Restrictions on alcohol ads on billboards hurriedly replaced by Virginia Assembly

By Anita Kumar
Washington Post Staff Writer
Wednesday, March 16, 2011; 7:01 PM

RICHMOND - Legislators who've been scrambling to write last-minute restrictions for alcohol ads on residential billboards say they are angry that the governor did not tell them sooner about a lawsuit that resulted in Virginia lifting a long-standing ban.

Lawmakers learned about the suit last week, although the Department of Alcoholic Beverage Control quietly entered into a consent decree Jan. 7 with billboard company Lamar with the approval of Gov. Robert F. McDonnell (R) and Attorney General Ken Cuccinelli II (R).

"For some reason, they didn't think it was important for them to tell us,'' said Del. David B. Albo (R-Fairfax), who sits on a House committee that oversees alcohol laws. "This is not the best way to do work."

Some legislators have complained to the governor's staff about what they perceive as a slight and have suggested that it was because McDonnell did not want to jeopardize his push to privatize the state's liquor stores after months of lobbying lawmakers.

"If we can't give the public confidence that we're not going to change the advertising for alcohol in Virginia, then it's going to have a negative impact on the ability to privatize ABC stores,'' said Del. G. Glenn Oder (R-Newport News), chairman of the House general laws subcommittee that oversees ABC laws.

McDonnell's proposal died during this year's legislative session, with Democrats and Republicans opposed. But the governor is expected to return next year with a revamped plan to end the state's 77-year-old monopoly on distilled spirits.

His director of policy, Eric Finkbeiner, said the governor's office routinely enters into agreements on a variety of issues that it does not inform legislators about.

"This had zero to do with ABC privatization,'' Finkbeiner said. "It was either come up with this compromise or have no restrictions, because the likelihood of us losing in court was significant."

60-year rule changed

Lamar sued Virginia in September, arguing that the state's advertising restrictions violated its freedom of speech. The settlement required the state to lift its 60-year ban on alcohol ads on billboards and also suspended many other limits until the ABC could write new regulations for court approval.

Now in the final few days of the annual General Assembly session, legislators are trying to pass a bill to return some control to the state by restricting alcohol ads on billboards in certain places.

The House of Delegates voted 97-0 Wednesday for an emergency bill that would allow liquor billboards in industrial and commercial areas but would ban them within 500 feet of schools, houses, places of worship or parks.

The Senate unanimously passed the bill Thursday.

Finkbeiner said the governor would review the bill before deciding whether to sign it. If McDonnell signs it, it would take effect immediately.

Unaware and concerned

Legislators who have been negotiating around the clock for a week with more than three dozen lobbyists - representing alcohol, advertising and other interests - said they wish that they had known about the lawsuit on Jan. 12, the start of the session.

"Many people feel we should have been made aware of the issue and its impact,'' said Del. S. Chris Jones (R-Suffolk), who is chairman of the ABC-regulating general laws committee. "This is not the way we do things in Virginia."

Lawmakers say they would have worked to write a bill to stop such advertising after holding committee meetings and public hearings instead of trying to ram them quickly in through an emergency bill. The session is scheduled to end Saturday.

"It brings up some concerns,'' Del. Charles W. Carrico Sr. (R-Grayson) said. "This is the only opportunity we have left."

Industry's take

Lamar and the Virginia Outdoor Advertising Agency Association signed off on the bill that passed the General Assembly this week.

"We don't have issues with restrictions,'' said John S. West, a lawyer at Troutman Sanders, which represents Lamar, the operator of hundreds of billboards in Virginia. "From Lamar's standpoint, it will still protect its constitutional right to advertise product."

The bill closely matches the consent decree negotiated with the McDonnell administration but no longer allows alcohol ads on billboards in residential areas.

"What the billboard industry wants to do is tastefully implement the law,'' said John G. "Chip" Dicks, a former Virginia legislator who represents the advertising association. "They're not looking to put alcohol ads in residential areas.''

The state generally had banned outdoor alcohol advertising except at stadiums, coliseums and racetracks as well as on store windows. Officials had restricted the size of signs and banned outdoor notices of happy hours.

Only New Hampshire and Oklahoma continue to ban alcohol ads on billboards along highways; Vermont has a ban on all advertising on billboards. Maryland allows outdoor alcohol advertising, with some restrictions.

But under the consent decree, liquor companies and retailers had faced some restrictions on alcohol ads until more-comprehensive regulations could be written. Ads that depict cartoon characters and show people who appear underage or who are drinking were banned. Signs posted within 500 feet of a school, playground or house of worship also were prohibited.

Staff writer Rosalind S. Helderman contributed to this report.

© 2011 The Washington Post Company