Posted by: Patricia Salkin | May 21, 2012

6th Circuit Court of Appeals Dismisses Constitutional Claims Over Regulation of Advertisements on Benches

Plaintiff company is in the business of putting benches with advertisements on them on public and private property. In 1993, the City, enforcing its ordinances, confiscated more than 200 benches and refused to grant new permits to Plaintiff. Plaintiff sued and the parties settled with the City agreeing to give the plaintiff special privileges, exempting them from certain controls. This special treatment was expressly revocable by the City.                  

In 2006, the City repealed the ordinance that granted Plaintiff the special treatment, making them again subject to the code relating to the posting of advertising signs on public property. Before taking any action to enforce any code provisions on Plaintiff, the City again amended the code imposing more restrictions on advertising in public. At this point, Plaintiff brought suit claiming that the new regulations violate the First and Fourteenth Amendments. The City then again amended the Code to create a lottery system for the placement of advertising benches and the Plaintiff’s amended their complaint accordingly. 

The City moved for dismissal and the district court granted it for the Plaintiff’s due process and breach of settlement claims but denied it for the Plaintiffs First Amendment claim and the Equal Protection claim. A week after the Court entered its order concerning the motion to dismiss, the City again amended the code, allowing larger advertisements on benches and limiting the discretion of the City Manager in enforcing the regulations. 

Both parties moved for summary judgment. Before the motions could be considered, the City amended the code again, instituting a new regulatory scheme regarding advertising in public including banning advertising from bus stops and prohibiting advertising benches from public rights-of-way altogether.

 The first issue the court addressed was whether the Code violated the plaintiff’s first amendment rights. Generally, a court may not consider the constitutionality nor enjoin the enforcement of a statute that is no longer in effect. While there have been instances where a city amends a statute to eliminate a contentious provision and the court finds that the issue is not moot, these cases are unique in that the city in some way threatens to reenact the ordinance at issue if the case is dismissed as moot. There is no evidence that this is the case here as the most recent amendment enacted an entirely new regulation scheme and the city has made no indication that it intends to enact the allegedly injurious statute if the case is dismissed as moot. 

Next, the court looked at whether the Plaintiff had standing to challenge the constitutionality of the code section governing the fee structure for applications for bench advertising permits. To establish standing, a Plaintiff must have Injury in fact, a causal connection between the injury and the conduct complained of and it must be likely that the injury will be redressed by a favorable decision. Here, the only injury claimed by the plaintiff is the difference between the application fees paid by the plaintiff and those paid by other advertising media allowed in public areas of the city. Such fees, requiring a person to pay before he can engage in a constitutionally protected activity, do not violate the Constitution so long as the purpose of the fee is limited to defraying expenses incurred in furtherance of a legitimate state activity. Here, the Plaintiff does not show that it has paid or will pay any fees that may be greater than necessary to defray expenses incurred in the furtherance of a legitimate state activity. Therefore Plaintiff has failed to demonstrate that he has suffered any injury in fact as a result of fees required by the code and therefore does not have standing. 

The Court then addressed whether the Plaintiff had standing to challenge the constitutionality of the section of the code adding bench billboards to the definition of “outdoor advertising sign”. The effect of this section of the code was to curtail the locations that the Plaintiff could place their benches. They challenged this section facially and “as applied.” The court held that the “as applied” challenge failed because the plaintiff never showed or claimed that it had tried to place a bench in a now restricted area. Accordingly, their injury was merely speculative and thus the Plaintiff lacked standing to posit an as-applied challenge to this section. 

The Court next considered the facial challenge. To facially challenge a statute on overbreadth grounds, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment rights of parties not before the court. Here, the court held that the Plaintiff did not demonstrate any danger that the code would compromise the rights of parties not before the court. In addition, a Plaintiff making such a challenge must still show injury in fact, and the Plaintiff here did could not. Therefore the Plaintiff could not posit a facial challenge to this section either. 

The Plaintiff next claimed that the City’s treatment of advertising benches violated their right to equal protection under the Fourteenth Amendment. The Equal protection clause prohibits discrimination by the government which either burdens a fundamental right, targets a suspect class or intentionally treats one differently than others similarly situated without any rational basis for the difference. To succeed in a “claim of one” equal protection claim, a plaintiff must first prove that it has been treated differently from similarly situated individuals. These similarly situated individuals must be the same in all material respects. The court held that the Plaintiff and the other individuals or entities responsible for the placement of items in public areas are not similarly situated because they each provide a distinct product or service to different customer bases. As the Plaintiff cannot establish that it was similarly situated to other entities that place advertising in public areas, the city’s treatment of advertising benches did not violate Equal Protection under the fourteenth amendment. 

The court next addressed whether the Plaintiff’s use of the benches was a qualifying non-conforming use.  The district court simply could not grant summary judgment as to this issue as the Plaintiff did not properly raise this issue as a claim. The Plaintiff argues that it should be allowed to amend its complaint but the court recognized that such amendments are allowed only where the defendant would not be prejudiced by such an amendment. Here the city would have been prejudiced by the amendment because the City objected to the Plaintiff’s assertion of a non-conforming use claim because the district court previously ruled that the Plaintiff failed to state a contract claim upon which relief could be granted. Thus the District court did not err in dismissing the Plaintiff’s non-conforming use claim. 

Finally, the Plaintiff argues that it is entitled to prevailing party status as a result of the City enacting the new ordinance that deleted the language that is at issue in most of their claims. Because the amendment was neither a result of judgment on the merits nor a court ordered decree, nor was it compelled through a judicially sanctioned change on the legal relationship of the parties, the amendment did not confer prevailing party status on the plaintiff. The court affirmed the judgment of the district court. 

Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012) 

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