Steven Galberaith and Action Outdoor Advertising JV, LLC (Appellees) applied to place outdoor signs on two sites in Fulton County which were zoned C-l. Under the Fulton County sign ordinance, the proposed signs were “billboards,” which meant that they would display аdvertising for businesses that were located elsewhere. However, such off-premise advertising is not permitted under the ordinance, which allows only on-premise advertising in areas zoned commercial. Therefore, Fulton County denied the applications.
Appellees appealed to the Fulton County Board of Zoning Appeals (Board), contending that the prohibition against off-premise signs in commercially-zoned areas was an unconstitutional violatiоn of free speech. However, the Board affirmed the denial of the applications.
*315 Pursuant to a petition for a writ of certiorari, Appellees appealed the denial of their applications to the suрerior court, and named Fulton County, the Board and the individual members of the Board (Appellants) as the respondents. After conducting a hearing, the superior court found that several sections of the sign ordinance were unconstitutionаl and remanded the case to the Board for reconsideration of Appellees’ applications. Appellants sought a discretionary appeal from the superior court’s order, and this Court granted the application.
1. This Court has exclusive appellate jurisdiction over all cases involving construction of both the Federal and Georgia Constitutions. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). However, in order to invoke that jurisdiction, the record must show that the trial court specifically passed on the constitutional issue.
Marr v. Ga. Dept. of
Education,
[i]n determining whether or not the Sign Ordinance for Fulton County is constitutional, the United States Supreme Court has set forth a four part test. See Metromedia [v. City of San Diego,453 U. S. 490 (101 SC 2882, 69 LE2d 800) (1981)] and Central Hudson Gas & Elec. Corp. v. [Public Service Comm. of New York],447 U. S. 557 [(100 SC 2343, 65 LE2d 341)] (1980)____After review of the Fulton County Sign Ordinance at issue, in light of the four part test under Central Hudson and its progeny, this Court finds that it is unconstitutional____By creating content based exceptions to the ban on off-premise signage, the County has violated the strictures of the First Amendment, as set forth in Central Hudson and its progeny. . . .
However, insofar as the right to freedom of speech conferred on the citizens of this state by Art. I, Sec. I, Par. V of the Georgia Constitution of 1983 is concerned, the superior court “did not distinctly, specifically and expressly pass on the constitutional questions.”
In re Boult,
*316 2. The superior court held that Appellees “have standing to bring both a facial and [an] as applied challenge to the Sign Ordinance at issue.” Appellants conсede that Appellees have “as applied” standing to contest the constitutionality of those provisions of the ordinance which were directly implicated in the denial of their applications. However, Appellants contend that the superior court erred in holding that Appellees also have standing to maintain a challenge to the facial validity of the ordinance based upon the alleged violation of the free speech rights оf others.
“[T]he Supreme Court of the United States has recognized that a more relaxed standard of ‘standing’ applies where, as here, the constitutionality of a statute is attacked on First Amendment grounds.
[Cit.]” Bo Fancy Productions v. Rabun County Bd. of Cоmmissioners,
3. The ordinance, as applied to Appellees, limits their commercial speech, in that it prevents them from placing off-premises advertising in the areas zoned C-l. However,
[t]he Constitution [of the United States]... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. [Cit.] The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.
Central Hudson Gas & Elec. Corp. v. Public Service Comm. of New York, supra at 562-563 (II). Because lesser protection is provided for commercial speech under the Federal Constitution, “offsite commercial billboards may be prоhibited while onsite commercial billboards are permitted.” Metromedia v. City of San Diego, supra at 512 (IV). The Fulton County ordinance states that its provisions, including the prohibition on off-premises advertising, are intended to promote traffic safety and esthetics. The Suprеme Court of the United States has expressly held that that is a valid governmental interest. Metromedia v. City of San Diego, supra at 503-512 (IV).
However, the Fulton County ordinance sweeps far more broadly than the ordinance at issue in Metromedia. There, the ban on off-premises advertising applied оnly to what is commonly called a *317 “billboard,” defined as a “ ‘large, immobile, and permanent structure’ ... designed to stand out and apart from its surroundings,” thus creating “a unique set of problems for land-use planning and development.” Metromedia v. City of San Diego, supra at 502 (III). By contrаst, the Fulton County ordinance defines a “billboard” much more broadly, so as to include any “sign which advertises services, merchandise, entertainment or information,” and “sign,” in turn, is defined as:
Any name, identification, description, display, illustration, writing, emblem, pictorial representation or device which is affixed to or represented directly or indirectly upon a building, structure or land in view of the general public, and which directs attention to a product, place, activity, person, institution or business.
Fulton County Code §§ 3.3.2, 3.3.19. Thus, the definition of “sign” at issue here is more extensive than the definition of “billboard” considered in Metromedia, and the initial reach of the Fulton County ban goes well beyond commercial speech. The Metromedia decision approvеd a ban on commercial billboards that advertised off-premises products and services, not a ban on all signs or even a ban on all commercial signs.
Accordingly, unlike the ordinance in
Metromedia,
the Fulton County ordinance evidences a hostility to signs in general and to commеrcial signs in particular. It commences with what is, in effect, a declaration that all signs are presumptively illegal throughout the county. Fulton County Code §§ 33.3, 33.4. This proscription is not limited to commercial signs or signs on public property or traditional billboards. The outright ban is then followed by a list of 18 specific examples of prohibited signs, described according to their physical characteristics, location or content. Fulton County Code § 33.3 (a)-(r). The ordinance does cоntain a “savings clause” which purports to authorize any noncommercial message at the locations where on-premises commercial messages are allowed, if that noncommercial message does not direct attention to a business operated for profit or to a commodity or service for sale. See
Outdoor Systems v. City of Atlanta,
885 FSupp. 1572, 1579 (II) (A) (N.D. Ga. 1995). However, by broadly excluding messages that merely direct attention to a business operated for profit, this so-called “savings clause” may actually prevent the presentation of noncommercial speech in places where commercial speech is allowed. See
Board of Trustees of State Univ. of N. Y. v. Fox,
Thus, the scope of the Fulton County ordinance is not only broader than the ordinance considered in Metromedia, its basic structure also differs in that all signs, both commercial and noncommerciаl, are initially declared illegal and will be exempted from the ban only on a case-by-case basis. Whether an ordinance of this scope and structure complies with First Amendment requirements must take into account that,
[i]n Central Hudson, supra, [the Suрreme Court of the United States] articulated a test for determining whether a particular commercial speech regulation is constitutionally permissible. Under that test we ask as a threshold matter whether the commercial spеech concerns unlawful activity or is misleading. If so, then the speech is not protected by the First Amendment. If the speech concerns lawful activity and is not misleading, however, we next ask “whether the asserted governmental interest is substantial.” [Cit.] If it is, then we “determine whether the regulation directly advances the governmental interest asserted,” and, finally, “whether it is not more extensive than is necessary to serve that interest.” [Cit.] Each of these latter three inquiries must be answered in the affirmative for the regulation to be found constitutional.
Thompson v. Western States Med. Center,
4. Appellants’ remaining enumerations of error are moot or without merit.
Judgment affirmed.