Aerial advertising cases lose possibility to be heard by jury

An aerial advertising company will need to make its case to fly over Oahu skies before a district judge after all.

Acting Circuit Judge Paul Wong granted a request by city prosecutors to send four cases involving Aerial Banners Inc. and pilot Matthew Radeck back to District Court. The decision effectively kills efforts by the company and the pilot to have their fates decided by a 12-person jury.

Arraignment is now scheduled for Wahiawa District Court on Jan. 29.

Typically, jury trials are not available in petty misdemeanor cases but are for full misdemeanor cases. The city’s prohibition against aerial advertising is silent about whether the offense is a petty misdemeanor or a full misdemeanor.

Additionally, the maximum fine of $500 and up to three months in jail fall somewhere between what is issued for a petty misdemeanor and a full misdemeanor.

Victor Bakke, attorney for the company and the pilot, argued that the cases demanded jury trials because of the broad public attention being paid to it by the media as well as Mayor Kirk Caldwell and other city officials who urged the public to call 911 if they saw Aerial Banner’s helicopters operating.

"This is a serious case and it affects everybody," he said. "The community should have a right to sit on the jury and make this decision and not just have to rely on some judge."

Also reflecting the seriousness of the case are Aerial Banners’ potential loss of its ability to operate in Hawaii and up to three months in jail time for Radeck, he said.

But Deputy Prosecutor Ashley Tanaka argued that those responsible for the city law enacted it because of concerns about aerial advertising’s impacts on the visual landscape of the community and its possible impact on the island’s economics, not for public safety reasons.

"The fact that this case has been on the news has no bearing," Tanaka said.

Wong, in making his ruling, said "there is no dispute between the parties that we are in that gray area as to whether or not this is a serious crime requiring a jury trial or a petty crime where it is (to be) tried before a bench," the judge said. However, Wong said, the defendants did not meet any of the standard factors, including the gravity of the offense, that courts have used historically to determine whether they are entitled to jury trials.

Aerial Banners and Radeck were each cited twice for flying commercial banners on two separate days in July. They contend the company doesn’t need to follow city ordinances because it has a waiver from the Federal Aviation Administration. An FAA administrator, however, has since told city officials the waiver does not allow the company to avoid local laws.

The company has not flown commercial banners since the summer.