author: Callahan, J.

text:
    Michael Tarnopol et al. v. Connecticut Siting Council et al.
    (13656)
    Shea, Callahan, Glass, Covello and Hull, Js.

      Argued May 11
    released July 18, 1989

      Alan R. Spirer, with whom, on the brief, was Jan A. Marcus, for the appellants (plaintiffs).

      Phyllis E. Lemell, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (named defendant).

      James A. Wade, with whom, on the brief, was Raymond T. DeMeo, for the appellee (defendant Metro Mobile CTS of Fairfield Gounty, Inc.).
   Callahan, J.

The issue in this case is whether the trial court erred in granting the motions of the defendants, Metro Mobile CTS of Fairfield County, Inc. (Metro Mobile), and the Connecticut siting council (council), to dismiss the plaintiffs’ administrative appeal for lack of jurisdiction. Because the plaintiffs failed to comply with the service requirements of General Statutes § 4-183 (b) of the Uniform Administrative Procedure Act (UAPA), we conclude that the trial court lacked jurisdiction over the plaintiffs’ appeal and, therefore, did not err in granting the defendants’ motions to dismiss.

On October 20, 1987, Metro Mobile, a Connecticut corporation, applied to the council pursuant to the Connecticut Public Utility Environmental Standards Act for a certificate of environmental compatibility and public need (certificate) that would allow it to construct, operate and maintain cellular telephone antenna towers and related equipment at designated sites in Greenwich, Fairfield and Wilton. In December, 1987, the council gave notice of its intention to hold public hearings on Metro Mobile’s application; General Statutes § 16-50m (c); and received written comments from the Connecticut department of environmental protection on Metro Mobile’s application as required by General Statutes § 16-50j (g). Hearings were held on Metro Mobile’s application on December 14, 1987, and December 21, 1987. On February 19,1988, the council sent notice to all parties of record informing them that it had granted Metro Mobile a certificate for two sites, one in Greenwich and the other in Fairfield. See General Statutes § 16-50p. The Greenwich site is the subject of the present appeal.

On February 26, 1988, the plaintiffs, Michael and Lynne Tarnopol, filed a petition for judicial review in the Superior Court claiming that they were “aggrieved by the decision of the defendant council in that the value of their property [which abuts the site approved by the council, would] be diminished, and in that the proposed tower [would] have a visual impact on their property and [would] impair the use and enjoyment of their property.” The plaintiffs’ petition was accompanied by an order of notice, signed by an assistant clerk of the court, purportedly approving service of process by certified mail on the council and the thirty-one parties who participated in the administrative hearing. The parties who were listed in the order were individuals, private and municipal corporations and voluntary associations, all of which resided in or had agents located in Connecticut.

On April 7,1988, the council and Metro Mobile filed separate motions to dismiss claiming that the Superior Court lacked jurisdiction to hear the plaintiffs’ appeal because they had not complied with the service requirements of § 4-183 (b). On June 1, 1988, the trial court granted both motions. The plaintiffs appealed to the Appellate Court from the judgment of the trial court. We subsequently transferred the appeal to ourselves, pursuant to Practice Book § 4023.

The plaintiffs claim on appeal that the trial court erred in granting the defendants’ motions to dismiss because service of process by certified mail on the council and each of the parties listed in the order of notice was proper under the UAPA. We disagree.

Judicial review of orders issued by the council either granting or denying applications for certificates is governed by General Statutes § 16-50q, which provides that appeals must be filed “in accordance with the provisions of section 4-183.” General Statutes § 4-183, which is part of the UAPA, establishes the method for commencing appeals from administrative agencies. Subsection (b) of § 4-183 governs the service of process in such appeals and states in relevant part that “[c]opies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of [the] notice [of the final decision of the agency].” (Emphasis added.) “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.” General Statutes § 52-57 (a). The person to whom in hand or abode service must be made when an entity such as a municipality, corporation or voluntary association is named as a defendant in a civil, action is set forth in § 52-57 (b) through (e). The only exception to in hand or abode service on defendants that reside in or have agents located in Connecticut, is specifically set out in § 4-183 (b) and allows parties appealing from an administrative decision to make service on the defendant agency by “mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

As previously noted, the UAPA requires that the agency and “all parties of record” be served. General Statutes § 4-183 (b). A “party” is defined under the UAPA as “each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.” General Statutes § 4-166 (5). In the present case, therefore, all of the parties who were named or admitted as parties in the administrative proceeding were “parties of record” whom the plaintiffs were obliged to serve in bringing their appeal. See Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 533 A.2d 852 (1987). The plaintiffs’ failure to serve those parties properly renders their appeal subject to dismissal for lack of jurisdiction. Id., 332.

The plaintiffs’ application for an order of notice in the present case indicates that all of the parties of record were individuals who resided in Connecticut or were municipalities, corporations or voluntary organizations having in-state agents. With the exception of the council, which is an agency qualifying for service by certified mail, therefore, it was incumbent upon the plaintiffs under §§ 4-183 (b), 52-54 and 52-57 to make in hand or abode service on each of the remaining parties. The plaintiffs did not do so. Rather, they served each party, or the party’s attorney, by certified mail. This was improper as “[t]here is no substitute for ‘in hand’ or abode service . . . where jurisdiction over the person of a resident individual is sought” unless a statute provides otherwise. White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16-17, 437 A.2d 833 (1980). Because the “appeal provisions of the statute are jurisdictional in nature”; Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); the plaintiffs’ failure to comply with §§ 4-183 (b), 52-54 and 52-57 renders their appeal subject to dismissal for want of jurisdiction. Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988) (Shea, J., concurring); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986) (“We note at the outset that appeals from administrative agencies exist only under statutory authority. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). ‘A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.’ Id.”); Basilicato v. Department of Public Utility Control, supra.

The plaintiffs argue, however, that service of process by certified mail was authorized in this case because they had obtained an order of notice from an assistant clerk. According to the plaintiffs, that order of notice validated what was otherwise a statutorily defective manner of service thereby conferring jurisdiction on the court to hear their appeal. We disagree. Pursuant to General Statutes § 52-68 (a), an order of notice may be utilized as an alternative means of service only “when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the party instituting the proceeding.” In the present case, it is evident from the record that all of the adverse and interested parties resided in, or had agents located in, Connecticut. Furthermore, the names and addresses of the parties were known or easily available to the plaintiffs. Under the circumstances, therefore, the plaintiffs’ use of an order of notice was improper.

The plaintiffs contend, however, that the trial court sanctioned service of process by certified mail when it signed their application for an order of notice. This being so, the plaintiffs argue that the court cannot thereafter claim that it lacks jurisdiction to hear their appeal. In rejecting this argument, we note that it was an assistant clerk and not the trial court that signed the order of notice. That practice is authorized under Practice Book § 199. The assistant clerk cannot, however, be held responsible for ensuring that the plaintiffs employ the proper method of service of process. While the trial court can show some degree of leniency toward a party when there is evidence that it was misguided by court personnel, “the court cannot disregard established and mandatory requirements which circumscribe jurisdiction in the first instance.” Basilicato v. Department of Public Utility Control, supra, 324.

Finally, the plaintiffs claim that “[t]he absence of an affirmative showing of prejudice by the defendants . . . means that [their] arguments [in support of the trial court’s dismissal of the appeal] are mere rubric which should have been rejected out of hand by the trial court in the interests of common sense and justice.” In support of this argument the plaintiffs rely on Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra. In that case we held that the trial court did not err in exercising jurisdiction over the plaintiffs appeal from the decision of the commission on human rights and opportunities where the plaintiff had commenced its appeal with the proper method of service but had used the wrong writ of summons form. Id., 355-57. In so holding, we stated that whenever there is a question involving the jurisdiction of the trial court in an administrative appeal, it is imperative that the plaintiff strictly comply with the procedural statutes. Id., 356. Failure to do so renders the plaintiff’s appeal subject to dismissal. Since the plaintiff’s use of an incorrect writ of summons form in Chestnut Realty, Inc., did “not call into question the jurisdiction of the Superior Court to entertain the appeal,” however, we concluded that it did not warrant dismissal as the defendants did not make “an affirmative showing of prejudice.” Id., 357. In contrast to Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, the plaintiffs’ failure in the instant case to make proper service on all of the parties of record did call into question the jurisdiction of the trial court. Consequently, the plaintiffs’ failure to comply with the requirements of § 4-183 (b) renders their appeal subject to dismissal regardless of whether the defendants were prejudiced. See Andrew Ansaldi Co. v. Planning & Zoning Commission, supra, 74-75 (Shea, J., concurring).

We conclude that because the plaintiffs failed to comply with § 4-183 (b), the trial court did not err in granting the defendants’ motions to dismiss their appeal for lack of jurisdiction.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 4-183 (b) provides: “APPEAL TO SUPERIOR COURT. . . .
      “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       The council is an agency of the state of Connecticut with exclusive jurisdiction over the location and type of certain statutorily defined utility and telecommunications facilities. See General Statutes §§ 16-50x and 16-BOi (a).

       General Statutes (Rev. to 1987) § 16-B0g et seq.

       The plaintiffs intervened in the administrative proceedings before the defendant council by filing a verified notice of intervention pursuant to the provisions of General Statutes § 22a-19.

       In a motion dated August 23, 1988, the plaintiffs moved for an articulation of the trial court’s decision. The motion, however, did not come to the trial court’s attention until some time later. On May 2, 1989, the trial court granted the plaintiffs’ motion and issued an articulation.

       The exceptions noted in the statute would not permit service by certified mail in this case.

       The plaintiffs urge us to look to Public Acts 1988, No. 88-317, as “a clarification of the legislative intent” of General Statutes § 4-183 (b). Public Acts 1988, No. 88-317, § 23, however, completely rewrites § 4-183 (b). For example, under the new act service may be made on parties by notifying them, by either certified mail or personal service, “at the address shown in the decision” of the agency. Public Acts 1988, No. 88-317, § 23 (c). Such a drastic change in the method of service of process cannot be viewed as a mere clarification of legislative intent. Because Public Acts 1988, No. 88-317, does not become effective until July 1, 1989, it has no bearing on the present appeal.

       Of the thirty-one parties named in the order, the plaintiffs requested that sixteen of them, including Metro Mobile, be served in the care of their attorneys. General Statutes § 4-183 (b) requires that a party instituting an administrative appeal serve copies of the petition on all parties of record. An attorney does not qualify as a party under the UAPA. See General Statutes § 4-166 (5).
      When the person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate. Hyde v. Richard, 145 Conn. 24, 25-26, 138 A.2d 527 (1958). This defect cannot be cured by an amended service. Id. The plaintiffs in the present case were required to serve the individual defendants personally or at their place of abode; General Statutes § 52-57 (a); the clerk, chief presiding officer or managing agent of the defendant municipalities; General Statutes § 52-57 (b) (5); and one of several statutorily designated officers or agents of the defendant corporations and voluntary organizations. General Statutes § 52-57 (c) and (e).

       “[General Statutes] See. 52-68. notice to nonresident adverse or INTERESTED PARTIES AND INTERESTED PARTIES UNKNOWN TO PLAINTIFF, (a) The superior court, and the judges, clerks and assistant clerks thereof, may, except where it is otherwise specially provided by law, make such order as is deemed reasonable, in regard to the notice which shall be given of the institution or pendency of all complaints, writs of error and appeals from probate, which may be brought to or pending in the superior court, when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the party instituting the proceeding.
      “(b) Such notice, having been given and proved by the affidavit of the officer who served the notice or by other competent evidence, shall be deemed sufficient service and notice, and the court may proceed to a hearing, unless otherwise provided by law, or may order further notice as it deems reasonable.”

       “[Practice Book] Sec. 199. applications for orders of notice
      “Applications for orders of notice, whether made to a court, a judge, a clerk, or an assistant clerk, shall be made in writing, shall state the residence of the party whom the notice is sought to reach or that all reasonable efforts have been made to ascertain the residence and have failed, and shall further state what notice is considered most likely to come to the attention of such person, with the reasons therefor, unless they are evident; and such applications shall become a part of the file of the case.”

       In light of our refusal to exempt pro se litigants from satisfying the statutory requirements for administrative appeals; Basilicato v. Department of Public Utility Control, 197 Conn. 320, 497 A.2d 48 (1985); the plaintiffs cannot credibly argue that they, who were represented by counsel, should be excused from following proper procedure.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Tyler Equipment Corporation v. Town of Wallingford
    (13568)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 4
    decision released July 18, 1989

      John W. Barnett, for the appellant (plaintiff).

      Janis M. Small, assistant town attorney, with whom was Adam Mantzaris, town attorney, for the appellee (defendant).

      Marvin B. Morganbesser filed a brief for the Connecticut Construction Industries Association, Inc., as ami-cus curiae.
   Shea, J.

In this case the board of tax review of the town of Wallingford denied the claim of the plaintiff, Tyler Equipment Corporation (Tyler), that certain property included in its assessment list was exempt from the property tax. The plaintiff appealed to the Superior Court, which rendered judgment for the defendant town. The plaintiff has appealed from that judgment and maintains that the undisputed facts establish that the property involved qualifies for the exemption provided by General Statutes § 12-81 (54) for inventories of wholesale and retail businesses. We find error in part.

There is no significant dispute about the facts. Tyler has its principal place of business in East Longmeadow, Massachusetts, but also conducts business on premises in the town of Wallingford in this state. It is engaged in selling heavy construction equipment, such as front-end loaders, off-highway trucks, cranes, excavation equipment, rollers, backhoes, and trailers for carrying such equipment. The equipment is used in constructing roads, excavating building sites and operating quarries.

Some of the equipment at the Wallingford location is held only for long-term leasing and Tyler concedes the taxability of such property. Tyler claims that the remaining equipment qualifies as “goods” of a “wholesale and retail business,” which are exempt from the property tax under § 12-81 (54), because such equipment is available for sale like any other business inventory. It admits, however, that a substantial portion of this remaining equipment is used in its leasing program, under which a customer may rent the equipment for a period of time with an option to purchase it, the rental payments being credited toward the purchase price. Tyler contends that the equipment involved in this leasing program is held for the purpose of sale because its basic business is the sale of the equipment and the leasing program is merely a marketing device that facilitates an ultimate sale.

The Wallingford assessors took a different view of the status of the items classified as rental equipment in Tyler’s financial statements and added $1,691,160 to its grand list for October 1, 1987. The town maintains that, once Tyler leases a construction machine, that machine loses its status as “goods” or business inventory because it is no longer available for sale to customers other than the lessee, whose right to possession cannot be terminated until the expiration of the lease.

The $1,691,160 value of “rental equipment” inventory located in Connecticut, as shown on Tyler’s financial statements, consisted of two items, $1,510,212 for rental equipment “on location,” i.e., in the possession of the lessee, and $180,948 for rental equipment “in stock,” i.e., equipment that had been rented but had been returned to Tyler’s possession and, therefore, was available for sale or another lease.

I

Tyler first contends that, because the trial court found that its principal activity was the sale of heavy construction equipment and that the rental of such equipment was only “a last-resort tool to make a sale,” it was entitled to the exemption provided by § 12-81 (54) for all its tangible personal property, whether or not it was being leased or previously had been leased with an option to purchase. The statute, however, provides an exemption for “[t]he monthly average quantity of goods of any wholesale and retail business” (emphasis added) and not for all the tangible personal property of such a business. Even though, as the court found, Tyler qualifies as a “wholesale and retail” business because its principal activity is selling tangible personal property, not all of its tangible personal property can be classified as “goods.” Indeed, Tyler has conceded the taxability of the rental equipment that it holds for the purpose of long-term leasing and presumably does not contest the taxability of other personal property used in its business, such as office equipment and vehicles.

II

Tyler also maintains that the term “goods” as used in § 12-81 (54) is broad enough to include its lease program equipment because the purpose of the lease is the ultimate sale of the equipment to the lessee. Since the term is not defined by any statute relating to the personal property tax, Tyler relies upon the Uniform Commercial Code (UCC) definition set forth in General Statutes § 42a-2-105 (1): “ 'Goods’ means all things, including specially manufactured goods, which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities covered by article 8 and things inaction. . . .” We agree that this definition is broad enough to include Tyler’s lease program equipment as well as the remainder of its tangible personal property, for which no exemption is claimed. The purposes for which the UCC definition was designed, however, are not necessarily congruent with the purposes of the legislature in creating the exemption for “goods” of wholesale and retail businesses in § 12-81 (54).

There is abundant evidence in the legislative history of the adoption in 1969 of Public Act No. 657 that the purpose of the enactment was to eliminate over a period of several years the personal property tax on the inventories of wholesale and retail merchants in Connecticut so that they would not be disadvantaged by conducting business in this state rather than in bordering states that did not tax such inventories. Representative Darius J. Spain spoke of “eliminating from local taxation the inventory of retail merchants.” 13 H.R. Proc., Pt. 11, 1969 Sess., p. 4960. Representative Joseph T. Gormley stated that “[b]ig corporations will not establish warehouses in our state because of this inventory tax.” Id., p. 4961. Senator William J. Ver-riker described the bill as decreasing the “property tax assessment on inventory [of] mercantile establishments.” 13 S. Proc., Pt. 7, 1969 Sess., p. 3429. The title of the bill was “An Act Concerning Elimination of Taxes on Inventories of Mercantile Establishments.” Id., p. 3428. Section 12-81 (54), which, in the current revised statutes, embodies the exemption created in 1969, is entitled “Wholesale and retail business inventory.” From this history we are convinced that the operative words, “goods of any wholesale and retail business,” refer, not to all the tangible personal property of such an enterprise, but only to those goods properly classified as inventory.

The legislative history also sheds some light on what the legislators meant by use of the term “inventory.” At the hearing before the finance committee, some of the considerations mentioned by those favoring elimination of the tax on inventories of wholesale and retail businesses were that Connecticut merchants were being discouraged from quantity buying at lower prices “for fear of retaining large taxable inventories, resulting in loss of profits and loss of service to the consumer because of higher cost, fewer products, more back orders, less variety, and delays in obtaining desired items,” that variations in the rate of turnover among different businesses made the tax unfair because slow moving items are sometimes taxed more than once, and that the elimination of the tax on manufacturer inventories in 1965 left inventories stored in warehouses of manufacturers untaxable while those in warehouses of wholesalers were subject to the tax. Conn. Joint Standing Committee Hearings, Finance, 1969 Sess., pp. 330-36. The concerns expressed at the hearing relate primarily to the taxability of merchandise held by a wholesaler or retailer for sale or lease to a customer. It is reasonable to infer that in creating the exemption for “goods” of wholesale and retail businesses the legislators were responding to the proposals of wholesalers and retailers for elimination of the “inventory tax,” as it was usually referred to, on merchandise kept on their premises for sale.

In considering the applicability of an exemption from the personal property tax on “inventories” of a distributor of construction equipment in the possession of prospective purchasers under lease-purchase agreements similar to those used by Tyler, the Supreme Court of Minnesota has concluded that such equipment cannot be classified as inventory within the intent of the exemption, because it is not available for sale to any customer but the lessee, whose consent is necessary for termination of the lease. Olson Equipment Co. v. Minneapolis, 285 Minn. 146, 171 N.W.2d 717 (1969). “[The owner’s] power to sell the leased equipment to others is limited ... by the fact that the lessee is entitled to retain the equipment as long as he pays the rent or otherwise meets the terms of the lease. To include equipment which is not salable to the general public in the category of exemptible inventory would, we think, obfuscate the most reasonable meaning of the term.” Id., 148. In a later case the court concluded that even if the UCC definition of “inventory” (General Statutes § 42a-9-109) that “[g]oods are ... (4) ‘inventory’ if they are held by a person who holds them for sale or lease ...” were applicable, “the goods are not held for sale or lease when the right to possession is lost.” (Emphasis in original.) Hennepin v. Honeywell, Inc., 297 Minn. 112, 116, 210 N.W.2d 38 (1973).

In addition to the lexicological analysis of the Minnesota Supreme Court, two other reasons persuade us to reject Tyler’s claim that § 12-81 (54) exempts its rental program equipment from taxation. First, “[i]t is a settled rule of law that statutes which exempt from taxation are to be strictly construed against the party claiming an exemption.” Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 147, 256 A.2d 234 (1969). “The burden of proving that [property] is exempt from taxation rests on the taxpayer.” Faith Center, Inc. v. Hartford, 192 Conn. 434, 437, 472 A.2d 16 (1984). Second, to allow an exemption for equipment under lease, even to a prospective purchaser, creates a disparity in the amount of tax revenue generated by equipment in actual use in the town where it is located, depending upon whether it is sold or leased.

If Tyler’s exemption claim were upheld, no taxes on a machine leased to a prospective purchaser would be payable to Wallingford while the lease remained in effect. Neither would the lessee pay taxes on the machine in the town where it was located, because the property tax is imposed on owners rather than lessees of property. See General Statutes §§ 12-42,12-43. Thus, neither the user nor the owner of the machine would pay any taxes on it during the portion of its life that expired while it remained under lease. Even if the option to purchase were exercised after a lease period of several years, the reduction in the assessable value of the machine at that time, corresponding generally to the reduced sale price resulting from the rental payment credit allowed by the agreement, would also decrease the taxes the purchaser would be obliged to pay.

To allow a tax exemption simply because the prospective purchaser has entered into a lease-purchase agreement, rather than an ordinary sale or lease under which either the purchaser or the lessor-owner would be required to pay taxes on the machine, would create an incentive for the lease-purchase form of transaction based upon the opportunity to avoid taxes during a substantial period of the useful life of the machine. The towns, which bear the cost of fire and police protection for all tangible personal property, ought not to be deprived of the taxes such property would ordinarily generate while it is being used to produce revenue for its owner simply because the lease agreement also sets forth the terms of a possible sale in the future. In contrast to the merchant whose goods produce no revenue while they remain on the shelf or in a warehouse, Tyler derives substantial income in the form of rent from its ownership of equipment that is subject to a lease-purchase agreement. It concedes the taxability of the equipment it owns that is intended for long-term leasing. There is no reason to suppose that the legislature intended to differentiate between these two classes of equipment under lease simply because in one the lessee is also given an option to purchase. Accordingly, we conclude that Tyler is not entitled to the exemption provided by § 12-81 (54) for the equipment in its lease-purchase program.

Ill

Of the rental equipment shown on Tyler’s financial statements and located in Wallingford for tax purposes, $180,948 represented the value of equipment that had been rented but returned to Tyler. This equipment was being held “in stock” for future sale or lease in contrast to the $1,510,212 valuation of equipment “on location” that was in the possession of lessees. Tyler claims that the § 12-81 (54) exemption applies to its equipment “in stock” because, even though it once may have been under lease, those leases had terminated and the equipment was not in use but fully available for sale.

The town claims that, since Tyler’s accounting practice was to classify a machine permanently as rental equipment once it had been leased, such a machine could not reacquire an exempt status after it had been returned by the lessee, regardless of the duration of the lease. This argument appears to make the availability of the exemption depend upon Tyler’s accounting practice rather than upon whether such used equipment should properly be classified as inventory. Section 12-81 (54) makes no distinction between new and used goods and certainly was never intended to allow the taxpayer’s accounting practices to determine the availability of the exemption. Unlike property under lease that is producing revenue for its owner, machines that are “in stock” and available for sale or lease have all the characteristics of merchandise in a warehouse that unquestionably would qualify for the exemption. We agree with Tyler that the town’s assessment of its rental equipment in stock was in violation of § 12-81 (54).

There is error only with respect to the assessment of the plaintiff’s rental equipment in stock, which qualifies for exemption under § 12-81 (54), the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified to sustain the plaintiff’s appeal only with respect to the assessment of its rental equipment in stock.

In this opinion the other justices concurred.

       General Statutes § 12-81 (54) provides an exemption from taxation for “[t]he monthly average quantity of goods of any wholesale and retail business to the extent of one-twelfth of their valuation for purposes of assessment in the year 1971, two-twelfths in the year 1972, three-twelfths in the year 1973, four-twelfths in the year 1974, five-twelfths in the year 1975, six-twelfths in the year 1976, seven-twelfths in the year 1977, eight-twelfths in the year 1978, nine-twelfths in the year 1979, ten-twelfths in the year 1980, eleven-twelfths in the year 1981 and one hundred per cent in the year 1982 and each year thereafter. As used in this subdivision, ‘wholesale and retail business’ means a business the principal activity of which is making sales of tangible personal property with the object of gain, benefit or advantage, either direct or indirect.”
      It is not clear from the records and briefs in this appeal whether Tyler is both a wholesaler and a retailer of construction equipment. Section § 12-81 (54), however, defines “wholesale and retail business” to mean “a business the principal activity of which is making sales of tangible personal property with the object of gain, benefit or advantage, either direct or indirect.” The trial court found that Tyler’s principal activity was selling tangible personal property and thus it was engaged in a “wholesale and retail business” within the meaning of § 12-81 {54). This finding has not been challenged on appeal.


text:
    J. William Burns, Commissioner of Transportation v. John P. Barrett
    (13570)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.

      Argued May 2
    decision released July 18, 1989

      James A. Wade, with whom, on the brief, was Lori B. Wilson, for the appellant (defendant).

      Kathryn Mobley, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, acting attorney general, for the appellee (plaintiff).
   Shea, J.

In this action the plaintiff commissioner of transportation sought the removal of three outdoor advertising sign structures erected by the defendant upon private property bordering interstate route 95 (1-95), two of the signs being located in East Haven and one in Bridgeport. The trial court imposed fines and granted injunctive relief with respect to the East Haven signs on the ground that they violated regulations of the department of transportation prohibiting the location of sign structures within 500 feet of a highway interchange and did not fall within any of the exceptions in the regulations. The Bridgeport sign was found not to violate any regulation and the court denied all relief with respect thereto.

The defendant has appealed from the judgment, claiming that (1) the regulations and statutes on which the court relied violate federal and state constitutional provisions concerning freedom of speech, (2) the injunction issued by the trial court constitutes a prior restraint upon freedom of speech, (3) injunctive relief should have been denied, in view of the availability of statutory fines as a remedy to secure compliance, and (4) the court should have awarded the defendant an injunction against the plaintiff as well as damages for the losses he has incurred as a result of the actions of the plaintiff. We find no error.

After his application to the department of transportation for a permit to erect an outdoor advertising sign at Saltonstall Parkway in East Haven had been denied because the sign would have been within 500 feet of an 1-95 exit ramp, the defendant nonetheless proceeded to erect the sign at that location without a permit and completed the installation in July, 1986. The sign is supported by a vertical column from which two billboard panels extend to form a V, one facing eastbound and one facing westbound traffic on 1-95. The land on which the sign has been erected is owned by Torello Tire Company, Inc., which sells tires on the premises, and is situated in a commercial or industrial zone of East Haven, in which such signs are permitted. One of the sign panels bears the Torello name and advertises Goodyear tires, which the company sells. The other panel advertises the Chowder Pot Restaurant, which is located several exits south on 1-95. Because the regulation prohibiting signs within 500 feet of an interchange contains an exception for those “which advertise . . . activities being conducted upon the real property where the sign is located”; Regs., Conn. State Agencies § 13a-123-7; the plaintiff commissioner concedes the legality of the Torello sign. The restaurant sign, however, does not fall within the exception for on-premises signs, and the trial court, after upholding the validity of the regulations, accordingly ordered its removal.

The defendant also erected a similar sign structure for outdoor advertising on private land adjacent to 1-95 situated on Bradley Street in East Haven, after the commissioner had denied his application for a permit. This property also is located in a zone where such a use is permitted. This installation was completed about the same time as the Saltonstall Parkway sign. One panel bears an advertisement for Red Writer, Inc., a company that conducts no activities on the premises where the sign is located. The other panel contains a picture of thé American flag and a statement, “We owe a great debt to Vietnam Vets.” The court found that the structure bearing both of these advertisements violated the regulation prohibiting such installations within 500 feet of an interstate highway exit and ordered removal of the entire structure.

I

The regulation relied on by the trial court was issued by the commissioner of transportation pursuant to General Statutes § 13a-123 (c) and provides that “[s]ign structures may not be located within five hundred feet of an interchange . . . . ” Regs., Conn. State Agencies § 13a-123-5 (b). It is undisputed that the two East Haven sign structures violate the regulation because of their location within the proscribed distance from 1-95 interchanges. The defendant attacks the validity of the regulation (1) as creating an unconstitutional restriction on commercial speech, and (2) in conjunction with the exception for signs related to the premises on which a sign is located; Regs., Conn. State Agencies § 13a-123-7 (2); as unconstitutionally preferring some signs over others upon the basis of their content.

A

The Chowder Pot Restaurant and the Red Writer, Inc., advertisements that the court has ordered to be removed fall within the classification of “commercial speech,” as the plaintiff concedes. “Prior to 1975 purely commercial advertisements of goods for sale were considered to be outside the protection of the First Amendment.” Metromedia, Inc. v. San Diego, 453 U.S. 490, 505, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981). In Virginia Pharmacy Board v. Virginia Citizens Consumer Counsel, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976), the United States Supreme Court first plainly held that wholly commercial speech was constitutionally protected. The court invalidated a statute prohibiting pharmacists from advertising prescription drug prices on the ground that it unreasonably interfered with society’s strong “interests in the free flow of price information,” which the first amendment was designed to advance. Id., 755. “The First Amendment . . . protects commercial speech from unwarranted governmental regulation.” Metromedia, Inc. v. San Diego, supra, 561. “The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Id., 563. It has been recognized, however, that “[t]he constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” Central Hud son Gas v. Public Service Commission, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).

The United States Supreme Court has “adopted a four-part test for determining the validity of government restrictions on commercial speech as distinguished from more fully protected speech. (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.” Metromedia, Inc. v. San Diego, supra, 507.

With respect to the first of these criteria, the commissioner has made no claim that the two off-premises commercial advertisements relate to any unlawful activity or are misleading. Accordingly, they qualify for constitutional protection to the extent of its availability for commercial speech.

The defendant maintains that the regulations fail to serve a significant state interest and to advance that interest directly, as the second and third criteria require. The trial court found, however, that “there was substantial evidence that commercial signs at highway interchange areas contribute to accidents.” The chief transportation engineer of the department of transportation had testified: “ ‘[I]n interchange areas, especially major highways of this type, the decision-making is very intense at this point. A driver must make up his mind . . . whether [he is] going to exit at that point or . . . going to go forward to a further destination. They have to be concerned about the driver [who] does want to exit but is in the wrong lane and may dart across their path. There are intense areas. Those are the areas that have the greatest amount of accidents on expressways. Therefore, the regulation asking that the signs not be erected within five hundred feet of these on and off ramps is designed to clear the boards . . . and leave that area as open as possible for intelligent decision-making by the driver . . . .’’’This testimony plainly supports the court’s finding.

Many courts have concluded that a governmental judgment that highway billboards are traffic hazards is not manifestly unreasonable and should not be set aside. See E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141, 1152 (5th Cir. 1970); Inhabitants, Town of Boothbay v. National Advertising Co., 347 A.2d 419, 422 (Me. 1975); General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 180-81, 193 N.E. 799 (1935); In re Opinion of the Justices, 103 N.H. 268, 270, 169 A.2d 762 (1961); Stuckey’s Stores, Inc. v. O’Cheskey, 93 N.M. 312, 321, 600 P.2d 258 (1979); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 155-56, 218 N.Y.S.2d 640, 176 N.E.2d 566 (1961); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741, 757 (N.D. 1978) ; Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 438, 200 N.E.2d 328 (1964); Lubbock Poster Co. v. Lubbock, 569 S.W.2d 935, 939 (Tex. Civ. App. 1978); State v. Lotze, 92 Wash. 2d 52, 59, 593 P.2d 811, appeal dismissed, 444 U.S. 921, 100 S. Ct. 257, 62 L. Ed. 2d 177 (1979); Markham Advertising Co. v. Washington, 73 Wash. 2d 405, 420-21, 439 P.2d 248 (1968); but see John Donnelly & Sons v. Campbell, 639 F.2d 6, 11 (1st Cir. 1980); Metromedia, Inc. v. Des Plaines, 26 Ill. App. 3d 942, 946, 326 N.E.2d 59 (1975); State ex rel. Dept. of Transportation v. Pile, 603 P.2d 337, 343 (Okla. 1979) . Even at a time when motor vehicles moved more slowly, this court observed that “[highway billboards] may obstruct the view of operators of automobiles on the highway and may distract their attention from their driving. . . .” Murphy, Inc. v. Westport, 131 Conn. 292, 295, 40 A.2d 177 (1944). “We . . . hesitate to disagree with the accumulated, common-sense judgments of . . . lawmakers and of many reviewing courts that billboards are real and substantial hazards to traffic safety.” Metromedia, Inc. v. San Diego, supra, 509; see Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S. Ct. 463, 93 L. Ed. 533 (1949).

There can be little doubt that public safety on the highway is a substantial governmental interest. A regulation restricting the location of billboards designed to be seen by motorists traveling at high speeds on a highway such as 1-95 by excluding such distractions from especially hazardous areas where vehicles enter or leave the highway may reasonably be viewed as implementing that interest and directly advancing it. The defendant, in attacking this conclusion of the trial court, points to an exception in the regulation providing that “[t]he distance requirement from an interchange . . . shall not apply within the boundaries of a municipality with a population of forty thousand or more according to the 1960 federal census if the state deems such to be consistent with customary use in the area.” Regs., Conn. State Agencies § 13a-123-5. According to the defendant, the inapplicability of the regulation to more densely populated towns is an implicit acknowledgment that restricting billboards in such areas, even though traffic hazards are likely to be greater, would improve highway safety only minimally. We do not agree that the failure of the restriction to apply to all municipalities where it would promote traffic safety diminishes its efficacy in advancing that objective in areas where it does apply, such as those involved in this case. Even if the defendant were making an equal protection claim, “[tjhere is nothing in the constitution . . . that requires the state to subordinate or compromise its legitimate interests solely to create a more comprehensive program than it already has.” Farad v. Connect icut Light & Power Co., 211 Conn. 166, 172, 558 A.2d 234 (1989). Whatever may be the reasons for excepting more populous areas from the regulation, the omission does not refute the conclusion of the trial court that the regulation does enhance highway safety in the areas where the defendant has been enjoined to remove the signs he has erected in violation of the regulation.

The trial court also found that the regulation satisfied the fourth Metromedia, Inc. criterion, that the restriction reach “no further than necessary to accomplish the given objective”; Metromedia, Inc. v. San Diego, supra, 507; concluding that the regulation was “narrowly drawn” to achieve “the important objectives of traffic safety and esthetics . . . .” The defendant disputes this conclusion, contending that the restriction leaves open no alternative channels for communication with such a significant audience as the motoring public. He relies upon Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977), in which an ordinance prohibiting on-site “For sale” and “Sold” signs was invalidated because it eliminated a particularly effective medium of commercial speech, leaving only more expensive and less efficient media available. In the present case, however, the restriction cannot be characterized as a complete ban on a standard means of communication, such as outdoor advertising, or an insurmountable barrier to reaching motorists. It is applicable only to signs within 500 feet of interchanges, leaving the remainder of the highway available for outdoor advertising, unless some other regulation prohibits it. As we have previously noted, the regulation also exempts more populous municipalities from its operation. It applies only to “interstate highways, limited access federal-aid primary highways, the limited access state highways and non-limited access federal-aid primary highways.” Regs., Conn. State Agencies § 13a-123-l. The defendant is left free to erect outdoor advertising signs, even off-premises signs, along extensive stretches of our highway system. In true perspective, the restriction imposed by this regulation on the defendant’s ability to communicate must be regarded as minimal. We agree with the trial court that it goes no further than necessary to achieve the important governmental purpose of reducing the risk of highway accidents at interchange areas. With respect to his commercial signs, therefore, the defendant has failed to demonstrate that the challenged regulation infringes upon his right of freedom of speech.

B

The remaining sign the defendant was ordered to remove was that containing his statement concerning the debt we owe to veterans of the war in Vietnam. The right to display such a political message falls classically within the protection of the first amendment and any justification for its curtailment must be greater than for a restriction on commercial speech. Metromedia, Inc. v. San Diego, supra, 506. Nevertheless, “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981). Reasonable time, place and manner regulations affecting speech that further significant government interests and are not overbroad have long been upheld as valid. Grayned v.Rockford, 408 U.S. 104, 115, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). “Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection.” Cox v. New Hampshire, 312 U.S. 569, 574, 61 S. Ct. 762, 85 L. Ed. 104 (1941).

As we have previously explained, the state’s interest in highway safety, especially at the more hazardous interchange areas, is quite substantial. We conclude that it is sufficiently great to justify prohibiting noncommercial billboards within 500 feet of a highway interchange as well as those bearing commercial advertisements. The higher level of state interest required for restrictions on noncommercial speech is adequately met here because of the widespread belief that billboard advertisements, both commercial and noncommercial, are distracting to motorists and threaten public safety in areas where vehicles travel at very high speeds. Indeed, noncommercial messages may be more distracting because they are usually more interesting.

“A major criterion for a valid time, place, and manner restriction is that the restriction ‘may not be based upon either the content or subject matter of speech.’ ” Heffron v. International Society for Krishna Consciousness, Inc., supra, 648, noting Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980). The defendant contends that the state’s regulatory scheme does not satisfy this standard but favors commercial speech over noncommercial speech by creating the exception in the regulation for on-premises signs that “advertise . . . activities being conducted upon the real property where the signs are located.” Regs., Conn. Agencies § 13a-123-7 (2). The language of this provision corresponds closely to the exception contained in General Statutes § 13a-123 (e) (3) for “signs, displays and devices advertising activities conducted on the property on which they are located.” The defendant argues that a regulation permitting Torello Tire Company, Inc., to advertise the tires it sells on the premises where the sign is located, but preventing the defendant from airing a political opinion unrelated to any activity conducted at the site of the Vietnam veteran sign, is an impermissible content-based restriction on speech. We disagree with this contention.

This court on several occasions has observed that any governmental regulation affecting speech must be content-neutral. French v. Amalgamated Local Union 376, 203 Conn. 624, 633, 526 A.2d 861 (1987); Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 581, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 373 (1986); Friedson v. Westport, 181 Conn. 230, 236, 435 A.2d 17 (1980). The defendant claims that the exception for on-premises signs made by the statute and regulation is equivalent to a preference for commercial signs, because “there is no similar exemption for noncommercial signs.” He apparently assumes that no noncommercial signs can be permitted near highway interchanges under the requirement of the regulation that on-premises signs “advertise . . . activities being conducted upon, the real property where the signs are located.” We construe the regulation, however, to include in the exception for on-premises signs those relating to noncommercial as well as commercial activities located on the premises, such as those of a hospital, church, club, political organization or other noncommercial institution. For example, if some organization of veterans were located on the premises where the defendant has placed his sign concerning Vietnam veterans, the requisite relationship between the sign and activities conducted on the premises would exist. Such a noncommercial message could also be sponsored by a business conducted on the site of the sign for the purpose of advertising the business, since many advertisements contain statements of public interest not directly related to the wares sold by the sponsor but intended to attract attention or create good will for its benefit. The exception for on-premises signs, therefore, does not authorize the state to limit in any manner the content of signs erected by those conducting activities on the premises so long as the signs have some reasonable relationship to those activities.

The defendant relies upon Metromedia, Inc. v. San Diego, supra, in which a general prohibition against outdoor advertising signs throughout the city contained an on-site sign exemption. This provision permitted on-site signs, defined as those “designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed.” Id., 494. The court viewed this definition as creating “a broad exception for onsite commercial advertisements, but ... no similar exception for noncommercial speech,” thereby inverting the constitutional priorities. Id., 513. “Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages.” Id.

Our interpretation of the on-site exception in this case, however, does not create any preference for commercial messages. Anyone conducting any activity on property where a sign is to be erected may display either commercial or noncommercial advertisements that have some reasonable relationship to an activity conducted thereon. We need not explore the extremes to which advertising signs must go before they can be deemed not to relate to activities being conducted on the premises, because in this case the defendant does not claim that any activity is being carried on at the location of the Vietnam veterans sign.

The defendant also relies upon Adams Outdoor Advertising v. Newport News, 236 Va. 370, 373 S.E.2d 917 (1988), in which a municipal ordinance banning off-premises signs, with specified exemptions, but permitting all on-premises signs bearing either commercial or noncommercial messages, was declared unconstitutional. The court, however, appears to have based its decision on the exemptions contained in the statute for various signs, depending upon their content, whether the signs were located on or off the premises, such as directional signs, civic or cultural event signs, and displays used for nonpartisan civic purposes or for opening a new store, business or profession. In Metromedia, Inc., similar exceptions to the general prohibition against outdoor advertising signs were deemed to create a governmental preference for certain varieties of speech based upon content and to render the San Diego ordinance invalid. The defendant has not brought to our attention any exceptions in the regulations involved here that allow signs containing one kind of information but not another. The remaining case relied on by the defendant in which municipal ordinances were invalidated also involved exceptions, based on content, to a general prohibition against outdoor signs and not merely an exception for on-premises signs relating to activities conducted on the premises. Matthews v. Needham, 764 F.2d 58, 60 (1st Cir. 1985) (“[n]o political signs are allowed in any district in the Town of Needham; yet such signs as ‘For Sale’ signs, professional office signs, contractors’ advertisements, and signs erected for charitable or religious causes are allowed in all districts”).

In Wheeler v. Commissioner of Highways, 822 F.2d 586 (6th Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653, reh. denied, 485 U.S. 945, 108 S. Ct. 1127, 99 L. Ed. 2d 287 (1988), the court upheld a regulation similar to our § 13a-123-7 (2) that permitted on-premises signs “that contain a message relating to an activity or the sale of a product on the property on which they are located.” 603 Ky. Admin. Regs. 3:010, § 2 (3) (1975). The regulation was construed to permit both commercial and noncommercial signs in protected areas so long as the signs relate to activities on the premises. Accordingly, the regulation was deemed to “apply even handedly to commercial and noncommercial speech.” Wheeler v. Commissioner of Highways, supra, 590. The court relied in part upon Heffron v. International Society for Krishna Consciousness, Inc., supra, where the United States Supreme Court had upheld a content-neutral prohibition on the sale, exhibition or distribution of materials at a state fair except from fixed locations. “Kentucky, by allowing persons who own or lease property, to have a sign, subject to size and space restrictions, advertising an activity conducted on the property is not favoring one message over another. The state has simply recognized that the right to advertise an activity conducted on-site is inherent in the ownership or lease of the property.” Wheeler v. Commissioner of Highways, supra, 591; see Lindmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977), quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976) (suggesting that a prohibition against on-premises “For Sale” signs raises “serious questions ... as to whether the ordinance ‘leave[s] open ample alternative channels for communication’ ”). The Supreme Court of Washington has reached a conclusion similar to that of Wheeler, upholding the allowance of on-premises signs advertising activity conducted on the property where the signs are located as an exception to a general prohibition against signs visible from certain highways. State v. Lotze, supra.

II

The defendant claims that because he has been enjoined to remove the entire sign structure as well as the Red Writer, Inc. and Vietnam veteran signs at the Bradley Street location, the injunction constitutes a prior restraint upon his use of the structure to display future messages to the public. He relies upon several cases that have invalidated prohibitions on the publication of certain information or material based upon its content. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 545, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); New York Times Co. v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). The injunction issued by the trial court is not based upon the content of any message the defendant may wish to put forth, but upon the place he has chosen as a podium. He may disseminate any message, commercial or noncommercial, at some other place not similarly violative of law. A newspaper publishing company cannot disregard a zoning ordinance and locate its plant in a residential zone on the ground that the restrictions against such a use constitute a prior restraint.

Furthermore, the injunction in this case is no more of a prior restraint than the statute or the regulation that it implements. The regulation, § 13a-123-5 (b), prohibits “sign structures” within 500 feet of an interchange, except for those erected in conjunction with signs relating to on-premises activities. See Regs., Conn. State Agencies § 13a-123-7. In view of our conclusion in part I that the regulation is valid, there is no merit in the defendant’s contention that the injunction issued to enforce it is an unconstitutional prior restraint.

Ill

The defendant’s claim that injunctive relief should have been denied because of the availability of fines under General Statutes §§ 13a-123 (j) and 21-63 as enforcement devices relies upon the equitable doctrine that inadequacy of legal remedies is a prerequisite for an injunction. See Waterbury Teachers Assn. v. Civil Service Commission, 178 Conn. 573, 577-78, 424 A.2d 271 (1979). In Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984), however, we approved the principle that where a statute expressly provides for equitable remedies in addition to the ordinary legal ones, it may be presumed that there is no adequate legal remedy, because the legislature would not have provided the additional remedies if they were not needed. General Statutes § 13a-123 (i) provides that “[t]he commissioner may order the removal of any advertising structure, sign, display or device” erected in violation of § 13a-123 and also authorizes him to remove them at the owner’s expense for failure to comply with the removal order.

“It is the court’s duty to carry out the intention of the legislature as expressed in the statute it has enacted and to make the remedy it has provided an effective and efficient means of dealing with violations of the act and regulations properly promulgated under its authority.” Conservation Commission v. Price, supra, 430. This does not mean that a court is “mechanically obligated to grant an injunction for every violation of law.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982). A judge retains a reasonable discretion to decide whether injunctive relief is appropriate even though it is authorized by statute.

Our review of the terms of the injunction issued in this case and the memorandum of decision satisfies us that the trial court properly exercised its discretion in ordering removal of the Bradley Street sign structure by the defendant. There was no evidence that the structure was likely to be used in the future for any legal purpose, such as advertising some on-premises activity. In the analogous situation of zoning regulation enforcement, the availability of fines as an alternative remedy has been held not to preclude the issuance of an injunction. Johnson v. Murzyn, 1 Conn. App. 176, 179-81, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). The injunction merely implements the order that the statute authorized the commissioner to issue.

IV

It is unnecessary to consider the defendant’s claim for an injunction and damages against the commissioner for violation of his constitutional rights, because we have already concluded that no such violation has occurred. It should be noted, however, that any claim for monetary relief would have to be submitted to the claims commissioner pursuant to General Statutes § 4-147.

There is no error.

In this opinion the other justices concurred.

       The first amendment to the United States constitution provides in part: “Congress shall make no law . . . abridging the freedom of speech ))

      Article first, § 4, of the Connecticut constitution provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”
      Article first, § 5, provides: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.”
      While we recognize our authority to provide greater protection for freedom of speech under our state constitutional provisions than the United States Supreme Court has found in our federal constitution, we are not persuaded that this case presents an occasion for the exercise of that authority. See Cologne v. Westfarms Associates, 192 Conn. 48, 57-58, 469 A.2d 1201 (1984). The defendant has not in his brief argued that the textual differences between our state and federal freedom of speech provisions are of any particular significance in this case. Accordingly, our discussion is limited to the federal constitutional provisions.

       General Statutes § 13a-123 (c) provides: “The commissioner may promulgate regulations for the control of outdoor advertising structures, signs, displays and devices along interstate highways, the primary system of federal-aid highways and other limited access state highways. Such regulations shall be as, but not more, restrictive than the controls required by Title I of the Highway Beautification Act of 1965 and any amendments thereto with respect to the interstate and primary systems of federal-aid highways or the national standards of the Secretary of Commercein respect to the interstate highways, in effect November 13,1958, and any amendments thereto.”

       Section 13a-123-5 of the Regulations of Connecticut State Agencies provides in part: “(b) Sign structures may not be located within five hundred feet of an interchange or rest area measured along the interstate or limited access primary highway from the sign to the nearest point of the beginning or ending of pavement widening at the exit from or entrance to the main traveled way. In any case where ramps exist only on one side of the roadway crossed by the above-mentioned highways, the five hundred foot distance shall also be measured from the centerline of the intersected roadway in the opposite direction from the ramps. The distance requirement from an interchange or rest area set forth above shall not apply within the boundaries of a municipality with a population of forty thousand or more according to the 1960 federal census if the state deems such to be consistent with customary use in the area.”

       The trial court found that the regulation prohibiting billboards near highway interchanges served “the important objectives of traffic safety and esthetics.” We limit our discussion to traffic safety, upon which the court primarily relied and upon which substantial evidence was presented at trial. We leave to another time the question of whether esthetic considerations alone would support the validity of a restriction upon billboards located in industrial areas.

       Section 13a-123-7 of the Regulations of Connecticut State Agencies provides in part: “Erection and maintenance of the following signs may be permitted in protected areas ... (2) On premises signs: Signs not prohibited by state or local law which are consistent with the applicable provisions of this section and sections 13a-123-4 and 13a-123-13 and which advertise the sale or lease of, or activities being conducted upon, the real property where the signs are located. Not more than one such sign advertising the sale or lease of the same property may be permitted under this section in such a manner as to be visible to traffic proceeding in any one direction on any interstate or federal-aid primary highway. Not more than one such sign, visible to traffic proceeding in any one direction on any one interstate or federal-aid primary highway, and advertising activities being conducted upon the real property where the sign is located, may be permitted under this section more than fifty feet from the advertised activity. Signs permitted under this section may display trade names.”

       General Statutes § 13a-123 (i) provides:“The commissioner may order the removal of any advertising structure, sign, display or device along any interstate, federal-aid primary, or other limited access state highway erected in violation of this section. Any advertising structure, sign, display or device in existence on September 1, 1965, within six hundred and sixty feet of the right-of-way of any interstate, federal-aid primary, or other limited access state highway may continue to be maintained until July 1,1970, but may not be replaced or relocated on such highway except in areas where otherwise allowed by statute or regulations adopted thereunder. Any advertising structure, sign, display or device lawfully erected since September 1,1965, within six hundred sixty feet of the right-of-way of any interstate, federal-aid primary, or other limited access state highway and before June 21,1967, may continue to be maintained until the end of the fifth year after it becomes nonconforming, but may not be replaced or relocated on such highway except in areas where otherwise allowed by statutes or regulations adopted thereunder. If the person, firm or corporation in control of or owning a structure, sign, display or device or whose name appears thereon does not remove it within fourteen days after an order of removal has been sent to such person, firm or corporation by registered or certified mail, said commissioner may cause such structure, sign, display or device to be removed and the expense of such removal may be collected from the person, firm or corporation owning or controlling the same in an action based on the provisions of this section, or from the sureties on the bond filed by a nonresident person, firm or corporation pursuant to section 21-54.”