This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota by its

Attorney General, Mike Hatch,





Malcolm, Inc., et al.,




Filed January 16, 2001

Reversed and remanded

Toussaint, Chief Judge


Blue Earth County District Court

File No. 07C399840



Mike Hatch, Attorney General, David L. Phillips, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)


Randall D.B. Tigue, Randall Tigue Law Office, P.A., 2940 Pillsbury Avenue South, Suite 200, Minneapolis, MN 55408 (for appellants)



            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellants placed a storage trailer, which advertised their nearby business, within 500 feet of a highway.  The district court granted an injunction against appellants after it determined the trailer was an advertising device under Minn. Stat. § 173.02, subd. 2 (1998), and therefore required a permit.  Appellants contend that there was a genuine issue of fact as to whether the trailer was primarily used for storage, and that they did not need a permit because trucks and trailers commonly advertise various products and services without being required to comply with Minn. Stat. § 173.02, subd. 2.  Because we find there is a genuine issue of fact regarding the primary purpose of the trailer, we reverse and remand.


            In the summer of 1997, appellant Malcolm, Inc. (Malcolm) erected a billboard on its property along the northeast quadrant of Highways 14 and 22 on behalf of appellant DiMa Corporation (DiMa), an adult bookstore.  Appellants are closely related corporations, and Malcolm Prinzig serves as an officer of both corporations. 

            On September 24, 1997, Ken Wenkel, an advertising device coordinator with the Minnesota Department of Transportation, notified Prinzig that the billboard violated the Minnesota Outdoor Advertising Control Act (MOACA) because it was within 500 feet of a highway.  Minn. Stat. § 173.16, subd. 4(4) (1996).  Wenkel warned Prinzig that if he did not obtain a permit for the billboard and comply with MOACA, the billboard would be removed.  When Prinzig and appellants failed to take action, the state removed the sign on December 2, 1997, pursuant to its authority under Minn. Stat. § 173.13, subd. 11 (1996).

            In December 1997, DiMa applied for and received a permit to place an advertising device on the property, and Malcolm erected a new billboard that was in conformity with state law.  Around the same time, a truck trailer was parked in the same place as the original billboard had been, and a sign featuring advertising similar to that on the billboards was placed on one side of the trailer.

            On April 20, 1998, Wenkel notified Prinzig that the trailer violated the 500-foot setback required by Minn. Stat. § 173.16, subd. 4(4).  On a subsequent inspection, Wenkel discovered that additional signs had been attached to the other side and the front of the trailer.  He could not find any vehicle identification number, license plate number, or other indicia of ownership.

            Because it was not possible to ascertain who owned the trailer, the state filed for injunctive relief against Malcolm and DiMa in Blue Earth County District Court pursuant to Minn. Stat. § 173.21 (1998).  On January 14, 2000, the state moved for summary judgment, arguing that as a matter of law, appellants were using an advertising device in violation of MOACA.  In opposing the state’s motion, appellants argued two different theories. 

First, appellants argued that the primary purpose of the trailer was for storage, not advertising, and thus Minn. Stat. § 173.16, subd. 4(4), did not apply.  Appellants submitted an affidavit from Prinzig that Malcolm used the trailer to store tools, equipment, and construction materials used for repairs on its properties.  Prinzig claimed that Malcolm stored the trailer at this particular location only because of its easy access to the highway.  Second, appellants argued that trailers should not be considered advertising devices under Minn. Stat. § 173.16, subd. 4(1) (1998).  Appellants noted that many companies emblazon logos on their vehicles and trailers, and municipal buses frequently carry advertising.  Alternatively, appellants argued that if the state did not enforce the statute against such uses, it was selectively enforcing Minn. Stat. § 173.16, subd. 4(4), against DiMa because of the content of the advertising and the type of business involved.

            The district court granted summary judgment to the state.  The court found that the primary purpose of the trailer was advertising.  It also found that the state was not engaging in selective enforcement and, therefore, appellants’ constitutional challenges were meritless.[1]  The district court granted a permanent injunction against appellants from placing any advertising device on the northeast quadrant of Highways 14 and 22.

            This appeal from the judgment challenging the summary judgment follows. 



            On appeal from summary judgment, we review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We view the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  This court, however, is not bound by a district court’s decision on a question of law.  Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

            Minn. Stat. § 173.16, subd. 4(1) (2000), prohibits advertising devices from being

erected or maintained in such a place or manner as to obscure or otherwise physically interfere with an official traffic control device or a railroad safety signal or sign, or to obstruct or physically interfere with the drivers’ view of approaching, merging or intersecting traffic for a distance of 500 feet.


Minn. Stat. § 173.02, subd. 2 (2000), broadly defines an advertising device as


any billboard, sign, notice, poster, display, or other device visible to and primarily intended to advertise and inform or to attract or which does attract the attention of operators and occupants of motor vehicles and shall include any structure erected primarily for use in connection with the display of any such device and all lighting or other attachments used in connection therewith except “star city” signs erected under section 173.085.


            Here, appellants argue that the district court erred in granting summary judgment in favor of the state.  They contend that they have demonstrated a question of material fact exists, and the district court erred by finding that “it is irrelevant what use [appellants] make[ ]of the inside of the trailer.”

            In its determination of the primary purpose of the trailer, the district court split the trailer’s dual purposes, finding one without finding the other.  While it is true that the trailer could be used for storage without bearing any advertising, we disagree with the court’s analysis.  As appellants argue, it is possible for a trailer to serve one purpose—such as advertising—although its primary purpose is something else—such as storage or transportation.  Under the district court’s approach, appellants may not use the trailer for advertising even if the trailer’s primary purpose is something else.  But the statute is only concerned with what the primary purpose is, not what possible purposes the trailer serves.

            We agree with appellants that making this determination is a question of fact. The state did introduce an affidavit by one of the inspectors that questions whether appellants used the trailer.  Appellants have introduced some evidence that the trailer is used for storage.  This evidence is more than a mere averment and the court must entertain this question of fact before deciding the trailer’s primary purpose.

Reversed and remanded.


[1]  The Minnesota Supreme Court has found that MOACA is constitutional.  State by Spannaus v. Hopf, 323 N.W.2d 746, 755 (Minn. 1982) (finding MOACA does not violate the First and Fourteenth Amendments of the U.S. Constitution); State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn. 1981) (rejecting a “discriminatory enforcement” challenge where nonconforming privately-owned signs were condemned but similar nonconforming state signs were not).