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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PENN ADVERTISING OF BALTIMORE,
INCORPORATED,
Plaintiff-Appellant,
v.
MAYOR AND CITY COUNCIL OF
BALTIMORE, A Municipal
Corporation; KURT L. SCHMOKE, in
his official capacity as Mayor of
Baltimore City; DAVID TANNER, in
his official capacity as the General
Superintendent of Zoning
Administration and Enforcement of
Baltimore City,
No. 94-2141
Defendants-Appellees.
THE AMERICAN ADVERTISING
FEDERATION; THE AMERICAN
ASSOCIATION OF ADVERTISING
AGENCIES; THE ASSOCIATION OF
NATIONAL ADVERTISERS,
INCORPORATED; THE OUTDOOR
ADVERTISING ASSOCIATION OF
AMERICA, INCORPORATED;
WASHINGTON LEGAL FOUNDATION;
THE CITY OF CINCINNATI, OHIO; THE
MARYLAND CONGRESS OF PARENTS &
TEACHERS, INCORPORATED;
THE COALITION FOR BEAUTIFUL
NEIGHBORHOODS; BALTIMORE CITY
WIDE LIQUOR COALITION FOR BETTER
LAWS AND REGULATIONS; CITY AND
COUNTY OF SAN FRANCISCO; CITY OF
SAN JOSE,
Amici Curiae.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert F. Murray, Senior District Judge.
(CA-94-877-HM)
Argued: March 6, 1995
Decided: August 31, 1995
Before NIEMEYER and HAMILTON, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Hamilton and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Eric Michael Rubin, RUBIN, WINSTON, DIERCKS,
HARRIS & COOKE, Washington, D.C., for Appellant. Burton Harry
Levin, Assistant Solicitor, Baltimore, Maryland, for Appellees. ON
BRIEF: Walter E. Diercks, Jeffrey Harris, RUBIN, WINSTON,
DIERCKS, HARRIS & COOKE, Washington, D.C., for Appellant.
Neal M. Janey, City Solicitor, Sandra R. Gutman, Associate Solicitor,
DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees.
Richard E. Wiley, Lawrence W. Secrest, III, Daniel E. Troy, Luis
de la Torre, Frank Winston, Jr., WILEY, REIN & FIELDING, Wash-
ington, D.C., for Amici Curiae American Advertising Federation, et
al. Mark S. Yurick, Senior Assistant City Solicitor, OFFICE OF THE
CITY SOLICITOR, Cincinnati, Ohio, for Amicus Curiae City of Cin-
cinnati. Daniel J. Popeo, David A. Price, WASHINGTON LEGAL
FOUNDATION, Washington, D.C., for Amicus Curiae Washington
Legal Foundation. Donald Garner, Professor of Law, SOUTHERN
ILLINOIS UNIVERSITY, Carbondale, Illinois; THE MARYLAND
CONGRESS OF PARENTS & TEACHERS, INC., Baltimore, Mary-
land, for Amicus Curiae Maryland Congress. Christopher J. Fritz,
Julie Ellen Squire, Thomas C. Dame, GALLAGHER, EVELIUS &
JONES, Baltimore, Maryland, for Amici Curiae Coalition for Beauti-
ful Neighborhoods, et al. Louise H. Renne, City Attorney, Dannis
Aftergut, Chief Assistant City Attorney, Barbara Solomon, Deputy
City Attorney, John Cooper, Deputy City Attorney, San Francisco,
California, for Amicus Curiae San Francisco; Joan Gallo, City At-
torney, George Rios, Assistant City Attorney, San Jose, California,
for Amicus Curiae San Jose.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
We must decide in this case (1) whether Ordinance 307 enacted by
the Mayor and City Council of Baltimore, Maryland, prohibiting the
placement of stationary, outdoor "advertising that advertises ciga-
rettes" in certain areas of the City, is preempted by the Federal Ciga-
rette Labeling and Advertising Act or by Maryland statutes
prohibiting the sale of cigarettes to minors or the possession of ciga-
rettes by minors; and (2) whether that ordinance violates the First and
Fourteenth Amendment protections of commercial speech. The dis-
trict court, granting Baltimore's motion for summary judgment, ruled
that neither federal nor state law preempts the operation of Balti-
more's ordinance and that the ordinance is a permissible regulation of
commercial speech under the four-part test announced in Central
Hudson Gas and Elec. Corp. v. Public Serv. Comm'n of N.Y.
,
447
U.S. 557
I
Even before 1994, it was illegal in Maryland for any person to pur-
chase cigarettes for, or sell them to, "any individual under the age of
18 years." Md. Ann. Code art. 27, § 404 (1992). In 1994, Maryland
also enacted statutes, effective October 1, 1994, prohibiting minors
from using or possessing "any tobacco product." Md. Ann. Code art.
27, §§ 404 & 405A (Supp. 1994). A few months earlier, in April
1994, the Mayor and City Council of Baltimore (collectively "Balti-
more"), in a further effort to reduce the illegal consumption of ciga-
rettes by minors, enacted Ordinance 307. The ordinance prohibits the
placement of any sign that "advertises cigarettes in a publicly visible
location," i.e. on "outdoor billboards, sides of building[s], and free
standing signboards." 1 The prohibition contained in Ordinance 307
parallels the scope and language of Baltimore City Ordinance 288,
enacted in January 1994, which regulates the advertising of alcoholic
beverages. Thus, the prohibition against cigarette advertising in Ordi-
nance 307 mirrors Ordinance 288's exceptions permitting such adver-
tising on buses, taxicabs, commercial vehicles used to transport
cigarettes, and signs at businesses licensed to sell cigarettes, including
professional sports stadiums. As with Ordinance 288, Ordinance 307
also contains an exception permitting such advertising in certain com-
mercially and industrially zoned areas of the City.
Before enacting the ordinance, the Baltimore City Council con-
ducted public hearings, receiving testimony and previously-conducted
studies detailing the correlation between cigarette advertising and the
consumption of cigarettes by minors. The City Council found, as
expressed in the preamble to Ordinance 307, that cigarettes are the
most heavily advertised product in America and that"there is specific
and convincing evidence that tobacco advertising plays a significant
role in stimulating illegal consumption of cigarettes by minors." It
referred specifically to 10 studies and articles supporting that position.
The City Council also relied on the 1992 Maryland Adolescent Drug
Survey conducted by the Maryland Department of Education to sup-
port its conclusion that cigarettes are the second most commonly
abused substance by Maryland adolescents, with approximately 42%
of twelfth graders and 11% of sixth graders having smoked cigarettes
in the previous 12 months. The City Council emphasized further that
75% of twelfth graders had smoked cigarettes before the age of 15.
It noted that cigarettes constitute a "gateway drug" for Maryland stu-
dents, as they are often the first drug used by adolescents and "ap-
pear[ ] to ´open the door' for use of other harder drugs at a later date."
Therefore, to reduce the illegal consumption of cigarettes by minors,
the City Council concluded that it would be reasonable to restrict the
placement of publicly visible cigarette advertisements in the City.
On April 6, 1994, the date on which Ordinance 307 became effec-
tive, Penn Advertising of Baltimore, Inc., filed suit in federal court to
enjoin the ordinance's enforcement and to obtain a declaratory judg-
ment (1) that the ordinance is preempted by § 5(b) of the Federal Cig-
arette Labeling and Advertising Act, 15 U.S.C. § 1334(b), and by
Maryland statutes regulating the sale of cigarettes, and (2) that the
ordinance violates the First and Fourteenth Amendments. Penn
Advertising, which leases land from private property owners, main-
tains outdoor signs on those locations, and rents them to its custom-
ers, filed suit to protect its business of placing cigarette
advertisements on outdoor signs located in Baltimore.
With its complaint, Penn Advertising filed a motion for a prelimi-
nary injunction to enjoin, pending litigation, enforcement of Ordi-
nance 307. In response, Baltimore filed a motion to dismiss or, in the
alternative, for summary judgment. While Penn Advertising obtained
some discovery following the filing of these motions, it desired to
conduct more discovery and thus filed a motion to extend the time to
file its opposition to Baltimore's summary judgment motion. The dis-
trict court denied the motion and established a briefing schedule for
the parties. The court also entered an order staying enforcement of the
ordinance.
On August 15, 1994, the district court filed a memorandum opinion
granting Baltimore's motion for summary judgment. The district
court concluded that Ordinance 307 is preempted neither by the Fed-
eral Cigarette Labeling and Advertising Act nor by Maryland state
law. On the First Amendment issue, the court concluded that Ordi-
nance 307 satisfied all four prongs of the Central Hudson test and was
thus a permissible regulation of commercial speech. This appeal
followed. 2
II
We address first a preliminary contention that the district court
abused its discretion in refusing to extend Penn Advertising's time to
conduct discovery and respond to Baltimore's motion for summary
judgment. Penn Advertising argues that the court granted summary
judgment "before there had even been adequate time for Penn Adver-
tising to assemble a full evidentiary record and after denying Penn
Advertising's motion for leave to take discovery for the purpose of
further establishing the disputed factual record."
While the district court granted Penn Advertising a short extension
to respond to the motion for summary judgment, it did not generally
open up the case for discovery before ruling on the issues. It con-
cluded that such discovery was not necessary in view of the nature of
the issues presented. The district court stated that the questions pres-
ented are "legal questions ripe for decision" because the case concerns
"a facial attack on the legal sufficiency of an ordinance." Penn Adver-
tising of Baltimore, Inc. v. Mayor and City Council of Baltimore , 862
F. Supp. 1402, 1405 (D. Md. 1994). Penn Advertising nonetheless
was able to oppose the motion for summary judgment with affidavits,
various studies, and samples of advertising, and has failed to identify
any further materials or theories which it desired, but was unable, to
present to the district court.
We agree that the issues presented to the district court were ques-
tions of law which could be resolved without further development of
the factual record. The preemption issue rests on a legal interpretation
of the federal statute which allegedly preempts the ordinance. As the
Supreme Court noted in Cipollone v. Liggett Group, Inc. , 112 S. Ct.
2608, 2618 (1992), "the pre-emptive scope of the 1965 Act and the
1969 Act is governed entirely by the express language in § 5 of each
Act." Our interpretation of the instant issue as involving solely a
question of law is also consistent with the procedural posture of the
Cipollone case before the Supreme Court, i.e. on review of a motion
under Federal Rule of Civil Procedure 12(f) to strike the preemption
defense as a matter of law.
Furthermore, we agree with the district court that a facial challenge
to an ordinance restricting commercial speech may be resolved as a
question of law when the government meets the burden placed on it
by Central Hudson . We decided the same question in the companion
case of Anheuser-Busch, Inc. v. Schmoke , ___ F.3d ___, No. 94-1431
(4th Cir. Aug. 31, 1995), where we stated:
[I]n response to a facial challenge to a regulation of com-
mercial speech, the burden falls on the government to justify
its legislative action, but it does not demand that the govern-
ment canvass every conceivable situation in which some
member of the public may be affected atypically by the stat-
ute. And the court's inquiry is limited to consideration of the
ordinance on its face against the background of the govern-
ment's objective and the prospect of the ordinance's general
effect. If it appears to the court that the legislative body
could reasonably have believed, based on data, studies, his-
tory, or common sense, that the legislation would directly
advance a substantial governmental interest, the govern-
ment's burden of justifying it is met.
___ F.3d at ___, slip op. at 10. The determinative question in review-
ing a facial challenge to an ordinance thus is whether the legislative
body acted with the objectively reasonable belief that the means it
selected fit the objective sought. The issue is not whether the substan-
tive findings on which it relied are incontrovertibly true. As we
explained in Anheuser-Busch :
While a party [facially] challenging an ordinance can point
to other factors not considered by the legislature to demon-
strate that the legislature acted irrationally, it cannot subject
legislative findings themselves to judicial review under a
clearly erroneous standard or otherwise. To do so would
ignore the structural separation between legislative bodies
and courts and would improperly subordinate one branch to
the other.
___ F.3d ___, slip op. at 11.
Since the burden of justifying the ordinance falls on the govern-
ment and it may carry this burden by pointing to legislative facts,
studies, history, or common sense, an understanding of the ordi-
nance's factual impact on particular parties is not necessary to the
inquiry. Id . at 10-12. Accordingly, we conclude that the district court
did not abuse its discretion in this case by ruling on the summary
judgment motion without allowing further discovery.
III
Penn Advertising contends that Ordinance 307 is void because Bal-
timore's authority to enact such a measure was preempted by § 5(b)
of the Federal Cigarette Labeling and Advertising Act, which pro-
vides:
No requirement or prohibition based on smoking and health
shall be imposed under State law with respect to the adver-
tising or promotion of any cigarettes the packages of which
are labeled in conformity with the provisions of this chapter.
15 U.S.C. § 1334(b). That Act mandates that one of several specified
warning messages be placed on each package of cigarettes and pro-
hibits cigarette advertising on television and radio. See 15 U.S.C.
§§ 1331-1340. Penn Advertising argues that since Ordinance 307's
prohibition of cigarette advertising is "based on smoking and health,"
it is preempted by the federal statute. Its argument rests entirely on
the analysis of § 5(b) of the federal act conducted by the Supreme
Court in Cipollone v. Liggett Group, Inc.
The lawsuit in Cipollone was predicated on the smoking-related
death of Rose Cipollone, who began smoking in 1942 and died of
lung cancer in 1984. Her son sought damages from cigarette manufac-
turers, contending that cigarette smoke caused his mother's death. His
suit, based on New Jersey common law, alleged common law claims
involving design defects; failure to warn; breach of express warranty;
fraudulent misrepresentation; conspiracy to defraud; and negligence
in the manner in which cigarettes were tested, researched, sold, pro-
moted and advertised. On the cigarette manufacturers' contention that
Cipollone's claims were preempted by the Federal Cigarette Labeling
and Advertising Act, the Supreme Court held:
[T]he 1969 Act pre-empts petitioner's claims based on a
failure to warn and the neutralization of federally mandated
warnings to the extent that those claims rely on omissions
or inclusions in respondents' advertising or promotions; the
1969 Act does not pre-empt petitioner's claims based on
express warranty, intentional fraud and misrepresentation, or
conspiracy.
112 S. Ct. at 2625. To reach this conclusion, the Court conducted a
count-by-count analysis of the common law claims to determine
whether each claim implicated duties to warn or to label in connection
with smoking and health. The Court explained:
[W]e must fairly but--in light of the strong presumption
against pre-emption--narrowly construe the precise lan-
guage of § 5(b) and we must look to each of petitioner's
common law claims to determine whether it is in fact pre-
empted.
Id . at 2621. To sort out those claims that were preempted, the Court
stated:
The central inquiry in each case is straightforward: we ask
whether the legal duty that is the predicate of the common
law damages action constitutes a "requirement or prohibi-
tion based on smoking and health . . . imposed under state
law with respect to . . . advertising or promotion," giving
that clause a fair but narrow reading.
Id . at 2621 (emphasis added). The Court went on to clarify that the
appropriate inquiry is "not whether a claim challenges the ´propriety'
of advertising and promotion, but whether the claim would require the
imposition under state law of a requirement or prohibition based on
smoking and health with respect to advertising or promotion." Id . at
2622. See also Vango Media, Inc. v. City of New York , 34 F.3d 68,
73-74 (2d Cir. 1994) (holding that Federal Cigarette Labeling and
Advertising Act preempts ordinance requiring city-licensed facilities
to display one message addressing the dangers of smoking for every
four tobacco advertisements displayed).
Applying the methodology described in Cipollone to Ordinance
307, we conclude that the Federal Cigarette Labeling and Advertising
Act does not preempt the ordinance. Ordinance 307 limits only the
location of signs that advertise cigarettes, but it does not address the
content of such advertisements. The ordinance neither imposes a duty
nor relieves a burden on cigarette advertisers based on smoking and
health . Moreover, the ordinance does not limit the ability of cigarette
manufacturers to advertise generally in the media. The regulation sim-
ply restricts the location of cigarette-advertising signs, irrespective of
the nature of the message communicated. A regulation with such a
general relationship to cigarette smoking--in contrast to a specific
advertising "prohibition based on smoking and health"--is not pre-
empted by the Federal Cigarette Labeling and Advertising Act. Were
the preemption provision to be interpreted so broadly, the Supreme
Court in Cipollone could not have allowed the continued prosecution
of common law claims for breach of express warranty, misrepresenta-
tion, intentional fraud, and conspiracy--all of which relate generally
to the effects on health of promoting the sale of cigarettes. See
Cipollone , 112 S. Ct. at 2621-25.
For similar reasons, we conclude that the Maryland statutes prohib-
iting the sale of cigarettes to minors and the use and possession of
cigarettes by minors, see , e.g. , Md. Ann. Code art. 27, §§ 404 & 405A
(supp. 1994), and Md. Ann. Code, Business Regulation art., § 16-101
et seq ., do not preempt the City's ordinance. Penn Advertising argues
that Ordinance 307 is invalid because it impliedly was preempted by
these state statutes under the doctrine of "preemption by implication"
set forth in Allied Vending, Inc. v. Bowie , 332 Md. 279 (1993). The
court in Allied Vending explained that there may be times when "´the
legislature may so forcibly express its intent to occupy a specific field
of regulation that the acceptance of the doctrine of preemption by
occupation is compelled.'" Id . at 298 (quoting Mayor and City Coun-
cil of Baltimore v. Sitnick , 254 Md. 303, 323 (1969)). The reasoning
of Allied Vending , however, lends little support to Penn Advertising's
claim. We can find nothing in §§ 404 and 405A of Article 27 or
§ 16-101 et seq . of the Business Regulation Article that indicates an
attempt by the Maryland legislature to preempt the field of cigarette
advertising. Moreover, Ordinance 307, which only limits the place
and manner of cigarette advertising, is not in conflict with the state
provisions prohibiting their sale to minors. For the reasons stated
above, as well as those articulated by the district court in its well-
reasoned opinion, see Penn Advertising , 862 F. Supp. at 1415-20, we
reject the contention that Ordinance 307 is preempted and therefore
null and void.
IV
Finally, Penn Advertising contends that Ordinance 307 is an imper-
missible regulation of commercial speech under the four-prong
scheme announced in Central Hudson . As that case explains, in order
for commercial speech to be entitled to any First Amendment protec-
tion, the speech must first concern lawful activity and not be mislead-
ing. See Central Hudson , 447 U.S. at 563 . If the commercial speech
meets those threshold criteria, a state may nevertheless regulate it if
(2) the state is able to assert a substantial interest in support of the
regulation; (3) the state demonstrates that the regulation "directly
advances the governmental interest asserted"; and (4) the regulation
is not "more extensive than is necessary" to serve the interest. Id . at
566.
The governmental interest asserted in this case is to promote com-
pliance with the state prohibition of the sale of cigarettes to minors.
The district court concluded that the ordinance also furthers the obvi-
ous public policy underlying such a prohibition,"which is to prevent
the purchase, and thus the consumption, of cigarettes by minors."
Penn Advertising , 862 F. Supp. at 1406. In the context of the current
public concern over the dangers of cigarette consumption by minors,
there can be little opposition to the assertion that the City's objective
in reducing cigarette consumption by minors constitutes a substantial
public interest.
The principal dispute in this case centers on Central Hudson 's third
and fourth prongs which question whether Ordinance 307 directly
advances Baltimore's stated public interest in reducing minors' ciga-
rette consumption and whether the ordinance is not more extensive
than necessary to serve that interest, i.e. whether it is "narrowly
drawn." The inquiry under these two prongs of Central Hudson
involves consideration of the "fit" between the City's ends and the
means chosen to accomplish them. See United States v. Edge Broad-
casting Co. , 113 S. Ct. 2696, 2705 (1993); Posadas de Puerto Rico
Assocs. v. Tourism Co. , 478 U.S. 328, 341 (1986).
These same issues were resolved in favor of Baltimore in the
related case of Anheuser-Busch, Inc. v. Schmoke , ___ F.3d ___, No.
94-1431 (4th Cir. Aug. 31, 1995). In Anheuser-Busch , the City relied
on numerous studies that linked alcohol advertising to underage
drinking to meet Central Hudson 's third prong. In response to
Anheuser-Busch's challenge to those conclusions, we stated:
There is a logical nexus between the City's objective and the
means it selected for achieving that objective, and it is not
necessary, in satisfying Central Hudson 's third prong, to
prove conclusively that the correlation in fact exists, or that
the steps undertaken will solve the problem. If that were
required, communities could never initiate even minor steps
to address their problems, for they could never be assured
of the success of their efforts. The proper standard for
approval must involve an assessment of the reasonableness
of the legislature's belief that the means it selected will
advance its ends. Under that approach, we conclude that
Baltimore has met its burden of satisfying the third prong of
Central Hudson .
___ F.3d at ___, slip op. at 15-16. Similarly, in our examination of
whether the advertising regulation was narrowly tailored to meet
Central Hudson 's fourth prong, we concluded in Anheuser-Busch :
If there were some less restrictive means of screening out-
door advertising from minors, or of reducing the area of bill-
board regulation in a manner that would have it focus more
efficiently on reaching minors, the City would have to con-
sider those alternatives. But it is not an acceptable response
to the approach taken by the City of limiting advertising
exposure to say that the City must abandon altogether an
approach that directly advances its goal. In the face of a
problem as significant as that which the City seeks to
address, the City must be given some reasonable latitude.
___ F.3d at ___, slip. op. at 19.
For the reasons advanced in Anheuser-Busch , we conclude here
that, while the fit between the City's objectives and the means
selected to achieve them may not be perfect, it nevertheless falls well
within the range tolerated by the First Amendment for the regulation
of commercial speech.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
Cigarette advertisements. No person may place any sign, poster,
placard, device, graphic display, or other form of advertising that
advertises cigarettes in a publicly visible location. In this section
"publicly visible location" includes outdoor billboards, sides of
building[s], and free standing signboards.
Baltimore City Code, Art. 30 (zoning), § 10.0-1(I). By its terms, the ordi-
nance became effective April 6, 1994.
Advertising Federation, the American Association of Advertising Agen-
cies, the Association of National Advertisers, Inc., the Outdoor Advertis-
ing Association of America, Inc., the Washington Legal Foundation, the
Maryland Congress of Parents & Teachers, Inc., the Coalition for Beauti-
ful Neighborhoods, the Baltimore City Wide Liquor Coalition for Better
Laws and Regulations, the City of Cincinnati, the City and County of
San Francisco, and the City of San Jose.