Fed. Dist Court in OH Rejects Claim that Village Code not Allowing LED Billboard Signs with “Changeable Messaging” is Unconstitutional

This post was authored by Richard Grimes, Touro University Jacob D. Fuchsberg Law Center

In the Village of St. Bernard (“St. Bernard”), it is required under the Planning and Zoning Code part of Village Code (“Code”) that parties are to obtain a permit before installing their billboard. The Code notes a specific difference between “on premises signs” and “off premises signs’ ‘ depending on if the sign is directing towards the premises it is located or directing elsewhere. The Code requires a stricter code for “off premises signs.” This stricter requirement includes a disallowance of “variable messaging” or “changeable messaging.”

Norton Outdoor Advertising, Inc. (“Norton”) is an advertising agency in the business of creating and leasing outdoor billboards in and around the Village of St. Bernard. In this matter, Norton received permits from St. Bernard to erect two signs (“Signs”) at 130 W. Ross Avenue with LEDs.

Once the construction was completed, St. Bernard revoked the permits for the Signs after they determined that there were discrepancies in the permit application that was approved and the final construction. The application is alleged by St. Bernard to have not contained the “changeable messaging” feature that the erect sign had.

In response to the permit revocation, Norton filed suit against St. Bernard claiming that the revocation was a violation of its First and Fourteenth Amendment rights.  Following summary judgement(s) and cross motions filed by both parties, the Magistrate Judge recommended granting a summary judgment for St. Bernard.  Norton objected to this recommendation noting that the code that allowed for the revocation of the permit should be evaluated under strict scrutiny, as the provision is not “facially content neutral”. Norton also argued that Defendant did not establish the necessary “time, place and manner scrutiny” as it relates to the provision. Additionally, Norton noted that, even if not under strict scrutiny, the Court must still apply the “four-part test” noted in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

The US District Court (“Court”) reviewed the recommendation of the Magistrate Judge de novo reviewing all the information and evidence presented. The Court found that St. Bernard’s provision not allowing “changeable content” along with the designation of “off” and “on” premises signs were not content-discriminatory. There is no evidence to suggest that the provision was related to a disagreement with the message or content and therefore does not invite a strict scrutiny review.

The Court noted that the provision in the St. Bernard code reasonably fit the narrowly tailored intent to achieve St. Bernard’s goal of avoiding “aesthetically objectionable” billboards in which the changing content is a greater risk to traffic than other types of signs. Therefore, the Court accepted the recommendation of the Magistrate, granting St. Bernard’s motion for summary judgment and denying Norton’s summary judgment, dismissing the matter.

Norton Outdoor Adv., Inc. v Vil. of St. Bernard, 2023 WL 4633895 (SD Ohio 7/20/2023)