It was a last-minute law, passed by a lame-duck San Diego City Council in the waning days of Mayor Susan Golding's term, a troubled era in the city's history when the Chargers ticket guarantee and the Valerie Stallings-John Moores influence-buying scandal had rocked confidence in local government. So many pet projects sought by the council members had piled up by November 2000 that the mayor scheduled three additional council meetings to handle the demand. The November 14 agenda alone burgeoned to 142 pages.
For her part, Golding was pushing development projects for many of her past campaign contributors. She also used the last-minute opportunity to pack city boards and commissions with her friends and financial supporters.
But the rush was not limited to the mayor. The Fourth District's George Stevens, with two years left on his term, also took advantage of the legislative pandemonium to push through one of his favorite proposals: a ban on all liquor advertising on billboards within 1000 feet of schools, libraries, video arcades, playgrounds, and other places where he said minors congregated. Although there were serious questions about its constitutionality and the risk of expensive litigation the proposed law might spawn, the measure was put on the fast track.
Now, the law is under heavy attack from the billboard industry, which is pouring fuel on the fire in the form of a First Amendment lawsuit currently subject to secret settlement negotiations in a downtown federal courtroom. And the billboard owners have not stopped there. As the March 5 election approaches, their employees are contributing heavily to the campaign of Charles Lewis, the 34-year-old chief of staff to Stevens, who hopes to succeed his boss.
As of last Friday's official campaign filing date, Lewis had collected at least $2500 from a variety of employees, spouses, and others associated with Clear Channel Outdoor, the billboard-owning subsidiary of the giant radio chain Clear Channel Communications, which operates 11 stations in San Diego and 1200 more nationwide.
In addition, a giant pro-Lewis billboard has appeared by the side of state highway 94 and Euclid Avenue, visible to west-bound freeway traffic into downtown. The political advertisement, valued at thousands of dollars, based on the going rate for billboard space, has, as of earlier this week, not been reported by any campaign committee. Officials say the failure to report may be a violation of city law requiring all so-called independent expenditures be disclosed if they are incurred during campaign-filing periods.
At least seven Clear Channel employees or consultants and attorneys, from various cities in California, along with some of their spouses, have contributed the maximum amount to Lewis's campaign. One of them is Marnie Cody, an attorney based in the law offices of Richard F. Hamlin of Marina del Rey in Los Angeles.
During a telephone interview last week, Cody said she was handling legal work for Clear Channel, although not the First Amendment matter. "I'm not representing them on that. I'm representing them on the eminent domain cases, but I think there's another attorney handling that particular issue."
Regarding her contribution to Lewis, Cody said: "That was a personal contribution. I do not know him personally, but I am aware of his efforts, and I decided to make a personal contribution." Asked specifically what efforts she was referring to, Cody responded: "Well, excuse me, but that's my personal information, which I do not choose to disclose to you."
Former Culver City mayor Paul A. Jacobs, an attorney who works in the same office as Cody, also gave Lewis $250, as did his wife, Joy. They live in Culver City. Jacobs did not respond to a request for comment left at his office. Other Clear Channel employees listed as $250 donors to the Lewis campaign include Mark Stanley Herrera of Carlsbad, Edward Dato of La Mirada, Frederico Garcia of Pico Rivera, Clear Channel radio executive Michael Glickenhaus of San Diego, George Manyak II of Long Beach, and Steve Wagner of La Jolla. All contributions were listed as having been made on the same day, January 11. Clear Channel's Dato, to whom Cody referred all requests for comment regarding Clear Channel's role in the Fourth District campaign, did not return repeated phone calls.
In addition to Jacobs, a number of other Los Angeles-based attorneys who are listed as contributing to Lewis did not return telephone calls regarding their interest in the Fourth District race.
The city's campaign-finance law prohibits corporations from contributing to candidates' campaign committees. Employers also are barred from reimbursing their employees for contributions they make. Corporations can make so-called "independent expenditures" as long as they do not consult with the candidate.
Clear Channel's campaign largesse has caused a stir in the Fourth District, where nine other candidates are also vying to succeed Stevens, who has endorsed his longtime chief of staff. Is Lewis using the anti-booze law as a bargaining chip to pad his already sizable campaign war chest and win favorable treatment on the news and talk shows of radio giant Clear Channel? Has Stevens himself abandoned or soft-pedaled his long-standing anti-billboard advertising crusade to help his protégé raise campaign cash? And what is the nature of the secret courthouse negotiations, which have dragged on in the months since the billboard industry's case against the city was filed last fall?
So far, few are talking, and the questions are mounting.
Stevens didn't return phone calls, but his aide Lewis says he's just as mystified as everyone else about who put up the billboard on his behalf. "I don't know anything about it, other than we are getting a great response."
As for the contributions from the Clear Channel employees, Lewis argues he didn't solicit them and would freely vote against the company's interests if it came to that. In addition to the billboard-related contributions, Lewis has also accepted contributions from the owners of an adult nightclub on Kearny Mesa, outside of the Fourth District, who are seeking to expand. He says he asked neither of the groups for the money.
"Throughout this campaign some of the other candidates have attacked me for raising money," says Lewis. "And I can honestly tell you that I have probably called or solicited contributions on the phone maybe 15 or 20 times. Other than that, people have contacted my office, people have said, 'Listen, I know Charles. We want to help Charles out.' I haven't even sent out fundraising letters. Ninety-five percent of my contributions have been nonsolicited.
"I didn't solicit campaign contributions from billboards, I didn't solicit campaign contributions from developers. I didn't solicit contributions from the adult-entertainment industry."
Lewis says that, if elected, he would support the city's current restrictions against alcohol advertising on billboards, including the 1000-foot limitation. He also would like to restrict billboards that advertise gun shows. One billboard at an intersection in the Fourth District was particularly upsetting to him, Lewis says.
"This is at the same intersection, Euclid and Imperial, where it used to be referred to as 'the four corners of death.' This is the same intersection around the corner from Lincoln High School, where we renamed the street Ozark Willie James Jones, after Willie James Jones was murdered on that street, and I just felt it inappropriate to be advertising the Del Mar gun show at that location. So I'd like to see [the city's billboard restrictions] taken further -- not just alcohol, but also gun shows."
So why would the billboard industry be giving him all that money?
"I don't know. You would have to ask them," Lewis says. "Why would you give a guy a contribution after he just had a press conference saying he's against alcohol advertising within a thousand feet, and he wants to take it further and restrict gun-show advertising? It's a good question. Like I told the adult-entertainment industry, don't think you're going to open up a club in my district. I will fight you along with my constituents."
But the candidate says he has no intention of giving any of the money back to the contributors. "No. I'm going to use the money so we can get the message out about Charles Lewis, so we can win this election, and we can continue to do the positive work. I'm not promising anybody anything. To those billboard people, those developers, nothing. Like I keep telling people, maybe some people you can buy for $250 or hosting a fundraiser. I'm not one of those people. Just because you give me a contribution, that doesn't mean you get what you want."
Dan Tomsky, the director of the National City- based Institute for Public Strategies, a nonprofit organization that deals in programs against alcohol abuse, is a member of the San Diego Coalition for Responsible Outdoor Advertising, the group that spearheaded the effort to see the advertising ban made law. He says that the secret talks now being held between the city and the billboard companies make him nervous. Will the city give away the store? Tomsky notes that the city did not begin actually handing out citations to the billboard companies until this past fall, after members of his organization had repeatedly testified to the council about lack of enforcement.
"All we know is they keep going into closed session over at the courthouse. We recognize that it's a sensitive issue and they're trying to do negotiations, but it's closed-door stuff, and this has been dragging on for months now. Two things that are unnerving or frustrating is, one, that we clearly don't have the resources to have our own attorneys pursuing this. The city is defending itself because it has an ordinance, but the greater passion for this ordinance is our coalition. And that's what's frustrating is the powerlessness of not being able to have our own legal representation in this process. I would assume that if we had our own attorneys, we would be part of these closed-door sessions.
"It took three or more years to get this ordinance, which was seemingly a pretty conservative and legally defensible one, and here we are 14 months or so later, still seeing violations that tower over our youth. But we have the higher ground, and however long it takes, we assume justice will prevail."
Tomsky says members of his group have been picking up word out of city hall that the billboard companies may be willing to settle for a 500-foot perimeter separating liquor advertisements from schools and parks, a proposal he says is unacceptable. "That's an insult. The industry has used that as their voluntary standard all along and have not abided by it. If that's what it's going to end up being, it's like, why did we go through this entire process?
"They're breaking the law all over the place. There's a Bacardi one right now within a block of Franklin Elementary school in Kensington. There's one a couple of blocks from Hoover High on Fairmount. There's one at Tenth and Broadway, an Absolut vodka billboard, with a zebra up there -- kind of an artistic zebra -- with a vodka bottle as part of its head. It's playing on the whole presence of the San Diego Zoo. That's actually within 1000 feet of the main public library. It's just another example of blatant noncompliance with the law.
"And I don't think it's much of a surprise that the bulk of the violations are in the beach community, where a whole culture has been built around the mixing of booze and sand -- the beach, booze, and babes sort of thing. This past summer, they had one of the most popular surfer guys, Machado, on billboards with a surfboard promoting alcohol."
Liquor ads also tend to surface more frequently in lower-income urban neighborhoods, Tomsky says. "City Heights and North Park, for example. That's where they tend to do a lot of advertising, in communities of lower income and of color. A very purposeful marketing strategy."
Also worrying Tomsky is the huge influx of cash brought into the battle by the billboard companies. Lawyers and lobbyists paid for by the industry have been swarming all over city hall, he says, attempting to get the law modified or rolled back. "The bottom line is business and profits for themselves and their clients," says Tomsky. "Obviously that's their mission. They must be spending thousands and thousands to get their way. They've hired top guys to work this for them. It's really the people versus the corporations, in this case. Obviously the billboard companies are fronting this, but I have kind of a sixth sense that suggests that it's very much a concern of the alcohol industry itself to be able to advertise its products where it wants to."
Tomsky also notes that his group has received little or no coverage on the area's radio stations, the bulk of which are controlled by Clear Channel. "At our November news conference in Mission Beach, marking the first anniversary of the law's passage, we had lots of TV stations but no radio other than KPBS." Others complain that Clear Channel carefully uses its airtime to promote sports teams that it has contracts with and to punish or shun those whom it does not favor politically.
So far, though, Tomsky says his group has no complaint with George Stevens. "We came to work most closely with Councilman Stevens to get this through the city attorneys' office, and with his support we got it onto the council docket and passed unanimously." As far as Stevens's aide Charles Lewis goes, Tomsky says, he had no role in the legislative process. "I don't know how he feels. He wasn't in the loop. We worked with Jenny Bates, another of his aides. Our latest appearance before council regarding enforcement of the law was January 28, and Mr. Stevens continues to be very supportive."
Stevens, an ordained minister who often lashes out at homosexuality, alcoholism, and needle-exchange programs, among a long list of what he characterizes as moral transgressions, has long been crusading against liquor ads on billboards in the city. Currently running in the Democratic primary for the 78th District state assembly seat being vacated by Howard Wayne, Stevens also frequently attacks the presence of liquor stores in his largely low-income, high-minority district. "Alcohol is really an equal-opportunity destroyer," he proclaimed when he brought the sign ordinance up for consideration before the council's Public Safety and Neighborhood Services Committee in September 2000.
The measure, opposed by a vigorous lobbying campaign by billboard owners and alcohol vendors, swept through the committee on a 4-0 vote. "I don't see that the alcohol industry has any concern," declared then-councilwoman Valerie Stallings, soon to be brought down in the John Moores influence-buying scandal. "They have plenty of signs."
Before he voted for the ban, then-city councilman Harry Mathis brushed aside threats by the billboard owners to take the city to court. "I'm not daunted by the prospect of a lawsuit."
Today, a lawsuit is exactly what the city is facing. On October 23, 2001, less than a year after the law was passed and went into effect on November 14, 2000, and just a month after city officials began trying to enforce it with a series of citations against allegedly offending billboards in Pacific Beach, Clear Channel Outdoor and Viacom Outdoor Advertising filed suit, charging their free-speech rights had been violated.
The two companies, which between them control the vast majority of the city's remaining 991 billboards, alleged that the city is infringing on their First Amendment rights. "Plaintiffs' Billboards reach a broad range of adult consumers at a relatively low cost and allow an advertiser to communicate with adult consumers in settings where other advertising media might not be available. As such Billboards provide an effective and economically efficient means for retailers, manufacturers, and others to inform adult consumers of the availability, prices and other characteristics of alcoholic beverages," the suit said.
The billboard owners also accused the city council of failing to do its homework.
"Neither the City Council's record of its deliberations concerning the Ordinance, nor the Ordinance itself, refers to any reliable, relevant scientific proof that advertising for alcoholic beverages on Billboards causes minors to purchase or consume alcoholic beverages, that such advertising is directed to minors, or what the actual effect of the regulatory scheme implemented by the Ordinance would be on the consumption and/or purchase of alcoholic beverages by minors.
"Alternatives that were available that the City could have pursued include but are not limited to enacting stricter laws against sales of alcoholic beverages to minors, underage purchase and underage consumption; increasing efforts to enforce existing laws against sales of alcoholic beverages to minors, and underage purchase and underage consumption; and promoting educational efforts in schools and in the community at large for both minors and parents about the risks associated with underage consumption of alcoholic beverages and how to prevent minors from drinking alcoholic beverages."
According to the billboard owners' complaint, the city is doing them "irreparable harm, in that they are required, during the pendency of this litigation, to engage in self-censorship and to cease the dissemination of accurate and truthful commercial and noncommercial speech concerning alcoholic beverages on Billboards, including messages designed to discourage underage consumption by minors, in order to avert further prosecution, thereby depriving Plaintiffs of their constitutional right to engage in speech protected by the First Amendment to the Constitution of the United States..."
San Diego senior deputy city attorney Jim Chapin says that he will soon be bringing the demands of the billboard owners, as presented to the city during preliminary settlement talks, back to the city council for consideration. One of the key demands, he confirms, is reduction of the 1000-foot limit to 500 feet. "We have had a couple of what they call early neutral evaluations in federal court with the magistrate, Judge [James] Stiven, and they've made settlement demands. At this point I'm just going to go into city council -- I'm not exactly sure when, sometime in the next two weeks -- to advise the council about the status of the litigation and tell them what their demands are. There should be something, I would guess, more newsworthy in the next two or three weeks depending upon what the council decides to do."
Among the considerations the council must mull, says Chapin, is that, due to a U.S. Supreme Court decision handed down last July, constitutional law has shifted dramatically in favor of the free speech rights of the billboard industry. "The United States Supreme Court struck down a Massachusetts ban on tobacco advertising, which I think surprised a lot of people, because after the huge [tobacco industry] settlement with all the states, people thought you could restrict tobacco advertising and that wouldn't be subject to challenge, but the First Amendment is broadly construed by the Supreme Court, and they held that commercial speech is protected by the first amendment."
Since the July ruling, Chapin adds, major cities such as Los Angeles, Oakland, Chicago, and Cleveland have either repealed or are making major modifications to their billboard laws. "The decision is very troublesome for municipalities who want to limit this type of advertising.
"Our law was enacted in November of 2000, so we didn't have the benefit of that decision. We relied on model ordinances with a 1000-foot rule, and at this point we need to evaluate whether we can justify the 1000-foot billboard restriction in San Diego. So that's where I'm at. It's a policy call by the council as to what they want to do, and I'll probably know in the next couple weeks. At least I'll know what council's direction is going to be as far as proceeding with litigation or amending the ordinance."
A hearing before the federal magistrate overseeing the settlement talks between the city and the billboard companies was set for today, but last week Chapin said that session might have to be continued. "We have a hearing scheduled on Thursday, but that was only if I was able to get in front of the council, and they had a legislative recess last week, and they have a lot of matters on this week, and I believe I am on the calendar for closed session, but I'm not sure I'm going to get heard yet, so that hearing with the judge may be pushed back, depending upon the docket and how much they have going on.
"I don't know that we're going to give the city council a recommendation. I'm going to advise them of the demands, and I will discuss the Supreme Court decision with them. Most of these councilmembers were not involved in the enactment of the ordinance, and this is something they are not really familiar with. It was only councilmembers Wear and Stevens who were on the council when this was enacted, so it's going to be informative to the new councilmembers and let them know how this all came about and the status of the litigation.
"Since this council is coming in cold, they'll probably tell me that they need more legal analysis and to think about it and to come back later with a manager's report. That's typically what happens when it's this kind of a gray area." Neither Stevens nor his aide Lewis has been involved in the negotiations, says Chapin. "I have had Lamont Ewell, who is assistant city manager, with me. He's the only one who is aware of it."
San Diego has a famously mixed history of regulating billboards. In 1972, the city council, led by then-mayor Pete Wilson, voted 4-3 to ban all billboards in the city. Under that ordinance, the only outside commercial advertisements allowed in the city were so-called "on premise" signs, those advertising the business on which the signs were placed. The two largest billboard companies then operating in the city, Metromedia and Pacific Outdoor, which along with smaller operators owned at least 2000 billboards, soon filed suit in state court, and both a trial court and appellate court struck down the law. But the California Supreme Court reversed them and held that the law was valid.
"To hold that a city cannot prohibit offsite commercial billboards for the purpose of protecting and preserving the beauty of the environment is to succumb to a bleak materialism," the court ruled. The justices even quoted Ogden Nash: "I think that I shall never see/ A billboard lovely as a tree./ Indeed, unless the billboards fall/ I'll never see a tree at all."
The billboard owners immediately petitioned the U.S. Supreme Court, which agreed in October 1980 to consider the matter. On July 3, 1981, a divided court, explaining its ruling in five separate opinions, voted 6 to 3 to strike down the city's absolute ban against billboards as a clear violation of the First Amendment's guarantee of free speech. But four liberal justices made a distinction between so-called "political" and "commercial" speech, and the court sent the case back to the state supreme court for reconsideration, which ultimately concluded that the law was unconstitutional. (The attorney for the billboard companies was Ted Olson, currently the Bush administration's solicitor general, who lost his wife Barbara in the September 11 terrorist-caused crash of a jetliner into the Pentagon.)
In 1984, having reached a quiet compromise with the billboard companies to end the ongoing litigation, the San Diego City Council tried again, adopting an ordinance banning new billboards but allowing the firms to keep the signs they already owned and giving them the right to move them around the city. Unlike the first law, the city could not order existing billboards torn down. In 1987, the council tightened the law even further, striking the replacement and removal clause. By then, the number of billboards in the city had slipped to around 1200. Their value, in turn, went up, providing the billboard owners an incentive to make the deal.