City of Webster v. Signad, Inc.

DOYLE, Justice,

dissenting.

I find the trial court erred in granting summary judgment and must therefore respectfully dissent.

The trial court stated two bases for granting appellee’s motion for summary judgment. It first found the city ordinance unconstitutionally vague. The majority bases its opinion on its agreement with this finding.

It is well established that laws enacted by legislative bodies are presumed to be valid and that the burden of proof is on the party challenging their constitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974); Smith v. Graddick, 471 S.W.2d 375 (Tex.1971). An allowance for some latitude in interpretation does not render a statute unconstitutionally vague. See Powers v. State, 543 S.W.2d 194 (Tex.Civ.App.-Waco 1976), aff'd, 556 S.W.2d 567 (Tex.1977) (civil commitment measured by the patient’s welfare and protection or the protection of others); D_ F_ v. State, 525 S.W.2d 933 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.) (termination of parental rights determined by the best interest of the child); Houston Compressed Steel Corp. v. State, 456 S.W.2d 768 (Tex.Civ.App.-Houston [1st Dist.] 1970, no writ) (air pollution defined as presence in the atmosphere of contaminants in such concentration and of such duration as may tend to be injurious or adversely affect human health or welfare). Given the “untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government,” statutes regulating business activities satisfy due process requirements if their meaning is defined with a reasonable degree of certainty. Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex.1980).

The majority finds the phrase “substantial parts” is impermissibly vague. I am of the opposite opinion. Both words are in *649common usage and are well understood. The word “substantial” is recognized and applied as a standard of measurement in our jurisprudence. See, e.g., Lewis v. Metropolitan Savings & Loan Ass’n, 550 S.W.2d 11 (Tex.1977) (substantial evidence); Warren v. Denison, 563 S.W.2d 299 (Tex.Civ.App.-Amarillo 1978, no writ) (substantial performance). Although the ordinance might have been clarified by further definition of the phrase “substantial parts,” this fact does not render the ordinance unconstitutionally vague. See Harper v. Lindsay, 616 F.2d 849 (5th Cir.1980).

Unlike the majority, I find Sign Supplies of Texas, Inc. v. McConn, 517 F.Supp. 778 (S.D.Tex.1980) persuasive authority for the proper disposition of this ease. Sign Supplies dealt with challenges to a Houston sign ordinance. Among other complaints, the plaintiffs contended the terms “primary,” “primarily,” “not usually,” and “not easily moved,” which were used in defining portable signs, were unconstitutionally vague. The court found that, in the context of the ordinance as a whole, these terms were not so vague as to fail to give notice of the ordinance’s legal requirements to a person of ordinary intelligence.

I reach the same conclusion in the instant case. I find that the phrase “substantial parts” does not vest the city engineer with unbridled discretion, but rather sets out a reasonable guideline for regulating the repair of billboard signs. I conclude that the district court erred in holding the applicable ordinance unconstitutional and in granting summary judgment on this basis.

The court’s second basis for granting summary judgment was that the ordinance which forbids the reconstruction of signs that suffered substantial destruction did not apply to the facts of the instant case.

The ordinance provides that a sign shall not be reerected, reconstructed, or rebuilt if substantial parts have been blown down or destroyed. I must disagree with the trial court’s view that the prohibition against reerection, reconstruction, and rebuilding does not forbid “repairs.” The breadth of the language used in the ordinance manifests an intent to forbid the refurbishment of signs which have suffered substantial damage. The name given that corrective activity is irrelevant. The court’s finding that the ordinance does not apply to the instant case is thus correct only if the summary judgment evidence established that the damage to the signs was insubstantial as a matter of law. In examining this issue, we must accept the appellant’s evidence as true and resolve all doubts regarding the existence of genuine fact issues in favor of the losing party. E.g., Le Blanc v. Maryland American General Insurance Co., 601 S.W.2d 750 (Tex.Civ.App.-Beaumont 1980, writ ref’d n.r.e.). The affidavit of the city engineer made the following assessment of the damage to appellee’s signs:

(a) 1503 FM 528 West of 1-45 (Bay Area Jewelers): Seventy-five (75%) percent ⅞ of the panels were blown down; two support poles snapped; one pole is leaning; all electrical is gone.
(b) 1014 West Nasa Road 1 at IH-45 (General Homes): Four poles are leaning; stringers damaged, fifty (50%) percent of the panels are blown down; all electrical needs replacement.
(c) West Nasa Road 1 East of IH-45 (InterFirst Bank): Of seven support poles, at least three poles are leaning; forty (40%) percent of the panels are blown down; some stringers are blown down; all electrical needs replacement.
(d) 20118 Gulf Freeway at Nasa Road 1 (U.S. Homes): A few poles are leaning; all panels are blown down; all electrical needs replacement.
(e) 20001 Gulf Freeway South of Bay Area Blvd. (InterFirst Bank): A few poles are leaning; sixty (60%) percent of the panels and some stringers are blown down.
(f) 20234 Gulf Freeway at Nasa Road 1 (General Homes): Fifty (50%) percent of the panels, the electrical and part of the walkway are blown down.
*650All of the parts blown down were substantial. Where poles are leaning, the ground support around the poles is such that removal and replacement of the poles is required in order to withstand wind loads upon the signs.

I find this evidence is sufficient to raise fact questions regarding whether substantial parts of appellee’s signs were destroyed. I therefore conclude that the court erred in granting summary judgment on the basis that the ordinance does not apply to the facts of this case.

Neither of the grounds relied upon by the trial court supports its grant of appel-lee’s motion for summary judgment. I would sustain appellant’s first point of error and remand the case to the trial court for determination of what I find to be the unresolved fact questions of whether appel-lee’s signs suffered substantial damage.