Plaintiff appeals from a summary judgment on its claims for conversion, deprivation of civil rights, 42 USC § 1983, and declaratory and injunctive relief, in which it raised several constitutional challenges to Oregon’s billboard statute. We affirm.
Plaintiff is a corporation that owns three billboards. Its conversion and civil rights claims pertain only to the first billboard, and its declaratory and injunctive relief claims relate to the second and third billboards. On appeal, plaintiff makes 22 assignments of error, many of which address overlapping issues. For the sake of clarity and organization, we address plaintiffs claims in the order that they were pled.
The first billboard was installed along Route 62 in Jackson County, Oregon. Plaintiff placed a religious message on one side and an advertisement for a radio station on the other. On February 19, 1993, the Department of Transportation (department) notified plaintiff that its billboard violated the Oregon Motorist Information Act (OMIA). ORS 377.700 to 377.840 and ORS 377.992.
The OMIA generally prohibits the installation or maintenance of any “outdoor advertising sign” or any “directional sign” visible to motorists traveling on state highways, unless it complies with the OMIA, state administrative rules and federal law, or unless it existed in a commercial or industrial zone on June 12, 1975. ORS 377.715; ORS 377.765U). 1 *109 “Outdoor advertising signs” are signs that advertise “[g]oods, products or services which are not sold, manufactured or distributed on or from the premises on which the sign is located,” ORS 377.710(22)(a), or those that advertise “[f]acilities not located on the premises on which the sign is located,” ORS 377.710(22)(b) ii.e., off-premises signs).
If an outdoor advertising sign existed in a commercial or industrial zone on June 12, 1975, the owner may obtain a permit and allow the sign to remain without violating the statute. ORS 377.712(1); ORS 377.725(2) and (14). 2 Permits may be transferred from one person to another, and signs may be relocated either within a commercial or industrial zone or to another commercial or industrial zone, subject to geographic limitations. ORS 377.725(2); ORS 377.767.
The department’s notice alleged that plaintiffs billboard violated the OMIA because it was a newly erected off-premises sign for which no permit had been granted and for which no permit can be issued, i.e., it “advertises an activity which is not at the location of the sign,” and it was visible from a state highway. The notice further stated that if plaintiff did not request a hearing, or correct or remove the sign within 30 days of the date of the notice, the sign would be subject to removal, and plaintiff would be billed for removal costs.
*110 Plaintiff did not request a hearing but instead attempted for several months without success to obtain a permit. 3 In April 1994, plaintiff removed both signs from the billboard. On September 5, 1994, the department hired a contractor to dismantle and remove the billboard structure. Plaintiff then filed this action, alleging conversion of the structure, among other claims. The department subsequently gave plaintiff permission to retake possession of the structure, which plaintiff did. However, the department billed plaintiff $962.50 in removal costs. In its second amended complaint, plaintiff realleged a conversion and also sought a declaratory judgment that it was not liable to the department for removal costs. The department moved for summary judgment, which the trial court granted.
The department is entitled to summary judgment under ORCP 47 if the pleadings, depositions and affidavits show that there is no genuine issue of material fact, and that the department is entitled to judgment as a matter of law.
Hamilton Properties, Inc. v. Associated Grocers,
Plaintiffs declaratory judgment action depends directly on its conversion claim; if there was no conversion of the billboard structure, then plaintiff is not entitled to a declaratory judgment that it was not liable for the cost of *111 removing that structure. We therefore begin by addressing plaintiffs conversion claim.
An action for conversion lies when there has been
“an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Mustola v. Toddy,253 Or 658 , 663,456 P2d 1004 (1969) (quoting Restatement (Second) of Torts § 222a at 431 (1965)).
Generally, when property is lawfully taken, there is no conversion.
Boling v. Parrett,
The department argues that there was no conversion, because ORS 377.775 authorized the removal of the structure as a “nonconforming” sign, which is defined as a sign “that is subject to, but does not comply with,” the OMIA. ORS 377.710(21). 4 ORS 377.775(3)(b) provides that, if “the sign is not made to comply or is not removed and if the owner does not request a hearing within the time required,” the director 5 “may remove and destroy or otherwise dispose of the sign.” The department contends that the “time required” is 30 days from the date of the notice, and when plaintiff failed to seek a hearing, or correct or remove the sign by that date, the director had authority to remove it.
For purposes of its conversion claim, plaintiff apparently concedes that its billboard violated the OMIA because it was installed without a permit. It argues, however, that ORS 377.775 authorizes only the removal of noncomplying signs and that plaintiff brought its billboard into compliance by removing the religious and commercial advertising. We disagree.
It is true that once plaintiff removed the advertising, the billboard was no longer an “outdoor advertising sign” as defined by ORS 377.710(22). However, that did not bring the *112 billboard into compliance with the statute. ORS 377.775(3) gave plaintiff 30 days from the date of the notice to make the sign comply, remove it or request a hearing. As noted, plaintiff did not request a hearing. Compliance means obtaining a permit, ORS 377.725, and removal of the “sign” means removal of the “structure.” See ORS 377.710(29) and (33) (“sign” includes “the sign structure,” which means “the supports, uprights, braces, framework and display surfaces of a sign”). 6 Plaintiff took none of these actions within the required time period, and the department therefore had authority to remove the entire billboard structure, whether or not plaintiff had removed the display advertising. 7
Plaintiff does not argue that the department’s 14-month delay in acting otherwise divested it of that authority. Furthermore, plaintiffs constitutional challenges to the OMIA itself are confined to its second and third claims — that is, plaintiff does not contend that the department effected a conversion because the provisions of the OMIA on which it relied are unconstitutional. Accordingly, there was no conversion, and the department was entitled to judgment as a matter of law on that claim. Because the department had authority to remove the structure, plaintiff also was not entitled to a declaratory judgment that it was not liable for the department’s cost of removing it. Summary judgment was therefore proper on the entire first claim.
Plaintiff next argues that the trial court erred in granting summary judgment on its second claim, a civil rights action brought under 42 USC section 1983 against three department employees. Plaintiff alleged that Odom, Evey and Montes (defendants), acted under color of law in depriving plaintiff of its constitutional rights by ordering the *113 radio advertisement removed and by removing the billboard structure.
Plaintiff first asserts that it was deprived of its right to tree speech, arguing that the OMIA violates the First Amendment
8
under
Metromedia, Inc. v. San Diego,
In
Metromedia,
the Supreme Court considered a city ordinance that permitted billboards advertising goods and services available on the property where the sign was located and prohibited those advertising goods or services produced or offered elsewhere. The ordinance also provided 12 exceptions to the general prohibition for particular types of signs, whether on-site or off, including government signs, historical plaques, religious symbols, “for sale” or “for lease” signs, and temporary political signs, among others.
Four justices reasoned that the on-site exception applied only to commercial advertising, and, because there was no similar exception for noncommercial signs, the ordinance impermissibly favored commercial over noncommercial speech in violation of the First Amendment.
Plaintiffs reliance on Metromedia is questionable. That decision failed to garner a majority; only four justices subscribed to the plurality opinion cited by plaintiff, while two concurring justices and three dissenters relied on completely separate analyses. 9 As the Third Circuit noted:
*114 “The Metromedia decision was badly splintered, producing five separate opinions. * * * [I]t is difficult to divine what, if any, principles from Metromedia became the governing standard for future cases, i.e., ‘the law of the land.’ ” Rappa v. New Castle County,18 F3d 1043 , 1057 (3rd Cir 1994).
The Supreme Court has stated that when “no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.’ ”
Marks v. U.S.,
The only discernible principle upon which a majority of the
Metromedia
court agreed was that San Diego’s aesthetic interest in avoiding visual clutter provided an acceptable justification for a content-neutral ban on billboards.
City Council v. Taxpayers for Vincent,
First, the OMIA does not favor commercial over noncommercial speech. Unlike the on-site exception in the Metromedia ordinance, which the plurality there construed as applying only to commercial advertising, the OMIA’s on-premises exception applies equally to commercial and noncommercial billboards.
The OMIA generally prohibits “outdoor advertising signs,” ORS 377.715, which are defined as signs that advertise goods, products, or services that are not sold, manufactured or distributed on or from the premises where the signs are located, ORS 377.710(22)(a), or that advertise facilities not located on the premises, ORS 377.710(22)(b). Conversely, if a sign advertises on-premises goods, products, services, or
*115
facilities, then it is not an “outdoor advertising sign” and is not prohibited by the OMIA. Because the definition of “outdoor advertising sign” does not depend on the commercial or noncommercial nature of the message, the OMIA’s on-premises exception does not favor commercial over noncommercial advertising.
10
See also Rappa,
Plaintiff nonetheless contends that the OMIA treats noncommercial speech more harshly than commercial speech because it places size and durational limits on temporary off-premises political signs, ORS 377.735(l)(o), while not similarly limiting on-premises commercial advertising. 11 Plaintiff misconstrues the statute.
As discussed, the OMIA implicitly permits all on-premises advertising, regardless of its message. Therefore, on-premises political signs 12 are granted the same protection as on-premises commercial signs. Off-premises advertising, on the other hand, is generally prohibited unless a permit is obtained and the sign is located in a commercial or industrial zone. ORS 377.725; ORS 377.712. The subsection cited by plaintiff, ORS 377.735(l)(o), exempts off-premises political signs from that prohibition but subjects them to size and duration restrictions. Off-premises political signs are allowed if the surface area does not exceed 32 square feet and if they are removed within 30 days after the election. ORS 377.735(l)(o). In that sense, political signs are granted more protection or treated more favorably than their commercial counterparts, which generally cannot be displayed off-premises without a permit, regardless of size or duration. 13
*116 As another example of the OMIA favoring commercial over noncommercial speech, plaintiff argues that a “for sale” sign would be allowed in a vacant lot, ORS 377.735(1)(k), while a sign reading “Attend First Baptist Church” would not. 14 However, ORS 377.735(1)(k) exempts “for sale” signs that are “erected on the advertised premises,” and therefore allows such signs only on-premises. A “for sale” sign advertising some other property would therefore be prohibited as an off-premises sign, in the same manner as a sign reading “Attend First Baptist Church” that is not located at the church itself. We conclude that the OMIA does not favor commercial over noncommercial speech, at least as argued by plaintiff.
Plaintiff next contends that, by placing permit requirements on only “outdoor advertising signs,” the OMIA unconstitutionally allows “some non-commercial speech in places where other non-commercial speech is prohibited.” Plaintiff hypothesizes that signs reading “Give to the United Way” or “Attend First Baptist Church” would be prohibited in a vacant roadside lot because they advertise services or facilities not located on the premises. ORS 377.710(22). However, a billboard reading “Save the Whales” would be allowed in the same place, plaintiff asserts, because it does not advertise goods, products, services or facilities and therefore is not an “outdoor advertising sign.”
We do not agree that a sign proclaiming “Save the Whales” is exempt from the OMIA simply because it does not advertise goods, products, services, or facilities. Whether such a sign is subject to the OMIA is matter of legislative intent that involves interpretation of the statute.
PGE v. Bureau of Labor and Industries,
*117
Although the text of the OMIA’s operative provisions generally addresses only what is
prohibited
in the absence of a permit
(i.e.,
off-premises signs), we construe them in context as also defining the limits of what is
allowed
— i.e., only on-premises signs. Context includes “other provisions of the same statute.”
PGE,
To the extent that plaintiff is arguing that the OMIA’s on-premises/off-premises distinction imposes a content-based restriction on speech, we also reject that argument.
16
Exempting billboards that advertise on-premises activity, while not similarly exempting those advertising off-premises activity, is not a
content-based
distinction. Although a billboard’s
message
must be evaluated to determine whether it relates to an activity on or off the premises, it is not the content, subject or viewpoint of that message that determines whether a permit is required.
See Van v. Travel Information Council,
The OMIA does not require the state to evaluate competing messages in an effort to decide which subjects or viewpoints are permissible and which are not. It only requires that the billboard, whatever its content, have some relationship to the property on which it is located. Such a requirement is not content-based. The Third Circuit stated as much in addressing a similar on-site exception in Delaware’s billboard statute.
“The exception for signs advertising activities conducted on the premises * * * is constitutional * * * because it is not a content-based exception at all. Although evaluating whether a sign is an onsite sign does require the state to analyze the content of the sign, the onsite exception does not preclude any particular message from being voiced in any place; it merely establishes the appropriate relationship between the location and the use of an outdoor sign to convey a particular message.” Rappa,18 F3d at 1067 (citations and footnotes omitted).
We conclude that the OMIA’s distinction between on-premises and off-premises advertising is not a content-based restriction. 17 Because plaintiff does not otherwise contend that the OMIA violates the First Amendment, we hold on this record that plaintiff was not denied its right to free speech.
As alternate grounds for its section 1983 claim, plaintiff asserts a denial of due process under the Fourteenth Amendment, arguing that the OMIA violates Article I, section 8, of the Oregon Constitution,
18
and that, even if valid, the OMIA was erroneously applied in this case. Defendants respond that a “ ‘mere error of state law’ is not a denial of due process,”
quoting Engle v. Isaac,
*119
We need not resolve that issue. Even assuming that plaintiffs state law claims are cognizable under 42 USC section 1983, they are without merit. Plaintiffs Article I, section 8, argument rests solely on its characterization of the OMIA as a content-based restriction. Plaintiff makes no arguments different from those it raised under its First Amendment claim, which we have already rejected,
Plaintiff next asserts a denial of due process under the OMIA’s provisions governing relocation permits and the transfer of existing permits. The OMIA allows a person with a billboard permit to apply to move its billboard to another location, ORS 377.765, or to transfer its permit to another person, ORS 377.725(2). But there is no provision mandating how long the department has to act on an application under those sections or providing for prompt judicial review of the denial of a permit.
20
In the absence of such provisions, plaintiff argues, the OMIA constitutes a “prior restraint” on speech in violation of the First Amendment under
Freedman v. Maryland,
The U. S. Supreme Court has identified two types of prior restraint in this context. The first involves statutes that place “unbridled discretion in the hands of a government official or agency” and consequently make the enjoyment of constitutional rights “contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official.”
FW/PBS, Inc. v. Dallas,
Freedman
addressed this second category. There, a Maryland censorship statute prohibited exhibitors from showing any film without first obtaining a license from a state censorship board, which reviewed films for obscenity, corruption of morals and incitement to crime.
“Because the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court — part of an independent branch of government — to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” Id. at 57-58 (footnote omitted).
To pass constitutional muster, such a statute must, among other things, require the censor either to issue or to deny a license “within a specified brief period” and provide for prompt judicial review of the denial of a license. Id. at 59. The Maryland statute failed this test because it set no time limits on the censorship board’s action. Id. at 60.
Plaintiff argues that the OMIA is similarly flawed because it does not provide that the department must approve or deny an application for a relocation permit “within a specified brief period” of time. Defendants contend that no such deadline is required because, unlike the Maryland statute in Freedman, the OMIA is not a content-based prior restraint on speech. We agree.
The OMIA does not require the department, in reviewing applications for relocation permits or the transfer of permits, to evaluate the content of a billboard’s message to determine if it contains constitutionally protected speech. 21 *121 The department’s concern is merely with a billboard’s location, or relocation, not with whether its message is fit for public consumption. Oregon’s statute therefore does not present the same danger as the Maryland censorship scheme, and Freedman’s procedural safeguards are not required.
Plaintiff, however, relies on
Riley v. National Federation of Blind,
Plaintiffs reliance on
Riley
is misplaced. Although the statute in
Riley,
like the ordinance in
FW/PBS,
did not require content-review by an administrative official, the licensing scheme itself represented a
legislative
attempt to restrict speech on the basis of content. The statute in
Riley
applied only to paid charitable solicitations,
The same concern, however,, is not present here, because the OMIA’s relocation and transfer provisions do not require the department to review the content of a billboard’s message, nor do they represent a legislative attempt to classify and restrict speech on the basis of content. As discussed
*122
above, the OMIA’s permit requirement is not content-based,
22
Plaintiff next asserts under its section 1983 claim that the OMIA violates the Equal Protection Clause of the Fourteenth Amendment. 24 Specifically, plaintiff cites the “grandfather clause” of ORS 377.765, which grants outdoor advertising permits, on application and qualification, to those who owned billboards on or before June 12, 1975, but not after. Because this distinction affects the fundamental right of free speech, plaintiff contends, strict scrutiny is required.
Strict scrutiny is appropriate under the equal protection clause if a law “operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution.”
San Antonio School District v. Rodriguez,
In
Taxpayers for Vincent,
the Court addressed a content-neutral ordinance that prohibited the posting of signs on public property.
“esthetic interest in the elimination of signs on public property is not compromised by failing to extend the ban to private property. The private citizen’s interest in controlling the use of his own property justifies the disparate treatment.”466 US at 811 .
In applying a “reasonableness” analysis, the Court in
Taxpayers for Vincent
apparently considered the “rational relationship” test appropriate to content-neutral regulations that incidentally affect speech. Under that test, the challenged classification must “rationally further a legitimate state interest.”
Nordlinger v. Hahn,
Because the OMIA’s off-premises permit requirement is not content-based,
*124
The OMIA’s prohibition on the installation of new billboards after June 12, 1975, rationally furthers those interests because the legislature reasonably could have concluded that placing a cap on billboards would control visual blight and make traffic signs more visible. Allowing an exception for billboards already in existence on that date under ORS 377.765 does not compromise the validity of those interests. As in
Vincent,
the legislature could reasonably have concluded that the property interests of billboard owners “justifies the disparate treatment.”
Plaintiff also finds an equal protection violation in ORS 377.756, which requires the department to issue permits to “any city or county that applies or to any nonprofit or civic applicant approved by a city or county.” ORS 377.756(1). Plaintiff contends that “ORS 377.756 lets ‘nonprofit or civic applicants’ display speech, where others, including plaintiff, may not. There can be no justification for allowing these people the right to speak where others may not.”
Plaintiff baldly asserts that nonprofit or civic groups “may display any speech they want,” but makes no attempt to discern what type of signs the legislature contemplated. Specifically, plaintiff does not apply the methodology for construing statutes, as set out in
PGE,
Plaintiff does not explain why cities and counties should not be allowed such signs, nor does it address whether those signs are consistent with the statute’s overall “on-premises” exception.
See
ORS 377.756(2) and (3) (requiring that such signs be “within the city limits” or “within one mile of the community growth boundary as designated by the county”). In the absence of such analysis, plaintiff’s argument
*125
is not capable of review.
State v. Montez,
To summarize, the application of the OMIA to plaintiffs first billboard did not deny plaintiff the right to free speech, due process or equal protection, nor impose a prior restraint. Accordingly, the trial court properly granted defendants’ motion for summary judgment on plaintiffs section 1983 civil rights action. 27
Plaintiffs third claim is a declaratory judgment action in which plaintiff again raises numerous challenges to the OMIA and seeks injunctive relief against the department’s attempts to remove plaintiffs second and third billboards. The second billboard is located along Interstate 5 near Ashland. Plaintiff removed a sign from that billboard after being ordered to do so by the department and replaced it with a religious message. The third billboard is located near Route 62 in Jackson County. When the department notified plaintiff that this billboard was in violation of the OMIA, plaintiff sought a hearing. However, there is no indication in the record whether such a hearing was ever held.
The trial court granted the department summary judgment on the declaratory judgment action. On appeal, the department contends that this claim is procedurally barred because plaintiff did not seek a hearing pursuant to ORS 377.775 and therefore did not exhaust its administrative remedies. Although the department raised “exhaustion” as an affirmative defense in its answer, it did not assert it as a ground for summary judgment. Plaintiff was therefore denied the opportunity to develop a complete factual record on that issue for appeal, and we decline to affirm on those grounds.
State v. Ysasaga,
*126 Nonetheless, many of the constitutional challenges plaintiff raises in its declaratory judgment action were disposed of under its section 1983 claim. 29 Accordingly, we address only those contentions that are not common to the second claim. The first of these involves Article I, section 20, of the Oregon Constitution, which provides:
“No law shall be passed granting to any citizen or class of citizens'privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
As under its equal protection argument, plaintiff asserts that the “grandfather clause” in ORS 377.765 unconstitutionally grants a privilege to a class of citizens that is not equally available to all. We disagree.
Allowing off-premises permits for billboards that existed on or before June 12, 1975, ORS 377.765, does not implicate Article I, section 20, because it does not involve a “true class.”
“In evaluating whether a class exists under Article I, section 20, we must first determine whether the class ‘is created by the challenged law itself or ‘by virtue of characteristics * * * apart from the law in question.’ * * * Classes of the first type are entitled to no special protection and, in fact, are not even considered to be classes for the purposes of Article I, section 20.” Sealey v. Hicks,309 Or 387 , 397,788 P2d 435 , cert den498 US 819 (1990) (citations omitted).
In
Ag West Supply v. Hall,
*127
As with its equal protection argument, plaintiff also asserts that ORS 377.756 violates Article I, section 20, because it grants civic or nonprofit applicants a “special privilege” by allowing them to “get permits to display any speech they want.” For the same reasons that we rejected plaintiffs equal protection claim,
Plaintiffs assertions that the OMIA is “vague” and was applied in an arbitrary manner also do not merit discussion. The trial court therefore properly granted the department’s motion for summary judgment on plaintiffs declaratory judgment action.
Affirmed.
Notes
ORS 377.712(1) provides:
‘Notwithstanding the provisions of ORS 377.700 to 377.780, the owner of any outdoor advertising sign in existence on June 12, 1975, located in a commercial or industrial zone in existence on June 12,1975, that meets all requirements for obtaining an outdoor advertising sign permit as set out in ORS 377.700 to 377.780 and for which the owner had not secured an outdoor advertising permit as required by ORS 377.725 prior to June 12, 1975, either because of ignorance of the requirements of ORS 377.725 or because the area, road or street adjacent to which the sign was situated was not, at that time, designated as a state highway, shall be entitled to the issuance of an outdoor advertising sign permit by the division upon application by the owner of the sign and the payment of the fee set out in ORS 377.729.”
ORS 377.765(1) provides:
“Outdoor advertising signs in existence on June 12, 1975, and lawfully located within commercial or industrial zones in existence on June 12, 1975, *109 and outdoor advertising signs visible from a road or street that is designated as a state highway after February 19,1990, lawfully located within a commercial or industrial zone at the time of designation as a state highway, may remain. Subject to the provisions of ORS 377.700 to 377.840, such signs may be maintained, reconstructed and relocated. However, such signs shall not be relocated unless a relocation permit has been issued therefor pursuant to ORS 377.767. No permit may be issued to relocate an outdoor advertising sign that was not in existence on June 12,1975, except that signs that are visible from a road or street that is designated as a state highway after February 19,1990, and that were lawfully located within a commercial or industrial zone at the time of designation as a state highway, may be relocated within the same section of the road or street.”
ORS 377.735 provides exemptions from the permit requirement for 15 particular types of signs, including signs identifying bus stops, city signs showing times and places of church services and civic organization meetings, residential directional signs, official traffic control signs, temporary signs announcing charity drives or auctions, memorial signs or tablets, temporary signs announcing state and county fairs and rodeos, “for sale” signs, church directional signs, and temporary political signs, among others.
In an affidavit, plaintiffs president alleged that a department employee told him that the notice of violation was moot and plaintiff should not request a hearing because plaintiff was seeking a permit. However, on appeal, plaintiff does not argue that its reliance on the employee’s remarks somehow excused its failure to request a hearing.
Although ORS 377.773 allows the removal of signs that have been blank for six months, that section did not authorize removal of this structure, which plaintiff contends had been blank for only “four or five months” at the time it was removed. On appeal, the department does not contend otherwise.
“Director” means the Director of Transportation. ORS 377.710(8).
We note that one of the policies underlying the OMIA is to “preserve the natural beauty and aesthetic features of [the state’s] highways and adjacent areas.” ORS 377.705. A blank billboard is just as contrary to that purpose as is a billboard with advertising.
Although plaintiffs president alleged in an affidavit that a department employee told plaintiff that if it took down the radio ad the billboard structure would not be removed, plaintiff does not argue on appeal that its reliance on that advice somehow deprived the department of authority to remove the structure. Plaintiff only argues that its removal of the advertising brought the structure into compliance with the OMIA.
The First Amendment provides:
“Congress shall make no law * * * abridging the freedom of speech!.]”
Plaintiff asserts that the Court later affirmed the plurality’s approach in
City of Ladue v. Gilleo,
For example, a sign advertising gasoline prices that is installed at a gas station advertises a product that is sold on the premises. Similarly, a sign that reads “Give to the United Way” posted at a United Way office, and a sign reading "Attend the First Baptist Church,” posted at the church, respectively advertise services and facilities located on the premises. The OMIA implicitly allows each of these signs, even though the first advertises a commercial message and the others noncommercial messages.
As an example, plaintiff argues that the OMIA would allow a 200-foot sign reading “Shop at Sears” on a Sears store, but not a sign of the same size reading “Defeat Proposition No. 1” at the same site.
An example of an on-premises political sign would be a billboard reading “Vote for Jones” that is posted at the Jones campaign headquarters.
Plaintiff does not argue that the
other
off-premises exceptions in ORS 377.735, which exempt certain “commercial” signs without imposing size or
*116
duration limits, treat commercial speech more favorably than political speech. That question was neither argued nor briefed to this court, and we do not address it.
See State v. Montez,
Plaintiff does not appear to refer to church directional signs, which are allowed off-premises without a permit. ORS 377.735(l)(n).
We note in passing that the political sign exemption, ORS 377.735(l)(o), also would not permit a generic off-premises sign reading “Save the Whales,” unless that sign pertained to a “current political campaign.”
Van v. Travel Information Council,
Plaintiff does
not
argue that the exceptions in ORS 377.735 involve content-based distinctions that exempt particular off-premises signs based on their messages.
See Metromedia, Inc. v. San Diego,
Defendants make no attempt to characterize the OMIA as a reasonable time, place and manner regulation of speech, and we do not decide that issue.
Article I, section 8, provides, in part:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever!.]”
For example, as in its First Amendment claim, plaintiff does not argue that the exceptions in ORS 377.735 are directed at the content of expression, nor does it contend that the OMIA itself is “overbroad” or “unconstitutional as applied.”
Plaintiff alleges that it applied for a relocation permit for its first billboard, but there is no indication when, if ever, the department acted on that application.
Indeed, as defendants assert, there is typically no particular message to evaluate because billboard signs are constantly changing.
As noted above, plaintiff does not argue that the permit exemptions in ORS 377.735 are content based, and, for the purposes of this appeal, we do not address that argument.
Plaintiff alternatively argues that a department employee could base a permit decision on content, for example, by denying a relocation permit because the billboard’s owner is a member of political party to which the employee is opposed. The mere possibility of such an application of the OMIA does not affect the facial validity of the statute but instead implicates an “as applied” analysis. However, plaintiff neither alleged nor presented evidence that its permit application involved such a content-based decision.
The Fourteenth Amendment provides, in part:
“No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.”
To pass strict scrutiny, a law must be “necessary to promote a compelling governmental interest” and be narrowly tailored to achieve that end.
Dunn v.
Blumstein,
See PGE,
Because we reject plaintiffs civil rights claims on their merits, we do not address the issue of qualified immunity.
For example, the trial court’s order granting summary judgment included a “stipulation” that plaintiff “made a timely request for an administrative hearing upon receipt of the notice of violation regarding the third structure.” It is doubtful whether that alone established that plaintiff exhausted its administrative remedies: the record does not indicate whether plaintiff followed through on its request or what was the outcome of that hearing. Because the department did not assert *126 exhaustion as a ground for summary judgment, plaintiff was not on notice of the need to present additional evidence on that issue.
Plaintiff makes the same First Amendment, Article I, section 8, prior restraint and equal protection arguments in both the second and third claims.