Posted by: Patricia Salkin | October 28, 2012

Fed. Dist. Court in Ohio Allows Temporary Political Sign Case to Proceed

Plaintiff, Greenburg, filed suit against the City of Sylvania, as well as the City’s mayor and zoning administrator.  The plaintiff alleges he was threatened by an illegal sign citation in response to his placing a temporary political sign in his front yard.  The City moved to dismiss, or in the alternative for summary judgment, contending that Greenburg lacks standing.  The United States District Court, Northern District of Ohio, Western Division granted in part and denied in part the City’s motion to dismiss, and denied the City’s motion for summary judgment.

The court first addressed procedural issues, determining that motion would be treated as a factual challenge to subject matter jurisdiction, allowing the court to consider the evidence submitted thus far.

The plaintiff displayed a sign in his yard advocating the re-election of President Obama.  The City instructed the plaintiff that he would be cited for the sign if he did not remove it, as the sign violated a local law that provides temporary signs cannot be displayed more than seventy days before, and seven days after, a contest.  The plaintiff brought a 42 U.S.C. §1983 action, seeking damages, injunctions, and a declaratory judgment providing that law, as applied, violated his Fourteenth Amendment rights.  The plaintiff then amended his complaint to include a facial challenge to the seventy-seven day rule, as well as other challenges to the discretion of City officials.

In determining the outcome of this case, the court primarily looked to whether the plaintiff had standing to file suit.  The District Court stated that in order for the plaintiff to show standing, he must show an injury, a connection between the injury and the defendant, and the likelihood that the court would provide a remedy.  At issue in this matter was whether the plaintiff had alleged an injury. Thus, the court applied this factor to each claim alleged by the plaintiff.

The court first assessed the plaintiff’s claims concerning the seventy-seven day allowance, the permit requirement for signs to be displayed outside the seventy-seven day requirement, the discretion used in deciding whether seventy-seven days is reasonable, and the discretion given to the body determining the outcome of the permit application.  The City claimed there was no injury, as the plaintiff had never been actually cited for the violation.  The court disagreed, finding that the threat of citation by the City sufficiently injured the plaintiff, as it constituted a “credible threat of prosecution, coupled with an intention to engage in conduct giving rise thereto.”  Furthermore, the court failed to agree with the City’s contention that the threat did not injure the plaintiff, as the plaintiff could have been prosecuted civilly, rather than criminally.  Even though the court found the plaintiff knew of this option, the court found this knowledge did not obviate the fact the City zoning official knocked on the plaintiff’s door and unequivocally told him he would be criminally prosecuted unless the sign was removed.  Thus, the court found the plaintiff was injured and had obtained standing.

Notwithstanding that the court found an injury concerning the permit related causes of action, the court also found the plaintiff alleged sufficient facts at this point in time sustain an unlawful prior restraint claim.  The court made this determination as City officials charged with dispensing the permits are seemingly vested with broad discretion regarding the sign’s aesthetic appearance and its ability to promote the architectural character of the property.  The defendant countered by stating that since the plaintiff did not exhaust his administrative remedies an injury has not occurred, and, thus, standing does not exist.  The court disagreed, providing that the defendant’s argument goes to ripeness and not standing.

The plaintiff had also challenged the regulation limiting the number of signs permitted on a parcel.  The court found the plaintiff lacked standing on this claim, as he did not allege how this regulation affected or injured him.

Greenburg v. City of Sylvania, Case No. 3:12 CV 1848 (U.S.D.C., N.D. Ohio, Aug. 29, 2012),

The opinion can be accessed  here.

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