Ordinance aimed at protecting safety and welfare of residents and tourists sparks controversy.
By Kim Oberhamer
Staff Writer
The Huntington Beach City Council passed the first ordinance banning plane advertising at beaches in the continental United States, beginning what many observers believe will be the first of a tidal wave of ordinances up and down the coast.
The ordinance will become law on Oct. 16 unless the city is sued before that date.
The suing party would be required to obtain a temporary restraining order or preliminary injunction, thereby keeping the ordinance from becoming law and allowing enforcement.
“I have a feeling we are going to get sued,” City Attorney Bob Wheeler said. “But it just hasn’t hit yet.”
Sponsors of the ordinance seek to prohibit banner towing to protect the safety, health and welfare of residents and those who work and visit Huntington Beach.
The ordinance will also forbid potentially offensive banners like the picture of a 10-week-old aborted fetus that was flown over Santa Monica beaches recently. The banner was funded by the Center for Bio-Ethical Reform.
Malibu City Council members do not foresee banning banners any time soon and doubt Huntington Beach will succeed with its ordinance.
“Huntington probably won’t be able to do it,” Malibu City Council Member Sharon Barovsky said. “The Federal Aviation Administration has airspace, not individual cities.”
Pilots whose business is dependent on the advertising banners said they are devastated by the ban. They earn up to $1,000 to $2,500 per flight.
“Most likely, I would ignore (the ban over Huntington Beach) and it would go to court action,” said Jerry Hider in last month’s Los Angeles Times.
Hider runs Blue Yonder Air Ads based at Whitman Airport in Pacoima.
“I don’t have a pilot’s license issued by Huntington Beach. I have a license issued by the Federal Aviation Administration, and I’m bound by what they say I can and cannot do,” he continued.
The council, however, says that it is prepared for people like Hider.
According to a report issued by Robert J. Wheeler, special counsel for the city attorney’s office of Huntington Beach, the ordinance uses the strongest possible legal precedent and definitions that would protect it should it be attacked in court.
The statement also says that if the ordinance is brought to court, it could successfully withstand the three most likely grounds for legal attack, which are federal preemption, violation of the First Amendment and Equal Protection issues.
The ordinance contains lengthy explanations as to why each one of the above categories would not work in a trial case.
The primary defense that the Huntington Beach ordinance uses is that a similar ordinance had been passed before and brought to court for the same three reasons.
It is modeled after an ordinance adopted by the city and county of Honolulu.
The legality of that ordinance was upheld by the 9th U.S. Circuit Court of Appeals in the case of Skysign International, Inc. v. City and County of Honolulu.
“We feel, especially with the Skysign International case in mind, that the ordinance has a good chance of successfully withstanding judicial attack,” the city attorney’s report said.
If the ordinance is not delayed by being sued, then no person within or above the boundaries of Huntington Beach can operate or hire any aircraft displaying any sign or advertising device after Oct. 16.
According to the ordinance, the only exceptions are logos or trademarks on the exterior of the plane, advertisements inside the plane, or any sign attached to the ground, buildings or any other structure.
The Huntington Beach Police Department, by use of its helicopter, will investigate and furnish its reports to the city attorney’s office, which will be the primary enforcement agency.
The ordinance also states that the pilot, owner of the plane and the advertiser will be charged with a misdemeanor or an infraction.
In some rare cases a civil suit will occur, pending the discretion of the Huntington Beach legal counsel.
“It’s ludicrous,” Hider said. “We will keep flying until the FAA says that we can’t.”
October 03, 2002