578 9.07.010 Definitions For the purposes of this chapter: (a) The word"advertising" means the act of calling or attracting the public's attention to an event, person, persons, group, organization, cause, calling, product or business. (b) The term"sign or advertising device," means and includes, but is not limited to, a poster, banner, writing, picture, painting, light, set of lights, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device. (c) The word"person" means, but.is not limited to, an individual, general partnership, limited partnership, limited liability company, unincorporated association, for-profit corporation or non-profit corporation. 9.07.020 Aerial Advertisiny,Prohibited. (a) Except as allowed under subsection(b), no person shall, within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. (b) Exceptions. (1) Subsection (a) of this section shall not prohibit the display•of any identifying mark,trade name, trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or airborne obj ect's owner. (2) Subsection (a)of this section shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self-propelled or buoyant airborne object. (3) Subsection (a) of this section shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 233 of Title 20 of this code. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the aforementioned Chapter 233. 9.07.030 Violation—Penalty. Any person violating any provision of this chapter shall be guilty of either a misdemeanor or an infraction, and upon conviction thereof shall be punished according to the provisions of Chapter 1.16 of the Huntington Beach Municipal Code. Pursuant to Section 1.16.045 of said Code,the City Attorney has the discretion to file a complaint charging a violation of this chapter as either a misdemeanor or an infraction. 02ord/chap 9.07 2 Ord. NO. 3578 SECTION 2. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 16th day of September 2002. k4l" Mayor ATTEST: APPROVED AS TO FORM: City Clerk 04-11-e2 v City Attorney 8`a9�02 REVIEWED AND APPROVED: ITIATED AND APPROVED: ` G City AdrifKistrator City ttorney 02ord/chap 9.07 3 Ord. No. 3578 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do _ hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a re ular meeting thereof held on the 3rd day of September,2002, and was again read to said City Council at a regular meeting thereof held on the 16th day of September, 2002, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Dettloff,Boardman, Cook,Houchen, Winchell NOES: Green, Bauer ABSENT: None ABSTAIN: None I,Connie Brockway,CITY CLERK of the City of Huntington Beach and ex-offcio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on 2002 In accordance with the City Charter of said City City Clerk and ex-off cio Clerk Connie Brockway.City Clerk of the City Council of the City Deputy City Clerk of Huntington Beach, California f T NA- .................. F ?< 5 v � a' • CITY OF HUNTINGTON BEACH Inter-Department Communication TO: Honorable Mayor and Members of the City Council FROM: GAIL HUTTON, City Attorney DATE: August 29, 2002 SUBJECT: RLS No. 2002-0449. Final Report From the City Attorney Regarding Enactment of an Ordinance Banning Aerial Advertising BACKGROUND On July 15, 2002, the City Council of the City of Huntington Beach ("City") reviewed an April 12, 2002 opinion of this office (RLS No. 2002-0044), and attachments, including a draft of a proposed ordinance that would ban aerial advertising; and referred the matter to this office for a preparation of a final report regarding the legal validity of such an ordinance, including how it would be enforced. This memorandum, and attached Exhibits A, B, and C, constitutes this office's final report. FINAL DRAFT OF PROPOSED ORDINANCE Exhibit A to this report is the final draft of a proposed ordinance banning aerial advertising. SECTION 1 of the ordinance is new. It contains a declaration of legislative intent. This is an important consideration should the ordinance be attacked in court.' For the most part, this ordinance is modeled after one adopted by the City and County of Honolulu; the legality of which was upheld by the federal Ninth Circuit Court of Appeals in the case of Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109 (91" Cir. 2002) ("Skysign Internationaf'). 1. WHO WILL BE SUBJECT TO THE ORDINANCE? The following persons or entities would be subject to the ordinance: (a) the pilot of the plane; (b) the owner or owners of the plane; and (c) the advertiser or adver*l sers. In this regard, proposed Huntington Beach Municipal Code ("HBMC") § 9.07.020(a) states, in relevant part: We are not taking a position as to whether the ordinance should be adopted,for that is a decision of the City Council. However,assuming that the ordinance will be adopted,and to assist the Council,we are answering any legal and enforcement questions that might arise. 1 rjwMmemos/Final Ord. Banning Aerial Advertising/jn Honorable Mayor and Members ,ie City Council 8/29/2002 Page 2 of 6 ". . . no person shall, within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft . . ." A plane's pilot is clearly included as a person subject to the ordinance. In addition, it is the intent of the above underlined phrase ". . . or cause to be operated or used, . . ." that a plane's owner or owners, as well as the advertiser or advertisers, would also fall within the ambit of the ordinance. 2. EXISTING FEDERAL AVIATION RESTRICTIONS In opinions dated September 2, 1998 (RLS No. 98-534), October 8, 1999 (RLS No. 99-688) and April 25, 2000, we opined that because the Federal Aviation Administration (sometimes TFX) had promulgated specific regulations governing minimum altitude restrictions and had occupied the fields of aircraft flight and aviation noise, the City was prohibited from enacting its own restrictions regarding the altitudes of flying aircraft. As we stated in our September 2, 1998 and October 8, 1999 opinions, under FAA regulations, any aircraft must fly at least 1,000 feet above the City, including at least 1,000 feet above the beach. When flying over an ocean, an aircraft may fly at any altitude as long as the aircraft is flying at least 2,000 feet from the shoreline and at least 500 feet from any person or vessel. 3. WHAT TYPES OF AIRBORNE OBJECTS WOULD BE SUBJECT TO SUCH AN ORDINANCE All planes towing banners, no matter the subject matter content of the banners, would be subject to the ordinance. So would helicopters towing banners, although the Police Department has told us that this is a rare practice because it is extremely dangerous. Planes, helicopters or blimps carrying lighted or non-lighted advertising signs on or beneath their fuselages would be subject to the ordinance. See Skysign International, supra, 276 F.3d at p. 1113. If the name or logo of the aircraft's or airborne object's owner is on the side of the plane, helicopter or blimp, the ordinance would not apply. See proposed HBMC § 9.07.020(b)(1). How would the ordinance affect the "Goodyear" or "Fuji Film" blimps? If the Goodyear corporation or the Fuji Film corporation owned the blimps in question, the ordinance, under proposed HBMC § 9.07.020(b)(1), would not apply to them. But if these blimps displayed any lighted or non-lighted third party advertising on them [note the definition of"advertising" in proposed HBMC § 9.07.010(a)], the ordinance would apply. If a person owned a business, and also owned a plane, that person could display the name or logo of the business on the side of the plane, and not violate the ordinance. However, that "business owner/plane owner" could not tow any type of banner behind the plane. 2 rjw02memos/Final Ord. Banning Aerial Advertising/jn Honorable Mayor and Members .1e City Council 8/29/2002 Page 3 of 6 4. HOW WILL SUCH AN ORDINANCE BE ENFORCED? The City's Police Department answered this question in its memorandum dated August 7, 2002, a copy of which is attached to this report as Exhibit B. The Police Department, by use of its helicopter, will investigate the matter and furnish its report to this office. There are a number of remedies available to the City and this office to enforce a violation of the ordinance. They are: (a) a misdemeanor or infraction criminal complaint; (b) an administrative citation under Chapter 1.18 of the HBMC; and (c) a civil suit. In a rare case, the Police Department might issue a citation to a plane's pilot, but it is envisioned that this office will be the primary enforcement agency. 5. AREA IN WHICH THE ORDINANCE WILL APPLY The proposed ordinance, in relevant part, states: 99 . . . no person shall, within or above the boundaries of the City of Huntington Beach, . . ." The area of the City to which the ordinance would apply is all of the City's land area, including its beaches, as well as a distance of three miles into the Pacific Ocean from the mean tide line. City Charter§ 102 defines the City's boundaries as: "(T)he boundaries of the City shall continue as now established until changed in the manner authorized by law." In an opinion dated March 30, 2000 (RLS No. 98-417), we opined that the City's boundaries extended into the Pacific Ocean for a distance of three miles past the mean tide line. We rendered this opinion after reviewing the City's February 15, 1909 incorporation documents that described the City's original boundaries. Thus, under the ordinance, aerial advertising would be prohibited above any of the anu area within the City's boundaries, as-well as cwer he-Pacific Ocean for a distance of three miles past the mean tide line. 6. IS THE ORDINANCE LEGALLY VALID? If the ordinance, once enacted into law, is legally attacked, we cannot predict how a court would rule. But based on our legal research, we feel, especially with the Skysign International case in mind, that the ordinance has a good chance of successfully withstanding judicial attack. It appears to us that the three most obvious grounds of legal attack on the ordinance would be: (a) it is preempted by federal law; (b) it violates the federal Constitution's First Amendment; and (c) it violates the federal Constitution's Equal Protection Clause. rjw02memos/Final Ord. Banning Aerial Advertising/jn Honorable Mayor and Members ie City Council 8/29/2002 Page 4 of 6 a. The Federal Preemption Issue This issue was a specifically addressed by the federal appellate court in the Skysign International case. A copy of the court's opinion is attached as Exhibit C. The Ninth Circuit ruled that neither federal law, nor the regulations of the Federal Aviation Administration,-preempted-Honolul.uas-.aerial.advertising-ban.ordinance. We-have bracketed the key portions of the court's opinion in this regard.2 Based on this opinion, we do not feel that the ordinance is federally preempted. b. The First Amendment Issue The most important feature of the ordinance, regarding the First Amendment issue, is that it is content neutral. The ordinance does not distinguish between different types of speech (i.e., religious, political, commercial, etc.) that might be displayed by an airplane, helicopter or blimp, or on an object being towed by a plane. One type of message is not favored over another,and .one messenger.is not favored over.another. The First Amendment denies the government the power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, at p. 95, 92 S.Ct. 2286, 33 L.Ed 212 (1972). As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based and therefore impermissible. Turner Broadcasting Systems, Inc. v. F.C.C., 512 U.S. 622, at p. 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). However, a content neutral statute makes no reference to the substance of the regulated conduct. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, at p. 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). To determine content neutrality in speech cases, the principal inquiry is whether the government has adopted a regulation of speech because of the disagreement with the message ii conveys:-�'v'vatu V. r'wwl myaiii�t Racist?), 49 i'u.�. 78 i, at p. 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). ("Rock Against Racism') So long as a content-neutral regulation is narrowly tailored to accomplish a legitimate government purpose, it is not proscribed by the First Amendment. Ward v. Rock Against Racism, supra, 491 U.S. at p. 798. SECTION 1 of the ordinance cites public safety, noise, aesthetics, and air pollution as reasons why the ordinance is needed. The ordinance is narrowly tailored. It is aimed at a specific activity — aerial advertising. Except for Honolulu, and Huntington Beach if the ordinance is enacted into law, aerial advertisers literally have the rest of the world in which to engage in this type of 'The Skysign International decision is final as the aerial advertising company involved in that case never petitioned the Ninth Circuit for a rehearing or filed a petition for a writ of certiorari with the United States Supreme Court. There has been some mention that the Supreme Court"disfavors"Ninth Circuit decisions. Whether or not this argument is true,we feel that the Skysign International opinion is a well-reasoned appellate court decision, particularly on the issue of federal preemption. It is also important to note that the State of California(including Huntington Beach,of course) lies within the jurisdiction of the Ninth Circuit Court of Appeals. A -r rjw02memos/Final Ord. Banning Aerial Advertising/jn Honorable Mayor and Members ie City Council 8/29/2002 Page 5 of 6 advertising. Furthermore, other mediums are available (i.e., off-premises signs, on- premises signs, radio, television, etc.) in which advertisers can convey their messages. An interesting, analogous situation is found in the case of Simpson v. Municipal Court, Sacramento Municipal Court District(1971) 14 Cal.App.3d 591, 92 Cal.Rptr. 417 ("•Sim;?son."). In Simpson, plaintiff,attacked,...on_F.irst.Amend meat grounds, a provision of the state's Penal Code that forbade picketing inside the State Capitol Building in Sacramento. Plaintiff argued that the flat prohibition of picketing was too broad to survive constitutional challenge and that the state Legislature must regulate more narrowly in proximity to the First Amendment. The appellate court disagreed. In upholding the constitutionality of the statute, the appellate court stated (Id., p. 599): ". . . (F)reedom of expression does not mean that everyone with opinions or beliefs to express may do so at any time or place; primarily it aims at preventing the preference of some ideas over others ...—The.present ban selects no preferred viewpoint; does not suppress provocation or challenge. It bans a single mode of communicative technique, the . . . picket. Even then, it constricts only narrowly, leaving the picket the entire outside world, including the capitol grounds, as the site for his appeal to public opinion and legislative action . . . The ban is no broader than necessary to meet the legitimate governmental need . . ." Based on these legal authorities, it is our opinion that the ordinance would not offend the First Amendment. C. The Equal Protection Issue The Equal Protection Clause of the federal Constitution directs that "all persons similarly situated shall be treated alike." Honolulu Weekly, Inc. v. Harris, 2002 DJDAR 8725, at p. 8728 (91h Cir. 2002) ("Honolulu Weekly'). In determining whether an ordinance violates equal protection, a court begins its analysis by determining the proper level of scrutiny for review. Courts apply strict scrutiny if the government enactment "targets a suspect class or burdens the exercise of a fundamental right." Ibid. When applying strict scrutiny, a court asks whether the ordinance is narrowly tailored to serve a compelling government interest. Ibid. If the ordinance does not concern a suspect class or a fundamental right, courts apply a rational basis review and simply ask whether the O dinai lie is rationally related to a legi ii-gate goveri i-nei ital Interest. /bid. Assuming that the right to aerially advertise is protected under the First Amendment, courts only apply strict scrutiny when a distinction among speakers is made on the basis of content. Honolulu Weekly, supra, 2002 DJDAR at p. 8728. Since the aerial advertising ban is content neutral, strict scrutiny is not appropriate. Ibid. Since rational basis review applies, is the ordinance "rationally related to a legitimate J rjwU2memos/Final Ord. Banning Aerial Advertising/jn Honorable Mayor and Members to City Council 8/29/2002 Page 6 of 6 government interest?" We think that safety, noise and air pollution are legitimate government interests and that the ordinance is a rational attempt to achieve these interests. Thus, the ordinance, in our opinion, would not violate the Equal Protection Clause. ......HONOLI ILU'S.EXRFRI.Et,!E,AA!,ITH ,ITC.A,FRIAL.ADVE-RTICING,BAnI _.. . . ,......,.,.. ORDINANCE The City and County of Honolulu had only one company, the plaintiff in the Skysign International case, violating its ordinance. The company was small in size, utilized only one helicopter, and flew over Waikiki Beach; taking off from and landing at a small private airport near the Waikiki Beach area. The helicopter in question did not utilize the Honolulu International Airport for its flights. According to the court's opinion in the Skysign International case (see 276 F.3d at p. 1114), the plaintiff in that case ceased doing business in the early stages of the dispute with the City and County of Honolulu. ,. The situation in.Honel�alu.differs,markecfly.from the.City_of,Huntington BParh ..WhPre a number of planes towing banners fly over its land and beaches. CONCLUSION We would be pleased to answer_any other questions the City Council may have in this matter. GAIL HUTTON f ��"'✓ iiiy Attorney Exhibits as noted cc (with exhibits): Ray Silver, City Administrator Bill Workman, Assistant City Administrator Ron Lowenberg, Chief of Police rjw02memos/Final Ord. Banning Aerial Advertising/jn EXHIBIT A 7 ORDINANCE NO. AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY ADDING THERETO CHAPTER 9.07, PROHIBITING AERIAL ADVERTISING The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Statement of Legislative Intent. In recent years, the City of Huntington Beach ("City") has received a number of complaints from its residents concerning the presence of an increasing number of small, single-engine planes towing banners advertising any number of political, commercial, religious, public interest or personal messages. These planes constantly overfly certain areas of the City including, but not limited to, Golden West College, the southeast area of the City,the City's downtown area and the City's beaches adjacent to the Pacific Ocean. These planes are noisy, fly at very low altitudes and pollute the air. Many times their engines sputter as these planes attempt to tow banners larger in size than the planes themselves. In addition to concerns regarding noise, aesthetics, and air pollution, these planes could crash into populated areas of the City, including the beaches and the Pacific Ocean where sunbathers or swimmers are present. In the recent decision of Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109(9`h Cir. 2002), the federal appellate court upheld the validity- of a similar Honolulu ordinance against an attack that it was preempted by federal law and by Federal Aviation Administration regulations. Pursuant to its constitutional police power, as well as its constitutional power as a chartered city, the City(acting through its City Council) enacts this ordinance into law in order to protect the safety, health and welfare of not only its residents, but also of all other persons who work in or visit the City. SECTION 2. The Huntington Beach Municipal Code is hereby amended by adding thereto Chapter 9.07, to read as follows: , Chapter 9.07 AERIAL ADVERTISING PROHIBITED Sections: 9.07.010 Definitions 9.07.020 Aerial Advertising Prohibited 9.07.030 Violation—Penalty 02ord/chap 9.07 1 9.07.010 Definitions For the purposes of this chapter: (a) The word"advertising" means the act of calling or attracting the public's attention to an event, person, persons, group, organization, cause, calling, product or business. (b) The term "sign or advertising device," means and includes, but is not limited to, a poster, banner, writing, picture, painting, light, set of lights, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device. (c) The word "person"means, but is not limited to, an individual, general partnership, limited partnership, limited liability company, unincorporated association, for-profit corporation or non-profit corporation. 9.07.020 Aerial Advertising Prohibited. (a) Except as allowed under subsection(b), no person shall, within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. (b) Exceptions. (1) Subsection (a) of this section shall not prohibit the display of any identifying mark,trade name, trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or airborne object's owner. (2) Subsection (a) of this section shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self-propelled or buoyant airborne object. (3) Subsection(a) of this section shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 233 of Title 20 of this code. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the aforementioned Chapter 233. 9.07.030 Violation—Penalty. Any person violating any provision of this chapter shall be guilty of either a misdemeanor or an infraction, and upon conviction thereof shall be punished according to the provisions of Chapter 1.16 of the Huntington Beach Municipal Code. Pursuant to Section 1.16.045 of said Code, the City Attorney has the discretion to file a complaint charging a violation of this chapter as either a misdemeanor or an infraction. 02ord/chap 9.07 2 �y e ., SECTION 2. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 2002. Mayor ATTEST: APPROVED AS TO FORM: CityColtzj Clerk City Attorne D _ y y 3�a9Io2 REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Community Services 02ord/chap 9.07 3 EXHIBIT B CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTtricTON sEaai TO: RAY SILVER CITY ADMINISTRATOR FROM: RONALD E. LOWENBERG CHIEF OF POLICE DATE: August 7, 2002 SUBJECT: BANNER TOW ORDINANCE It is anticipated that with the enactment of the currently proposed ordinance to ban aerial advertising, the primary tool for enforcement would be our helicopter. Although our aircrews have the capabilities to follow the planes to their airport of origin and contact the pilots this would entail long periods of time out of the city and away from our patrol function. I could not justify using our helicopter for this type of misdemeanor violation considering impact on our public safety mission and the cost involved I would propose that the following guidelines be utilized when dealing with banner tows: • Aircrews will approach an offending aircraft and determine if a violator is within the city limits. • Crews will obtain a description of the aircraft (i.e.: paint scheme, Cessna, high wing, low- wing, etc) and the N number or registration number. • The pilot will attempt to make radio contact with the pilot of the offending airplane and advise him of the violation. • Upon returning to the heliport, the crew will complete a report including the registered owner of the aircraft (from FAA records), the contents of the advertising, geographical landmarks indicating flight over the city and the approximate altitude at which the offending aircraft was operating. • All reports will be forwarded to the City Attorneys office for follow up. If at all possible, crews can try to make a visual identification of the pilot, however this would not always be possible. Our pilots should first observe strict safety precautions before attempting a visual identification. REL:WCP:wp EXHIBIT C Page 2 of 10 276 Fad 1109 Page 2 . 2 Cal. Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) C [1]Declaratory Judgment C;-62 United States Court of Appeals, I i�8Ak62 Most Cited Cases / Ninth Circuit. An action for a declaratory judgment is live, not SKYSIGN INTERNATIONAL,INC., moot;, if the facts alleged, under all the Plaintiff-Appellant, circumstances, show that there is a substantial V. controversy, between parties having adverse legal CITY AND COUNTY OF HONOLULU;Does interests, of sufficient immediacy and reality to 1-100, Defendants-Appellees. warrant ihe issuance of a declaratory judgment. No. 99-15974. [2] Federal,Civil Procedure C;-103.3 170AkI O3.Tost Cited Cases Argued Dec. 13,2000 Submission Deferred Dec.26,2000 [2] Federal Courts C�-12.1 Re-Submitted Dec. 18,2001 17013k12.1 Wst Cases Filed Jan.9,2002 The distinction between t e question of "redressability," a component oaf initial standing to Provider of aerial advertising which was issued sue, and the \doctrine of "mootness," the citations under city and county's signage ordinance requirement that a controversy remain live even brought action against city and county, seeking after the plaintiff demonstrates initial standing, declaration that federal law preempted city and though subtle, is an -mpor)ant one, in part because county from seeking to regulate navigable airspace, mootness admits of certai exceptions that standing an injunction barring the enforcement of any local does not. ordinance to the contrary, and damages on various causes of action under state law. The United States [3] Declaratory Judgment�300 District Court for the District of Hawaii, Helen 118Ak300 Most Cited Cases Gillmor, J., granted city and county's motion to dismiss the federal claims, and dismissed the state Provider of aerial advert Ong which appeared to claims without prejudice. Advertiser appealed. The cease operations ir}/early sta es of its dispute with Court of Appeals, O'Scannlain, Circuit Judge, held city and county Dover citati s it was issued for that: (1) aerial advertising provider had standing to violating city nd county' signage ordinance bring the action, and the case was not moot; (2) personally wo Id benefit from the courts failure of aerial .advertising provider to appeal intervention, a d thus, had stan mg to bring action decision of zoning board of appeals (ZBA) which for declaratio that federal law preempted the local upheld validity of the citation of the advertising ordinance nd an injunction barring the provider for violation of signage ordinance but enforcement of the ordinance, anAhe case was not which failed to address issue raised by the moot, whee the complaint could bpi read to allege advertising provider as to whether the ordinance that the o mance was what caused the advertiser to was preempted by federal law did not preclude cease operations and that the removal of that federal court from addressing the preemption issue obstacle would put it back in b� siness, and in separate action; (3) city and county's general inasm h as the city and county coull not collect signage and aerial signage ordinances were not the Ptstanding fines if the ordi\newas preempted by federal aviation law; and (4) Federal pree pted by federal law. Aviation Administration's (FAA) certificates of waiver provided to aerial advertising provider did 14,Federal Courts�420 not preclude enforcement of the local ordinances. /U01e Bk420 Most Cited Cases Affirmed. that federal courts must accord aourt judgment the same preclusive effecthe judgment would receive in the rend �e's West Headnotes courts extends to state administrative adjudications Copr. ©West 2002 No Claim to Orig.U.S. Govt.Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B005 5800000004390001649224B... 8/8/2002 Page 5 of 10 276 F.3d 1109 Page 5 2 Cal. Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) 1. here the certificates of waiver explicitly noted that At all times relevant to this appeal, Skysign the aircraft operator, by exercising the privilege,,fof operated under the authority of certificates of the waiver, understood all local laws and ordinances waiver issued by the Federal Aviation relating to aerial signs, and accepted responsibility Administration (FAA). Federal regulations prohibit for all actions and consequences associated with the operation of "restricted category civil aircraft" such operations. 14 C.F.R. §91.313(e). [FN1] in certain locations--"(1) [o]ver a densely *1112 Denise H. Sangster (argued), Michael Jay populated area; (2) [i]n a congested airway; or (3) Green, David J. Gierlach, Honolulu, Hawaii, for the [n]ear a busy airport"--without a certificate of plaintiff-appellant. / waiver from the FAA. 14 C.F.R. § 91.313(e). The !/ FAA issued Skysign a certificate of waiver good for Gregory J. Swartz, Deputy Corporation Counsel about nine months on January 8, 1996, and a (argued), David Z. Arakawa, Corporation Counsel, subsequent one-year certificate on August 22, 1996. City and County of Honolulu, Honolulu, Hawaii, for the defendants-appellees. FN1. This group includes aircraft that have Stuart E. Schiffer, Acting Assistant Attorney been modified for "special purpose General, Elliott EnokiNUnited States Attorney, operations," including the carrying of Douglas N. Letter and/Christine N. Kohl, Attorneys, "airborne signs" for advertising purposes. Civil Division, United StatesDepartment of Justice, See 14 C.F.R. §21.25(a),(b)(3). Washington, DC, on the brief; Rosalind A. Knapp, Acting General Counsel, Pau1\M. Geier, Assistant General Counsel, United States Department of The two certificates waived the restrictions of 14 Transportations Washington, DC, avid G. Leitch, C.F.R. § 91.313(e) and permitted Skysign to engage Chief Counsel, Nancy D. LoBue, A�ssistant Chief in "Night Time Aerial Advertising." Each Counsel, /Federal Aviation Administration, certificate included a standardized "Note" Washington, DC, of counsel, for the � ited States indicating: This certificate constitutes a waiver of as a icus curiae by invitation of the court. those Federal rules or regulations specifically referred to above." Each certificate also included a Fd eal from the United States District C.urt for set of special provisions (i.e., provisions not a District of Hawaii; Helen Gillmor, District standard part of the waiver form). The lists of ge,Presiding.D.C.No. CV-97-01425-HG. \ special provisions differed slightly, but each included the following language: "The operator, by exercising the privilege of this waiver, understands Before: THOMPSON, O'SCANNLAIN, and all local laws and ordinances relating to aerial signs, TASHIMA,Circuit Judges. and accepts responsibility for all actions and consequences associated with such operations." The City and County of Honolulu, Hawaii, bars by *1113 O'SCANNLAIN,Circuit Judge: municipal ordinance various types of signage, including "[a]ny sign which advertises or publicizes We must decide whether federal law preempts a an activity not conducted on the premises on which local ordinance regulating advertisements borne by the sign is maintained," "[a]ny ... portable sign," aircraft. and "[a]ny flashing sign." Honolulu, Haw., Rev. Ordinances § 21-3.90-2(b), (c), (e) (1990 & I Supp.1996). [FN2] Honolulu also bars the use of aircraft to display "any sign or advertising device." Skysign International, Inc. ("Skysign"), a Hawaii Id. §40-6.1. corporation, was a provider of aerial advertising on the island of Oahu. Its helicopters carried lighted signs beneath their fuselages, bearing FN2. After a 1999 recodification, this advertisements for Skysign's clients. section now appears at§21-7.30. Copr. ©West 2002 No Claim to Orig.U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B005 5 8000000043 90001649224B... 8/8/2002 Page 6 of 10 276 F.3d 1109 Page 6 2 Cal.Daily Op. Serv.200,2002 Daily Journal D.A.R. 291 (Cite as: 276 F.3d 1109) In both 1987 and 1996, when considering II amendments to the latter ordinance, Honolulu sought the FAA's advice as to whether the [1] We must first address the jurisdictional ordinance was or would be preempted by federal question of whether a live case or controversy law. In both cases, the FAA's regional counsel exists. An action for a declaratory judgment is replied that in his agency's view, because of the live, not moot, if "the facts alleged, under all the pervasive federal regulation of navigable airspace, circumstances, show that there is a substantial any local attempt to restrict the way in which controversy, between parties having adverse legal aircraft operate within that airspace would be interests, of sufficient immediacy and reality to pre-empted. warrant the issuance of a declaratory judgment." Pub. Utils. Comm'n v. FERC, 100 F.3d 1451, 1458 In July 1996, Skysign ran afoul of the Honolulu (9th Cir.1996) (quoting Md. Cas. Co. v. Pac. Coal ordinances for the first time. It received a citation & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 charging it with violating § 21-3.90-2, the signage L.Ed. 826 (1941)) (internal quotation marks ordinance, and assessing a civil fine of $100, the omitted). Honolulu contended, and the district court statutorily prescribed amount for a first violation. It held, that this dispute lacked the requisite did not pay the fine, continued to operate, and immediacy because Skysign has ceased operation. subsequently received two further citations, each assessing a fine of$1,000. [2] We note as an initial matter that the district court and the parties appear to have conflated the Skysign appealed only the first citation to question of redressability, a component of initial Honolulu's Zoning Board of Appeals (ZBA), but standing to sue, with the doctrine of moomess, the disputed the ZBA's jurisdiction over the issue, requirement that the controversy remain live even citing the waiver issued by the FAA. The ZBA after the plaintiff demonstrates initial standing. As upheld the validity of the citation and fine but did the Supreme Court has noted, these two inquiries not decide the *1114 federal preemption issue. are quite similar; the doctrine of moomess has even Skysign did not appeal the ZBA's judgment to the been called "the doctrine of standing set in a time state circuit court. Rather, it filed a complaint in frame." U.S. Parole Comm'n v. Geraghty, 445 U.S. the U.S. District Court for the District of Hawaii, 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) seeking a declaration that federal law preempted (quoting Henry Paul Monaghan, Constitutional Honolulu from seeking to regulate navigable Adjudication: The Who and When, 82 Yale L.J. airspace, an injunction barring the enforcement of 1363, 1384 (1973)) (internal quotation marks any local ordinance to the contrary, and damages on omitted). However, as the Supreme Court recently various causes of action under Hawaii law. noted, the distinction, though subtle, is an important one, in part because moomess admits of certain The district court granted Honolulu's motion to exceptions that standing does not. Friends of the dismiss the federal claims on the ground that no Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., case or controversy existed. By that time, Skysign's 528 U.S. 167, 190-91, 120 S.Ct. 693, 145 L.Ed.2d business was no longer operating, and the court held 610 (2000). In this case, Skysign appears to have that Skysign could point to no likelihood of future ceased its helicopter operations in the early stages injury. The court held in the alternative that even if of its dispute with Honolulu, such that the relevant a live controversy existed, the ordinances were not inquiry is into standing and, specifically, the preempted, because the references to local law in redressability component. Skysign's certificates of waiver meant that there was no conflict between federal and state regulation. [3] Undertaking that inquiry, we conclude that Having disposed of the federal questions, the Skysign has alleged facts sufficient to support district court accordingly declined to exercise federal jurisdiction. Skysign "personally would supplemental jurisdiction over the state law claims benefit ... from the court's intervention," Warth v. and dismissed them without prejudice. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), in at least two ways. First, Skysign filed this timely appeal. Skysign's complaint fairly can be read to allege that the challenged ordinance itself is what caused it to Copr. ©West 2002 No Claim to Orig.U.S.Govt.Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B005 5 800000004390001649224B... 8/8/2002 Page 7 of 10 276 F.3d 1109 Page 7 2 Cal. Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) cease operations, and that the removal of that Haw. 648,646 P.2d 962,965-66(1982). obstacle would put it back in business. Cf City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. [6] Because the first of these three requirements is 1382, 146 L.Ed.2d 265 (2000) *1115 ("Simply not met, we reject Honolulu's contention that closing Kandyland is not sufficient to render this Skysign's claim is precluded. In this action Skysign case moot.... Pap's is still incorporated under seeks a determination only of whether the federal Pennsylvania law, and it could again decide to government, through comprehensive regulation, has operate a nude dancing establishment in Erie."). preempted air traffic control and management by Further, Honolulu cannot collect the $2,100 in state and local governments. Although Skysign outstanding fines if the ordinance under which it raised this identical preemption issue before the assessed them is preempted by federal law. ZBA, the ZBA did not decide the issue and Although the district court correctly noted that the explicitly deferred resolution of it to the courts. assessed fines are for Skysign's "past conduct," that Because the ZBA's decision did not address the distinction does not in and of itself deprive a federal preemption issue, it does not preclude the resolution court of jurisdiction to hear a declaratory judgment of that issue in any other court of competent action challenging the enforceability of the law jurisdiction. Skysign's failure to appeal to the under which the penalty is assessed. See, e.g., circuit court affects only the finality of the ZBA's Edgar v. MITE Corp., 457 U.S. 624, 630, 102 S.Ct. decision; it does not constitute some kind of waiver 26295 73 L.Ed.2d 269 (1982). We thus conclude of all related but unaddressed issues that it could that Skysign had standing to bring this action and, have appealed. for the same reasons, that the case has not become moot. We therefore have jurisdiction to consider We therefore must turn to the merits of Skysign's this appeal. challenge. III IV Honolulu argues that Skysign is precluded from [7][8][9] Skysign asserts that federal law operates bringing this action because the ZBA's decision was to bar Honolulu from implementing restrictions on a final and binding decision on the merits entitled to aerial advertising. However, advertising is an area preclusive effect. Although the ZBA expressly traditionally subject to regulation under the states' declined to address the preemption issue and police power, and we therefore presume that federal reserved it for the courts, Honolulu contends that law does not displace Honolulu's regulatory Skysign's failure to appeal the ZBA's decision to the authority over advertising absent a clear statement state circuit court pursuant to Haw.Rev.Stat. § 91-14 of the federal intent to do so, either by Congress or rendered the decision final as to all issues that by the FAA as Congress's delegate. See *1116 Skysign could have pursued on appeal, including Lorillard Tobacco Co. v. Reilly, 533 U.S. 5255 121 the preemption question. S.Ct. 24045 2414-155 150 L.Ed.2d 532 (2001) (citing Cal. Div. of Labor Standards Enforcement v. [4][5] Federal courts must accord a state court Dillingham Constr., N.A., Inc., 519 U.S. 316, 325, judgment the same preclusive effect that the 117 S.Ct. 8325 136 L.Ed.2d 791 (1997), and Packer judgment would receive in the rendering state's Corp. v. Utah, 285 U.S. 105, 108, 52 S.Ct. 273, 76 courts. 28 U.S.C. § 1738 (1994). This rule L.Ed. 643 (1932)); accord, e.g., Nat'l Warranty extends to state administrative adjudications of Ins. Co. RRG v. Greenfield, 214 F.3d 10735 1077 legal and factual issue. Misischia v. Pirie, 60 F.3d (9th Cir.2000) ("[P]reemption will not be easily 626, 629 (9th Cir.1995). Hawaii state courts accord found."). Section 21-3.90-2, the general signage preclusive effect to the findings of administrative ordinance, is entitled to the benefit of this agencies if: (1) the issue decided in the prior action presumption. However, no such presumption is identical to the issue in the current action, (2) a applies to section 40-6.1, the aerial signage final judgment on the merits was issued, and (3) the ordinance, which rather than addressing advertising parties in the current action are the same or in generally specifically targets for regulation "an area privity with the parties in the prior action. See where there has been a history of significant federal Santos v. State of Hawaii, Dept of Transp., 64 presence," i.e., navigable airspace. United States v. Copr. C West 2002 No Claim o Orig.U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B 005 5 800000004390001649224B... 8/8/2002 Page 8 of 10 276 F.3d 1109 Page 8 2 Cal. Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 Congress itself has made no such decision, although L.Ed.2d 69(2000). it has left open the door for the FAA to do so through the use of its authority to develop [10] We must first decide whether Congress has regulations for the use of the navigable airspace. acted to occupy the entire field and to preempt See 49 U.S.C. §40103(b)(1)-(2)(1994). altogether any state regulation purporting to reach into the navigable airspace. Skysign points to the [12][13][14] We also conclude that the FAA has statutory provision reserving to "[t]he United States not exerted its statutory authority to a degree that Government ... exclusive sovereignty of airspace of warrants a holding that it has preempted the entire the United States." 49 U.S.C. § 40103(a)(1) (1994) field. The "mere volume and complexity" of the . As the United States points out, however, the FAA's regulatory scheme do not, without some Supreme Court has construed § 40103(a)(1)'s affirmative accompanying indication, compel a predecessor provision [FN3] as "an assertion of conclusion that the agency has sought to occupy the exclusive national sovereignty" that "did not field to the full. Hillsborough County v. Automated expressly exclude the sovereign powers of the Med. Labs., 471 U.S. 707, 718, 105 S.Ct. 2371, 85 states." Braniff Airways v. Neb. State Bd. of L.Ed.2d 714 (1985); see also id. at 717, 105 S.Ct. Equalization & Assessment, 347 U.S. 590, 595, 74 2371 *1117 ("We are even more reluctant to infer S.Ct. 757, 98 L.Ed. 967 (1954). Although pre-emption from the comprehensiveness of Congress has acted to exclude the states altogether regulations than from the comprehensiveness of from regulating certain aspects of air travel, such as statutes.... To infer pre- emption whenever an aircraft noise and airline pricing, see, e.g., City of agency deals with a problem comprehensively is Burbank v. Lockheed Air Terminal, 411 U.S. 624, virtually tantamount to saying that whenever a 633, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973) (aircraft federal agency decides to step into a field, its noise); Air Transp. Assn of Am. v. City & County regulations will be exclusive. Such a rule, of of San Francisco, 266 F.3d 1064, 1070-71(9th course, would be inconsistent with the federal-state Cir.2001) (pricing), we agree with the United States balance embodied in our Supremacy Clause that § 40103(a)(1) does not in and of itself exclude jurisprudence."). Further, although "the failure of any state regulation of aerial advertising. the Federal Register to address pre-emption explicitly is ... not determinative," Geier v. Am. Honda Motor Co., 529 U.S. 861, 884, 120 S.Ct. FN3. See Act of July 5, 1994, Pub.L. No. 1913, 146 L.Ed.2d 914 (2000), we accord some 103-272, § 1, 108 Stat. 745, 745 weight to the agency's own views, id. at 883, 120 (providing that the recodification of S.Ct. 1913. Although Skysign correctly points out transportation provisions pursuant to some inconsistency between the government's which present § 40103 was enacted was position as stated in a 1987 letter from the FAA intended to make no"substantive change"). regional counsel and as set out in its amicus brief in this case, we do not think that the government has fundamentally flip-flopped on the issue of field [11] Most of the other statutory provisions upon preemption. The 1987 letter stated a tentative which Skysign relies either explicitly preempt state conclusion based on a proposed ordinance; the authority in a subfield of aviation, as described amicus brief sets out the considered position of the above, or give to the Secretary of Transportation or Department of Transportation and of the FAA and his designee the authority to regulate the navigable is consistent with the agency's own handbook for airspace. Honolulu does not dispute, nor could it, inspectors, which contains statements that appear to that federal regulations would control over an contemplate permissible, non-preempted state actually contradictory municipal ordinance. regulation of banner tow operations and aerial Skysign's argument that local regulation is displaced advertising. in the absence of any contradictory federal provision requires a demonstration that Congress [15] Nor does either the land use ordinance or the has so completely occupied the field that federal aerial signage ordinance encroach upon any of the silence is itself a policy choice rather than a mere subfields of aviation over which Congress has passive deferral to local authority. We conclude that actually asserted exclusive authority. Skysign notes Copr. ©West 2002 No Claim to Orig.U.S.Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=BO055 800000004390001649224B... 8/8/2002 Page 9 of 10 276 F.3d 1109 Page 9 2 Cal.Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) that Honolulu justifies its ordinance based in part on FAA suggests that Certificates of Waiver issued to the danger that distracting aerial advertising poses pilots towing banners include an explicit statement to motorists below, and it attempts to argue that that the certificate and its special provisions "do not ( Congress has confided to the FAA exclusive supersede any local, state, or city ordinance(s) authority over such safety concerns. However, the prohibiting aerial advertising." 2 FAA Order provision it cites directs the FAA Administrator to 8700.1, General Aviation Operations Inspector's "prescribe air traffic regulations in the flight of Handbook, pt. 91, ch. 45, at 45-10 fig. 45-3 (1998), aircraft (including regulations on safe altitudes) for available at http:// www.faa.gov/avr/afs/faa/87 ... protecting individuals and property on the 00/8700_vol2/2_045_OO.pdf; see also id. § ground." 49 U.S.C. § 40103(b)(2)(B) (1994). We 1.9(B)(2), at 45-2 (listing the operator's do not read this provision to preclude local responsibility for "acquiring knowledge of state and regulation with an identical purpose that does not local ordinances that may prohibit or restrict banner actually reach into the forbidden, exclusively tow operations" among the guidelines considered by federal areas, such as flight paths, hours, or altitudes. inspectors when issuing certificates of waiver for [FN4] such operations). Based on these provisions, we conclude that the application of Honolulu's ordinances does not impede the federal policy or FN4. The United States also notes that the purpose in issuing Skysign's Certificates of Waiver. aerial signage ordinance explicitly disavows any attempt to regulate identifying markings on an aircraft, see FN5. Of course, even when the federal Honolulu, Haw., Rev. Ordinances § government has evinced its intent to leave 40-6.1(b)(1), which would be much more the states and localities some room in likely to encroach upon the Administrator's which to regulate, some local regulation authority, see 49 U.S.C. § 40103(b)(2)(A) may transgress those boundaries by (1994) (permitting the promulgation of interfering with the underlying federal regulations for"identifying aircraft"). purposes. We discern no such conflict here,however. [16][17] The remaining question is whether the FAA's two Certificates of Waiver preclude the FN6. Skysign relies on such a case, Banner enforcement of either ordinance against Skysign Adver., Inc. v. City of Boulder, 868 P.2d under principles of conflict preemption, which 1077 (Colo.1994). The Colorado displace state law that "stands as an obstacle to the Supreme Court determined that federal law accomplishment and execution of the full purposes occupied the field and struck down as and objectives" of federal law. Hines v. Davidowitz, preempted a Boulder ordinance that 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) banned the aerial towing of commercial . However, state law cannot by its mere existence signs. Id. at 1081-83. The Banner court stand as such an obstacle when the federal relied heavily on the FAA's Certificate of government contemplates coexistence between Waiver, which did not include a provision federal and local regulatory schemes. [FN5] Such requiring compliance with state and local is the case here. The waivers that Skysign obtained laws like the one in Skysign's contained a provision explicitly noting that "[t]he corresponding certificate and which [aircraft] operator, by exercising the privilege of explicitly permitted "[b]anner [flowing for this waiver, understands all local laws and the purpose of advertising," id. at 1082. ordinances relating to aerial signs, and accepts Thus, as the Colorado court recognized, responsibility for all actions and . *1118 the Boulder ordinance failed under conflict consequences associated with such operations." preemption principles as well as field The FAA's handbook for inspectors suggests the pre-emption analysis. Id. at 1084. We inclusion of similar provisions in waivers for banner disagree only with the Colorado court's tow operations, which also may run afoul of local discussion of field preemption, and we do aerial signage ordinances. [FN6] Specifically, the Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=BO055 8000000043 90001649224B... 8/8/2002 Page 10 of 10 276 F.3d 1 l09 Page 10 2 Cal.Daily Op. Serv. 200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) so in light of Banner's heavy reliance on the FAA's position as expressed in an opinion letter and in the certificate of waiver. We reach our contrary conclusion in light of the handbook provisions the United States has brought to our attention and the addition of terms to Skysign's certificate of waiver consistent with those provisions. V For the foregoing reasons, although we conclude that the district court erred in deciding that Skysign lacked standing, we agree that Skysign's federal preemption claim should have been dismissed on the merits. We further conclude that the district court did not abuse its discretion when it declined to exercise supplemental jurisdiction over Skysign's state law claims under 28 U.S.C. § 1367(c)(3). [FN7] FN7. We note that had Skysign lacked standing to bring its federal claim, the district court would have lacked subject matter jurisdiction over that claim and accordingly would have had no discretion to hear the state law claims. See Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806(9th Cir.2001). AFFIRMED. 276 F.3d 1109, 2 Cal. Daily Op. Serv. 200, 2002 Daily Journal D.A.R. 291 END OF DOCUMENT Copr. ©West 2002 No Claim to Orig.U.S.Govt.Works http://print.we stlaw.com/delivery.html?dest=atp&dataid=B005 5 8000000043 90001649224B... 8/8/2002 RCA AOUTING SHEET INITIATING DEPARTMENT: 01 IAr SUBJECT: COUNCIL MEETING DATE: RCA ATTAC H IVI E NTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Aid Tract Map, Location Map and/or other Exhibits Mta' iTed Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) A#ta�hed Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Attached Certificates of Insurance (Approved by the City Attorney) Aged Financial Impact Statement (Unbudget, over $5,000) A#a-eked Bonds (If applicable) At#acbed Staff Report (If applicable) Attached Commission, Board or Committee Report (If applicable) Attar w Findings/Conditions for Approval and/or Denial Attached EXPLANATION FOR MISSING ATTACHIVI'ENTS. x REVIEWED RETURNED ,' FOR EO Administrative Staff ( ) ( ) Assistant City Administrator (Initial) ( ) ( ) City Administrator (Initial) ( ) ( ) City Clerk ( ) EXPLANATI'ORTO' R.RETORN OF ITEM: (Belowo . o Only) RCA Author: AAM1N CITY OF HUNTINGTON BEACH Q ; City Council Interoffice Communication To: Honorable Mayor and City Council Members °- From: Connie Boardman, Mayor Pro TemeA Date: July 9, 2002 r� Subject: "H"ITEM FOR JULY 15, 2002, CITY COUNCIL MEETING— BANNER TOWING PLANES STATEMENT OF ISSUE: I have received numerous complaints from residents in the coastal areas of our city as well as from the area around Golden West College about the noise caused by the planes towing advertising banners. Until recently, it was believed that there was little the city could do to control these aircraft over our city. However, earlier this year the United States 9th Circuit Court of Appeal ruled that cities may regulate aerial advertising. The City Attorney's office has prepared a draft ordinance based on the Honolulu ordinance, which was upheld by the 9th Circuit Court. If the City Council is interested in considering such an ordinance, the draft ordinance needs final legal review by the City Attorney's office and approval by the City Council. RECOMMENDED ACTION: Forward the attached draft ordinance for final legal review and subsequent request for action by the City Council. xc: Ray Silver Connie Brockway Gail Hutton , lam \ � TT DRAFT ORDINANCE NO. AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY ADDING THERETO CHAPTER 9.07, PROHIBITING AERIAL ADVERTISING The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. The Huntington Beach Municipal Code is hereby amended by adding thereto Chapter 9.07, to read as follows: Chapter 9.070 AERIAL ADVERTISING PROHIBITED Sections: 9.07.010. Aerial Advertising Prohibited 9.07.020 Violation--Penalty 9.07.010 Aerial Advertising Prohibited. (a) Except as allowed under subsection (b), no person shall,within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. For the purpose of this section, a"sign or advertising device" includes,.but is not limited to, a poster, banner, writing, picture, painting, light, model, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device. (b) Exceptions. (1) Subsection (a) shall not prohibit the display of any identifying mark, trade name, trade insignia, or trademark on the exterior of an aircraft or self- propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or airborne object's owner. (2) Subsection (a) shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self- propelled or buoyant airborne object. (3) Subsection (a) shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 233 of Title 20 of this code. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the aforementioned Chapter 233. 02ord/chap 9.07 1 DRAFT 9.07.020 Violation—Penalty. Any person violating any provision of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars or by imprisonment in the city or county jail for a period of not more than six months, or by both such fine and imprisonment. SECTION 2. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 2002. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Community Services 02ord/chap 9.07 2 J a r CITY OF HUNTINGTON BEACH Inter-Department Communication To: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL From: GAIL HUTTON, City Attorney Date: April 12, 2002 Subject: RLS No. 2002-0044: Regulation of Aerial Advertising; Proposed Ordinance Banning Aerial Advertising. Index: Aerial Advertising; Preemption; Police Power; First Amendment BACKGROUND In recent years, questions have arisen from both members of the City Council and individual citizens regarding the City of Huntington Beach's ("City") ability to regulate low-flying airplanes, particularly over the City's beach areas. In opinions dated September 2, 1998 (RLS No. 98-534), October 8, 1999 (RLS No. 99-688) and April 25, 2000,we opined that because the Federal Aviation Administration had promulgated specific regulations governing minimum altitude restrictions and had occupied the fields of aircraft flight and aviation noise, the City was prohibited from enacting its own restrictions regarding aircraft flying.' A related issue involves aerial advertising; especially those airplanes towing advertising banners behind them while flying over the City's beach areas. Councilmember Connie Boardman has asked that we again research the legalities of these issues and provide the City Council with a proposed ordinance banning such aerial advertising. We have discovered a new federal appellate court decision that substantially changes the law in this area. THE SKYSIGN COURT DECISION In a decision dated January 9, 2002, the federal Ninth Circuit Court of Appeals, in the case of Skysign International, Inc. v. City and County of Honolulut, 2002 DJDAR 291 ("Skysign") (copy attached as Attachment No. 1), upheld the validity of a Honolulu ordinance prohibiting aerial advertising. One of the primary issues raised by the plaintiff in the Skysign case was that the ordinance was preempted by federal law. The Ninth Circuit rejected this argument(see the bracketed portion of the court's opinion). As we stated in our September 2, 1998 and October 8, 1999 opinions,under FAA regulations, any aircraft must fly at least 1,000 feet above the City, including 1,000 above the beach. When flying over the ocean, an aircraft may fly at any altitude as long as the aircraft is flying at least 2,000 feet from the shoreline and at least 500 feet from any person or vessel. rjw/02memos/RLS 02-0044 Prohibition of Aerial Advertising/jn Approximately 10 days ago, we checked with Gregory J. Swartz, Esq., a Deputy Corporation Counsel for Honolulu, and the attorney who orally argued Honolulu's position before the Ninth Circuit, and he indicated that the plaintiff in that case, Skysign International, Inc., had not filed either a petition for rehearing with the Ninth Circuit, or a petition for certiorari with the United States Supreme Court. Thus, the Skysign decision appears to be final and now represents good law. A PROPOSED HUNTINGTON BEACH ORDINANCE PROHIBITING AERIAL ADVERTISING We contacted Honolulu and that city was kind enough to provide us with a copy of the ordinance that was attacked in the Skysign case. We made several minor changes to the Honolulu ordinance and a copy of a proposed Huntington Beach ordinance is attached hereto as Attachment No. 2. These changes are described as follows: 1. We added the clause "within or above the boundaries of the City of Huntington Beach" in the first and second lines under subsection (a) of proposed Huntington Beach Municipal Code ("HBMC") § 9.070.010. We added this clause to make sure that advertising airplanes towing banners over the City's beaches, as well as over the ocean adjacent to the beaches, fell within the ambit of the ordinance. City Charter § 102 defines the City's boundaries as: "(T)he boundaries of the City shall continue as now established until changed in the manner authorized by law." In an opinion dated March 30, 2000 (RLS No. 98-417), we opined that the City's boundaries extended into the Pacific Ocean for a distance of three miles past the mean tide line. We rendered this opinion after reviewing the City's February 15, 1909 incorporation documents that described the City's original boundaries. Thus, the City has the authority to ban aerial advertising for a distance of three miles into the Pacific Ocean from the mean tide line. 2. We added the words "operator or" in the second line under subsection (a) of proposed HBMC§ 9.070.010. 3. We added the words "Chapter 233 of Title 20 of this code" under subsection (b)(3) of proposed HBMC§ 9.070.010. THE FIRST AMENDMENT ISSUE We note that the plaintiff in the Skysign case did not attack the Honolulu ordinance on the ground that it violated the First Amendment to the federal Constitution. We have researched the First Amendment issue and, in our opinion, an ordinance banning aerial advertising would not violate the First Amendment. The First Amendment denies the government the power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, at p. 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based and therefore impermissable. Turner Broadcasting Systems, Inc. v. F.CC, 512 U.S. 622, at p. 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). However, a rjw/02memos/RLS 02-0044 Prohibition of Aerial Advertising/jn content neutral statute makes no reference to the substance of the regulated conduct. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, at p. 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). To determine content neutrality in speech cases,the principal inquiry is whether the government has adopted a regulation of speech because of the disagreement with the message it conveys. Ward v. Rock Against Racism, 491 U.S. 781, at p. 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The proposed ordinance banning aerial advertising is content neutral. The proposed ordinance does not distinguish between different types of speech(i.e., religious, political, commercial, etc.) that might be displayed by an airplane, or on an object being towed by a plane. An interesting, analogous situation is found in the case of Simpson v. Municipal Court, Sacramento Municipal Court District (1971) 14 Cal.App.3d 591, 92 Cal.Rptr. 417 ("Simpson"). In Simpson, plaintiff attacked, on First Amendment grounds, a provision of the state's Penal Code that forbade picketing inside the State Capitol Building in Sacramento. Plaintiff argued that the flat prohibition of picketing was too broad to survive constitutional challenge and that the state Legislature must regulate more narrowly in proximity to the First Amendment. The appellate court disagreed. In upholding the constitutionality of the statute, the appellate court stated (Id.,p. 599): ". . . (F)reedom of expression does not mean that everyone with opinions or beliefs to express may do so at any time or place; primarily it aims a preventing. the preference of some ideas over others . . . The present ban selects no preferred viewpoint; does not suppress provocation or challenge. It bans a single mode of communicative technique, the . . . picket. Even then, it constricts only narrowly, leaving the picket the entire outside world, including the capitol grounds, as the site for his appeal to public opinion an legislative action . . . The ban is no broader than necessary to meet the legitimate governmental need. . . ." As stated earlier, the proposed ordinance banning aerial advertising is content neutral. The proposed ban does not favor one message over another or one messenger over another. It is aimed at a specific activity—aerial advertising. Except for Honolulu, and Huntington Beach if the proposed ordinance is enacted into law, aerial advertisers literally have the rest of the world in which to engage in this type of advertising,2 '-Outside of the City and County of Honolulu,we are not aware of any other municipality that bans,by ordinance, aerial advertising. rjw/02memos/RLS 02-0044 Prohibition of Aerial Advertising/in REQUIRED FACTUAL SUPPORT FOR THE PROPOSED ORDINANCE Huntington Beach will need to factually justify its own ordinance banning aerial advertising. Honolulu justified its ordinance, in part,based on the danger that distracting aerial advertising posed to motorists below. Another safety issue may include dangers to beachgoers caused by small, slow moving aircraft towing long advertising banners over beach areas. Perhaps the City's Police and Community Services Departments could be of assistance compiling such factual information. Honolulu first enacted its aerial advertising ban ordinance into law in 1978, and amended it in 1996. We may want to obtain a copy of the pertinent Honolulu 1978 and 1996 city staff reports. CONCLUSION We would be happy to answer any questions that the City Council or City staff may have in this matter. �> v ¢r GAIL HUTTON \ City Attorney P j� cc (with attachments): Bill Workman, Assistant City Administrator Ronald Lowenberg, Chief of Police Ron Hagan, Director of Community Services Howard Zelefsky, Planning Director Robert Beardsley, Director of Public Works Connie Brockway, City Clerk rjw/02memos/RLS 02-0044 Prohibition of Aerial Advertising/jn �' Office of the`'City Clerk Key words=Banner,towing ID Alpha Catgy Entered Status Doc Type/No Expires Box Checkd Out m 18587 BA 640 10 07/22%2002 E ActEve Q 7115/02: City Attorney To Review Draft OOrdinance Banner Towing,Aircraft Airplane Noise Abatement for Return to Council CM 513102 Ordinance 3578 Printout Filter: C[ose Clear Filter Filter DisplaV (11) July 17, 2000 - CouncwAgency Minutes - Page 11 Council Comments in Response to Public Comments (160.30) City Council) Announcement by City Administrator Re: Forms for Citizens to Complete for Follow Up of Issues of Concern (160.30) City Administrator Silver referred to a form available at Council meetings for citizens to fill out in order for staff to follow up on their issues of concern expressed during public comments. (City Council) Directed Staff for Follow-up on the Issue of Unsafe Practices by Low- Flying and Banner-Towing Aircraft (120.90) Mr. Silver responded to the last speaker, Mr. McGee's concerns and directed staff to see what the city can do to regulate low-flying, banner-towing aircraft. Mayor Pro Tern Harman requested from City Attorney Hutton a copy of a previous memo regarding banner-towing aircraft. He also requested staff to review the matter for possible alternatives. Police Chief Ronald Lowenberg informed Council that a bureau report has been forwarded to the FAA regarding the potentially unsafe practices of aircraft. (City Council) Announcement Made by the City Attorney Re: Mayor Garofalo's Issues of Alleged Conflict of Interest (630.30) In response to Councilmember Sullivan's inquiry regarding Mayor Garofalo's potential conflicts of interest, City Attorney Hutton issued the following comments: 1. City Attorney Hutton received from Stephen Churchwell, the Attorney that the Mayor has retained communication which she stated she will first need to review. City Attorney Hutton informed Council that once she has read the material and after she has met with Mr. Churchwell a report will be forthcoming. 2. Jurisdiction of the Huntington Beach Conference and Visitors Bureau Guide contract is under the auspices of Section 1090, and not the Fair Political Practices Commission (FPPC). 3. There is still an outstanding question regarding The Local News as to the exact date when Coatings Resources, the company operated by Ed Laird,allegedly took over ownership of the Mayor's publication. (City Council) Response to Public Speaker Made by Mayor Pro Tem Harman Re: His Alleged Conflicts of Interest (630.30) Mayor Pro Tern Harman requested that City Attorney Hutton move forward on the controversy over Mayor Garofalo's alleged conflicts of interest to draw it to a conclusion. Mayor Pro Tern Harman announced that he wished to correct allegations conflicts of interest directed at him by a speaker at the last Council meeting of July 17, 2000. Mayor Pro Tern Harman stated that in his profession as an attorney, he had never represented either John Thomas or Jack Clapp. He stated having represented Diane Baker on a real estate L (6) September 5, 2000 - Council/Agency Minutes - Page 6 Bart Hollander informed Council that he lives near the Dog Park. He stated his opposition to being awakened by what he considers an unacceptable level of noise caused by dogs barking, especially at 5:00 a.m. Mr. Hollander suggested that as the park is built in an area that impacts nearby residents, hours should be limited to 8:00 a.m. to 8:00 p.m. and enforced. Mayor Garofalo asked that Mr. Hollander call Councilmember Julien who will get in touch with. the organized group that manages the parka Maxwell Smith stated that he lives closest to the Dog Park and requested that Council consider its relocation. Don McGee spoke in opposition to banner towing planes and storm drain runoff at the Huntington Shorecliffs Mobile Home Park. Mr. McGee related a friend's unsuccessful attempts ; to obtain a copy of the Huntington Beach Conference and Visitor's Guide. Dennis Sato, Chair, Huntington Beach Longboard Crew Surfing Club, invited all to the Longboard Club event on September 16 and 17, 2000. He stated the event is a fundraiser for the Bolsa Chica Wetlands Association to benefit the care center. Mr. Sato also requested a reduction in city permit fees, and informed Council that the club is applying for non-profit status. Mayor Garofalo referred Mr. Sato to Community Services Director Hagan regarding the non- profit application process. Irene Shannon expressed her appreciation for the ordinance on sex-oriented businesses being separated from the ordinance on public nudity. Ms. Shannon stated that she is a nudist speaking in favor of rearing children to accept the human body without guilt or shame. Robert London Moore Jr. representing Mills Land and Water Company, spoke in opposition to the agenda item on the Southeast Coastal Area study. He questioned what can be accomplished by redeveloping the area, and requested to know more about the project. Mr. Moore spoke relative to the costs and effect of the proposal on his and neighboring properties. Council Comments on Public Speaker's Comments (City Council) PowerPoint Presentation Policy (100.10) In response to Mr. Norm Westwell's' concerns, Councilmember Sullivan requested implementation of PowerPoint access to speakers. Communications Director Rich Barnard responded that staff has been working out the logistics. He stated, for instance, that the policy undertaken should include guidelines for the public to provide a hard copy for the City Clerk's records. (City Council) Staff Report Requested Re: Banner Towing Airplanes/Storm Drain Discharge at Huntington Shorecliffs Mobile Home Park ( 320.45/1020.70) Mayor Pro Tern Harman initiated discussion relative to Mr. McGee's remarks on low-flying airplanes and storm drain runoff at Huntington Shorecliffs Mobile Home Park. After brief discussion Council requested a staff report regarding banner-towing airplanes and storm drain discharge concerns. (12) August 6, 2001 - Council/Agency Minutes - Page 12 Kim Patrick spoke as a mother of a child who drowned, stating that the home where her son drowned had no barrier or alarm. Ms. Patrick spoke regarding the cost of installing sensors, and asked for Council support in establishing an ordinance which will take into effect a retroactive requirement for buildings with pools as well as those to be constructed. Phyllis Agran, Pediatrician/Professor at University of.California, Irvine, informed Council that her area of research is pediatric injury. She stated that drowning is one of the leading causes of death of children. Dr. Agran spoke regarding multiple layers of barriers, and requested community outreach, such as the Fire Department does in visiting citizens on fire prevention. She commended Council for taking the lead in concern over pool safety. Robert Thomas requested funds be set aside from the budget to reimburse the Bluegate Home Owners Association for money collected by the Public Works Department. He stated that Council should be handling this matter; relating that when he last addressed the issue at the July 23, 2001 Council meeting, he had been told that it will be taken up at the Public Works Commission meeting of August 14, 2001. He spoke regarding the process of the selection of streets for slurry sealing. Don McGee spoke in opposition to the consultant's report on the mobile home park survey study presented at the July 16, 2001 Council meeting, referring to a chart in the findings on the Huntington Shorecliffs. Mr. McGee protested leaf blowers, banner towing and low-flying planes over the beach. (City Council) Council Response to Public Comments Re: Advertising on Banner-Towing Aircraft (420.35) Councilmember Garofalo inquired if the speaker, Mr. McGee had contacted any advertisers on the banners. Mr. McGee responded that although the advertisers contacted had apologized, they stated that it is the least expensive means of advertisement. Councilmember Garofalo requested that Mr. McGee compile a list of advertisers and that it will be the subject of a future Council memorandum. Public Comments Resumed Joey Racano spoke in opposition to the 301(H)waiver granted the Orange County Sanitation District, stating that it circumvents the standards of the Federal Clean Water Act. Mr. Racano announced that as a member of the Ocean Outfall Group, he will work to get rid of the waiver. (City Council) Council Response to Public Comments Re: 301 (H)Waiver Granted to the Orange County Sanitation District(OCSD) (1020.50) Councilmember Green responded to the last speaker, Mr. Racano's comments by reporting on what he sees as some of the possible sources of bacteria on the surf zone: 1. Santa Ana River and flood control channels, as being the most likely; 2. Talbert Marsh, to a small extent; and 3. The AES Huntington Beach LLC power plant, due to"hot spots." Councilmember Green stated that after the results are received following the summer months, and if it is seen that the AES plant is responsible for breaking up the thermocline, he said that then it is entirely possible that the 301 (H)waiver will not be granted to the OCSD. (15) July 15, 2002 -Counu.aAgency Minutes - Page 15 (City Council) Approved Legal Review of Draft Ordinance Regarding Banner Towing Aircraft (640.10) Communication from Mayor Pro Tern Connie Boardman transmitting the following Statement of Issue: I have received numerous complaints from residents in the coastal areas of our city as well as from the area around Golden West College about the noise caused by the planes towing advertising banners. Until recently, it was believed that there was little the city could do to control these aircraft over our city. However, earlier this year the United States 91h Circuit Court of Appeal ruled that cities may regulate aerial advertising. The City Attorney's Office has prepared a draft ordinance based on the Honolulu, Hawaii ordinance, which was upheld by the 9th Circuit Court. If the City Council is interested in considering such an ordinance, the draft ordinance needs final legal review by the City Attorney's office and approval by the City Council. Discussion was held regarding the potential cost of code enforcement, the impact on neighboring cities, and the method of citation. Police Chief Ronald Lowenberg stated that additional research needs to be done to evaluate the impact of such an ordinance. Council Member Bauer stated cost reasons for his opposition to the proposal and the lack of urgency to act on the matter. A motion was made by Boardman, second Green to forward the attached draft ordinance for final legal review and subsequent request for action by the City Council. The motion carried by the following roll call vote: AYES: Green, Dettloff, Boardman, Cook, Houchen, Winchell NOES: Bauer ABSENT: None Adjournment—City Council/Redevelopment Agency Mayor Cook adjourned the regular meetings of the City Council/Redevelopment Agency of the City of Huntington Beach to Monday, August 5, 2002, at 5:00 p.m., in Room B-8 Civic Center, 2000 Main Street, Huntington Beach, California. City Clerk and ex-officio Clerk the City Council of the City of Huntington Beach and Clerk of the Redevelopment Agency of the City of Huntington Beach, California ATTEST: City Clerk-Clerk Mayor-Chairman F 4*N- 1e1 Council/Agency Meeting Held: o9-03-ot- Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied Cit lerk'S ignature Council Meeting Date: September 3, 2002 Department ID NJ m er. CA ,P ao . 1 1 1 CITY OF HUNTING°TON BEACH ■ S REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS - SUBMITTED BY: RAY SILVER, City Administratorvl� T I PREPARED BY:e,-,qAIL HUTTON, City Attorney c: SUBJECT: Adoption of a Proposed Ordinance Prohibiting Aerial Advertising Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Should City Council enact into law an ordinance that would prohibit aerial advertising. Fundinq Source: Not applicable. Recommended Action: Introduce/give a first reading to Ordinance No.,�A7�an ordinance of the City of Huntington Beach amending the Huntington Beach Municipal Code by adding thereto Chapter 9.07, prohibiting aerial advertising. Alternative Action(s): Not to introduce/give a first reading to said proposed ordinance. Analysis: BACKGROUND I i On July 15, 2002, the City Council of the City of Huntington Beach ("City") reviewed an April 12, 2002 opinion of this office (RLS No. 2002-0044), and attachments, including a draft of a ; proposed ordinance that would ban aerial advertising; and referred the matter to this office for a preparation of a final report regarding the legal validity of such an ordinance, including how it would be enforced. This office has now completed its work on this issue. DRAFT OF PROPOSED ORDINANCE The first attachment to this Request for Council Action ("RCA") is the final draft of a proposed ordinance that would prohibit, with a minor exception, aerial advertising. I REQUEST FOR COUNCIL ACAN MEETING DATE: September 3, 2002 DEPARTMENT ID NUMBER: CA CITY ATTORNEY'S REPORT The second attachment to this RCA is this office's August 29, 2002.final report, and attached Exhibits A. B and C. Exhibit A is a copy of the final draft of the proposed ordinance. In the report, we attempted to answer a number of questions, both legal and practical, that have arisen with respect to the proposed ordinance. This office is not taking an official position either recommending or not recommending that the proposed ordinance be enacted into law, as this is a decision for the City Council. However, if the ordinance is adopted, we have attempted to make the ordinance as strong as possible should it be attacked in court. We have also opined that the ordinance, if attacked in court, could successfully withstand federal preemption, First Amendment and Equal Protection arguments. CONCLUSION On September 3rd, we would be pleased to attempt to answer any questions that might arise. Environmental Status: Attachment(s): City, erk's - - rn-. o Option 1. An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal Cod& by Adding Thereto Chapter 9.07, Prohibiting Aerial Advertising 2. Memo — RLS No. 2002-0449. Final Report From the City Attorney Regarding Enactment of an Ordinance Banning Aerial Advertising. RCA Author: Robert J.Wheeler, Special Counsel, City Attorney's Office G:\RCA\2002\Aeria1 Advertising Ban.doc -2- 8/29/2002 3:48 PM ATTACHME NT 1 ORDINANCE NO. 3578 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY ADDING THERETO CHAPTER 9.07, PROHIBITING AERIAL ADVERTISING The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Statement of Legislative Intent. In recent years,the City of Huntington Beach("City") has received a number of complaints from its residents concerning the presence of an increasing number of small, single-engine planes towing banners advertising any number of political, commercial, religious, public interest or personal messages. These planes constantly overfly certain areas of the City including, but not limited to, Golden West College, the southeast area of the City,the City's downtown area and-the City's beaches adjacent to the Pacific Ocean. These planes are noisy, fly at very low altitudes and pollute the air. Many times their engines sputter as these planes attempt to tow banners larger in size than the planes themselves. In addition to concerns regarding noise, aesthetics, and air pollution, these planes could crash into populated areas of the City, including the beaches and the Pacific Ocean where sunbathers or swimmers are present. In the recent decision of Mysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109(9`h Cir. 2002), the federal appellate court upheld the validity of a similar Honolulu ordinance against an. attack that it was preempted by federal law and by Federal Aviation Administration regulations. Pursuant to its constitutional police power, as well as its constitutional power as a chartered city, the City(acting through its City Council) enacts this ordinance into law in order to protect the safety, health and welfare of not only its residents,but also of all other persons who work in or visit the City. SECTION 2. The Huntington Beach Municipal Code is hereby amended by adding thereto Chapter 9.07, to read as follows: Chester 9.07 AERIAL ADVERTISING PROHIBITED Sections: 9.07.010 Definitions 9.07.020 Aerial Advertising Prohibited 9.07.030 Violation—Penalty 02ord/chap 9.07 1 Ord. No. 3578 9.07.010 Definitions For the purposes of this chapter: (a) The word"advertising" means the act of calling or attracting the public's attention to an event, person,persons group,organization, cause, calling, product or business. (b) The term"sign or advertising device,"means and includes, but is not limited to, a poster, banner, writing, picture, painting, light, set of lights, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device. —(c) The word"person" means, but is not limited to, an individual, general partnership, limited partnership, limited liability company, unincorporated association, for-profit corporation or non-profit corporation. 9 07.020 Aerial Advertising Prohibited. (a) Except as allowed under subsection(b), no person shall, within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. (b) Exceptions. (1) Subsection(a) of this section shall not prohibit the display.of any identifying mark, trade name,trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or airborne object's owner. (2) Subsection(a) of this section shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self-propelled or buoyant airborne object. (3) Subsection(a)of this section shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 233 of Title 20 of this code. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the aforementioned Chapter 233. 9.07.030 Violation—Penalty. Any person violating any provision of this chapter shall be guilty of either a misdemeanor or an infraction, and upon conviction thereof shall be punished according to the provisions of Chapter 1.16 of the Huntington Beach Municipal Code. Pursuant to Section 1.16.045 of said Code, the City Attorney has the discretion to file a complaint charging a violation of this chapter as either a misdemeanor or an infraction. 02ord/chap 9.07 2 Ord. NO. 3578 SECTION 2. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 16th day of September 2002. Mayor ATTEST: APPROVED AS TO FORM: City Clerk o9-11—a2 U City Attorney 02 REVIEWED AND APPROVED: ITIATED AND APPROVED: City AdnfKlstrator Citq ttorney 02ordlchap 9.07 3 Ord. No. 3578 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: -CITY OF HUNTINGTON BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do _ hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on the 3rd day of September,2002, and was again read to said City Council at a regular meeting thereof held on the 16th day of September, 2002, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Dettloff,Boardman, Cook,Houchen, Winchell NOES: Green,.Bauer ABSENT: None ABSTAIN: None I,Connie Brockway,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on 2002 In accordance with the City Charter of said City City Clerk and ex-officio Clerk Connie Brockway.City Clerk of the City Council of the City Deputy Citv Clerk of Huntington Beach, California #2�� - . . ATTACH ME NT ORDINANCE NO. 3578 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY ADDING THERETO CHAPTER 9.07, PROHIBITING AERIAL ADVERTISING The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Statement of Legislative Intent. In recent years,the City of Huntington Beach ("City") has received a number of complaints from its residents concerning the presence of an increasing number of small, single-engine planes towing banners advertising any number of political, commercial, religious, public interest or personal messages. These planes constantly overfly certain areas of the City including, but not limited to, Golden West College, the southeast area of the City, the Citys downtown area and-the Ciiy s beaches adjacent to the Pacific Ocean. These planes are noisy, fly at very low altitudes and pollute the air. Many times their engines sputter as these planes attempt to tow banners larger in size than the planes themselves. In addition to concerns regarding noise, aesthetics, and air pollution, these planes could crash into populated areas of the City, including the beaches and the Pacific Ocean where sunbathers or swimmers are present. In the recent decision of Skysign .International, Inc. v. City and County of Honolulu, 276 F.3d 1109(9t' Cir. 2002), the federal appellate court upheld the validity of a similar Honolulu ordinance against an attack that it was preempted by federal law and by Federal Aviation Administration regulations. Pursuant to its constitutional police power, as well as its constitutional power as a chartered city, the City (acting through its City Council) enacts this ordinance into law in order to protect the safety, health and welfare of not only its residents, but also of all other persons who work in or visit the City. SECTION 2. The Huntington Beach Municipal Code is hereby amended by adding thereto Chapter 9.07, to read as follows: Chapter 9.07 AERIAL ADVERTISING PROHIBITED Sections: 9.07.010 Definitions 9.07.020 Aerial Advertising Prohibited 9.07.030 Violation—Penalty 02ordlchap 9.07 1 Ord. No. 3578 9.07.010 Definitions For the purposes of this chapter: (a) The word"advertising" means the act of calling or attracting the public's attention to an event, person, persons, group, organization, cause,calling, product or business. (b) The term"sign or advertising device," means and includes, but is not limited to, a poster, banner, writing,picture, painting, light, set of lights, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device. (c) The word"person" means, but is not limited to, an individual, general partnership, limited partnership, limited liability company,unincorporated association, for-profit corporation or non-profit corporation. 9.07.020 Aerial Advertising Prohibited. (a) Except as allowed under subsection (b), no person shall, within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. (b) Exceptions. (1) Subsection (a) of this section shall not prohibit the display of any identifying mark,trade name, trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or airborne object's owner. (2) Subsection (a) of this section shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self-propelled or buoyant airborne object. (3) Subsection (a) of this section shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 233 of Title 20 of this code. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the aforementioned Chapter 233. 9.07.030 Violation—Penalty. Any person violating any provision of this chapter shall be guilty of either a misdemeanor or an infraction, and upon conviction thereof shall be punished according to the provisions of Chapter 1.16 of the Huntington Beach Municipal Code. Pursuant to Section 1.16.045 of said Code, the City Attorney has the discretion to file a complaint charging a violation of this chapter as either a misdemeanor or an infraction. 02ord/chap 9.07 2 Ord. NO. 3578 SECTION 2. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 16th day of September 2002. Mayor ATTEST: APPROVED AS TO FORM: dxxz� I COU-14j- City Clerk o9-11-a2 City Attorney 8�a9�oz REVIEWED AND APPROVED: ITIATED AND APPROVED: City Ad istrator city ttorney 02ord/chap 9.07 Ord. No. 3578 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on the 3rd day of September,2002, and was again read to said City Council at a regular meeting thereof held on the 16th day of September, 2002, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Dettloff, Boardman, Cook,Houchen, Winchell NOES: Green,Bauer ABSENT: None ABSTAIN: None I,Connie Brockway,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on 2002 In accordance with the City Charter of said City City Clerk and ex-officio Clerk Connie Brockway. City Clerk of the City Council of the City Deputy City Clerk of Huntington Beach, California a 4"ie CITY OF HUNTINGTON BEACH Inter-Department Communication TO: Honorable Mayor and Members of the City Council FROM: GAIL HUTTON, City Attorney DATE: August 29, 2002 SUBJECT: RLS No. 2002-0449. Final Report From the City Attorney Regarding Enactment of an Ordinance Banning Aerial Advertising BACKGROUND On July 15, 2002, the City Council of the City of Huntington Beach ("City") reviewed an April 12, 2002 opinion of this office (RLS No. 2002-0044), and attachments, including a draft of a proposed ordinance that would ban aerial advertising; and referred the matter to this office for a preparation of a final report regarding the legal validity of such-an ordinance,.including how it would be enforced. This memorandum, and attached Exhibits A, B, and C, constitutes this office's final report. FINAL DRAFT OF PROPOSED ORDINANCE Exhibit A to this report is the final draft of a proposed ordinance banning aerial advertising. SECTION 1 of the ordinance is new. It contains a declaration of legislative intent. This is an important consideration should the ordinance be attacked in court.' For the most part, this ordinance is modeled after one adopted by the City and County of Honolulu; the legality of which was upheld by the federal Ninth Circuit Court of Appeals in the case of Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109 (9th Cir. 2002) ("Skysign International'). 1. WHO WILL BE SUBJECT TO THE ORDINANCE? The following persons or entities would be subject to the ordinance: (a) the pilot of the plane; (b) the owner or owners of the plane; and (c) the advertiser or advertisers. In this regard, proposed Huntington Beach Municipal Code ("HBMC") § 9.07.020(a) states, in relevant part: We are not taking a position as to whether the ordinance should be adopted,for that is a decision of the City Council. However,assuming that the ordinance will be adopted, and to assist the Council,we are answering any legal and enforcement questions that might arise. 1 rjw02memos/Final Ord. Banning Aerial Advertisingfjn Honorable Mayor and Members of the City Council 8/29/2002 Page 2 of 6 ". . . no person shall, within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft . . ." A plane's pilot is clearly included as a person subject to the ordinance. In addition, it is the intent of the above underlined phrase ". . . or cause to be operated or used, . . ." that a plane's owner or owners, as well as the advertiser or advertisers, would also fall within the ambit of the ordinance. 2. EXISTING FEDERAL AVIATION RESTRICTIONS In opinions dated September 2, 1998 (RLS No. 98-534), October 8, 1999 (RLS No. 99-688) and April 25, 2000, we opined that because the Federal Aviation Administration (sometimes TFK) had promulgated specific regulations governing minimum altitude restrictions and had occupied the fields of aircraft flight and aviation noise, the City was prohibited from enacting its own restrictions regarding the altitudes of flying aircraft. As we stated in our September 2, 1998 and October 8, 1999 opinions, under FAA regulations, any aircraft must fly at least 1,000 feet above the City, including at least 1,000 feet above the beach. When flying over an ocean, an aircraft may fly at any altitude as long as the aircraft is flying at least 2,000 feet from the shoreline and at least 500 feet from any person or vessel. 3. WHAT TYPES OF AIRBORNE OBJECTS WOULD BE SUBJECT TO SUCH AN ORDINANCE All planes towing banners, no matter the subject matter content of the banners, would be subject to the ordinance. So would helicopters towing banners, although the Police Department has told us that this is a rare practice because it is extremely dangerous. Planes, helicopters or blimps carrying lighted or non-lighted advel`tising signs on or beneath their fuselages would be subject to the ordinance. See Skysign International, supra, 276 F.3d at p. 1113. If the name or logo of the aircraft's or airborne object's owner is on the side of the plane, helicopter or blimp, the ordinance would not apply. See proposed HBMC § 9.07.020(b)(1). How would the ordinance affect the "Goodyear" or "Fuji Film" blimps? If the Goodyear corporation or the Fuji Film corporation owned the blimps in question, the ordinance, under proposed HBMC § 9.07.020(b)(1), would not apply to them. But if these blimps displayed any lighted or non-lighted third party advertising on them [note the definition of"advertising" in proposed HBMC§ 9.07.010(a)], the ordinance would apply. If a person owned a business, and also owned a plane, that person could display the name or logo of the business on the side of the plane, and not violate the ordinance. However, that "business owner/plane owner" could not tow any type of banner behind the plane. 2 rjw02memos/Final Ord. Banning Aerial Advertisingrjn Honorable Mayor and Member.,of the City Council 8/29/2002 Page 3 of 6 4. HOW WILL SUCH AN ORDINANCE BE ENFORCED? The City's Police Department answered this question in its memorandum dated August 7, 2002, a copy of which is attached to this report as Exhibit B. The Police Department, by use,of its helicopter, will investigate the.matter and furnish its report to this office. There are a number of remedies available to the City and this office to enforce a violation of the ordinance. They are: (a) a misdemeanor or infraction criminal complaint; (b) an administrative citation under Chapter 1.18 of the HBMC; and (c) a civil suit. In a rare case, the Police Department might issue a citation to a plane's pilot, but it is envisioned that this office will be the primary enforcement agency. 5. AREA IN WHICH THE ORDINANCE WILL APPLY The proposed ordinance, in relevant part, states: ". . . no person shall, within or above the boundaries of the City of Huntington Beach, . . ." The area of the City to which the ordinance would apply is all of the City's land area, including its beaches, as well as a distance of three miles into the Pacific Ocean from the mean tide line. City Charter§ 102 defines the City's boundaries as: "(T)he boundaries of the City.shall continue as now established until changed in the manner authorized by law." In an opinion dated March 30, 2000 (RLS No. 98-417), we opined that the City's boundaries extended into the Pacific Ocean for a distance of three miles past the mean tide line: We rendered this opinion after reviewing the.City's February 15, 1909 incorporation documents that described the City's original boundaries. Thus, under the ordinance, aerial advertising would be prohibited above any of the !an,,.' area within the City's boundaries, as well as over the Pacific Ocean for a distance of three miles past the mean tide line. 6. IS THE ORDINANCE LEGALLY VALID? If the ordinance, once enacted into law, is legally attacked, we cannot predict how a court would rule. But based on our legal research, we feel, especially with the Skysign International case in mind, that the ordinance has a good chance of successfully withstanding judicial attack. It appears to us that the three most obvious grounds of legal attack on the ordinance would be: (a) it is preempted by federal law; (b) it violates the federal Constitution's First Amendment; and (c) it violates the federal Constitution's Equal Protection Clause. J rjw02memos/Final Ord. Banning Aerial Advertisingfjn Honorable Mayor and Membe,.of the City Council 8/29/2002 Page 4 of 6 a. The Federal Preemption Issue This issue was a specifically addressed by the federal appellate court in the Skysign International case. A copy of the court's opinion is attached as Exhibit C. The Ninth. Circuit ruled that neither federal law, nor the regulations of the Federal Aviation Administration, preempted Honolula'�aerial.advertising ban-ordinance.ordinance-We u.. bracketed the key portions of the court's opinion in this regard.2 Based on this opinion, we do not feel that the ordinance is federally preempted. b. The First Amendment Issue The most important feature of the ordinance, regarding the First Amendment issue, is that it is content neutral. The ordinance does not distinguish between different types of speech (i.e., religious, political, commercial, etc.) that might be displayed by an airplane, helicopter or blimp, or on an object being towed by a plane. One type of message is not .favored over another_and one.messenger_is-not.favored over.another. The First Amendment denies the government the power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, at p. 95, 92 S.Ct. 2286, 33 L.Ed 212 (1972). As a general rule, laws that by their terms distinguish favored speech.from disfavored speech on the basis.of the ideas or views expressed are content based and therefore . impermissible. Turner Broadcasting Systems, Inc. v. F.C.C., 512 U.S. 622, at p. 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). However, a content neutral statute makes no reference to the substance of the regulated conduct. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, at p. 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). To determine content neutrality in speech cases, the principal inquiry is whether the government has adopted a regulation of speech because of the _, disagreement with the message it-conveys 'v'varu v. Huc;K Ayalnst Racisir, 49 i �.�. 70 �, at p. 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). ("Rock Against Racism') So long as a content-neutral regulation is narrowly tailored to accomplish a legitimate government purpose, it is not proscribed by the First Amendment. Ward v. Rock Against Racism, supra, 491 U.S. at p. 798. SECTION 1 of the ordinance cites public safety, noise, aesthetics, and air pollution as reasons why the ordinance is needed. The ordinance is narrowly tailored. It is aimed at a specific activity-aerial advertising. Except for Honolulu, and Huntington Beach if the ordinance is enacted into law, aerial advertisers literally have the rest of the world in which to engage in this type of 2 The Skysign International decision is final as the aerial advertising company involved in that case never petitioned the Ninth Circuit for a rehearing or filed a petition for a writ of certiorari with the United States Supreme Court. There has been some mention that the Supreme Court"disfavors"Ninth Circuit decisions. Whether or not this argument is true,we feel that the Skysign International opinion is a well-reasoned appellate court decision, particularly on the issue of federal preemption. It is also important to note that the State of California(including Huntington Beach, of course) lies within the jurisdiction of the Ninth Circuit Court of Appeals. n rjw02memos/Final Ord. Banning Aerial Advertisingfjn Honorable Mayor and Member of the City Council 8/29/2002 Paae 5 of 6 advertising. Furthermore, other mediums are available (i.e., off-premises signs, on- premises signs, radio, television, etc.) in which advertisers can convey their messages. An interesting, analogous situation is found in the case of Simpson v. Municipal Court, Sacramento Municipal Court District(1971) 14 Cal.App.3d 591, 92 Cal.Rptr. 417 ("Simpson"). In Simpson,-plaintiff attacked,-.on-First Amendment grounds, a provision.of the state's Penal Code that forbade picketing inside the State Capitol Building in Sacramento. Plaintiff argued that the flat prohibition of picketing was too broad to survive constitutional challenge and that the state Legislature must regulate more narrowly in proximity to the First Amendment. The appellate court disagreed. In upholding the constitutionality of the statute, the appellate court stated (Id., p. 599): ". . . (F)reedom of expression does not mean that everyone with opinions or beliefs to express may do so at any time or place; primarily it aims at preventing the preference of some ideas over others ....—T.he present.ban..selects no preferred viewpoint; does not suppress provocation or challenge. It bans a single mode of communicative technique, the . . . picket. Even then, it constricts only narrowly, leaving the picket the entire outside world, including the capitol grounds, as the site for his appeal to public opinion and legislative action.. . . The ban is'no broader than necessary to meet the legitimate governmental need . . :'' Based on these legal authorities, it is our opinion that the ordinance would not offend the First Amendment. C. The Equal Protection Issue The Equal Protection Clause of the federal Constitution directs that "all persons similarly situated shall be treated alike." Honolulu Weekly, Inc. v. Harris, 2002 DJDAR 8725, at p. 8728 (9th Cir. 2002) ("Honolulu Weekly'). In determining whether an ordinance violates equal protection, a court begins its analysis by determining the proper level of scrutiny for review. Courts apply strict scrutiny if the government enactment "targets a suspect class or burdens the exercise of a fundamental right." Ibid. When applying strict scrutiny, a court asks whether the ordinance is narrowly tailored to serve a compelling government interest. Ibid. If the ordinance does not concern a suspect class or a fundamental right, courts apply a rational basis review and simply ask whether the oruiriance is rationally related to a lCyit-ii nate goner i��-jantal interest. Ibid. Assuming that the right to aerially advertise is protected under the First Amendment, courts only apply strict scrutiny when a distinction among speakers is made on the basis of content. Honolulu Weekly, supra, 2002 DJDAR at p. 8728. Since the aerial advertising ban is content neutral, strict scrutiny is not appropriate. Ibid. Since rational basis review applies, is the ordinance "rationally related to a legitimate rjw02memos/Final Ord. Banning Aerial AdvertisingfIn Honorable Mayor and Member.,if the City Council 8/29/2002 Page 6 of 6 government interest?" We think that safety, noise and air pollution are legitimate government interests and that the ordinance is a rational attempt to achieve these interests. Thus, the ordinance, in our opinion, would not violate the Equal Protection Clause. 7: .._., .HONOLULU'S-EXPERJF—NCEAA!,ITH—!TS-AER!AL Ar, VERT!S!NG,BAN �� ... ORDINANCE The City and County of Honolulu had only one company, the plaintiff in the Skysign International case, violating its ordinance. The company was small in size, utilized only one helicopter, and flew over Waikiki Beach; taking off from and landing at a small private airport near the Waikiki Beach area. The helicopter in question did not utilize the Honolulu International Airport for its flights. According to the court's opinion in the Skysign International case (see 276 F.3d at p. 1114), the plaintiff in that case ceased doing business in the early stages of the dispute with the City and County of Honolulu. The situation.in_H�nAlulu_differs markedly,from 1he._City.of Htjntington_Beach,-whe.re� a number of planes towing banners fly over its land and beaches. CONCLUSION We would be pleased_to answer.any other questions the City Council may have in this matter. GAIL H&TON %al Attorney Exhibits as noted cc (with exhibits): Ray Silver, City Administrator Bill Workman, Assistant City Administrator Ron Lowenberg, Chief of Police rjwUmemos/Final Ord. Banning Aerial Advertisingfjn EXHIBIT A ORDINANCE NO. AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY ADDING THERETO CHAPTER 9.07, PROHIBITING AERIAL ADVERTISING The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Statement of Legislative Intent. In recent years, the City of Huntington Beach("City") has received a number of complaints from its residents concerning the presence of an increasing number of small, single-engine planes towing banners advertising any number of political, commercial, religious, public interest or personal messages. These planes constantly overfly certain areas of the City including, but not limited to, Golden West College, the southeast area of the City, the City's downtown area and the City's beaches adjacent to the Pacific Ocean. These planes are noisy, fly at very low altitudes and pollute the air. Many times their engines sputter as these planes attempt to tow banners larger in size than the planes themselves. In addition to concerns regarding noise, aesthetics, and air pollution, these planes could crash into populated areas of the City, including the beaches and the Pacific Ocean where sunbathers or,swimmers are present. In the recent decision of Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1.109(9`h Cir. 2002), the federal appellate court upheld the validity- of a similar Honolulu ordinance against an attack that it was preempted by federal law and by Federal Aviation Administration regulations. Pursuant to its constitutional police power, as well as its constitutional power as a chartered city, the City(acting through its City Council) enacts this ordinance into law in order to protect the safety, health and welfare of not only its residents, but also of all other persons who work in or visit the City. SECTION 2. The Huntington Beach Municipal Code is hereby amended by adding thereto Chapter 9.07, to read as follows: Chapter 9.07 AERIAL ADVERTISING PROHIBITED Sections: 9.07.010 Definitions 9.07.020 Aerial Advertising Prohibited 9.07.030 Violation—Penalty 02ord/chap 9.07 1 9.07.010 Definitions For the purposes of this chapter: (a) The word"advertising" means the act of calling or attracting the public's attention to an event, person, persons, group, organization, cause, calling, product or business. (b) The term"sign or advertising device," means and includes, but is not limited to, a poster, banner, writing, picture, painting, light, set of lights, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device. (c) The word"person" means, but is not limited to, an individual, general partnership, limited partnership, limited liability company,unincorporated association, for-profit corporation or non-profit corporation. 9 07 020 Aerial Advertising,Prohibited. (a) Except as allowed under subsection (b), no person shall, within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. (b) Exceptions. (1) Subsection (a) of this section shall not prohibit the display of any identifying mark, trade name, trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft's or airborne object's owner. (2) Subsection (a) of this section shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self-propelled or buoyant airborne object. (3) Subsection (a) of this section shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 233 of Title 20 of this code. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the aforementioned Chapter 233. 9.07.030 Violation—Penalty. Any person violating any provision of this chapter shall be guilty of either a misdemeanor or an infraction, and upon conviction thereof shall be punished according to the provisions of Chapter 1.16 of the Huntington Beach Municipal Code. Pursuant to Section 1.16.045 of said Code,the City Attorney has the discretion to file a complaint charging a violation of this chapter as either a misdemeanor or an infraction. 02ord/chap 9.07 2 SECTION 2. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 2002. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director.of Community Services 02ord/chap 9.07 EXHIBIT B �• CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNnNGMN BEACH TO: RAY SILVER CITY ADNIINISTRATOR FROM: RONALD E. LOWENBERG CHIEF OF POLICE DATE: August 7, 2002 SUBJECT: BANNER TOW ORDINANCE It is anticipated that with the enactment of the currently proposed ordinance to ban aerial advertising, the primary tool for enforcement would be our helicopter. Although our aircrews have the capabilities to follow the planes to their airport of origin and contact the pilots this would entail long periods of time out of the city and away from our patrol function. I could not justify using our helicopter for this type of misdemeanor violation considering impact on our public safety mission and the cost involved I would propose that the following guidelines be utilized when dealing with banner tows: • Aircrews will approach an offending aircraft and determine if a violator is within the city limits. Crews will obtain a description of the aircraft (i.e.: paint scheme, Cessna, high wing, low- • wing, etc) and the N number or registration number. The pilot will attempt to make radio contact with the pilot of the offending airplane and advise him of the violation. • Upon returning to the heliport, the crew will complete a report including the registered owner of the aircraft from FAA recordsl, the contents of the advertising, geographical landmarks indicating flight over the city and the approximate altitude at which the offending aircraft was operating. • All reports will be forwarded to the City Attorneys office for follow up. If at all possible, crews can try to make a visual identification of the pilot, however this would not always be possible. Our pilots should first observe strict safety precautions before attempting a visual identification. REL:WCP:wp EXHIBIT C Page 2 of 10 276 F.3d 1109 Page 2 2 Cal.Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as:276 F.3d 1109) C 11�1 Declaratory Judgment C=62 / United States Court of Appeals, I I8Ak62 Most Cited Cases Ninth Circuit. An 1�ction for a declaratory judgment is live, not SKYSIGN INTERNATIONAL,INC.; moot; if the facts alleged, under adI the Plaintiff-Appellant, circur�stances, show that there is a s 'stantial V. contro kersy, between parties having adv se legal CITY AND COUNTY OF HONOLULU;Does interest of sufficient immediacy and eality to 1-100,Defendants-Appellees. warrant t e issuance of a declaratory judg ent. No.99-15974. 121 Federa Civil Procedure C-103.3 170Ak103.lurts ost Cited Cases Argued Dec. 13,2000 Submission Deferred Dec.26,2000 121 Federa C:=12.1 Re-Submitted Dec. 18,2001 170Bk12.1 M t Cited Cases Filed Jan.9,2002 The distinctio between a question of "redressability," component initial standing to Provider of aerial advertising which was issued sue, and the doctrine "mootness," the citations under city and county's signage ordinance requirement that controve sy remain live even brought action against city and county, seeking after the plaintiff demon ates initial standing, declaration that federal law preempted city and though subtle, is an 'mpo nt one, in part because county from seeking to regulate navigable airspace, mootness admits of c rtai exceptions that standing an injunction barring the enforcement of any local does not. ordinance to the contrary, and damages on various causes of action under state law. The United States 131 Declaratory Judg t C-300 District Court for the District of Hawaii, Helen I I8Ak300 Most Cited as s Gillmor, J., granted city and county's motion to dismiss the federal claims, and dismissed the state Provider of aerial dverti 'ng which appeared to claims without prejudice. Advertiser appealed. The cease operations ' early st es of its dispute with Court of Appeals, O'Scannlain, Circuit Judge, held city and county ver citati s it was issued for that: (1) aerial advertising provider had standing to violating city nd county' signage ordinance bring the action, and the case was not moot; (2) personally wo Id benefit from the courfs failure of aerial advertising provider to appeal intervention, d thus, had stan ing to bring action decision of zoning board of appeals (ZBA) which for declaratio that federal law eempted the local upheld validity of the citation of the advertising ordinance nd an injunctio barring the provider for violation of signage ordinance but enforcemen of the ordinance, and he case was not which failed to address issue raised by the moot, whe e the complaint could b read to allege advertising provider as to whether the ordinance that the o inance was what caused t e advertiser to was preempted by federal law did not preclude cease o erations and that the re oval of that federal court from addressing the preemption issue obstacl would put it back in b siness, and in separate action; (3) city and county's general inasm h as the city and county coul not collect signage and aerial signage ordinances were not the utstanding fines if the ordi ance was preempted by federal aviation law; and (4) Federal pree pted by federal law. Aviation Administration's (FAA) certificates of waiver provided to aerial advertising provider did 14 ederal Courts C:=420 not preclude enforcement of the local ordinances. 1 013k420 Most Cited Cases Affirmed. ule that federal courts must accord a state court judgment the same preclusive effect that the judgment would receive in the rendering st te's West Headnotes courts extends to state administrative adjudicati ns Copr. ©West 2002 No Claim to Orig.U.S. Govt.Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B O055800000004390001649224B... 8/8/2002 Page 5 of 10 276 F.3d 1109 Page 5 2 Cal. Daily Op. Serv. 200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) here the certificates of waiver explicitly noted that At all times relevant to this appeal, Skysign th aircraft operator, by exercising the privilege:''of operated under the authority of certificates of the aiver, understood all local laws and ordinances waiver issued by the Federal Aviation relating to aerial signs, and accepted responsibility Administration. (FAA). Federal regulations prohibit for all\actions and consequences associated with the operation of "restricted category civil aircraft" such operations. 14 C.F.R. §91.313(e). [FNI] in certain locations--"(]) [o]ver a densely *1112 Denise H. Sangster (argued), Michael Jay populated area; (2) [i]n a congested airway; or (3) Green, David J. Gierlach, Honolulu, Hawaii, for the [n]ear a busy airport"--without a certificate of plaintiff-app6l ant. waiver from the FAA. 14 C.F.R. § 91.313(e). The FAA issued Skysign a certificate of waiver good for Gregory J. Swartz, Deputy Cor*oration Counsel about nine months on January 8, 1996, and a (argued), David X Arakawa, Corporation Counsel, subsequent one-year certificate on August 22, 1996. City and County \6f Honolulu; Honolulu, Hawaii, for the defendants-ap�eIlees.j ,, ��� FN1. This group includes aircraft that have Stuart E. Schiffer, cting Assistant Attorney been modified for "special purpose General, Elliott Enok' United States Attorney, operations," including the carrying of Douglas N. Letter and,�hri tine N. Kohl, Attorneys, "airborne signs" for advertising purposes. Civil Division, United StatekDepartment of Justice, See 14 C.F.R. §21.25(a),(b)(3). Washington, DC, pin the brief Rosalind A. Knapp, Acting General (ounsel, Paul Geier, Assistant General Coun 11, United Stat Department of The two certificates waived the restrictions of 14 Transportatio , Washington, DC, avid G. Leitch, C.F.R. § 91.313(e) and permitted Skysign to engage Chief Coun el, Nancy D. LOBue, ssistant Chief in "Night Time Aerial Advertising." Each Counsel, Federal Aviation ministration, certificate included a standardized "Note" Washington, DC, of counsel, for the ited States indicating: "This certificate constitutes a waiver of /Apal s curiae by invitation of the court. those Federal rules or regulations specifically referred to above." Each certificate also included a from the United States District C urt for set of special provisions (i.e., provisions not a trict of Hawaii; Helen Gillmor, 'strict standard part of the waiver form). The lists of , residing. D.C.No. CV-97-01425-HG. special provisions differed slightly, but each included the following language: "The operator, by exercising the privilege of this waiver, understands Before: THOMPSON, O'SCANNLAIN, and all local laws and ordinances relating to aerial signs, TASHIMA,Circuit Judges. and accepts responsibility for all actions and consequences associated with such operations." The City and County of Honolulu, Hawaii, bars by *1113 O'SCANNLAIN,Circuit Judge: municipal ordinance various types of signage, including "[a]ny sign which advertises or publicizes We must decide whether federal law preempts a an activity not conducted on the premises on which local ordinance regulating advertisements borne by the sign is maintained," "[a]ny ... portable sign," aircraft. and "[a]ny flashing sign." Honolulu, Haw., Rev. Ordinances § 21-3.90-2(b), (c), (e) (1990 & I Supp.1996). [FN2] Honolulu also bars, the use of aircraft to display "any sign or advertising device." Skysign International, Inc. ("Skysign"), a Hawaii Id. §.40-6.1. corporation, was a provider of aerial advertising on the island of Oahu. Its helicopters carried lighted signs beneath their fuselages, bearing FN2. After a 1999 recodification, this advertisements for Skysign's clients. section now appears at§21-7.30. Copr. ©West 2002 No Claim to Orig.U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B0055 8000000043 90001649224B... 8/8/2002 Page 6 of 10 276 F.3d 1109 Page 6 2 Cal. Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) In both 1987 and 1996, when considering II amendments to the latter ordinance, Honolulu sought the FAA's advice as to whether the [1] We must first address the jurisdictional ordinance was or would be preempted by federal question of whether a live case or controversy law. In both cases, the FAA's regional counsel exists. An action for a declaratory judgment is replied that in his agency's view, because of the live, not moot, if "the facts alleged, under all the pervasive federal regulation of navigable airspace, circumstances, show that there is a substantial any local attempt to restrict the way in which controversy, between parties having adverse legal aircraft operate within that airspace would be interests, of sufficient immediacy and reality to pre-empted. warrant the issuance of a declaratory judgment." Pub. Utils. Comm'n v. FERC, 100 F.3d 1451, 1458 In July 1996, Skysign ran afoul of the Honolulu (9th Cir.1996) (quoting Md. Cas. Co. v. Pac. Coal ordinances for the first time. It received a citation & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 charging it with violating § 21-3.90-2, the signage L.Ed. 826 (1941)) (internal quotation marks ordinance, and assessing a civil fine of $100, the omitted). Honolulu contended, and the district court statutorily prescribed amount for a first violation. It held, that this dispute lacked the requisite did not pay the fine, continued to operate, and immediacy because Skysign has ceased operation. subsequently received two further citations, each assessing a fine of$1,000. [2] We note as an initial matter that the district court and the parties appear to have conflated the Skysign appealed only the first citation to question of redressability, a component of initial Honolulu's Zoning Board of Appeals (ZBA), but standing to sue, with the doctrine of mootness, the disputed the ZBA's jurisdiction over the issue, requirement that the controversy remain live even citing the waiver issued by the FAA. The ZBA after the plaintiff demonstrates initial standing. As upheld the validity of the citation and fine but did the Supreme Court has noted, these two inquiries not decide the *1114 federal preemption issue. are quite similar; the doctrine of mootness has even Skysign did not appeal the ZBA's judgment to the been called "the doctrine of standing set in a time state circuit court. Rather, it filed a complaint in frame." U.S. Parole Comm'n v. Geraghty, 445 U.S. the U.S. District Court for the District of Hawaii, 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) seeking a declaration that federal law preempted (quoting Henry Paul Monaghan, Constitutional Honolulu from seeking to regulate navigable Adjudication: The Who and When, 82 Yale L.J. airspace, an injunction barring the enforcement of 1363, 1384 (1973)) (internal quotation marks any local ordinance to the contrary, and damages on omitted). However, as the Supreme Court recently various causes of action under Hawaii law. noted, the distinction, though subtle, is an important one, in part because mootness admits of certain The district court granted Honolulu's motion to exceptions that standing does not. Friends of the dismiss the federal claims on the ground that no Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., case or controversy existed. By that time, Skysign's 528 U.S. 167, 190-91, 120 S.Ct. 693, 145 L.Ed.2d business was no longer operating, and the court held 610 (2000). In this case, Skysign appears to have that Skysign could point to no likelihood of future ceased its helicopter operations in the early stages injury. The court held in the alternative that even if of its dispute with Honolulu, such that the relevant a live controversy existed, the ordinances were not inquiry is into standing and, specifically, the preempted, because the references to local law in redressability component. Skysign's certificates of waiver meant that there was no conflict between federal and state regulation. [3] Undertaking that inquiry, we conclude that Having disposed of the federal questions, the Skysign has alleged facts sufficient to support district court accordingly declined to exercise federal jurisdiction. Skysign personally would supplemental jurisdiction over the state law claims benefit ... from the court's intervention," Warth v. and dismissed them without prejudice. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), in at least two ways. First, Skysign filed this timely appeal. Skysign's complaint fairly can be read to allege that the challenged ordinance itself is what caused it to Copr. ©West 2002 No Claim to Orig.U.S.Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=BO055 8000000043 90001649224B... 8/8/2002 Page 7 of 10 276 F.3d 1109 Page 7 2 Cal. Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) cease ,operations, and that the removal of that Haw. 648,646 P.2d 962,965-66(1982). obstacle would put it back in business. Cf. City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. [6] Because the first of these three requirements is 1382, 146 L.Ed.2d 265 (2000). *1115 ("Simply not met, we reject Honolulu's. contention that closing Kandyland is not sufficient to render this Skysign's claim is precluded. In this action Skysign case moot.... Pap's is still incorporated under seeks a determination only of whether the federal Pennsylvania law, and it could again decide to government, through comprehensive regulation, has operate a nude dancing establishment in Erie."). preempted air traffic control and management by Further, Honolulu cannot collect the $2,100 in state and local governments. Although Skysign outstanding fines if the ordinance under which it raised this identical preemption issue before the assessed them is preempted by federal law. ZBA, the ZBA did not decide the issue and Although the district court correctly noted that the explicitly deferred resolution of it to the courts. assessed fines are for Skysign's "past conduct," that Because the ZBA's decision did not address the distinction does not in and of itself deprive a federal preemption issue, it does not preclude the resolution court of jurisdiction to hear a declaratory judgment of that issue in any other court of competent action challenging the enforceability of the law jurisdiction. Skysign's failure to appeal to the under which the penalty is assessed. See, e.g., circuit court affects only the finality of the ZBA's Edgar v. MITE Corp., 457 U.S. 624, 630, 102 S.Ct. decision; it does not constitute some kind of waiver 2629, 73 L.Ed.2d 269 (1982). We thus conclude of all related but unaddressed issues that it could that Skysign had standing to bring this action and, have appealed. for the same reasons, that the case has not become moot. We therefore have jurisdiction to consider We therefore must turn to the merits of Skysign's this appeal. challenge. III IV Honolulu argues that Skysign is precluded from [7][8][9] Skysign asserts that federal law operates bringing this action because the ZBA's decision was to bar Honolulu from implementing restrictions on a final and binding decision on the merits entitled to aerial advertising. However, advertising is an area preclusive effectb Although the ZBA expressly traditionally subject to regulation under the states' declined to address the preemption issue and police power, and we therefore presume that federal reserved it for the courts, Honolulu contends that law does not displace Honolulu's regulatory Skysign's failure to appeal the ZBA's decision to the authority over advertising absent a clear statement state circuit court pursuant to Haw.Rev.Stat. § 91-14 of the federal intent to do so, either by Congress or I rendered the decision final as to all issues that by the FAA as Congress's delegate. See *1116 Skysign could have pursued on appeal, including Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 the preemption question. S.Ct. 2404, 2414-15, 150 L.Ed.2d 532 (2001) (citing Cal. Div. of Labor Standards Enforcement v. [4][5] Federal courts must accord a state court Dillingham Constr., N.A., Inc., 519 U.S. 316, 325, judgment the same preclusive effect that the 117 S.Ct. 832, 136 L.Ed.2d 791 (1997), and Packer Corp. v. Utah, 285 U.S. 105, 108, 52 S.Ct. 273, 76 judgment would receive in the rendering state's courts. 28 U.S.C. § 1738 (1994). This rule L.Ed. 643 (1932)); accord, e.g., Nat'l Warranty1077 extends to state administrative adjudications of Ins. Co. RRG v. Greenfield, 214 F.3d 1073, legal and factual issue. Misischia v. Pirie, 60 F.3d (9th Cir.2000) ("[P]reemption will not be easily 626, 629 (0th Cir.1995). Hawaii state courts accord found."). Section 21-3.90-2, the general signage preclusive effect to the findings of administrative ordinance, is entitled to the benefit of this agencies if. (1) the issue decided in the prior action presumption. However, no such presumption is identical to the issue in the current action, (2) a applies to section 40-6.1, the aerial signage final judgment on the merits was issued, and (3) the ordinance, which rather than addressing advertising parties in the current action are the same or in generally specifically targets for regulation "an area privity with the parties in the prior action. See where there has been a history of significant federal Santos v. State of Hawaii, Dept of Transp., 64 presence," i.e., navigable airspace. United States v. Copr. ©West 2002 No Claim o Orig.U.S.Govt.Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B0055 800000004390001649224B... 8/8/2002 Page 8 of 10 276 F.3d 1109 Page 8 2 Cal. Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 Congress itself has made no such decision, although L.Ed.2d 69(2000). it has left open the door for the FAA to do so through the use of its authority to develop [10] We must first decide whether Congress has regulations for the use of the navigable airspace. acted to occupy the entire field and to preempt See 49 U.S.C. §40103(b)(1)-(2)(1994). altogether any state regulation purporting to reach into the navigable airspace. Skysign points to the [12][13][14] We also conclude that the FAA has statutory provision reserving to "[t]he United States not exerted its statutory authority to a degree that Government ... exclusive sovereignty of airspace of warrants a holding that it has preempted the entire the United States." 49 U.S.C. § 40103(a)(1) (1994) field. The "mere volume and complexity" of the As the United States points out, however, the FAA's regulatory scheme do not, without some Supreme Court has construed § 40103(a)(1)'s affirmative accompanying indication, compel a predecessor provision [FN3] as "an assertion of conclusion that the agency has sought to occupy the exclusive national sovereignty" that "did not field to the full. Hillsborough County v. Automated expressly exclude the sovereign powers of the Med. Labs., 471 U.S. 707, 718, 105 S.Ct. 2371, 85 states." Braniff Airways v. Neb. State Bd. of L.Ed.2d 714 (1985); see also id. at 717, 105 S.Ct. Equalization & Assessment, 347 U.S. 590, 595, 74 2371 *1117 ("We are even more reluctant to infer S.Ct. 757, 98 L.Ed. 967 (1954). Although pre-emption from the comprehensiveness of Congress has acted to exclude the states altogether regulations than from the comprehensiveness of from regulating certain aspects of air travel, such as statutes.... To infer pre- emption whenever an aircraft noise and airline pricing, see, e.g., City of agency deals with a problem comprehensively is Burbank v. Lockheed Air Terminal, 411 U.S. 624, virtually tantamount to saying that whenever a 633, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973) (aircraft federal agency decides to step into a field, its noise); Air Transp. Assn of Am. v. City & County regulations will be exclusive. Such a rule, of of San Francisco, 266 F.3d 1064, 1070-71(9th course, would be inconsistent with the federal-state Cir.2001) (pricing), we agree with the United States balance embodied in our Supremacy Clause that § 40103(a)(1) does not in and of itself exclude jurisprudence."). Further, although "the failure of any state regulation of aerial advertising. the Federal Register to address pre-emption explicitly is ... not determinative," Geier v. Am. Honda Motor Co., 529 U.S. 861, 884, 120 S.Ct. FN3. See Act of July 5, 1994, Pub.L. No. 1913, 146 L.Ed.2d 914 (2000), we accord some 103-272, § 1, 108 Stat. 745, 745 weight to the agency's own views, id. at 883, 120 (providing that the 'recodification of S.Ct. 1913. Although Skysign correctly points out transportation provisions pursuant to some inconsistency between the government's which present § 40103 was enacted was position as stated in a 1987 letter from the FAA intended to make no"substantive change"). regional counsel and as set out in its amicus brief in this case, we do not think that the government has fundamentally flip-flopped on the issue of field [11] Most of the other statutory provisions upon preemption. The 1987 letter stated a tentative which Skysign relies either explicitly preempt state conclusion based on a proposed ordinance; the authority in a subfield of aviation, as described amicus brief sets out the considered position of the above, or give to the Secretary of Transportation or Department of Transportation and of the FAA and his designee the authority to regulate the navigable is consistent with the agency's own handbook for airspace. Honolulu does not dispute, nor could it, inspectors,which contains statements that appear to that federal regulations would control over an contemplate permissible, non-preempted state actually contradictory municipal ordinance. regulation of banner tow operations and aerial Skysign's argument that local regulation is displaced advertising. in the absence of any contradictory federal provision requires a demonstration that Congress [15] Nor does either the land use ordinance or the has so completely occupied the field that federal aerial signage ordinance encroach upon any of the silence is itself a policy choice rather than a mere subfields of aviation over which Congress has passive deferral to local authority. We conclude that actually asserted exclusive authority. Skysign notes Copr.©West 2002 No Claim to Orig.U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=BOOS 5 8000000043 90001649224B... 8/8/2002 Page 9 of 10 276 Fad 1109 Page 9 2 Cal.Daily Op. Serv.200, 2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) I I that Honolulu justifies its ordinance based in part on I FAA suggests that Certificates of Waiver issued to the danger that distracting aerial advertising poses pilots towing banners include an explicit statement to motorists below, and it attempts to argue that 1 that the certificate and its special provisions "do not Congress has confided to the FAA exclusive i supersede any local, state, or .city ordinance(s) authority over such safety concerns. However, the prohibiting aerial advertising." 2 FAA Order. I provision it cites directs the FAA Administrator to 8700.1, General Aviation Operations Inspector's "prescribe air traffic regulations in the flight of Handbook, pt. 91, ch. 45, at 45-10 fig. 45-3 (1998), aircraft (including regulations on safe altitudes) for available at http:// www.faa.gov/avr/afs/faa/87 protecting individuals and property on the 00/8700 vol2/2_045_OO.pdf-, see also id. § ground." 49 U.S.C. § 40103(b)(2)(B) (1994). We 1.9(B)(2), at 45-2 (listing the operator's do not read this provision to preclude local responsibility for "acquiring knowledge of state and regulation with an identical purpose that does not local ordinances that may prohibit or restrict banner actually reach into the forbidden, exclusively tow operations" among the guidelines considered by federal areas, such as flight paths,hours, or altitudes. inspectors when issuing certificates of waiver for [FN4] such operations). Based on these provisions, we conclude that the application of Honolulu's ordinances does not impede the federal policy or FN4. The United States also notes that the purpose in issuing Skysign's Certificates of Waiver. aerial signage ordinance explicitly disavows any attempt to regulate identifying markings on an aircraft, see FN5. Of course, even when the federal Honolulu, Haw., Rev. Ordinances § government has evinced its intent to leave 40-6.1(b)(1), which would be much more the states and localities some room in likely to encroach upon the Administrator's which to regulate, some local regulation authority, see 49 U.S.C. § 40103(b)(2)(A) may transgress those boundaries by (1994) (permitting the promulgation of interfering with the underlying .federal regulations for"identifying aircraft"). purposes. We . discern no such conflict here,however. [16][17] The remaining question is whether the FAA's two Certificates of Waiver preclude the FN6. Skysign relies on such a case, Banner enforcement of either ordinance against Skysign Adver., Inc. v. City of Boulder, 868 P.2d under principles of conflict preemption, which 1077 (Colo.1994). The Colorado displace state law that "stands as an obstacle to the Supreme Court determined that federal law accomplishment and execution of the full purposes occupied the field and struck down as and objectives" of federal law. Hines v. Davidowitz, preempted a Boulder ordinance that 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) banned the aerial towing of commercial However, state law cannot by its mere existence signs. Id. at 1081-83. The Banner court stand as such an obstacle when the federal relied heavily on the FAA's Certificate of government contemplates coexistence between Waiver, which did not include a provision federal and local regulatory schemes. [FN5] Such requiring compliance with state and local is the case here. The waivers that Skysign obtained laws like the one in Skysign's contained a provision explicitly noting that "[t]he corresponding certificate and which [aircraft] operator, by exercising the privilege of explicitly permitted "[b]am [t]owing for this waiver, understands all local laws and the purpose of advertising," id. at 1082. ordinances relating to aerial signs, and accepts Thus, as the Colorado court recognized, responsibility for all actions and , *1118 the Boulder ordinance failed under conflict consequences associated with such operations." preemption principles as well as field The FAA's handbook for inspectors suggests the pre-emption analysis. Id. at 1084. We inclusion of similar provisions in waivers for banner disagree only with the Colorado court's tow operations, which also may run afoul of local discussion of field preemption, and we do aerial signage ordinances. [FN6] Specifically, the Copr. ©West 2002 No Claim to Orig.U.S.Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B 005 5800000004390001649224B... 8/8/2002 Page 10 of 10 276 F.3d 1109 Page 10 2 Cal.Daily Op. Serv.200,2002 Daily Journal D.A.R.291 (Cite as: 276 F.3d 1109) so in light of Banner's heavy reliance on the FAA's position as expressed in an opinion letter and in the certificate of waiver. We reach our contrary conclusion in light of the handbook provisions the United States has brought to our attention and the addition of terms to Skysign's certificate of waiver consistent with those provisions. V For the foregoing reasons, although we conclude that the district court erred in deciding that Skysign lacked standing, we agree that Skysign's federal preemption claim should have been dismissed on the merits. We further conclude that the district court did not abuse its discretion when it declined to exercise, supplemental jurisdiction over Skysign's state law claims under 28 U.S.C. § 1367(c)(3). [FN71 FN7. We note that had Skysign lacked standing to. bring its ,federal claim, the district court would have lacked subject matter jurisdiction over that claim and accordingly would have had no discretion to hear the state law claims. See Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806(9th Cir.2001). AFFIRMED. 276 F.3d 1109, 2 Cal. Daily Op. Serv. 200, 2002 Daily Journal D.A.R. 291 END OF DOCUMENT Copr. ©West 2002 No Claim to Orig.U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=B005 5 800000004390001649224B... 8/8/2002 APMI1. -/i A CITY OF HUNTINGTON BEACH City Council Interoffice Communication Nod To: Honorable Mayor and City Council M,,��e//��mbers 6-�( From: Connie Boardman, Mayor Pro Tem(.D Date: July 9, 2002 Subject: "H"ITEM FOR JULY 15, 2002, CITY COUNCIL MEETING— BANNER TOWING PLANES STATEMENT OF ISSUE: I have received numerous complaints from residents in the coastal areas of our city as well as from the area around Golden West College about the noise caused by the planes towing advertising banners. Until recently, it was believed that there was little the city could do to control these aircraft over our city. However, earlier this year the United States 9th Circuit Court of Appeal ruled that cities may regulate aerial advertising. The City Attorney's office has prepared a draft ordinance based on the Honolulu ordinance, which was upheld by the 9th Circuit Court. If the City Council is interested in considering such an ordinance, the draft ordinance needs final legal review,by the City Attorney's office and approval by the City Council. RECOMMENDED ACTION: Forward the attached draft ordinance for final legal review and subsequent request for action by the City Council. xc: Ray Silver Connie Brockway Gail Hutton ATTACHMENT 1 DRAFT ORDINANCE NO. AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY ADDING THERETO CHAPTER 9.07, PROHIBITING AERIAL ADVERTISING The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. The Huntington Beach Municipal Code is hereby amended by adding thereto Chapter 9.07, to read as follows: Chapter 9.070 AERIAL ADVERTISING PROHIBITED Sections: 9.07.010 Aerial Advertising Prohibited 9.07.020 Violation--Penalty 9.07.010 Aerial Advertising Prohibited. (a) Except as allowed under subsection (b), no person shall,within or above the boundaries of the City of Huntington Beach, operate or use, or cause to be operated or used, any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. For the purpose of this section, a"sign or advertising device" includes, but is not limited to, a poster, banner, writing, picture, painting, light, model, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device. (b) Exceptions. (1) Subsection (a) shall not prohibit the display of any identifying mark, trade name, trade insignia, or trademark on the exterior of an aircraft or self- propelled or buoyant airborne object if the displayed item is under the ownership.or registration of the aircraft's or airborne object's owner. (2) Subsection (a) shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self- propelled or buoyant airborne object. (3) Subsection (a) shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 233 of Title 20 of this code. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the aforementioned Chapter 233. 02ord/chap 9.07 1 DRAFT 9.07.020 Violation—Penalty. Any person violating any provision of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars or by imprisonment in the city or county jail for a period of not more than six months, or by both such fine and imprisonment. SECTION 2. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 2002. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Community Services 02ord/chap 9.07 2 r CITY OF HUNTINGTON BEACH Inter-Department Communication To: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL From: GAIL HUTTON, City Attorney Date: April 12, 2002 Subject: RLS No. 2002-0044: Regulation of Aerial Advertising;Proposed Ordinance Banning Aerial Advertising. Index: Aerial Advertising; Preemption; Police Power; First Amendment BACKGROUND In recent years, questions have arisen from both members of the City Council and individual citizens regarding the City of Huntington Beach's ("City") ability to regulate low-flying airplanes, particularly over the City's beach areas. In opinions dated September 2, 1998 (RLS No. 98-534), October 8, 1999 (RLS No. 99-688) and April 25, 2000,we opined that because the Federal Aviation Administration had promulgated specific regulations governing minimum altitude restrictions and had occupied the fields of aircraft flight and aviation noise, the City was prohibited from enacting its own restrictions regarding aircraft flying.l A related issue involves aerial advertising; especially those airplanes towing advertising banners behind them while flying over the City's beach areas. Councilmember Connie Boardman has asked that we again research the legalities of these issues and provide the City Council with a proposed ordinance banning such aerial advertising. We have discovered a new federal appellate court decision that substantially changes the law in this area. THE SKYSIGN COURT DECISION In a decision dated January 9, 2002, the federal Ninth Circuit Court of Appeals, in the case of Skysign International, Inc. v. City and County of Honolulu, 2002 DJDAR 291 ("Skysign") (copy attached as Attachment No. 1), upheld the validity of a Honolulu ordinance prohibiting aerial advertising. One of the primary issues raised by the plaintiff in the Skysign case was that the ordinance was preempted by federal law. The Ninth Circuit rejected this argument (see the bracketed portion of the court's opinion). 1 As we stated in our September 2, 1998 and October 8, 1999 opinions,under FAA regulations,any aircraft must fly at least 1,000 feet above the City,including 1,000 above the beach. When flying over the ocean,an aircraft may fly at any altitude as long as the aircraft is flying at least 2,000 feet from the shoreline and at least 500 feet from any person or vessel. rjw/02memos/RLS 02-0044 Prohibition of Aerial Advertising/jn Approximately 10 days ago, we checked with Gregory J. Swartz, Esq., a Deputy Corporation Counsel for Honolulu, and the attorney who orally argued Honolulu's position before the Ninth Circuit, and he indicated that the plaintiff in that case, Skysign International, Inc., had not filed either a petition for rehearing with the Ninth Circuit, or a petition for certiorari with the United States Supreme Court. Thus, the Skysign decision appears to be final and now represents good law. A PROPOSED HUNTINGTON BEACH ORDINANCE PROHIBITING AERIAL ADVERTISING We contacted Honolulu and that city was kind enough to provide us with a copy of the ordinance that was attacked in the Skysign case. We made several minor changes to the Honolulu ordinance and a copy of a proposed Huntington Beach ordinance is attached hereto as Attachment No. 2. These changes are described as follows: 1. We added the clause"within or above the boundaries of the City of Huntington Beach" in the first and second lines under subsection(a) of proposed Huntington Beach Municipal Code("HBMC") § 9.070.010. We added this clause to make sure that advertising airplanes towing banners over the City's beaches, as well as over the ocean adjacent to the beaches, fell within the ambit of the ordinance. City Charter § 102 defines the City's boundaries as: "(T)he boundaries of the City shall continue as now established until changed in the manner authorized by law." In an opinion dated March 30, 2000 (RLS No. 98-417), we opined that the City's boundaries extended into the Pacific Ocean for a distance of three miles past the mean tide,line. We rendered this opinion after reviewing the City's February 15, 1909 incorporation documents that described the City's original boundaries. Thus, the City has the authority to ban aerial advertising for a distance of three miles into the Pacific Ocean from the mean tide line. 2. We added the words "operator or"in the second line under subsection (a) of proposed HBMC§ 9.070.010. 3. We added the words "Chapter 233 of Title 20 of this code" under subsection (b)(3) of proposed HBMC§ 9.070.010. THE FIRST AMENDMENT ISSUE We note that the plaintiff in the Skysign case did not attack the Honolulu ordinance on the ground that it violated the First Amendment to the federal Constitution. We have researched the First Amendment issue and, in our opinion, an ordinance banning aerial advertising would not violate the First Amendment. The First Amendment denies the government the power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, at p. 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based and therefore impermissable. Turner Broadcasting Systems, Inc. v. F.C.C., 512 U.S. 622, at p. 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). However, a rjw/02memos/RLS 02-0044 Prohibition of Aerial Advertising/in content neutral statute makes no reference to the substance of the regulated conduct. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, at p. 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). To determine content neutrality in speech cases, the principal inquiry is whether the government has adopted a regulation of speech because of the disagreement with the message it conveys. Ward v. Rock Against Racism, 491 U.S. 781, at p. 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The proposed ordinance banning aerial advertising is content neutral. The proposed ordinance does not distinguish between different types of speech (i.e., religious, political, commercial, etc.) that might be displayed by an airplane, or on an object being towed by a plane. An interesting, analogous situation is found in the case of Simpson v. Municipal Court, Sacramento Municipal Court District (1971) 14 Ca1.App.3d 591, 92 Ca1.Rptr. 417 ("Simpson"). In Simpson, plaintiff attacked, on First Amendment grounds, a provision of the state's Penal Code that forbade picketing inside the State Capitol Building in Sacramento. Plaintiff argued that the flat prohibition of picketing was too broad to survive constitutional challenge and that the state Legislature must regulate more narrowly in proximity to the First Amendment. The appellate court disagreed. In upholding the constitutionality of the statute, the appellate court stated (Id.,p. 599): ". . . (F)reedom of expression does not mean that everyone with opinions or beliefs to express may do so at any time or place; primarily it aims a preventing the preference of some ideas over others . . . The present ban selects no preferred viewpoint; does not suppress provocation or challenge. It bans a single mode of communicative technique, the . . . picket. Even then, it constricts only narrowly, leaving the picket the entire outside world, including the capitol grounds, as the site for his appeal to public opinion an legislative action . . . The ban is no broader than necessary to meet the legitimate governmental need. . . ." As stated earlier, the proposed ordinance banning aerial advertising is content neutral. The proposed ban does not favor one message over another or one messenger over another. It is aimed at a specific activity—aerial advertising. Except for Honolulu, and Huntington Beach if the proposed ordinance is enacted into law, aerial advertisers literally have the rest of the world in which to engage in this type of advertising.2 2 Outside of the City and County of Honolulu,we are not aware of any other municipality that bans,by ordinance, aerial advertisin.-. rjw/02memos/RLS 02-0044 Prohibition of Aerial Advertising/in REQUIRED FACTUAL SUPPORT FOR THE PROPOSED ORDINANCE Huntington Beach will need to factually justify its own ordinance banning aerial advertising. Honolulu justified its ordinance, in part,based on the danger that distracting aerial advertising posed to motorists below. Another safety issue may include dangers to beachgoers caused by small, slow,moving aircraft towing long advertising banners over beach areas. Perhaps the City's Police and Community Services Departments could be of assistance compiling such factual information. Honolulu first enacted its aerial advertising ban ordinance into law in 1978, and amended it in 1996. We may want to obtain a copy of the pertinent Honolulu 1978 and 1996 city staff reports. CONCLUSION We would be happy to answer any questions that the City Council or City staff may have in this matter. ¢� GAIL HUTTON City AttorneyjL*' cc (with attachments): Bill Workman, Assistant.City Administrator Ronald Lowenberg, Chief of Police Ron Hagan,Director of Community Services Howard Zelefsky;Planning Director Robert Beardsley, Director of Public Works Connie Brockway, City Clerk rj%v/02memos/RLS 02-0044 Prohibition of Aerial Advertising/in J RCA ROUTING SHEET INITIATING DEPARTMENT: SUBJECT: COUNCIL MEETING DATE: RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Ached Tract Map, Location Map and/or other Exhibits shed Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) �0►tta�hed Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Attackted Certificates of Insurance (Approved by the City Attorney) Attached Financial Impact Statement (Unbudget, over $5,000) A#i:ae-hed Bonds (If applicable) MaGhed Staff Report (If applicable) Attached Commission, Board or Committee Report (If applicable) A#=Iie Findings/Conditions for Approval and/or Denial Attached EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR ED Administrative Staff ( ) ( ) Assistant City Administrator (Initial) ( ) ) City Administrator (Initial) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: RCA Author: