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Information of Interest

The issue briefs linked below are intended to be a reference tool for members on some common topics relating to the regulation of billboards and may utilized as hand-out materials.

Advertising Medical Marijuana

Introduction

This memorandum addresses the legal issue of whether a billboard can advertise marijuana in Florida. Specifically, whether there are any penalties if a billboard advertises an illegal product.

Legal Authority

According to section 465.024, Florida Statutes, promoting the sale of certain drugs is prohibited. Â It is stated under subsection (1), “the unrestricted use of certain controlled substances, causing abnormal reactions that may interfere with the user’s physical reflexes and judgments, may create hazardous circumstances which may cause accidents to the user and to others, thereby affecting the public health, safety, and welfare. It is further declared to be in the public interest to limit the means of promoting the sale and use of these drugs. All provisions of this section shall be liberally construed to carry out these objectives and purposes.” In addition, “no pharmacist, owner, or employee of a retail drug establishment shall use any communication media to promote or advertise the use or sale of any controlled substance appearing in any schedule in chapter 893.” Section 465.024(2), F.S.

The Florida Comprehensive Drug Abuse Prevention and Control Act provides the controlled substances that are prohibited from use or sale in the state of Florida. Section 893.02(3), references and defines “cannabis” as “all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include “marijuana,” as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with s. 381.986.” In regard to the advertisement of drug paraphernalia, section 893.147(5), states that “[i]t is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this subsection is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The shall be enforced by the Department of Law Enforcement, all state agencies which regulate professions or institutions affected by the chapter, and all peace officers of the state. Section 893.09, F.S. The Attorney General has been delegated the authority to control substances by rule. . The transfer of a substance from one schedule to another or removing a substance from a schedule does not affect the prosecution or punishment for any crime previously committed with respect to that substance. Section 893.035(12), F.S.

Furthermore, the legal use and sale of medical marijuana is restricted in its form of advertising. According to section 381.986(8)(h), “a medical marijuana treatment center may not engage in advertising that is visible to members of the public from any street, sidewalk, park, or other public placeâ€¦ and may not have any content that is attractive to children or which promotes the recreational use of marijuana.” Subsection (1)(a) defines “attractive to children” as “ the use of any image or words designed or likely to appeal to persons younger than 18 years of age, including, but not limited to, cartoons, toys, animals, food, or depictions of persons younger than 18 years of age; any other likeness to images, characters, or phrases that are popularly used to advertise to persons younger than 18 years of age; or any reasonable likeness to commercially available candy.” Section 381.986(1)(a), F.S.

Analysis

The Florida Constitutional Amendment 3, providing the legal sale and use of marijuana to individuals over the age of 21 years old failed this election year. Therefore, the sale and recreational use of marijuana remains illegal in the state of Florida. Under the definition of cannabis provided in the Florida Comprehensive Drug Abuse Prevention and Control Act and does not fall under either exception of medical marijuana or hemp. Under Section 893.147(5), it is clear that any advertisement promoting the use of this illegal substance is a violation of Florida law and punishable by a first-degree misdemeanor. In addition, the importance of protecting Florida’s children from any attraction to legalized medical marijuana illustrated by the strict advertising regulations of medical marijuana treatment centers shows the severity and seriousness of advertising the sale and use of marijuana in Florida.

Conclusion

For the reasons stated above, the advertisement of marijuana, including the use of a billboard, violates Florida law and may be punishable as a misdemeanor of the first degree.

Amortization

Amortization is not just compensation

Amortization is this concept, the government allows private property owners to use their revenue-generating property for a set period of time, and then takes the property without payment.

Amortization is unconstitutional and unfair.
Congress has repeatedly rejected amortization along controlled roads, including amending the Highway Beautification Act in 1978 to clarify that “just compensation shall be paid upon the removal” of billboards.
Florida law is consistent with federal government policy and provides for payment of just compensation for the removal of billboards on all federal-aid highways. (70.20, F.S.)

In April 2002, after three years of advocacy by the Florida Outdoor Advertising Association, Gov. Jeb Bush signed legislation ensuring that property owners in Florida receive just compensation for the removal of billboard property. The law provides for a balancing of interests and established a process for local governments to negotiate with sign owners to remove and relocate signs to acceptable locations.Â Previously, many governments had taken aim at billboard owners, attempting to remove their property without just compensation through the unfair process of amortization. The law underscored a basic principle:Â When government takes your property, they should pay you for it.

Public opinion supports payment of just compensation, not amortization.

Public opinion polls show that two-thirds of Floridians support just compensation for billboard removal.Â Floridians believe that billboard owners deserve the same basic rights to just compensation the federal government has extended to all property owners.

Sixty-six percent of people said government should pay billboard owners if their signs are banned.

Reference: Scott McWilliams Marketing Services, Inc., 2000 Public Opinion Survey

Bans & Moratoria

Outdoor advertising is an important medium of communication used for commercial and non-commercial dissemination of information to the public. Bans and moratoria, on business development of any sort, are generally regarded as extreme measures that are not in accord with good zoning practices. Many independent polls have shown that an overwhelming majority of people recognize the value of billboards, do not consider them eyesores, and do not believe the government should spend time and money trying to ban them.

A random survey of Florida residents conducted in 2000 found a strong majority believe the benefits of outdoor advertising outweigh the negative points:

85% feel billboards are somewhat useful or very useful when traveling
90% feel billboards provide a way for local businesses to communicate with tourists
85.2% feel billboards provide jobs for people that produce and maintain billboards
82.7% feel billboards provide information about products and services to the public
89% said they would NOT advise their government to spend time and tax dollars on banning billboards

Studies have found that local businesses account for 80 to 90 percent of outdoor advertising revenues, underscoring the critical importance of the outdoor advertising industry to local economies.

Two out of every three billboard advertisements are related to travel and tourism — an industry segment that accounted for more than $51 billion in direct GDP for Florida in 2012.

Florida’s tourism businesses rely on outdoor advertising to drive customers. Tourism-dependent businesses — such as attractions, entertainment and lodging — were mentioned among the “top five” advertisers according to Kantar Media

Bob Evans Farms, Inc., which owns and operates 500 full service family restaurants in 22 states (49 located in Florida) is an example of how important billboards are in driving sales and generating customer awareness.

80% of their stores are located near interstates and major highways.
The company has relied on billboard advertising for more than 40 years.
Billboards use by the company are “put to the test” each year. This “test” involves covering up billboards to verify effectiveness. When billboards are covered up, stores suffer an immediate loss of a least 10 percent of revenue.

According to The Survey of Businesses that use Billboards, conducted by Professor Charles Taylor, PhD, Professor of Marketing at Villanova University in 2000, three out of four businesses using billboards said they would lose revenue without billboards, and predicted an average revenue decline of 18 percent, according to a national survey.

An analysis in 2002 by Professor Charles Taylor, PhD, Professor of Marketing at Villanova University, examined the collective results of major public opinion polls conducted since the passage of the Highway Beautification Act. Collectively, these studies contained responses from more than 26,000 Americans. Findings from Taylor’s survey, Summary of 30 Years of Public Opinion found that public opinion about billboards and the regulation of billboards has been constant for more than 30 years:

“Across the public opinion polls conducted since 1970, the norm for the proportion of the public in favor of a general ban on billboards is just 21%, suggesting that a large majority of the American public favors billboards being allowed. Notably, it is also the case that support for a ban on billboards in recent years is lower than was the case in the 1970’s.”

Most Americans support regulated, legal billboards
Support for a ban on billboards is lower compared to the 1970s
An overwhelming majority believe billboards provide useful information to travelers and help create jobs

References

Scott McWilliams Marketing Services, Inc., 2000 Public Opinion Survey
Florida Tax Watch, Center for Competitive Florida, Investing in Tourism, Analyzing the Economic Impact of Expanding Florida Tourism

Condemnation & Just Compensation

GOVERNMENT MAY “TAKE” PRIVATE PROPERTY FOR THE COMMON GOOD, SUCH AS LAND NEEDED FOR ROADS (EMINENT DOMAIN).Â IF GOVERNMENT TAKES PROPERTY, IT MUST PAY JUST COMPENSATION.

The Fifth Amendment to the U.S. Constitution states: “Private property shall not be taken for the public use without just compensation.”
Federal law requires just compensation to be paid for the removal of billboard property interests on all federal-aid highways or where federal funds are involved. (Highway Beautification Act 23 USC § 131; Uniform Relocation and Acquisition Act 42 U.S.C. § 4652)
Florida law is consistent with federal government policy that provides for payment of just compensation for the removal of billboards on all federal-aid highways. (70.20, F.S.)

In condemnation, three appraisal and valuation methods are used to determine the market value for payment of just compensation.

The cost approach
The income approach
The comparable sales approach

Essential components of a billboard interest for compensation include:

Leasehold or property interest
Billboard structure
Permit and other vested rights

Taxes & Fees

Outdoor advertising companies pay all taxes and fees to local, state and federal governments for which they are obligated. Industry adversaries attempt to relate the valuation of billboards for compensation purposes with tax valuation as a way to justify excessive taxes and fees. The Florida Outdoor Advertising Association rejects any notion linking the taxes assessed against a billboard and the billboard’s value for just compensation, and strongly opposes punitive and excessive permit fees and discriminatory user fees.

In Florida, there is a long-established method for taxing billboards as tangible personal property, which is consistent with the recommendations made by the independent state Office of Program Policy Analysis and Government Accountability in a December 2002 report to the Legislature.

Taxing and taking are different. Property tax assessments should be confined to the value of the structure or parcel. Condemnation involves compensation for the taking of all economic use of a billboard.

FOAA does not advocate user fees at any time, but when the government chooses to initiate user fees, they should be equally applied to all businesses. Billboard owners should not be punished with discriminatory fees that single them out from other businesses advertising on public roads.

Permit fees should be limited to covering administrative and regulatory costs only. Fees in excess of these costs are actually taxes.

Vegetation Management

The Florida Outdoor Advertising Association supports responsible vegetation control regulations and promotes efforts to work cooperatively with local governments on vegetation management.Â Billboard opponents, however, seek to indirectly ban billboards by demanding the state Department of Transportation prohibit all trimming and cutting of vegetation in front of legally erected billboards.Â Selective trimming and pruning of vegetation is good highway landscaping practice and may improve highway safety.

Florida has worked cooperatively with billboard companies to develop guidelines and practices for vegetation control agreements or laws that are reasonable to all parties.

Every year Florida outdoor advertisers contribute nearly $400,000 in landscaping and maintenance of public right-of-ways to the state.

Private sector initiated selective trimming saves taxpayers the cost of scarce highway maintenance resources.Â The taxpayer is the recipient of reduced costs under private sector cost-sharing programs.

Highway safety is not compromised by a vegetation clearance or maintenance policy and, in fact, it may be improved.

Businesses routinely trim vegetation that obstructs access to their facilities or obscures their visibility from prospective customers.

The FOAA serves as the united voice for the outdoor advertising industry in the state of Florida representing industry interests before the Florida Legislature.

Capitol Update is a weekly communication provided during the legislative session to keep members informed on legislative activities and the status of legislation impacting the outdoor industry

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2020 Legislative Session Capitol Updates

The legal updates below are intended to provide members with current information on legal, legislative and regulatory actions that impact the outdoor advertising industry.

OrdinanceWatch is an advance notice local government information service. Below is to the FOAA OrdinanceWatch RSS feed providing ordinance watch activity throughout Florida.

Complete the FOAA OrdinanceWatch Registration Form to receive individual customized alert email advisories tailored to your own specific interests and localities and email to foaa@foaa.org.

Information of Interest

FOAA Highlights is a quarterly newsletter to keep members informed about association activities, outdoor advertising regulations, public service efforts, and other information relevant to the industry.