• Billboard Tax Collection Overreach

    A side story to the now overturned Cincinnati billboard tax was the tax’s draconian enforcement provisions:

    • The billboard tax was imposed on an “advertising host” which was defined to mean “any person who owns or controls an outdoor advertising sign, including the persons agent, affiliate, employee or other representative who acts on the person’s behalf or in the interests of the person.
    • Fiscal officers of any advertising host were personally liable for failure to make tax filings or pay the billboard tax.
    • All persons owning or controlling a billboard were required to register billboards subject to the tax.
    • Without the issuance of a warrant or the opportunity for pre-compliance review before a neutral decision maker, advertising hosts subject to the billboard tax (including their employees, agents and representatives) are mandated to afford the city treasurer or his designee “access to all records and evidence at all reasonable times”.

    Taken as a whole you could read this as granting Cincinnati representatives the right to a warrantless search of any records of any employee of Norton or Lamar or any agent of Norton or Lamar which is a net broad enough to ensnare those company’s lawyers or lobbyists.

    Judge Hartman would have none of this.  Here’s what he said on page 37 of the decision invalidating the Cincinnati Billboard Tax:

    “Another potential constitutional infirmity within Chapter 313 also arose during the course of the hearing on the Motions for Preliminary Injunction though it is not presently within the pleadings.  Cincinnati Municipal Code 313-15(e) mandates that the books and records of a billboard owner, i.e. an advertising host, or even a person suspected of being one, are subject to warrantless inspections and examination by officials with the City of Cincinnati…At a minimum such provisions appear constitutionally suspect…”

    Insider’s take:  Tax and enforcement mechanisms which are too draconian may be subject to constitutional challenges just like attempts to control speech.

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