Bench Billboard Co. v. City of Toledo

• Decision Date: 15 October 2010
• Docket Number: No. 3:07CV2027.,3:07CV2027.
• Citation: 759 F.Supp.2d 905
• Parties: BENCH BILLBOARD COMPANY, Plaintiffv.CITY OF TOLEDO, Defendant.
• Court: U.S. District Court — Northern District of Ohio

759 F.Supp.2d 905

BENCH BILLBOARD COMPANY, Plaintiff

v.CITY OF TOLEDO, Defendant.

No. 3:07CV2027.

United States District Court, N.D. Ohio, Western Division.

Oct. 15, 2010.

Eric C. Holzapfel, Drew & Ward, Cincinnati, OH, for Plaintiff.John T. Madigan, Keith J. Winterhalter, Mark S. Schmollinger, Toledo, OH, for Defendant.William H. Heywood, III, Shumaker, Loop & Kendrick, Toledo, OH.

ORDER

JAMES G. CARR, District Judge.

This is a suit by plaintiff Bench Billboard Company (BBC) about the City of Toledo's regulation of bus stop courtesy benches. Toledo enacted a new ordinance regulating such benches TMC §§ 719.01–11, in February, 2007. Among other things, the ordinance required BBC to place trash receptacles by the benches and keep the area free of snow and debris.

BBC filed this suit under 42 U.S.C. § 1983, alleging that the ordinance violates its right to freedom of speech, equal protection, and due process. BBC also asserted a cause of action under Ohio common law for tortious interference with prospective economic advantage.

On the parties' cross-motions for summary judgment, I held: 1) two provisions of the ordinance are violate the First Amendment; 2) these two provisions are severable from the remainder of Chapter 719; 3) BBC failed to show an equal protection violation; 4) Section 1983 does not create substantive rights; and 5) because Toledo had not removed any of BBC's benches, Toledo had not tortiously interfered with BBC's prospective economic relationships. [Doc. 44]; Bench Billboard v. City of Toledo, 690 F.Supp.2d 651 (N.D.Ohio 2010).

I therefore granted BBC's motion for summary judgment (and denied Toledo's counter–motion) as to the ordinance's prohibition on political speech and allowance of revocation based on a finding that the bench is “prejudicial to the interest of the general public,” and denied the motion (and granted Toledo's counter-motion) as to BBC's other claims. Id.

Pending is BBC's motion for attorney's fees and costs. [Doc. 54]. For the reasons discussed below, BBC's counsel may submit a final time and fee statement in accordance with the following opinion.

Background

Toledo's reason for adopting the ordinance was that “[t]he current ordinance specifies the permitting and placement of these structures along with some general guideline but has no language regarding the maintenance, sanitation, and conditions of the permit. It is necessary to add specific provisions to the code in order to better enforce this chapter of the code.” [Doc. 32–1]

Thomas Kroma, City of Toledo Assistant Chief of Staff, acknowledged that no other city guidelines or standards govern placement of benches.

Under the ordinance:

Courtesy benches for the convenience of local bus patrons and members of the general public, which benches contain advertising matter, may be installed and maintained upon public thoroughfares and public sidewalks of the City by persons, firms or corporations in the manner and subject to the conditions and regulations prescribed by the following sections of this chapter.

TMC § 719.01.

A courtesy bench may not be installed without a permit from the Commissioner of Building Inspection and Code Enforcement (Commissioner), “on forms prescribed by such official.” § 719.02(a). The total number of permits which may be issued “shall be at the discretion of the Commissioner” and “[n]o more than one courtesy bench shall be permitted at any bus stop except” when the Commissioner determines that “conditions warrant.” TMC § 719.02(b)-(c).

Section 719.05, governing permit issuance, states:

If the Commissioner ... finds that the applicant has complied with all of the provisions of this chapter and the maintenance of a bench or benches at the proposed locations will not tend to obstruct passage or create a hazard to persons traveling on the public way in the vicinity thereof, he/she shall issue a permit; otherwise such application shall be denied.

Section 719.08 specifies the requirements for courtesy benches, including, inter alia:

(a) No bench shall carry any political advertising ... nor shall any advertisement or sign on any such bench display the words “STOP,” “LOOK,” “DRIVE–IN,” “DANGER,” or any other word or words which might mislead or distract traffic.

...

(c) .... Benches shall be kept at all times in a neat, clean and usable condition and ice, snow, litter and debris shall be removed from the benches and the vicinity thereof in such a manner that each bench shall be accessible at all times.

...

(e) All bus benches at all locations shall maintain a trash receptacle affixed to the courtesy bench. The receptacle shall be capable of allowing water and other liquids to pass through.... The permittee is responsible to see that the trash receptacle is emptied on an as needed basis and that the area ten feet in diameter around the bus bench is maintained free of litter and debris.

(Emphasis supplied).

Chris Zervos, acting Commissioner of Building Inspection, testified that the specific words prohibited were likely to distract or mislead traffic.

The ordinance authorizes the Commissioner to revoke a permit for several reasons, including: “When continued maintenance of a bench at a specified location shall be deemed by the Commissioner ... to be a hazard to pedestrian and vehicular traffic or prejudicial to the interest of the general public.” TMC § 719.06(d).

Violation of the ordinance is a minor misdemeanor for the first offense and a fourth-degree misdemeanor for any second offense within a twelve-month period. TMC § 719.99.

Before adoption of the current ordinance, BBC had permits and had installed and legally maintained nearly 300 advertising benches on city property for many years. Shortly after the enactment of the new ordinance, BBC's permits expired.

BBC applied for renewals under the new ordinance. Toledo rejected BBC's requests, stating that the benches were not in compliance, in part because trash cans were not affixed as required by § 719.08(e).

Toledo filed criminal complaints against BBC for non-compliance with the ordinance on July 2, 2007. Toledo Municipal Court Case No. CRB–07–13787–0101.

BBC brought this action on July 6, 2007, challenging the ordinance by alleging three First Amendment violations, an Equal Protection claim, and a state law claim for tortious interference with economic relationships. I granted summary judgment in favor of BBC as to some of its claims. Bench Billboard v. City of Toledo, 690 F.Supp.2d 651 (N.D.Ohio 2010).

BBC subsequently filed this motion seeking attorney's fees under § 1988. Toledo does not dispute that BBC is a prevailing party entitled to some fees and costs. It argues, however, that the amount claimed by BBC is excessive and asks that it be reduced.

Discussion

Section 1988 of the Civil Rights Act, 42 U.S.C. § 1988, authorizes an award of attorney's fees to parties who have prevailed in litigation brought under § 1983. For the purposes of § 1988, a party prevails where because of the party's initiative, the judiciary has materially altered the legal relationship between the parties. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

A court calculates the amount of a fee award by determining the number of hours reasonably expended and the hourly rate that represents reasonable compensation, subject to any appropriate adjustments. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

BBC claims $132,532 for attorneys' fees and $9,746.50 costs. Toledo asks me to reduce the fee award for two reasons.

First, Toledo alleges that federal law does not allow a prevailing party to recover fees for work performed on matters not part of the federal court proceeding. Toledo points specifically to 38.25 hours of attorney time BBC's counsel spent defending the ordinance violation citations in Toledo Municipal Court.

In addition, Toledo claims that, with regard to another 24.55 hours, BBC's descriptions are insufficient to determine whether counsel spent the time on the Municipal Court cases or on this lawsuit. Toledo therefore asks me to reduce the fee petition by 62.80 hours.

Second, Toledo contends I should further reduce BBC's fee petition because BBC prevailed on only some of its claims. According to Toledo, the two issues on which BBC prevailed were “based on well-settled legal principles.” Thus, Toledo claims, BBC should have filed a motion for judgment on the pleadings, rather than a more expensive motion for summary judgment. Toledo seeks an 84% reduction in the award. This, Toledo states, reflects “a reasonable relationship between the time expended and the results achieved.” [Doc. 58, at 12].

A. The Municipal Court Proceedings

Toledo filed its Municipal Court case on July 2, 2007—just days before BBC filed its complaint here. Toledo charged BBC with “failure to obtain courtesy bench permits,” under Chapter 719 of the Toledo Municipal Code. The complaint remained pending being marked off docket with a right to re-file on June 24, 2008. [Doc. 61].

BBC argues that because both the Municipal Court and federal proceedings involved functionally similar constitutional challenges to Chapter 719, the claims were related and therefore it deserves compensation from Toledo for its fees and costs from both proceedings. [Doc. 61]. Toledo argues that the facial similarity between the two proceedings is an insufficient basis for making it pay for fees engendered in the municipal court enforcement action. In Toledo's view, BBC simply cannot recover for work other than on the federal case. [Doc. 58]. Both parties have missed the mark.

Toledo's categorical contention that federal law precludes recovery for work that was not part of the federal proceedings is incorrect. For example, an award of fees for ancillary proceedings is proper if the work was “useful and of a type ordinarily necessary” to secure the relief requested in the...