Court: District Court of Appeal of Florida; October 23, 2002; Florida; State Appellate Court
Café Erotica/We Dare to Bare challenged the Florida Department of Transportation's Final Order, which mandated that the appellant obtain a sign permit for its billboard, concluding that the sign was not on the premises of the business as required by section 479.07, Florida Statutes (2001). The appellant claimed that this statute, along with section 479.08 and Florida Administrative Code Rules 14-10.004 and 14-10.006, constituted an unconstitutional prior restraint on free speech under the First Amendment. The court affirmed the agency's decision, stating that the regulations did not impose an impermissible prior restraint. The Department had issued a notice of violation for the lack of a permit for an outdoor sign near Interstate 95, to which the appellant responded by asserting the sign's exemption status. However, following a formal hearing, an Administrative Law Judge found insufficient evidence for this exemption, leading to the agency's Final Order requiring sign removal. The court noted that challenges to the facial constitutionality of statutes can be raised on appeal, as established in prior case law. The First Amendment, applicable to the states via the Fourteenth Amendment, guarantees free speech, which is also echoed in the Florida Constitution. The court emphasized that regulations must be assessed for content-based versus content-neutral classification, with content-based regulations facing stricter scrutiny.
A regulation imposing a burden on speech without regard to the content is typically deemed content-neutral. According to Florida Statutes (2001), specifically section 479.07(1), a permit is required for erecting any sign on the State Highway System, including Interstate 95, with certain exceptions outlined in sections 479.105(1)(e) and 479.16. To obtain a permit, an applicant must provide a permit fee, a signed authorization from the property owner, and a compliance statement from local government officials if applicable.
Section 479.16 enumerates exceptions to the permitting requirement, including:
1. Signs on premises identifying the establishment or its products/services, adhering to lighting rules; government signs on municipal/county properties that do not reference commercial enterprises, sponsors, personal messages, or political campaign messages.
2. Signs on farms solely related to farm products or services.
3. Signs indicating real property for sale or rent, limited to that purpose.
4. Official notices by public or court officers.
5. Danger or precautionary signs regarding the property, including certain forestry and government signs.
6. Notices for transportation or safety related to public direction.
7. Aviation-related signs for safety and location.
8. Property signs stating only the owner’s name, limited to eight square feet.
9. Historical markers by authorized public authorities.
10. Official traffic control signs approved by the department.
Signs are permitted on properties for specific purposes, including warnings against hunting, fishing, or trespassing, and for churches, civic, fraternal, charitable organizations, or government entities, provided they do not exceed eight square feet. Additionally, signs relating to political campaigns are allowed, as well as signs up to sixteen square feet at road junctions indicating the distance or direction to residences or farm operations. In rural areas, small businesses may display one such sign if visibility is a concern, although this provision does not apply to charter counties and may be restricted if it affects federal funding.
The Florida Administrative Code outlines the permit application process and requirements under Rules 14-10.004 and 14-10.006, including compliance with size, spacing, and structural criteria. The Department of Transportation can deny or revoke permits for false information or violations, with a 30-day window for permittees to correct issues. Individuals aggrieved by permit denials or revocations may request an administrative hearing within 30 days.
The regulations have been acknowledged as content-neutral, and while requiring a permit for outdoor advertising could be seen as a prior restraint on speech, such regulations are not inherently improper if they do not censor based on content and include procedural safeguards against censorship.
In FW/PBS, Inc. v. City of Dallas, the Supreme Court addressed the constitutionality of billboard regulations. Subsequent cases have established that content-based regulations can constitute prior restraints on speech, as seen in Desert Outdoor Advertising, Inc. v. City of Moreno Valley, and Fla. Cannabis Action Network, Inc. v. City of Jacksonville. However, the permitting regulations in question, under sections 479.07 and 479.08 and rules 14-10.004 and 14-10.006, are deemed content-neutral, thus exempting them from the procedural requirements outlined in Freedman v. Maryland. The key issue is whether these regulations improperly restrict all offsite commercial signs.
The extension of First Amendment protection to commercial speech has evolved, with the Supreme Court's ruling in Virginia Pharmacy Board v. Virginia Citizens Consumer Council affirming this protection. In Metromedia, Inc. v. City of San Diego, the Supreme Court found that a blanket ban on off-premises outdoor advertising signs unconstitutionally affected noncommercial speech. The regulations must not unduly restrict commercial speech either.
The Central Hudson Gas & Electric Corp. v. Public Service Commission established a test for assessing the validity of government restrictions on commercial speech, requiring that such restrictions implement a substantial governmental interest, directly advance that interest, and not exceed what is necessary to achieve the stated objectives. The Florida regulations aim to comply with the federal Highway Beautification Act of 1965, focusing on traffic safety and aesthetic concerns along state highways. The Florida Legislature identified several goals for controlling outdoor advertising, including protecting public investment, promoting tourism, and enhancing the visual appeal of highways, aligning with recognized substantial governmental interests.
The permitting regulations regarding billboards effectively meet the legal criteria established by the Central Hudson test for regulating commercial speech. These regulations limit billboard spacing and structural characteristics along the State Highway System, directly advancing the goals of reducing traffic hazards and preventing distractions for motorists, as outlined in Florida Statutes sections 479.07 and 479.11. The Supreme Court has recognized the legislative judgment that billboards can be traffic hazards, affirming local authority's ability to regulate such signs. Additionally, the regulations do not impose an absolute ban on outdoor advertising; instead, they restrict the size and spacing of signs while allowing exceptions for onsite advertising and specific exempted signs. As such, the regulations are deemed narrowly tailored and do not constitute an impermissible prior restraint on speech. Consequently, sections 479.07 and 479.08, along with rules 14-10.004 and 14-10.006, are upheld as facially constitutional. The case does not address noncommercial speech since the appellant's sign was exclusively commercial and did not challenge the regulations on that basis.
