Lion's Den sign

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

LOUISVILLE, Ky. (WDRB) – A federal appeals court has upheld a judge’s ruling that declared Kentucky’s billboard law unconstitutional, prompting some businesses across the state to erect unregulated signs.

In a decision issued Tuesday, the Sixth Circuit Court of Appeals affirmed last April’s ruling by U.S. District Judge Justin Walker in a case involving an adult store’s sign off Interstate 65 in LaRue County. The owner of the Lion’s Den Adult Superstore sued the Kentucky Transportation Cabinet on First Amendment grounds in 2018 after state officials ordered the sign removed.

Among other things, Kentucky’s rules regulated billboards based on where their message occurred. Signs that advertised on-site activities didn’t need permits, but permits 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.

Walker found that the state law distinctions based on an advertisement’s location amounted to “content-based restrictions on speech” and ruled the entire law governing billboards unconstitutional.

The Transportation Cabinet stopped issuing permits for new billboards after the ruling, although it continued to accept applications for the signs while the case was on appeal. But billboard industry officials and lawmakers say billboards were added near interstates and highways without getting permits that would previously have been required.

State lawmakers are considering a bill whose supporters say would bring Kentucky’s law into compliance by eliminating the on-site/off-site language. House Bill 328, sponsored by Rep. D.J. Johnson (R-Owensboro) cleared a House committee last week and awaits a vote in the full chamber.

Rep. Tom Smith (R-Corbin) told the House Transportation Committee last week that “legitimate businesses” in his area put up unpermitted billboards after the ruling. He wants lawmakers to grandfather in those signs.

“They went up pretty fast in the last six to eight months,” he said.

The bill also is backed by the Kentucky Resources Council, whose director, Tom FitzGerald, filed a friend-of-the-court brief with the appeals court. FitzGerald said Tuesday that his reading of the appeals court ruling emphasized that Walker’s decision only applied to enforcing the rules against Lion’s Den.

“That being the case, then the billboard act has remained in force and effect with respect to everybody else,” FitzGerald said.

“What that means, among other things, is that these boards that have gone up without getting permits which are not compliant with the spacing requirements and the other requirements of the law should be coming down,” he said.

The Transportation Cabinet has not commented on the ruling.

This story may be updated.

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