Nexsen Pruet assisting Outdoor Advertising Companies in Critical Issue

Coastal Outdoor Advertising and ClearChannel Outdoor, Inc., also allege that the City's sign ordinance fails to comply with controlling state law. The lawsuit, which also named City Council, was filed today in advance of the Oct. 10, 2002, deadline the city had identified as the "removal date" for the majority of billboards in Myrtle Beach.

"Every citizen is guaranteed the right to free speech and the right to just compensation if the government takes their property," said L. Morgan Martin, attorney for Coastal. "In this case, the City of Myrtle Beach and its City Council have violated Coastal's constitutional rights - and the rights of all citizens - by enacting this ordinance.

"If the City wants Coastal to remove its billboards, then the Constitution requires that it pay just compensation. The law is very clear on that point, and Myrtle Beach has not complied with the requirements. It's just that simple."

The complaint also alleges that the sign ordinance violates the First Amendment of the U.S. Constitution and the South Carolina Constitution by preferring commercial speech over non-commercial speech.

"The ordinance is impermissibly content-driven," said Marguerite Willis, who represents ClearChannel. "It allows for extensive commercial speech but radically limits non-commercial speech. A diner can promote its lunch menu, but can't put up a sign saying ‘Get rid of Saddam Hussein.' That makes absolutely no sense.

"Twenty years ago, the U.S. Supreme Court ruled that an ordinance of this type violates the First Amendment right to free speech and is unconstitutional. That determination is as valid today as it was then."

The complaint also asserts that the ordinance violates the South Carolina Highway Advertising Control Act. The large majority of billboards at issue are located on the U.S. interstate system, principally on U.S. Highway 17 and Highway 17 Bypass, which are federal roads.

"The South Carolina Highway Advertising Control Act provides for just compensation when a billboard is removed from the federal system," Willis explained. "And it also requires a city, like Myrtle Beach, to get approval from the State Department of Transportation in order to regulate such signs."

In this case, according to the complaint, Myrtle Beach and the City Council did neither. They failed to get the necessary approval from the Department of Transportation and to provide for just compensation to the billboard owners under the sign ordinance. As a result, the ordinance cannot be applied to any billboards located in the federal system.

Coastal and ClearChannel have been in preliminary negotiations with the City and the City Council to resolve these billboard issues. "We believe the City understands that we had to file this lawsuit to avoid issues relating to the statute of limitations," said Martin. "We remain hopeful that, despite the filing of the lawsuit, we can continue to engage in discussions to resolve this matter amicably."

According to the complaint, the City and City Council spent six months earlier this year negotiating a resolution of the on-premise sign issue with local businesses, but excluded outdoor advertisers. "We expect that the City will accord the outdoor advertising industry the same courtesy and consideration that it accorded the local businesses in resolving their sign issue," said Willis. "We are anxious to continue to seek an out-of-court resolution, if at all possible.

"But there are serious issues raised by the Myrtle Beach sign ordinance, and no citizen should take them lightly. If the City and the City Council can legislate the removal of billboards without compensation, then they may be able to do the same to other businesses that they deem to be ‘undesirable.' That is a real danger to the city, the business community, and the citizens of Myrtle Beach."

"It is a constitutionally slippery slope," added Martin, "and we will fight to avoid the erosion of the constitutional rights of our clients, and the citizens of this State, as necessary."

Mr. Martin is a partner in HEARN BRITTAIN & MARTIN with offices in Conway and Myrtle Beach, South Carolina.

Ms. Willis is a partner in NEXSEN PRUET a 135-attorney general practice firm founded in 1945, with offices in Columbia, Charleston, Greenville, Hilton Head, and Myrtle Beach, South Carolina and Charlotte, North Carolina. www.nexsenpruet.com