City of Philadelphia v. Steen Outdoor Adver., 2007 Pa. Commw. LEXIS 320
The determination of whether an advertising sign is an “outdoor advertising sign” or an “accessory sign” turns upon various factors and not solely upon the sign’s content.
An outdoor advertising company erected a billboard sign advertising an alcoholic beverage next to a nightclub. The large sign stood on a small parcel of land, leased by the Advertiser, on the same lot upon which the nightclub stood; however, Advertiser had no business relationship with the proprietors of the nightclub and the proprietors did not own the lot. Because Advertiser did not have a permit for an “outdoor advertising sign,” the City ordered that the sign be removed or it would fine Advertiser each day it violated the Zoning Code. Advertiser argued that it did not need an outdoor advertising permit as the sign was an “accessory sign” – a sign that holds advertisements incidental to the business conducted at the premises – and that it held a permit for such a sign.
Advertiser appealed the City’s violation notice; however, as Advertiser failed to timely appeal to the proper tribunal, the trial court denied Advertiser’s request to file an amended answer, holding that any legal issues that Advertiser might have raised in the proper forum were waived. The sign could not be considered an “accessory sign” because it stood on its own parcel of land, was in no way connected to the nightclub, and it effectively “marketed itself.” The trial court ordered Advertiser to remove the sign and imposed penalties for each day Advertiser violated the Zoning Code.
On appeal, the Commonwealth Court affirmed the trial court’s denial of Advertiser’s request to file an amended answer, and affirmed the conclusion that the sign was an outdoor advertising sign lacking the proper permit. The Commonwealth Court rejected Advertiser’s argument that the content of the advertising is the sole basis for determining whether a sign is an accessory sign or an outdoor advertising sign, holding that content is only one of many relevant factors. However, the Commonwealth Court vacated the trial court’s order imposing penalties upon Advertiser and remanded the fines issue, holding that the trial court erred in refusing to allow Advertiser to introduce mitigating evidence relevant to the penalties sought – namely Advertiser’s lack of intent to violate the Zoning Code and its good faith reliance upon non-precedential case law in refusing to remove the sign.
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