Weekly Wire
Memphis Flyer Signs of Conflict

Opponents of billboard proliferation say abuse is rampant

By Eileen Loh-Harrist

JUNE 28, 1999:  If you go to city hall and request a copy of Memphis' billboard ordinance, be prepared to wait awhile. In the records division, they're not sure they have the current law on file. In Planning and Development, they do have a current code, but photocopying approximately 30 pages of regulations is time-consuming.

In the end, it doesn't really matter what the ordinance says, apparently. Billboard companies tend to violate city law, knowingly or unknowingly, when it interferes with the places where they want to locate enormous signs.

City code enforcers rarely, if ever, catch them. Less frequently do they punish them. That's according to the Shelby County Division of Code Enforcement, which frankly acknowledges that billboard proliferation is spiraling out of control in Memphis, and they're in no position to stop it.

Agency director Larry Jenkins says the signs are sprouting up faster than his overworked code inspectors can track them.

"A lot of times, I think these people are going out installing billboards, and we don't even know they're installing them until they're up," Jenkins says. "It got out of hand. We didn't have the manpower to really go out and enforce the sign ordinance."

A huge part of the problem is the complexity of Memphis' billboard ordinance, which divides the city into different mapping divisions.

In order for inspectors to determine whether a sign is illegal, they first have to identify the division in which a billboard is located. Then they must figure out if its size, lighting, location, and other qualities meet the regulations for that district.

"We're backlogged," Jen-kins says. "Just loads and loads of work."

City council member John Vergos, a longtime opponent of the billboard industry, estimates that "probably 25 percent of the billboards are up illegally."

Vergos maintains billboard manufacturers capitalize on the situation. "They're constantly looking for loopholes, and they really do take advantage of ordinances like ours that are so long and so confusing," he says. "I think it's in the billboard [industry's] best interest -- when in doubt, put one up, because there's such a slight chance they'd get caught putting up an illegal billboard."

Todd Powers is president of Eller Media Co., manufacturer of the vast majority of Memphis' roughly 3,000 billboards. He tells the Flyer that while his competitors' signs may be illegal, "that wouldn't be any of my inventory."

But Powers concedes that if Eller does have illegal billboards around Memphis, it's because of a "lack of consistent interpretation of the billboard ordinance. You have to be a dadgum attorney to understand the ordinance," Powers says.

The end result is an abundance of billboards around Memphis. It's a startling contrast to other cities in the area, such as Collierville and Germantown, which do not allow billboard-sized advertising and have famously restrictive sign laws.

Memphis' ordinance covers two types of billboards: "conforming," which comply with the city's zoning codes, and "legal nonconforming," or sign structures which do not meet current standards, but were up before the law was crafted in 1984.

Nonconforming signs may remain standing, but they cannot be repaired or replaced. When they're 75 percent damaged, they must come down.

"You can't reinforce them, can't move them, can't make any significant alterations to them," Vergos says. "Since 1984, I know [some] have been reinforced. I know they've been improved."

Identifying most billboard violations often involves measuring distances or wattage, or looking up a sign's permit. But some infractions can be noted on sight.

For instance, every billboard in Memphis should display a decal containing an identification number, but according to Jenkins, of the code enforcement division, "last year I didn't see hardly anybody stick on a number."

Also, billboard illumination must "avoid casting a direct beam of light upon" residential areas. Sign owners must maintain billboards both aesthetically and structurally. Many billboards are falling apart and unsafe, according to Jenkins.

City council members have proposed several changes to the current billboard law, and plan to meet August 17th to vote on them.

Many of the changes would strengthen regulations, but at least one proposed amendment has come under fire by critics who say it would open up countless new potential sites for billboards.

The proposal, written by council member Janet Hooks, would let billboard companies obtain a special permit to put signs "on a lot which already contains a principal structure," such as another billboard or a building. Approval of the permit would come if two nonconforming signs of the same size were taken down elsewhere.

Currently, a billboard cannot share lot space with a "principal structure."

Hooks says the purpose of the amendment is to allow restricted growth of the billboard industry, but says others have misinterpreted her intention. She is working on a new amendment.

"I think there are appropriate places billboards can be, that do not compromise the integrity of neighborhoods," she says. "While I understand the anti-billboard fervor, I just don't agree with it."

Vergos, a member of the council's ad hoc billboard committee, wants to delay vote on the proposed changes as long as possible.

"So many people who were not involved in the process were trying to amend it," he says. "You just have to look at the ordinance. It is so convoluted and complicated, and to just show up and try to get an amendment passed without putting it into some greater context is just dangerous, because you don't understand what you're opening up. ...

"It's an amazing phenomenon -- that the billboard industry can get away with what they need to, through legislative bodies like these."

Hooks responds that one does not need to be on the committee to comprehend the billboard ordinance. "Even though I was not an active participant in all of the meetings," she says, "I understand the issues."

Powers, president of Eller Media, scoffs at Vergos' criticism, saying he doesn't know where the councilman gets his information. "If John Vergos had his way, there wouldn't be a billboard up in this market. Vergos knows the rib business, the restaurant business. He knows nothing about the billboard business."

Many officials want an independent auditor to take inventory of all the billboards, and the city council is considering allocating money for that purpose.

"We need to get an official count of every billboard in the city," Jenkins says. "Then we can figure out how to start to regulate them."

Vergos says he's going to make the billboard ordinance "a political issue, if I can," in the October municipal elections.

"If you ask people, 'Would you rather have a billboard or not?', 99 percent of people would say no," he says. "There's just no rhyme or reason for the way this ordinance is headed. It's not good for the citizenry. ...

"I think Memphis is in a position to grow in a rational, smart manner, and we're not. We're growing ugly."

The Billboard Baron

Once dubbed "the Prince Mongo of the billboard business" by a park commissioner, William B. Tanner is another in Memphis' long line of entrepreneurial eccentrics, a lineage that includes Sam Phillips, Kemmons Wilson, and John and Isaac Tigrett. But unlike rock-and-roll, affordable motel rooms, the drinking bird, and Hard Rock T-shirts, Memphians have never particularly cared for what Tanner had to sell -- advertising space, bigger than life, towering high above the city's streets, and blotting out the sun.

Oddly, Tanner was only in the billboard business four eventful years. Tanner got his start in the late '50s selling jingles to radio stations. He built on that modest beginning to become head of an international advertising agency bearing his name. In 1982, he sold William B. Tanner Co. to Media General for $39.5 million, only to be sued over the sale price a year later by the Richmond, Virginia-based group. The parties eventually settled out of court, but the lawsuit prompted inquiries into Tanner's business dealings which culminated in his 1985 conviction for tax evasion and mail fraud. Tanner served two years of a four-year sentence.

By 1992, Tanner was back on top of the local advertising world, buying a controlling interest in Peck Outdoor Advertising, becoming a major player in the local billboard industry. Three years later he bought Naegele Outdoor Advertising, then the city's leading billboard business, for $21 million. The owner of an estimated 2,400 of the city's 2,600 billboards, Tanner was the billboard industry in Memphis.

From the time he started in the billboard business, there had been scattered complaints about Tanner, usually involving illegally erected billboards or cut-down trees. These complaints came to a head in 1996. That February, Harvey Walden filed suit against Tanner, charging him with illegally cutting down trees on his Mississippi property along Highway 61 in 1994. When the landowner protested to Tanner, who was present when the trees were cut, the "billboard baron" reportedly stuck a $500 check in Walden's pocket.

By March, Tanner was already the defendant in three more such illegal tree-cutting lawsuits when he and three employees were caught by police cutting trees and limbs that obstructed Tanner-Peck billboards along Sam Cooper Boulevard. Soon after, investigators were able to link Tanner to a series of 1994 tree poisonings. Then one early Saturday morning in June, Tanner attempted to erect three billboards on Beale Street alongside Willie Mitchell's club. It was eventually discovered that Tanner had not obtained the proper permits for the signs and in October he was forced to tear them down. But by then Tanner had sold his company to Universal Outdoor Advertising of Chicago in a deal reportedly valued at $100 million, including $70 million in cash. Universal was bought in October 1997 by Clear Channel Communications, which owns several television and radio stations in town. The San Antonio-based company merged Universal with its own Eller Media Co., the largest outdoor advertising firm in the country, the same company Clear Channel had bought just eight months earlier.

But by then Tanner had wreaked havoc on the landscape, both geographically and politically. A 1995 attempt by the city council to curb billboards, sparked in part by Tanner's ultimately foiled attempt to erect a billboard next to Midtown Bicycle at Poplar and McLean, produced a short-lived moratorium on new billboards, an audit of just how many such signs there were in the city, and increased pressure on the code enforcement division to keep a tighter rein on the billboard industry. But there was no change to the city's 10-year-old billboard ordinance.

Even though he is largely out of the business (he does still own some billboard property, which is leased from him by Eller), Tanner continues to exert influence over how the business is run in town, even if indirectly. A 1997 proposed city ordinance that would cap the number of billboards allowed in the city and require companies to tear down two billboards for every new one erected died when the two councilmen sponsoring the bill withdrew their support. At the time, co-sponsors Brent Taylor and Rickey Peete said they were concerned that the cap would create a billboard monopoly. However, both councilmen and several of their colleagues came under fire when it was revealed that they had been recipients of campaign donations made by Tanner-Peck, including $10,950 in free billboard advertising.

Even out of the business, the "billboard baron" shows signs of life. -- Mark Jordan

Signs of Change

Here's a look at how other U.S. cities are coping with billboard blight.

• A Texas judge this monthupheld the new billboard ordinance in Houston, considered by opponents to be the strictest billboard legislation in the country. Houston, whose 10,000-plus billboards once earned it the nickname "Billboard Capital of the World," began tightening restrictions on outdoor advertising in 1985. In1992, the city passed an amendment to ban all billboards within Houston that are not located on a company's premises. Billboard manufacturers sued, saying the law was unconstitutional and the city should have to pay cash for removing the signs. They also claimed that banning billboards altogether is a violation of free-speech rights. Assistant City Attorney Kevin Aiman says the court ruling means about 300 billboards are subject to immediate removal and about 1,100 others will have to come down either by 2009 or 2013.

• In St. Petersburg, Florida, the Citrus County Planning and Development Review Board this month placed stringent restrictions on billboards and recommended that the County Commission enact an outright ban on any more. If the commission approves, it would follow the example of 10 Florida counties and several other cities, such as Key West, Gainesville, and Miami Beach, in banning future billboards.

• The city of Lakeland, Florida, has spent about $400,000 defending its billboard ordinance from a lawsuit brought by Lamar Outdoor Advertising, which filed over 20 counts challenging nearly every aspect of the city ordinance. In April, a federal judge dismissed all but one of the counts, which contends that the billboard ban allows political campaign signs to remain and therefore favors certain noncommercial speech over other noncommercial speech. Both sides are currently awaiting trial.

• This month, the city of Twin Falls, Idaho, won a legal victory when the state Supreme Court ruled in its favor in a lawsuit against the city's billboard ordinance. Idaho Outdoor Advertising sued after it applied for a special-use permit to erect an oversized billboard. Twin Falls officials conditioned its issuance on the company taking down two other billboards. Idaho Outdoor appealed to district court, which ruled in its favor, but Twin Falls appealed to the state's high court. Idaho Supreme Court justices ruled Twin Falls' billboard ordinance regulates zoning and aesthetics, and does not violate free speech, as Idaho Outdoor had claimed.

Stuck in the Political Morass

In the latest round of the Memphis billboard debate, an ad-hoc committee was formed more than a year ago to discuss the city's long-winded, loophole ridden billboard ordinance. Instead of coming back with an all-encompassing ordinance that would tighten the reins on the billboard industry, the Memphis city council has before it a series of amendments that could have the opposite effect. Like dissenting Supreme Court justices, the two members of that ad-hoc committee who were appointed to represent the community presented their own "minority report," a protest memo, and letter to the editor of The Commercial Appeal.

The biggest issue, some billboard opponents say, is that the current laws were never enforced in the first place. "Billboards need careful control so that they do not dominate our streets, blotting out the architecture and trees and creating the [prevailing] image for our city," Pat Merrill, one of the two community representatives on the ad-hoc committee, wrote to the city council in early June. "I cannot support many of the [committee's] recommendations."

"This is a no-brainer," says council member John Vergos, the council's most outspoken billboard opponent. Billboard opponents say they can only count a few others as being in their camp: Vergos, Tom Marshall, John Bobango, and Brent Taylor. The others seem neutral, apathetic, or are actively admonishing the council to avoid getting into the practice of regulating local industry. Council members Hooks, Joe Brown, Barbara Swearengen Holt, and Myron Lowery fall into this last category.

Vergos and community activists can't understand the libertarian approach here. "They're acting like we're shutting down Federal Express," he says. The 100-odd people who work in the billboard companies will never have a significant economic impact on Memphis as a whole. "What the billboard industry does is ugly. You ask any 100 people if they want a new billboard in Memphis, and they will say no."

As a whole, the council hasn't been able to shake the image that campaign contributions are driving many of the decisions on billboards. Billboard companies shelled out $34,250 to council members during and after the 1994 and 1995 elections, according to an investigation by The CA.

The 12 incumbent candidates on the council -- only Bobango isn't seeking re-election -- do not have to file an update of campaign contributions with the Shelby County Election Commission until a week before the election..

Perhaps the billboard opponents have a bigger problem than the lure of campaign money. In truth, the contributions are not being negated by a strong community reaction. While residents have made their opinions clear during pre-scheduled town hall meetings and Office of Planning and Development opinion surveys, they have not offered much more in the way of support. "We've been working on this for over a year," says Sharon Fidler, the ad-hoc committee's other community member. "We have had no response from the public." -- Phil Campbell

Billboards: The Tobacco Connection

Nobody really likes bill-boards -- except, of course, those who make money from them. But billboard opponents are pleased that at least one objectionable subcategory has been eliminated: As of April 21, 1999, tobacco companies are no longer allowed to use this method of advertising.

The billboard ban was part of a national settlement agreement the major tobacco companies reached with about 40 states, including Tennessee. After removing their cigarette ads from the billboards, the companies were then required to make that space available for anti-tobacco advertising. You may have already seen some of these messages around town -- like the one in which a Marlboro-type cowboy turns to his partner and says, "Bob, I've got emphysema."

"The [tobacco] industry placed their billboards in high-traffic areas," says Janice Nolen of the American Lung Association of Tennessee. "If it was good enough to get their message out, it was good enough to get ours out."

While the ad space was donated, the state health department and the Coalition on Smoking or Health paid for the ads themselves. There are about 130 of the billboards statewide, mostly in Tennessee's four major cities. But they won't be visible for long. The tobacco companies only have to pay rent on the billboards until their existing contracts run out, and for some, that's just a few months down the road.

"In many cases, they found ways to get out of their contracts early," says John Banzhaf III, executive director of Action on Smoking and Health. "Also, there were far fewer [billboards] than those who supported the deal thought there would be. And the settlement provides that there can be no advertising that attacks the tobacco industry."

Even before the settlement, the tobacco companies could see the writing on the wall and began to divert their advertising dollars away from billboards, spending more on direct promotions instead.

"In the early '90s, tobacco ads provided 35 to 40 percent of our revenues," says Todd Powers, president of Eller Media, which owns most of the billboards in Memphis. "By last year, we had reduced it to only about 7 percent, and made up the difference in revenues by acquiring more local clients."

At the time of the tobacco advertising ban, Eller had about 35 billboards in Shelby County that carried cigarette ads. Not all of those are now displaying anti-smoking messages.

But while the free advertising windfall may be short-lived, anti-tobacco activists believe that even a brief campaign might do some good. "Kids don't read newspapers or magazines," says Nolen, "but they do notice billboards while they're riding in the car." The hope is that the new "smoking is bad" billboards will make as strong an impression on kids as Joe Camel once did. -- Debbie Gilbert

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