South Florida Business Journal:
South Florida Business Journal - by Oscar Pedro Musibay
The city of Miami’s decision to opt out of county rules prohibiting new billboards along the highway may open the door to more signs, if a federal lawsuit succeeds.
The Miami-Dade County code gives municipalities like Miami the ability to opt out of a county lockdown on new billboards along the highway. The opt-out clause has come under scrutiny as a result of a federal lawsuit budding billboard entrepreneur Santiago Echemendia filed against the city, alleging discrimination. In addition to the lawsuit, the topics of billboards, murals and other forms of outdoor advertising have become hot as prominent developer Mark Siffin seeks city approval for a pair of large electronic billboards proposed near a downtown Miami highway.
Echemendia’s attorney, Tom Julin, a partner at Hunton & Williams , claims that the city is discriminating against his client by selling permits to the highest and most powerful bidders, specifically CBS, Clear Channel and Carter. The three companies have had a monopoly on new billboards and control many of the signs that have transformed the visual landscape near highways and their adjacent neighborhoods.
But, a proliferation of new signs is unlikely, even if Echemendia succeeds, most sign experts agree, because of state restrictions including a minimum distance requirement between signs.
The foundation for Julin’s argument is based on the fact that the city negotiated settlements with each of the companies that required them to take billboards down before getting new permits. In addition to removing billboards, CBS and others also paid, and are paying, the city millions of dollars for the right.
The Miami City Commission tried to tie up years of piecemeal regulation by opting out of the county prohibition in September 2009, making some illegal signs legal. But, that didn’t change the city’s rule that new permits had to be approved through settlements.
When Echemendia and his company, South Florida Equitable Fund, approached the city to play by the same rules as the large companies with settlements, he was rejected. South Florida Equitable Fund v. City of Miami was filed April 1 in U.S. District Court for the Southern District of Florida. South Florida Equitable’s managing partners are Echemendia, chairman of the Local Government Law Group in the Miami office of Tew Cardenas LLP , and Orlando-based Thornton Harkley.
Waiting for the judge’s interpretation
Julin said it’s unlikely that a bunch of billboards will crop up if his client wins.
He added there are a few possible results under this scenario. These include the judge directing the city to treat South Florida Equitable the same as the other companies with settlements, directing the city to change its rules because it doesn’t allow for a level playing field or declaring the restrictions unconstitutional.
“We are not simply here to remove all the restrictions on signs,” he explained. What Echemendia is seeking is to have the rules “interpreted and applied in a way that will treat all sign companies the same way.”
Judge Ursula Ungaro directed the parties to file summary judgment motions, which they did on June 11.
Deputy City Attorney Warren Bittner said the city has a policy of not commenting about ongoing litigation. However, Miami’s motion for summary judgment makes clear that the city is relying mainly on procedural issues, in part tied to standing, to defend itself.
Lobbyist Dusty Melton, who has worked on sign regulations at both the city and county, insists that the county, which is the overriding authority on the sign code, has rules that still govern new billboards, despite the city’s opting out. He said the city’s history of piecemeal approval of billboards and its indifference to illegal signs has fueled Echemendia’s case.
“I believe Mr. Echemendia makes a strong argument in seeking equal treatment by the city of Miami,” Melton said.
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