Tuesday, November 12, 2013

Signs—Seven Years Later

At some time in the remote past, probably before I moved to Richmond, the Richmond City Council, our governing body, decided that advertising signs were ugly. And so they passed an ordinance declaring that such signs appearing on public property were a nuisance. That ordinance is currently in the City Code and either appears in Chapter 19, Article II of the Code (as found on the city’s website) or Chapter 38, Article III, Division 2 (as published by Municode.) It appears that the Municode version is based on a later enactment so I will reference that one.

Section 38-113 of the Code provides:

“It shall be unlawful for any person to paint, mark or write on or post or otherwise affix to or upon a public way or fixture thereon any sign or other form of commercial, noncommercial, or political advertising, promotion, solicitation, communication or display. It shall furthermore be unlawful for any person to cause or, with knowledge, permit such actions to be taken on such person's behalf.” (Certain types of signs are exempt from the ordinance under section 38-114.)

The penalty provision of the ordinance provides that anyone convicted of violating the ordinance shall be fined not less than $10 or more than $50. Each sign is considered a separate violation and each day it is displayed is considered a separate violation. Section 38-112.

Additional bite for the statute is contained in section 38-115, which states:

“Any violation of this division is hereby declared to be a nuisance. No person shall have any legal right to the continued presence of a sign in a public way in violation of this division, nor shall there be any legal remedy against any person solely for the removal from a public way of a sign which is in violation of this division. Any person may abate the nuisance created by a violation of this division without liability for doing so. If abatement is made by the city, the reasonable costs incurred in removal may be assessed against any person responsible for or benefited by the violation, and such costs shall be collected in the same manner as city taxes. For a willful violation, the city shall be entitled to recover costs, the reasonable value of attorney's fees, and punitive damages in any proceeding which it may bring to enjoin future violations.”

One thing about this nuisance ordinance seems very clear to me—it is never (or hardly ever) enforced. There are commercial advertising signs posted all over the city and they sit there indefinitely with no consequences. In the fall there are myriad political signs posted on the public way, many remaining after Election Day; and nobody seems to pay any fines and nobody seems to be billed for the cost of city employees removing those signs after the election is over.

As a lawyer, I get very upset when the legislature (in this case the City Council) goes to the trouble of enacting a law but nobody enforces it. Such abdication contributes to contempt for law by those who become aware of it. And, in the case of the sign ordinance, failure to enforce the law also deprives the city of potentially significant amounts of revenue. As this maven said seven years ago when first noticing the city’s failure to enforce the sign ordinance:

“From the fact that the city did not enforce the ordinance with respect to political signs erected during the recent campaign, I must assume that the city government is flush with money. Why else would it deliberately refuse to assess fines or collect the cost of removal from the various campaign committees that planted all the signs? When the next budget cycle comes around, let’s all remember the thousands of dollars that the city did not collect this election year.” 1

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