Plaintiff Bench Billboard Co., an advertiser that specializes in advertising products and services on backrests of benches on private and public property, sued the City of Cincinnati regarding its laws regulating the placement of advertising benches on public and private property, asserting that they violate the First and Fourteenth amendments of the Constitution as well as state law. Bench Billboard sought damages, injunctive relief and a declaratory judgment, while the City moved for summary judgment on the grounds that Bench Billboard’s claims were moot. The Court partially granted the City’s motion to dismiss, granted their motion for summary judgment, and denied Bench Billboard’s motion for summary judgment.
Bench Billboard first sued the City in 1993 challenging the legality of its ordinances limiting Bench Billboard’s ability to place its advertising benches in the public right-of-way and on private property. The dispute was settled in 1996, when the City granted replacement permits to place benches on private property, and passed Ordinance No. 187-1996, granting Bench Billboard “Special Street Privileges,” (expressly revocable by the City) which allowed the placement of one advertising bench at bus stops in the public right of way where a bus stop shelter or other seating structure had been placed and two advertising benches at bus stop locations where no other seating was provided.
In 2006, the City repealed Ordinance No. 187- 1996, stripping Bench Billboard of its street privileges and subjecting it Municipal Code 723-20, which limited the placement of only one advertising bench at a bus stop and no benches at stops already served by an existing bus shelter or bench. Bench Billboard also became subject to Municipal Code Chapter 895, which includes specifications and placement limitations for outdoor signs and large billboards. In June 2007, the City amended both provisions to include limiting the advertising space to 11 sq ft in area, and giving the City Manager authority to modify or waive any of the Section requirements for public safety.
On July 27, 2007 Bench Billboard filled suit alleging that the City had had violated its First and Fourteenth amendments as well as the terms of the 1996 settlement. The Court determined Bench Billboard’s Amended Complaint failed to state a claim for a violation of its substantive due process rights or breach of the settlement agreement, but sufficiently plead its First Amendment claim that 723-20 was facially invalid because it granted the City Manager unbridled discretion, the restrictions in 723-20 and Chapter 895 were more extensive than necessary to serve City’s interests, and its equal protection claim that the City was intentionally and unlawfully discrimination against Bench Billboard. The City amended 723-20 again by passing Ordinance No. 229-2008 which increased the allowable area of advertising from 11 to 12 square feet, and deleted the language that gave the City Manager unbridled discretion.
Bench Billboard filed Motion for Summary Judgment on issue of liability only, asserting it is a prevailing party on its first claim for relief, 723-20 and Chapter 895 are unconstitutional because they are more extensive than necessary to serve governmental interest, and that the City unlawfully discriminated against it by giving preferential treatment to other advertisers.
The City then enacted Ordinance 363-2009, which instituted a regulatory scheme that applies to park benches, planters, sandwich board signs, mail boxes, newsracks, bus stop shelters, outdoor dining areas, kiosks, sidewalk vending, and awnings to limit advertising on structures in order to reduce visual distraction and clutter so as to protect pedestrian and traffic safety as well as improve aesthetic qualities of the area. The City asserted the enactment of Ordinance No. 363-2009 moots Bench Billboard’s claims because a court may not consider the constitutionality nor enjoin the enforcement of a statute that is no longer in effect. The Court held Bench Billboard’s challenge to Chapter 895 is not mooted by the ordinance, because it did not alter any of its provisions and thus did not impact the claim that Chapter 895 violates Bench Billboard’s First Amendment Rights.
Unlike Chapter 895, Chapter 723 was impacted by the ordinance because the challenged section was deleted. In determining if the enactment of Ordinance 363-2009 makes Bench Billboard’s challenge to Chapter 723 moot, the court examined the voluntary cessation exception to the general rule that legislative repeal of a statute renders a case moot. The voluntary cessation exception is applied in instances where it appears that a legislature intends to reenact a challenged law in the future. Upon examining the actions of the City in enacting the legislation , the court held that the City did not intend on reenacting the repealed legislation , and thus rendered Bench Billboard’s claims for injunctive and declaratory relief moot.
The Court further found that Bench Billboard lacked standing to pursue its claims that the version of 723-20 in effect when the Amended Complaint was filed gave the City Manager unbridled discretion, and that the restrictions were not a reasonable fit between City’s interest and the means it chose to serve those interests, because plaintiff did not claim an injury in fact attributable to the now repealed language. The Court also found Bench Billboard lacked standing to pursue its First Amendment claims because it failed to satisfy the injury in fact requirement. Nothing in the record indicated that Chapter 895 would have any different impact on the free speech interests of parties not before the Court than it has on Bench Billboard, and evidence that Bench Billboard has benches on private property is insufficient to demonstrate actual or imminent harm, dismissing its claims that Chapter 895 is unconstitutional on its face or as-applied.
The Court granted the City’s motion for summary judgment on the Equal Protection Claim, which alleged by subjecting it to Chapter 895 and 723-20 while allowing other advertising companies to be virtually unregulated, the City was discriminating without a rational basis. The Court reasoned the parties were not similarly situated in all material aspects, because another company – Lamar, which places ads in bus shelters, was in a contractual relationship with a public entity to advertise in shelters as a way to defray cost of constructing and maintaining shelters. In addition, even if they were similarly situated, the City had a rational basis for treating Bench Billboard differently from other entities that place items on City sidewalks- safety and aesthetic concerns, and complains about general condition and placement of the advertising benches.
Bench Billboard argued that its advertising benches were lawful, nonconforming uses and that it may continue to place its benches in the right-of-way despite contrary code provisions because the benches were lawfully placed prior to the revocation of their special street privilege. However, Bench Billboard did not properly raise this issue, as neither its complaint nor amended complaint contained any arguments referencing the advertising benches are valid non-conforming uses.
Bench Billboard Co. v. City of Cincinnati, 2010 WL 2302932 (S.D. OH, 6/8/2010)
The case is now on appeal to the Sixth Circuit.
