| OTR Media Group, Inc. v City of New York |
| 2011 NY Slip Op 02803 [83 AD3d 451] |
| April 7, 2011 |
| Appellate Division, First Department |
| OTR Media Group, Inc., Appellant, v City of New York etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), forrespondents.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 22, 2010,which granted defendants' motions for summary judgment dismissing the amended complaint,and denied plaintiff's motion for a preliminary injunction, unanimously affirmed, with costs.
The motion court correctly held that the subject advertising regulations that restrict outdooradvertising situated within view of arterial highways and public parks and impose substantialpenalties for violations do not violate plaintiff's right to free speech under the New York StateConstitution (see NY Const, art I, § 8). Contrary to plaintiff's contention, the NewYork State Constitution does not afford heightened free speech protections to commercialspeech. Rather, our courts apply the four-part test articulated by the United States Supreme Courtin Central Hudson Gas & Elec. Corp. v Public Serv. Comm'n of N.Y. (447 US 557[1980]) to restrictions on commercial speech (see Matter of von Wiegen, 63 NY2d 163,172-173 [1984], cert denied sub nom. Committee on Professional Stds. v von Weigen,472 US 1007 [1985]; Willow Media,LLC v City of New York, 78 AD3d 596, 596 [2010]). Applying the CentralHudson test, we hold that the subject regulations are constitutional because they directlyadvance the stated governmental interests of promoting traffic safety and preserving aesthetics,and are narrowly tailored to achieve those interests.
We further hold that the subject regulations and penalty schedule do not violate plaintiff'sright to equal protection (see NY Const, art I, § 11). The record is bereft ofevidence that the City selectively enforces the regulations and penalty schedule against plaintiffand other similarly-situated outdoor advertising companies (OACs), but refrains from enforcingthem against governmental and quasi-governmental entities such as the MetropolitanTransportation Authority, the Port Authority, and Amtrak. While the City concedes that itformerly exempted these entities from enforcement, it did so based on a mistaken belief that itdid not have the legal authority to enforce the regulations and penalty schedule against them. TheCity's assertion that it fully intends to enforce the regulation is entitled to deference (see ClearChannel Outdoor, Inc. v City of New York, 594 F3d 94, 111 [2d Cir 2010], cert deniedsub nom. Metro Fuel LLC v New York, NY, 562 US —, 131 S Ct 414 [2010]). In anyevent, plaintiff is not similarly situated [*2]to any of these entitiesfor purposes of equal protection analysis (see Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 632[2004]). Moreover, as noted above, the City has substantial interests in promoting traffic safetyand preserving aesthetics, and the subject regulations are finely tailored to serve those interests(see generally General Media Communications, Inc. v Cohen, 131 F3d 273, 285 [2d Cir1997], cert denied 524 US 951 [1998]; Under 21, Catholic Home Bur. for DependentChildren v City of New York, 65 NY2d 344, 360 n 6 [1985]).
We also find no merit to plaintiff's contention that the penalty schedule set forth inAdministrative Code of the City of New York § 28-502.6 is discriminatory because itsubjects OACs and non-OACs to different fines for the same conduct. Equal treatment of the twocategories of business is not required because OACs and non-OACs are not similarly situated.Indeed, in contrast to OACs, non-OACs do not engage in, or hold themselves out as engaging in,the outdoor advertising business (see Administrative Code § 28-502.1).Furthermore, because the penalty schedule differentiates based on the type of entity that violatesthe regulations, rather than on the content of the advertisements, rational basis review, asopposed to strict scrutiny, applies (see Willow, 78 AD3d at 596). Here, it cannot be saidthat the disparate treatment is "so unrelated to the achievement of any combination of legitimatepurposes" as to be irrational (Affronti v Crosson, 95 NY2d 713, 719 [2001], certdenied sub nom. Affronti v Lippman, 534 US 826 [2001], quoting Kimel v Florida Bd. ofRegents, 528 US 62, 84 [2000]). Indeed, the record clearly establishes that increasedpenalties were necessary to deter violations by OACs in particular.
Equally unavailing is plaintiff's claim that the penalty schedule violates the Excessive FinesClause of the New York State Constitution (see NY Const, art I, § 5). Because thepenalties serve only a remedial purpose and are intended to secure compliance, the ExcessiveFines Clause is inapplicable (see United States v Mongelli, 2 F3d 29, 30 [2d Cir 1993]).Even if the clause applied, the penalty schedule would not be deemed unconstitutional on itsface. Indeed, the schedule does not impose fines that are "grossly disproportional to the gravity of[the] offense" (County of Nassau vCanavan, 1 NY3d 134, 140 [2003], quoting United States v Bajakajian, 524 US321, 334 [1998]), and the alleged violators have the ability to mitigate the accrual of the fines(see Matter of Seril v New York State Div. of Hous. & Community Renewal, 205 AD2d347, 347 [1994], appeal withdrawn 84 NY2d 1008 [1994]).
Contrary to plaintiff's contention, the New York City Charter does not prohibit theEnvironmental Control Board (ECB) from imposing fines that are greater than $25,000. Rather,it limits the ECB's authority to enforce final orders of more than $25,000 without courtproceedings (see NY City Charter § 1049-a [d] [1] [g]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Tom, J.P., Saxe, DeGrasse, Freedman and Abdus-Salaam, JJ.