BENCH BILLBOARD COMPANY v. City of Toledo, Case No. 3:07CV2027.
| Citation | 690 F. Supp.2d 651 |
| Decision Date | 03 March 2010 |
| Docket Number | Case No. 3:07CV2027. |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | BENCH BILLBOARD COMPANY, Plaintiff. v. CITY OF TOLEDO, Defendant. |
William H. Heywood, III, Shumaker, Loop & Kendrick, Toledo, OH, Eric C. Holzapfel, Drew & Ward, Cincinnati, OH, for Plaintiff, Bench Billboard Company.
John T. Madigan, Keith J. Winterhalter, Mark S. Schmollinger, Department of Law, One Government Center, Toledo, OH, for Defendant, City of Toledo.
This is a case about the regulation of courtesy bus stop benches. Plaintiff Bench Billboard Company alleges under 42 U.S.C. § 1983 that defendant City of Toledo's ordinance governing courtesy benches violates its right to freedom of speech, equal protection and due process. Plaintiff also asserts a cause of action under Ohio common law for tortious interference with prospective economic advantage. Plaintiff seeks declaratory, injunctive and monetary relief.
Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1367.
Pending are cross-motions for summary judgment Docs. 21, 32. For the reasons discussed below, both motions shall be granted in part and denied in part.
Plaintiff provides advertising benches at bus stops in Toledo. Its benches are approximately six feet long, two feet wide, and forty-two inches tall. The side of the bench containing the advertisement forms the back rest for the bench and is about two feet high by six feet long.
Plaintiff obtained permits and legally maintained close to 300 advertising benches on city property for many years prior to the city's enacting the current ordinance.
Under the ordinance, person desiring to place benches in the city must apply for, and receive a permit under Toledo Municipal Code, Chapter 719.
In enacting the current chapter 719 in February, 2007, the city noted that "Courtesy Benches are a form of advertising for the bus bench companies, which also provide a needed service for the City of Toledo." Doc. 32-1. The city's reason for adopting the new ordinance was that Id.
Toledo Municipal Code §§ 719.01 through 719.11 govern placement of courtesy benches in the city. Thomas Kroma, City of Toledo Assistant Chief of Staff, acknowledged that there are no other city guidelines or standards governing the placement of benches.
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 "no 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).
The provision 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.
Chris Zervos, acting Commissioner of Building Inspection testified the specific words prohibited were likely to distract or mislead traffic.
The ordinance permits 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.
The Toledo Area Regional Transit Authority (TARTA) also maintains benches and bus shelters at bus stops around Toledo. According to city officials, these benches are not governed by Chapter 719.
Kroma states that prior to February, 2007, the city received "numerous complaints" regarding litter around benches. Doc. 21, Ex. 1. He states that this is the reason for Chapter 719. He additionally states that "safety concerns require that ice and snow be removed form the courtesy benches and their immediate area to make the benches accessible to the public." Id. Kroma also testified that litter is a problem generally in the city. Zervos testified that the city received complaints regarding litter around benches. Dennis Johnson, a city building/sign inspector said he was aware of approximately a dozen complaints about courtesy benches, only a few of them relating to litter.
Shortly after the enactment of the new ordinance, plaintiff's permits expired. The city rejected plaintiff's renewal request. The city stated that the benches were not in compliance, in part because trash cans were not affixed, as required by § 719.08(e). The city filed criminal complaints against plaintiff for non-compliance with the ordinance. Plaintiff asserts that the burdens imposed will likely result in removal of its benches.
The city issued courtesy bench permits to Affordable Bench Advertising Affordable Bench even though Affordable Bench was not in compliance with the ordinance. Johnson and Zervos testified that Affordable Bench represented that it was actively working to bring the benches into compliance. Criminal complaints were not filed against Affordable Bench even though some of its benches did not comply.
Johnson states that he has not issued any permits since 2008 and that he has ceased citing bench owners for failure to comply with the ordinance since the beginning of this lawsuit.
The First Amendment to the Constitution, applicable to state and local governments through the Fourteenth Amendment mandates that no law shall "abridge the freedom of speech." U.S. Const. amend. I.
A regulation may implicate the First Amendment even if the regulation does not directly prohibit or limit speech. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (); Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ().
Plaintiff raises three separate First Amendment challenges to the city's ordinance: 1) a claim that it operates as a prior restraint because it vests unbridled discretion with the city; 2) a facial challenge to the ordinance's prohibition on political advertising and the use of certain words; and 3) a facial challenge to the ordinance's requirement that the bench owner affix a trash can to the bench and keep the surrounding area free of litter, snow and ice.
As a preliminary matter, I note that the First Amendment is implicated here because, as the Sixth Circuit has recognized: "Billboards and other visual signs, it is clear, represent a medium of expression that the Free Speech Clause has long protected." Prime Media, Inc. v. City of Brentwood, 398 F.3d 814, 818 (6th Cir. 2005) Prime Media I. Billboards, however, "pose distinctive problems" because they "take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).
Plaintiffs first and second causes of action allege that the ordinance violates the First Amendment because it gives unbridled discretion to the Commissioner of Building Inspection and Code Enforcement to determine when to issue courtesy bench permits. Plaintiff brings a facial challenge to the ordinance, asserting that this delegation of discretion amounts to an unconstitutional prior restraint on its free speech rights....
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