morning your honour's morning is robert smith may please accord i'm here on behalf of bench billboard company your honor for over forty years my client placed bench billboards in the city of covington splaying most commercial and noncommercial speech currently the issue before the court relates to my client's benches that bus stop specifically tank transit authority in northern kentucky bus stops those locations are slow soley determined by tank tank owns the majority of shelters and additional advertisements at those bus stops including in the city of covington but also throughout northern kentucky tank agrees that the bus benches are an amenity they provide a service and provide seating for people waiting for the bus stops tank is acquired by public utility and has the authority to locate its service facilities without approval of local governments such as the city of as related to tank was our claims against tank were dismissed on standing it was it was a threshold issue we didn't get into the heart of the matter there was some discovery but there was no real issue related to tank and the issue that was determined by this court previously related tank was that we bench the work company has not demonstrated any harm because tank had not removed or hindered our ability to put benches at their stops in fact the benches remained at the tank bus stops until the district court ruled approximately a year ago based upon not tank's requests but covington's requests to have those benches removed so the issue is really relates to tanks authority at those bus stops and there's no question the tank has the legal authority to put structures at those stops and has done so and does not need covington's approval to do so our but our bus benches were at those stops after the first appeal before this court after that decision covington not tank went back to the district court to have those benches removed and the issue that needs to be heard is by the district court is tanks authority allowing our benches to be placed the tank bus stops no objection by  tank the finding was there was no harm in the standing issue because tank didn't object to their removal and tank didn't come to the district court covington came to the district court to have those benches removed what's the what's the evidence that tank has the authority to prosecute aeration to install benches at the bus stop is that it does that just flow from from something or is there something explicit that  court's decision as well the city of covington is arguably without power to regulate the activities of tank that's code section one hundred six point zero one b three e that's the covington code kentucky revised statute k r s section one hundred point three two four one also the depositions of malone berkeley and newsome which are part of the record support that as well tank currently allows a placement a bus shelters in advertising by third parties at its bus stops loans deposition of page thirty seven that's the record at seventy nine berkeley records seventy seven pages twenty to twenty two and the record new some eighty pages hundred twenty two to twenty four and fifty two to fifty four and i think these are all cited in our brief they allow for third parties to place structures shelters and advertising in its bus stops and that was never discussed or decided by the u s district court because without approval of local government bank bus stop is a service facility the district court found that and then this court found the tanks assertion it was exempt from complying with municipal zoning laws which attempt to regulate the placement of characteristic tank service facilities in fact i believe this court found certainly the district court found in the record holds that the only advertising that was removed by tank in covington was done voluntarily and the courts agreed and it's true that tank was not required to do that because under their statutory authority they had the right to have these benches placed there so that's the answer here is there any first amendment issue at this stage of the litigation well your honor there probably is but it hasn't been fully developed the problem for me to imagine how there's even probably slightly in the explain how even probably slightly mean  you're relying on this on a kentucky statutory provision that kentucky presumably doesn't have a first amendment obligation to have so how can the content of that provision whether it allows this or doesn't allow it to be a first amendment issue  about seeing that what the key is your honor that the benches were at the tank sites until the district court ordered their removal last july that was after the signature the issue isn't boris well the issue is did the court hav you based upon covington's request to remove those pensions not tanks request tank wasn't even a party and i think about the law the law that we're trying to figure out what the law is here correct laws i understand it is disputed is only what the content of kentucky law is with respect to who gets to decide what's on these benches or whether the benches are there or whether the benches are properly placed that that's all kentucky law which is not infected aspected by the first amendment isn't it the kentucky could say whatever they want on that issue can they well they're required to give tank the ability to buy the first amendment you're not arguing that are you know you know there's no amendment issue here and there maybe there was before when the case was up here before maybe that's the ultimate well as for the injunction but your issue is just as you have to tell me if i'm wrong because that's how i'm understanding your argument i'm understanding your argument to be a this injunction can't extend this far because it's inconsistent with the kentucky statute which allocates power between tank and covington that's part of our argument your honor corrects of the rest of the argument is that tank has never objected to the benches and a first amendment issue and that's not necessarily a first amendment issue but it's certainly an issue that needs to be remanded in fully heard by the district court is no first amendment issue well ultimately it goes into  first amendment issue of tankan can allow the placement of some of their advertising at some of their shelters by other third parties but not our clients kentucky could change that without violating the constitution right well kentucky well kentucky hasn't changed that i don't know if  in my question well if kentucky can do it either way and we're just trying to figure out what kentucky has done i'm having trouble seeing how that's a person well the issue relates to whether kentucky is given tank the authority to patrol police though he either has or they haven't right correct and we assert that they have given tank authority to do that but you're not saying the first amendment required him to give you that's already correct that's correct so there's no first amendment  well there could be a first amendment issue if tank decides who is allowed to go there and who is not allowed to go there that's certainly very not the issue you're arguing and well it sort of is because the tank is allowed some bus shelters at some other spots your honor let me back up step the problem is tank has never objected that the bus benches at this point are benches at their spots and that was the issue that the district court found in this quarter firmed we didn't  plead harm or show harm because tank didn't take any position tanks stood back there covington admits tank admits the tank has the authority to rule those plots of land our benches were their tank didn't object tank didn't remove them tanks said they're fine there are public amenities covington came in and said those bus benches need to be removed covington asked the district court to remove those tank didn't do that tank didn't want to get at the legal issue pardon me for interrupting or understand there's a lot of history here that you're deeply involved in but if if the kentucky statute says that or provides in effect that  covington ordinance controls in a situation like this you lose the kentucky statute says in a situation like this that can covington ordinance does not control what tankan allow and you may win so that's the issues or some other issue that's that's primarily the issue the driver been those i didn't in the in the first amendment doesn't tell kentucky which of those to so it's just it either allows it or it doesn't allow it as a matter of kentucky law that's your issue right that's correct the only way the first amendment comes into play your honor is if the tank under it's authority discriminates against our client versus other clients but that again is an issue that hasn't been heard because of and that's why we're here because the injunctive relief that was granted again not on tanks request but on coming to request the problem is is that this way then if you lose on that there's no first amendment if we if we lose on that in the end this quarter a court determines that the kentucky ordinances are or the covington ordinance on the filming the kentucky statutes the covington ordinance apply so no the district court granted covington's request to have the benches removed from tank our argument was that tank didn't request that and covington had no authority to request the district court to remove the bench is a district court says that they did have that authority well the district court didn't say covington had the authority to request it it just granted the relief it didn't let also reason well but it didn't it didn't reason with authority related to the kentucky statute it just granted the relief based on the prior decision the problem your honour's is that there's been a run around here tank didn't want to get their hands dirty that's why when the benches were put there which they liked and approved they didn't take any position and unfortunately because they didn't take any position we had no claims against bank that's what the court held tank hasn't harmed your benches or their they're providing seating they're providing services covington comes in and says we want the benches removed at the hearing on the injunction before the district court last summer tank wasn't even a party they just stood in the background again they didn't want to maintain their position covington knew they didn't have the authority to remove the benches based on this crow court's order that's why they petition the court to get another court order to get them removed our problem is it's not tanks decision it's tanks it's not coming to a decision it's tanks decision whether or not those should be removed and whether or not tanking allow advertising at some of their shelters get discriminate against our client and stand back while pumping can petitions that they be removed that is an issue that needs to be fully heard by the district court and that issue has never been heard your honor we request i see them almost all the time we request that this be remanded for a full evidentiary hearing regarding tanks ability to place or allow to be placed third party advertising at its bus stops or bus shoulders twenty five percent of which are not owned by tank and its ability to allow to place or be placed our advertising bench billboard companies the court mr smith this case is been going on for about six or seven years now in the very beginning there was a complaint filed against the city of against the city  tank indicating that the city of coming to end had jurisdiction over these benches and we litigated that issue and the judge determined that as as an underlying assumption that covington had control over these benches and did not violate the constitutional rights of we're i've been i've been billboard tank i'm sorry by bench billboard clear which litigation you're talking ok represent the city of i'm sorry i represent the city of covington and so are you arguing that race to dakota should apply in this case based on the previous litigation and the issues raised by the that's that's correct that's what i'm arguing when it when  we asked the court to enforce the judgment of judge bunning and the decision panel of the circuit i followed twenty eight united states code to  twenty two zero two and asked that the benches be removed and enforcement of the declaratory judgment the judge granted that however bench billboard raise these other issues which had actually been litigated previously by judge bunny in the district court and had been considered by a panel of the circuit and it actually this panel actually or not this panel but another panel actually came to the conclusion that bench billboard presented no evidence and in fact the record evidence of the case indicated that tank did not have the authority to permit bench billboard to place its advertising benches at its bench stops counsel the order that's being appealed from before us now is decided by but i think he could have but i think he explained his decision and i think and i think he could have i raised it now i'm not saying you can't raise it i'm just curious about his reasoning oh i don't know i think that in your reasoning is persuasive we might adopt it but  tried and he came to the conclusion that bench billboard did not or that tank did not have the authority to grant bench billboard permission to place these advertising benches that its bus stops he considered that because they were covered by this kentucky statute that gives tanks our but rights and give the tank the hour to give that power to someone that's right take it has exemption under one hundred three twenty four one hundred three twenty four to place it's located it's benches wherever it determines in a city and it does not have to abide by the planning unit of the city in making that determination as to location judge bunning discuss that throughout the case that argument was made throughout the case to the contrary by tank same that  has complete jurisdiction over these benches by virtue of its exemption from sony laws in by virtue of the fact that it had the power of condemnation and the domain that was argued in respect to tank and bench billboards then bench billboard went and argued the case against the city of covington saying that covington has jurisdiction over these  bus stops as to the placement of in advertising benches and encroachments benches and on one hand bench billboard was arguing tank has jurisdiction and on the other hand it was arguing the city of covington has jurisdiction judge bunning are you well that's what but that's what that's when judge bunning covered all of that and included and concluded that that take did not have jurisdiction over these benches and that the city of covington did i mean and the court of its argument was different i thought his argument was that tank hedgers stiction it just could give that it just didn't mean that that covington didn't also have jurisdiction when tend to the extent the tank had exercised it i don't i don't think he came to that conclusion i as i disagree with that i don't think judge bunny ever determined that tank had jurisdiction over these over the placement of these benches and even even if he did the six circuit held that the record evidence is that tank does not have the authority here i'm looking at page seventeen of his judgment i think this is the relevant judge says bench billboard attempts to shield itself from the reach of coming to an ordinance by asserting a right to the same exemption supported afforded to tank as a public utility however as a private entity bench billboard is not entitled to such exemptions made of inferences tank is bench billboard has provided no evidence to demonstrate that tank has adopted any bench billboard benches as its own nor provided any authority to support its argument that the benches at issue may be protected from local regulation by riding on the coattails of tanks exemption seems to suggest the tank has an exemption doesn't it it does have an exemption will you just maricopa you said no i didn't mean so tank has an exemption but bench billboard doesn't that's the nature of his argument that's right if i said that i got my my titles switched no i agree with that and the this this matter has been litigated it's all through the pleadings it is it's all through the motions for summary judgment in which bench billboard says that it can ride on tanks coattails and put its benches where it wants wherever tank decides to put its benches and on the other hand in respect to the city of covington it argues that the city of covington has jurisdiction so it's on one hand  please the court my name is joseph baker and i represent tank and the role that i think tank has been cast in this lawsuit is that it's a dispute basically between the city of coming to an adventure billboard and yet tank has had to defend itself against allegations principally from bench billboard about what tank wants what tank has done and even the tank has taken no action whatever to enforce either the covington ordinance or any action with regard to any bench billboards benches in addressing the courts questions about what has happened in transpired in prior courts what the six circuit i believe but sometimes a six circuit opinion and the district court opinion randy gather in my mind there was a statement in the sixth circuit that said these benches were placed at tank bus stops without tanks involvement or consent and i think that absolutely describes what bench billboard has tried to do in this case they would merely choose their own position to a will put a bench at this bus stop it will put a bunch there and yet the bench billboard is trying to argue by the mere fact that it placed the bench at a bus stop that somehow at that bus that exemption under carriage one hundred point three to four  exempts that bench from coming to its control tank's position all along has been that our bus stops do not create these little islands of sovereignty  where tank controls everything and covington does not control anything at all what we're saying is we have the right to designate places that we may choose although in practice we usually work this out the city involved that we're going to have a bus stop here sometimes we move bus stops because the city will tell us that would create some conflict with traffic regulation council were you dismissed originally from this year from th  that that's been a question whether tank has a party at this stage or not because like you're not if we upheld the dismissal of you from the i would i would tend to agree with that but then the when the injunction motion was made which by the way tank was not given notice of this you're not a party because i was not a party but i did appear because i did find out about it and they the court did address a couple question where you're sort of in kind of a gray area here you're a one time party sounds like you might want to intervene or maybe you're an amicus i would say that we are you really there you're sort of  we've been wondering from day one why we were in this to be honest with you who am i why am i why am i here and they ask why you are that you agree with what the district court did below we don't have an objection with the district court that was my question you agree with what the district  we do agree with what the district court said and we've never claimed to have adopted bench billboards benches we never take any action to remove those benches and we have never claimed that we have the right to put those benches at tank bus stops over the objection of the city of coming to and in fact we've never even tried to do that either so tanks roll in this case has literally been we haven't been we haven't and we haven't then why are we is who has control over the the spot to the tank or is it covington that's the question if it's tank if tank objects to the benches and it is tanked under governmental authority in the statute why hasn't tank told bench billboard to remove it benches if they object to them why hasn't tanks done that because they provide a public service and tank has no objection indeed by tanks failure to say that we lost on standing because tank hasn't caused any harm if it's part rejects this argument seems to me if you want to remember the language i read it just seems to distinguish between a private commercial entity like you and tank the public utility that seems to be the nature of the distinction there's no authority your honor there's no authority cited prohibit bus shelters and benches and it cites that same statute at page nineteen of this court's opinion the one says there is no authority at all and says there's no authority here we will remain we either covington has the authority or it doesn't they can't have it both ways either tank has the authority or it doesn't and if it's tanks authority to do it it hasn't objected to it our position is it's not covington under the statutes it's tank and therefore if it's not coming to in covington cannot petition the district court to have them removed because it has no authority under one hundred point three two four one and this court's reference to that statute of as well covington is without authority to do so thank you  think of you every time i wait for a tank of case will be submitted