FROM: Sid Hemsley, Senior Law Consultant
DATE: November 12, 2002
RE: Contract–Advertising on Police Cars
You have the following questions:
1. Is the proposed contract between the City and Government Acquisitions (GA) legal? Under that contract GA arranges the sale of a new police car by a new car dealer to the city for $1.00. The vehicle sold to the city contains an advertising theme(s). At the end of 36 months GA has the option to purchase from the city for $1.00 the police vehicle. A careful reading of the contract appears to make it clear that during the 36 month period the city holds title to the police car. Indeed, under Para. 4 of the contract:
The sale and transfer of the Vehicle(s)will be effectuated with a standard Vehicle sale contract and transfer of certificate of title...and all rights of title to the vehicle shall vest in the State/County/City/Town, except the right to direct, control and alter the Sponsor theme, which said rights shall remain exclusively with GAVPD as the licensee of its licensors, advertisers and sponsors.
2. If the answer to question 1 is yes, are there any problems in the contract of which the city need should be aware?
In my opinion, the answer to question 1 is no, in which case it is not necessary to address the second question, unless the city still wishes to proceed with the contract.
It has been held that the rental of city property used for governmental purpose to private persons is not legal unless a statute or charter provision supports such rental. In West Tennessee ACLU v. City of Memphis, 323 F.Supp. 234 (W.D. Tenn. 1971), the rental of space in the city hall to private persons by the City of Memphis was held illegal. The Court put no stock in the fact that the space in the city hall was provided to the private persons without charge; it was the use of the property by private persons without statutory or charter authority that bothered the Court. The property involved was the city’s real property, but the distinction between real and personal property is probably not significant. I find no statute or charter provision that authorizes the City to rent space on or in the property it uses for governmental purposes, for private purposes. Section 7(8), of its charter authorizes it to “Acquire, receive and hold, maintain, improve, sell, lease, mortgage, pledge or otherwise dispose of property, real or personal...” However, under West Tennessee ACLU, that provision is not good enough to support the lease of governmental property for advertising purposes.
As far as I can determine, there are only two cases in the United States on the question of whether a local government could rent advertising space on its property. In Hood v. City of Pine Bluff, 385 S.W.2d 1 (1958), the Supreme Court of our sister state of Arkansas upheld a franchisee granted by the City of Pine Bluff to Jones, under which the latter was entitled to construct rest benches on the city streets, and to sell advertising space on the benches. A statute governed the sale, lease, etc. of city property. However, the Court reasoned that “There is no sale, lease, or other disposition of any recreational area or park property.” [At 827] In the City’s case, the police car becomes city property; for that reason, GA is using the city’s property for advertising purposes, whether or not there is technically a lease or rental contract.
The other case is Winkenwerder v. City of Yakima, 328 P.2d 873 (1958). There the Washington Supreme Court held that the city was entitled to lease space on parking meters for advertising purposes. The question in such cases, said the Court, is whether the authorization by the city of the private use of public property is unreasonable. It was not unreasonable for the city to allow the use of parking meters for private use because there was no interference with the public use of that property.
The Court was aware that the right of a city to permit the use of its property for advertising space could be abused. It pointed to the statement of a county court in another state that:
If the city’s position is tenable, it could then divert to private and commercial use all forms of apparatus maintained by the city on sidewalks of private property. Thus, the city’s fire plugs, fire alarm boxes, police call boxes, and traffic light stands could be utilized by the city for commercial advertising, if the principle for which defendants are here contending is valid. [At 625]
To this argument the Court responded, “A parade of horrible possibilities is not necessarily a sound reason for invalidating an ordinance or a legislative enactment. There is time enough to deal with the possibilities if they become realities. The question we are facing here is the power of the city to use its property (parking meters) for advertising purposes.” [At 625]
It seems to me that the Court’s concession that advertising on fire plugs, fire alarm boxes, police call boxes, etc., was a parade of “horrible possibilities” indicates that it would have found advertising on police cars and fire engines even more horrible. Here the issue was only parking meters.
If the standard is the reasonableness of the type of space upon which advertising space is allowed to be used on public property, it seems to me that advertising space on a city’s emergency vehicles is beyond reasonable. Advertisements are commonly found on various kinds of city property, including buses, water towers, parks and ballfields, but the distinction between that kind of city property on one hand, and a city’s emergency vehicles on the other, is obvious.