Posted by: Patricia Salkin | March 28, 2015

Fed. Dist. Court in OH Upholds Constitutionality of Sign Restrictions

Sharona Properties, L.L.C., et al. wanted to erect an electronic sign on its property facing Rt. 480 for the advertising of both on and off premise businesses, public service announcements, and political commentary. They filed a miscellaneous permit application that did not appear to identify the property at issue listing Howard Sonenstein as the general contractor to make decisions. The Village responded with a letter listing additional application requirements that would be necessary before a permit review could be completed, including: (1) three sets of drawings, (2) three site location plans, (3) a $125.00 fee, and (4) a completed signed application. Sharona Properties’ application for a sign permit was denied because the ordinances “did not permit the usage of billboards for off-premises sales.” Sharona Properties appeals arguing that their application for a free-standing sign was denied because it fit the definition of a billboard or off-premise sign, and that the ordinance prohibiting such signs was unconstitutional both facially and as applied.

As to standing, the court stated that when a plaintiff raises a facial claim against a law that potentially restricts free speech, there may be an exception to the ordinary standing requirements. Under these circumstances a plaintiff has standing to raise the claim if they can demonstrate that “every application of the law creates an impermissible risk of suppression of ideas” or that it is so substantially overbroad that it “may inhibit the constitutionally protected speech of third parties” even if it may be validly applied to the plaintiffs themselves. The court noted that the Sixth Circuit, has held that a plaintiff lacks standing to challenge a city’s off-premise or billboard ban if their proposed sign would still violate a city’s size, height, or other valid restrictions.  Here, the court stated that the application could have been validly denied for several reasons that were completely independent of the ban on billboards and off-premise signs. First, the plaintiffs did not comply with the application requirements. When a map of the property was eventually submitted, it did not provide any measurement indicating planned setbacks, sign dimensions, height of the proposed sign, or other information that would allow the Planning and Zoning Commission and the Architectural Board of Review to determine whether the proposed sign would comply with Village requirements. Without this information, the court stated that the Village could not possibly approve the application even if off-premise signs were permitted.

Mr. Sonenstein described the digital billboard to be about 14 feet by 48 feet with a single pole, because “cars traveling 80 miles an hour are not going to see a small 6–foot sign.” The court stated that these dimensions dwarfed the allowed maximum area (32.0 square feet) and maximum height (8.0 feet) for freestanding signs, as allowed under the Village ordinances. Therefore, even if the prohibition on off-premise signs and billboards were deemed to be unconstitutional, the proposed sign would be prohibited. To the extent that Plaintiffs argued that the size of the sign was not yet determined, the filing of the application, and the filing of this lawsuit were premature. There can be no concrete, particularized, actual or imminent injury if they had no concrete plans to actually build a sign that comported with the unchallenged restrictions.

Further, the Court noted that the property already had one freestanding sign. The Village ordinance limited each property to one freestanding sign. Therefore, the court stated that the application for a freestanding sign was properly denied. Again they argued that it was possible they might have gotten rid of the first sign if the permit had been granted for the larger billboard. This, the court stated was speculation and did not establish standing through the establishment of a concrete, particularized, imminent injury. The Court noted that the Village had to consider the permit application as it was presented and there was no mention in the application of any plan to remove the current freestanding sign. For these reasons, the Court found a lack of standing to bring a claim alleging that the Village’s prohibition on billboards and off-premise signs is unconstitutional as it was applied to them.

Nonetheless, because the standing requirements are somewhat relaxed on claims that a government restriction violates the First Amendment, the Court addressed the facial challenge. Sharona Propertiesl had not alleged that every application of the law created an impermissible risk of suppression of ideas. The complaint raised a claim that the Village’s ordinance banning billboards and off-premise signs was so substantially overbroad that it “may inhibit the constitutionally protected speech of third parties.” Sharona Properties contended that the Village ordinance banned “any sign structure advertising an establishment, merchandise, event, service, or entertainment that is not sold, produced, manufactured or furnished at the property on which the sign is located.” The court stated that this language, on its face, did not operate to ban non-commercial, ideological or political speech. Further, there was nothing within the ordinance that could be read as limiting the content of any permissible sign to the communication of commercial speech. In fact, the term “sign,” specifically included not only traditionally commercial speech, but also visual communications aimed at the promotion or announcement of any activity, ideology, institution or the like “which is in the nature of, an announcement, direction, advertisement” or, broadly, any “other message.”

The Court further found no evidence that anyone had ever been denied a permit for a size compliant sign based on its content, or that anyone has ever been barred from erecting a sign to communicate non-commercial messages. Therefore, there was no evidence to prove, that the Village ordinances imposed a complete bar, any content-based restriction, or any other non-permissible limitation on non-commercial speech.

The Village’s definition of “off-premise sign” or “billboard” did look to the content of the message when defining which signs were prohibited. Under the ordinance, an “off-premise sign” was synonymous with the term “billboard,” and both were defined as structures “advertising an establishment, merchandise, event, service, or entertainment that is not sold, produced, manufactured or furnished at the property on which the sign is located.” By definition, the prohibition against billboards/off-premise signs applied only to those signs that communicate commercial speech or advertising that was unrelated to any business or service existing on the premises. Therefore, the court was left with a regulating scheme that was content neutral in that it allowed signs communicating both commercial and non-commercial speech to exist on a property so long as they meet certain size and number limitations. However, the regulations did take content into account since they prohibited only off-premise commercial speech. The United States Supreme Court has recognized that the United States Constitution affords less protection to commercial speech because it is perceived to have less value and does not rise to the stature of a fundamental right. The U.S. Supreme Court’s decision in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) found that a ban on commercial speech that relates solely to off-premise goods and services meets the constitutional requirements of Central Hudson. The Metromedia court relied on a previous U.S. Supreme Court case, Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978), where Suffolk banned signs “which direct attention to a business, commodity, service, entertainment, or attraction sold, offered or existing elsewhere than upon the same lot where such a sign is displayed.” That ordinance did not, on its face, prohibit non-commercial speech.  Metromedia, explained “If the city has a sufficient basis for believing that billboards signs are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them.” Based on the Central Hudson test and Metromedia, the Court noted that a municipality may prohibit off-premise commercial signs without running afoul of the First Amendment.

Sharona Properties, L.L.C. v. Orange Village, Ohio, 2015 WL 736290 (ND OH 2/20/2015)

The opinion can be accessed at: http://www.gpo.gov/fdsys/pkg/USCOURTS-ohnd-1_13-cv-01740/pdf/USCOURTS-ohnd-1_13-cv-01740-0.pdf


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