Lion's Den sign

Sign for Lion's Den adult store, LaRue County, Ky. (Source: Google Maps)

LOUISVILLE, Ky. (WDRB) – Kentucky is poised once again to regulate roadside billboards after legislation cleared the House and Senate this week.

House Bill 328 would re-establish a law that was found unconstitutional last April, spurring some companies to raise signs that didn’t comply with state rules on size and proximity to roads. Some have likened the past year to a “Wild West” environment.

The bill is awaiting action from Gov. Andy Beshear.

The Outdoor Advertising Association of Kentucky estimates that more than 100 unregulated signs were erected after the ruling in U.S. District Court last April, particularly near Bowling Green and in western Kentucky and along Interstate 75.

Lawmakers tried to add more provisions to the bill before it passed, including one to grandfather in those billboards that went up without following state rules. But both chambers ultimately approved legislation that simply restored the law using constitutional language.

Sen. Jimmy Higdon, who carried the bill in the Senate, said expressly allowing signs to remain in place would have violated the U.S. Highway Beautification Act and put the state at risk of losing federal transportation funds estimated at $70 million.

“When the governor signs that, Kentucky has a law now that prevents people from doing what they were doing for the year when we didn’t have a law—putting them too close to the road, and putting them too close together, and making them bigger than they’re allowed to be,” said Higdon, R-Lebanon.

The bill requires the Kentucky Transportation Cabinet to create new regulations for billboards by Aug. 1. Higdon said the agency will have to determine how to handle the illegal signs, including whether they will be forced to be taken down.

He also said there could be more legal challenges ahead.

The dispute stems from a 2018 federal lawsuit against the Transportation Cabinet by the owner of the Lion’s Den Adult Superstore in LaRue County. State officials had ordered a sign near the store removed; the Lion’s Den group sued on First Amendment grounds.

At the time, Kentucky regulated billboards based on where their message occurred: Signs for on-site activities didn’t need permits, but they were required for off-premises advertising – such as the Lion’s Den sign on a tractor trailer on nearby land it leased from a former employee.

U.S. District Judge Justin Walker ruled that distinctions based on an advertisement’s location were “content-based restrictions on speech” and found the entire law governing billboards unconstitutional. An appeals court upheld Walker’s ruling this year, but it noted that it only applied to the Lion’s Den case.

Lawmakers deemed the bill that passed the Kentucky House and Senate an emergency, meaning it would become law when Beshear signs it.

“That’s great that no further billboards will be going up illegally, but what happens to the poor folks that have actually done all the permitting and everything they’re supposed to do, follow the regulations?” said Edie Wooton, executive director of Scenic Kentucky, a Louisville-based nonprofit group that advocated for the bill.

She said “rogue” entities that put up billboards without following state rules should not be grandfathered in.

Leigh Ann Thacker, a lobbyist who represented the Outdoor Advertising Association, acknowledged she had concerns about the bill as more changes were proposed, including whether lawmakers would choose to approve it.

“That would have been detrimental to the entire Commonwealth,” she said. “We would have had another year of these boards going up without any sort of regulation whatsoever.”

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