Billboards are among the most heavily regulated land uses, by municipal, state, and federal officials, under statutory and administrative sign, building, and zoning codes. However, the threshold question in every billboard regulation is whether a given structure even legally qualifies as a “sign,” thereby subjecting it to governmental permitting and other restrictions in the first place.
Billboard Insider reported in its July 9, 2018 edition, in “Rothfelder on Art vs Sign,” on the case of Billy Blues Restaurant and its “Smoke Sax.” In that case, the Houston Sign Administration’s efforts to regulate, and eventually prohibit, the 40 foot tall sculpture of a saxophone created by renowned Austin artist Bob “Daddy-O” Wade and erected in the parking lot of the popular bar-b-que restaurant was rejected, along with its contention the Smoke Sax was a regulated sign.
A similar case is weaving its way through the federal court system in Kansas. On November 19, 2025, the United States District Court for the District of Kansas issued its opinion in Cozy Inn vs City of Salina, holding that a mural for the storied hamburger restaurant in Salina, Kansas did not rise to the level of a regulated sign. In particular, Stephan Howard, the owner of the Cozy Inn, hired a local artist to paint a display on the wall of his building housing the restaurant to “include whimsical hamburger-esque flying saucers piloted by aliens attacking The Cozy with blasts of ketchup and mustard.” The City determined the display was a “sign” under its Sign Code, which generally includes any representation calculated to attract the attention of the public to businesses, goods, or services. And, as a regulated sign, the Cozy Inn display exceeded the size limitation, and it was prohibited accordingly. By contrast, murals or art are expressly not regulated by the Salina Sign Code. So, the dispute boiled down once again to whether the display was a regulated sign or unregulated art.
The Federal Trial Court ruled in favor of the Cozy Inn, holding first of all that Salina violated the First Amendment Free Speech Clause by impermissibly distinguishing between murals and signs based on whether the content displayed goods, services, or businesses. The Court utilized the less onerous “intermediate scrutiny test” of constitutionality, as opposed to the more challenging strict scrutiny test used in the Supreme Court’s 2022 decision in Reagan vs Austin, in recognizing that Salina’s restriction was not “narrowly tailored to achieve significant government interests, [nor] leave open ample alternative channels of communication.” Second, the Court held that Salina’s initial delay in processing and eventual prohibition of the Cozy Inn display was a prior restraint also violating the First Amendment, which forbids “expression while awaiting governmental approval.” As the Court explained, “allowing such indefinite holds-especially when the city’s ordinance requires a timely decision-would mean that nothing in the ordinance’s application would prevent city officials ‘from encouraging some views and discouraging others.'”
Salina has filed an appeal to the Tenth Circuit Court of Appeals, where a decision will likely be rendered over the next year. In the meantime, the mural depicting the aliens attaching the Cozy Inn with blasts of ketchup and mustard remains in place. And, as I’ve heard, the Cozy Inn is surviving quite nicely, and businesses if better than ever.
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