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A federal appellate court has refused to block the city of Miami’s effort to restrict billboard advertising but has ordered a federal judge in Miami to rule on whether the city is violating the constitutional rights of billboard companies. On Aug. 27, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Miami denied a request by National Advertising Co., a subsidiary of New York-based Viacom, for a preliminary injunction to stop the city from enforcing the sign provisions of its zoning ordinance. The ordinance was written in 1990 and has been amended several times. At the same time, the court remanded the case to Senior U.S. District Judge James Lawrence King to rule on whether the ordinance unconstitutionally denies the company freedom of speech. The city has filed a motion asking the 11th Circuit as a whole to reconsider the panel’s decision. King, of the Southern District of Florida, can’t rule on the case until the 11th Circuit rules on the city’s motion. The case, together with a similar Viacom lawsuit against the city, could go to trial in Miami as early as Oct. 28. The Miami City Commission during the past year has pressed the city administration to get tough with code enforcement in general, and with billboards specifically, on aesthetic grounds. At stake in this case is the future of about 40 billboards owned by Viacom that the city contends are too close to highways, too big, improperly angled or otherwise failing to comply with its ordinance. Hundreds of other billboards owned by San Antonio, Texas-based Clear Channel Communications also have drawn the ire of city code enforcers. But Carol A. Licko, the city’s outside counsel in the case, says Clear Channel has been cooperating with the city in seeking ways to bring them into compliance. The Aug. 27 ruling by the 11th Circuit, by not granting a preliminary injunction, allows the city to continue citing owners of billboard sites for alleged violations and bringing them before a special master who can impose fines of $250 a day per sign. Generally, the city has sought the removal of two types of billboards that it alleges are illegal, those located in parts of the city called C-1 areas, zoned for limited commercial use, and those erected in the past two years near Interstates 95, 195 and 395. Viacom first sought the preliminary injunction last year to halt city enforcement. But King denied it on the grounds that the company hadn’t first exhausted administrative remedies through a city hearing officer. The company appealed to the 11th Circuit, arguing that that remedy only applied to property owners and not to a billboard company. Viacom attorney Thomas R. Julin, a partner at Hunton & Williams in Miami, says the ordinance is unconstitutional in denying First Amendment and equal protection rights, because it makes exceptions for billboard signs posted by political candidates, government agencies, and churches but restricts other kinds of advertising. “You can ban all signs if you want to,” Julin says. “But if you ban some that have a particular content, that’s unconstitutional discrimination.” Licko, a partner at Hogan & Hartson in Miami, argues that the billboard company failed to show that it is suffering irreparable harm, a requirement for obtaining a preliminary injunction. The 11th Circuit was wrong to say the district court first must consider the issue of constitutionality, she says. There’s no precedent for that, she says, because that means the lower court would have to consider the merits of the case before determining whether the preliminary injunction request itself passes standard requirements. The company’s injunction request delayed a trial on the merits, which has allowed the city to continue enforcing the billboard code, Licko adds. Julin blames the city for causing the delay by opposing his client’s request for immediate relief. He contends the constitutional question is key to whether Viacom suffers irreparable injury. If the city is shown to be enforcing an unconstitutional, discriminatory code against the company, the company likely would win on the merits of its case, he says. Meanwhile, while this case on pre-existing signs goes on, a second Viacom suit is under way in U.S. District Court in Miami. It alleges that the city is interfering with the billboard companies’ First Amendment rights in efforts to prevent them from erecting new billboards. Viacom has requested a preliminary injunction in that second case as well. That request is scheduled to be heard Oct. 28 in King’s courtroom. The city has asked that the two cases be consolidated, which means both could be heard on that date. Julin says the company won’t oppose the consolidation, as long as it doesn’t create additional delays.

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