Hilton v. City of Toledo

• Decision Date: 18 June 1980
• Docket Number: No. 79-1304,79-1304
• Citation: 405 N.E.2d 1047,16 O.O.3d 430,62 Ohio St.2d 394
• Parties: , 16 O.O.3d 430 HILTON et al., Appellees, v. CITY OF TOLEDO et al., Appellants.
• Court: Ohio Supreme Court

Page 394

62 Ohio St.2d 394

405 N.E.2d 1047, 16 O.O.3d 430

HILTON et al., Appellees, v. CITY OF TOLEDO et al., Appellants.

No. 79-1304.

Supreme Court of Ohio.

June 18, 1980.

Syllabus by the Court

Chapter 43 of the Toledo Municipal Code, insofar as it prohibits the display of flashing portable advertising signs, is a constitutional exercise of the municipality's police power.

This cause was initiated as a class action filed by appellees, Tommy L. Hilton, d.b.a. Porta-Signs of Ohio, and three other owners of portable advertising signs, challenging the constitutionality of sections of Chapter 43 of appellant-Toledo's municipal code which prohibit the use of flashing portable advertising signs within that city.

On August 30, 1977, appellant's city council enacted a uniform sign code, the effect of which established standards for the fabrication, erection and use of signs, symbols, markings and advertising devices within the city. Among other things, the enactment set forth the procedure for the inspection and licensing of all signs to be used in the municipal area. Under Section 43-8-1 of Article VII of the sign code, the display of any sign animated by means of "flashing, scintillating, blinking or traveling lights or any other means not providing constant illumination" is prohibited. Section 43-8-3 of Article VII prohibits the use of any sign "which moves or assumes any motion constituting a non-stationary or non-fixed condition" except as provided therein. Furthermore, portable or wheeled signs are prohibited, except to the extent allowed by Section 43-8-7(b), which authorizes the use of such signs "in a commercial or industrial district for a total period not to exceed 15 days." Enforcement of the code is relegated to the Commissioner of Building Inspection, or his authorized representative, both of whom are empowered to locate violators and obtain from them an "assurance of discontinuance" of any prohibited act. In addition, persons who fail to comply may be charged with a minor misdemeanor, as defined by R.C. 2929.21 and 2929.31, for the first offense, and with a fourth degree misdemeanor, as defined by R.C. 2929.21 and 2929.31, if a second offense occurs within a 12-month period.

Appellees are owners of flashing portable advertising signs which are either leased to other businesses or used by the owner for advertising on his own business premises. With the enactment of the sign code, and the expiration of the outstanding permits authorizing the display of these devices, appellees were unable to lease or use their signs within the municipality. Appellees instituted this action, seeking a declaratory judgment that the sign code is unconstitutional insofar as it prohibits the use of flashing portable advertising signs in the city of Toledo, and requesting an order permanently enjoining appellant's officials from enforcing the code as to appellees and others similarly situated. The trial court disallowed the class action, but decreed that, insofar as the sign code prohibited the use of animated, flashing, scintillating, blinking or traveling lighted portable signs, the code was unconstitutional. Appellants were permanently enjoined from enforcing those provisions.

In affirming the trial court's judgment, the Court of Appeals held that the sign code's prohibition against flashing portable advertising signs did not bear a real and substantial relationship to the public health, safety, morals or general welfare.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

James D. Nestroff and Morton E. Leveton, Toledo, for appellees.

John A. DeVictor, Jr., Asst. Director of Law, Toledo, for appellants.

HERBERT, Justice.

The initial question presented herein is whether appellant is empowered, by virtue of the police power conferred upon it in Section 3 of Article XVIII of the Constitution of Ohio, to regulate the use of flashing portable signs within its territorial boundaries.

At the outset, appellant asserts that the lower courts failed to accord its exercise of municipal police power the presumption of constitutionality to which it is entitled and, therefore, erroneously shifted the burden of proof to appellant.

An enactment of the legislative body of a municipality is entitled to a presumption of constitutionality. The presumption may be rebutted by showing that the ordinance lacks a real or substantial relationship to the public health, safety, morals or general welfare, or that it is unreasonable or arbitrary. Dayton v. S.S. Kresge Co. (1926), 114 Ohio St. 624, 151 N.E. 775 (paragraph one of the syllabus); Alsensas v. Brecksville (1972), 29 Ohio App.2d 255, 281 N.E.2d 21. Furthermore, it is incumbent upon the party alleging unconstitutionality to bear the burden of proof, and to establish his assertion beyond a reasonable doubt. State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 383 N.E.2d 892; State, ex rel. Ohio Hair Products Co., v. Rendigs (1918), 98 Ohio St. 251, 120 N.E. 836; East Cleveland v. Palmer (1974), 40 Ohio App.2d 10, 317 N.E.2d 246; Cincinnati v. Criterion Advt. Co. (1929), 32 Ohio App. 472, 168 N.E. 227.

In State v. Renalist, supra, this court stated, 56 Ohio St.2d, at page 278, 383 N.E.2d, at page 894:

" * * * (W)hen an enactment under attack is a legislative exercise pursuant to the police power, a party opposing such action must demonstrate a clear and palpable abuse of that power in order for a reviewing court to substitute its own judgment for legislative discretion. Allion v. Toledo (1919), 99 Ohio St. 416, (124 N.E. 237); Dayton v. S.S. Kresge Co. (1926), 114 Ohio St. 624, (151 N.E. 775.) * * * " In Dayton v. S.S. Kresge Co., supra, it is observed at page 629, 151 N.E., at page 776:

"The determination of the question whether or not this ordinance was reasonably necessary for the safety of the public is committed in the first instance to the judgment and discretion of the legislative body of the city, and if it acted reasonably and not arbitrarily the authorities should not be restrained by the process of injunction from carrying the provisions of such ordinance into effect. * * * "

A review of the instant record shows that, at trial, appellant was required to "justify their regulation." This constituted an impermissible shifting of the burden of proof concerning the question of the constitutionality of this enactment. As stated in Renalist, supra, 56 Ohio St.2d, at page 281, 383 N.E.2d, at page 895-896, the focus of inquiries in these matters is "not * * * on whether the state had affirmatively established, 'in the record,' the public interest involved," but the crucial question is whether the party challenging the validity of the legislative enactment has "rebutted the presumption of constitutionality 'beyond a reasonable doubt.' " See State, ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59; Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 55 N.E.2d 629 (paragraph six of the syllabus).

The authority of a municipality to regulate the use of outdoor advertising through its...