Kenjoh Outdoor, LLC v. Marchbanks

Decision Date10 September 2020
Docket NumberCase No.: 3:19-cv-328
Citation485 F.Supp.3d 947
Parties KENJOH OUTDOOR, LLC, Plaintiff, v. Jack MARCHBANKS, Director, Ohio Department of Transportation, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Thomas Howard Fusonie, Kara Marie Mundy, Vorys, Sater, Seymour and Pease, LLP, Columbus, OH, Andrew Richard Musgrove Blaiklock, Pro Hac Vice, Charles Raymond Whybrew, Pro Hac Vice, Lewis Wagner, LLP, Indianapolis, IN, for Plaintiff.

William J. Cole, Transportation Section, Leandro Martin Cordero, Ohio Attorney General's Office, Columbus, OH, for Defendants.



Pending before the Court is DefendantsMotion to Dismiss for Failure to State a Claim. ECF 14. Because the complaint does not allege any constitutional violations, the motion will be granted.

I. Background

Plaintiff Kenjoh Outdoor, LLC erects and maintains billboards. (Compl. ¶ 8, ECF 1, PageID 3). The Ohio Administrative Code provides:

No [billboard] application will be processed for a new permit when the applicant has any outstanding delinquent bills, including outstanding renewal fees for other permits, has modified a device prior to receiving approval from the advertising control section, or has erected or is maintaining an illegal device.

Ohio Admin. Code § 5501:2-2-05(D).

Kenjoh had a two-sided billboard in Sidney, Ohio, adjacent to Interstate 75 and within 500 feet of an interchange. ECF 1 (Complaint), ¶¶ 1, 9-10, 25, 35, PageID 2-5, Ex. C, PageID 19. Only one side of the billboard faced I-75. Id. at ¶ 11, PageID 3. Before building the billboard, Kenjoh submitted permit applications to ODOT, including one for the billboard. Id. at ¶ 15, PageID 3. Kenjoh told Mark Jones, a new ODOT field representative, that the landowner "is willing to use the one side for on-premise sign .... Then [I'll] use the other side for [off-premise advertising]. Do [I] have a green light to proceed with this project[?]" Id. at ¶ 21, PageID 4, Ex. A, PageID 12. Jones replied, "[A]s long as the off-premise portion is not visible from the on ramp or I-75, then no permit is required from ODOT." Id. at ¶ 23, PageID 4, Ex. A, PageID 11.

Kenjoh built its billboard, without an ODOT permit, on September 1, 2017, and began renting space for off-premise advertising on the side not facing I-75. Id. at ¶¶ 24-26, 28, PageID 4. In Spring 2018, Kenjoh applied to ODOT for permits at other locations. Id. at ¶ 30, PageID 5. On June 4, 2018, Kenjoh asked Jones about the status of its applications. Id. at ¶ 31, PageID 5, Ex. B, PageID 17. Jones told Kenjoh (1) it had assured ODOT that its I-75 billboard was to be on-premise advertising only, (2) its billboard will be cited as an illegal device, and (3) all applications will be on hold until the billboard is removed. Id. at ¶ 31, PageID 5, Ex. B, PageID 16.

On June 21, 2018, Defendant Nathan Fling notified Kenjoh that its billboard was an illegal advertising device because it was adjacent to an ODOT-controlled route and within the required 500-foot setback of an interchange, in violation of the Ohio Admin. Code § 5501:2-2-02(A)(3)(a)(ii). Id. at ¶¶ 33-35, PageID 5, Ex. C, PageID 19. Fling's notice asked Kenjoh to voluntarily remove its billboard within thirty days or else the matter will go to the ODOT Director for a removal order. Id. at Ex. C, PageID 19. Fling also allegedly placed all of Kenjoh's permit applications on hold in accordance with Ohio Admin. Code § 5501:2-2-05(D). Id. at ¶¶ 37, 54, PageID 5, 7. Kenjoh subsequently removed the off-premise advertising from the side of the billboard not facing I-75. Id. at ¶ 38, PageID 5.

Kenjoh filed suit challenging the constitutionality of Admin. Code § 5501:2-2-05(D) asserting that it constitutes a prior restraint in violation of the First Amendment and naming as defendants Jack Marchbanks, Director of the Ohio Department of Transportation, and Nathan Fling, Supervisor of ODOT's Advertising Device Control section. (Compl. ¶¶ 40-47, 48-56, ECF 1, PageID 6). Kenjoh claims Administrative Code § 5501:2-2-05(D) is an unconstitutional prior restraint on speech both facially and as applied to Kenjoh because it conditions a speaker's right to speak on remedying alleged code violations without any procedural safeguards and it allows ODOT to hold permit applications in abeyance for an indeterminable amount of time. Kenjoh further claims Administrative Code § 5501:2-2-05(D) is not narrowly tailored to serve a compelling governmental interest. Kenjoh also seeks to permanently enjoin ODOT from enforcing the rule. Id. at ¶¶ 40-47, PageID 6-8. Kenjoh seeks damages against Fling in his individual capacity, plus attorney and expert fees under 42 U.S.C. §§ 1983 and 1988 Id. at ¶¶ 6, 48-56, PageID 2, 7-8. Defendant has moved to dismiss. (ECF 14).

II. Standard of Review

Federal Rules of Civil Procedure provide that, "after the pleadings are closed but within such time as not to delay the trial any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A court reviews a Rule 12(c) motion for judgment on the pleadings under the same standard as is applied to a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6). Grindstaff v. Green , 133 F.3d 416, 421 (6th Cir. 1998). A court grants a motion under Rule 12(c) when the movant has clearly established that there remains no genuine issue of material fact, and that, as a matter of law, the movant is entitled to judgment. JP Morgan Chase, N.A. v. Winget , 510 F.3d 577, 581 (6th Cir. 2007).

When ruling on such a motion, a court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the non-moving party. Delaware River Port Authority v. Home Ins. Co. , 1993 WL 175312, at *1, 1993 U.S. Dist. LEXIS 6749, at *3 (E.D. Pa. 1993). As such, the court must take as true the allegations of the pleadings of the non-movant; conversely, "all contravening assertions in the movant's pleadings are taken to be false." Melton v. Bd. of Cnty. Comm'rs of Hamilton Cnty., Ohio , 267 F. Supp. 2d 859, 862 (S.D. Ohio 2003). Yet, a "court need not accept as true [the non-movant's] legal conclusions or unwarranted factual inferences." Lewis v. ACB Bus. Servs. , 135 F.3d 389, 405 (6th Cir. 1998). Judgment on the pleadings is appropriate when "the plaintiff can undoubtedly prove no set of facts in support of the claims that would entitle relief." E.E.O.C v. J.H. Routh Packing Co. , 246 F.3d 850, 851 (6th Cir. 2001) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. Analysis

To improve and preserve the attractiveness of the nation's major highways, Congress in 1965 enacted the Highway Beautification Act, 23 U.S.C. § 131, requiring all states to effectively control outdoor advertising. The purpose of the Act is "to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty." Id. § 131(a). Three years later, Ohio signed an agreement with the federal government for controlling advertising on interstates and federal-aid primary highways. This agreement, which ties 10% of Ohio's transportation funding to outdoor-advertising control, also established criteria for size, lighting, and spacing of advertising signs, displays, and devices consistent with customary use. In response to the law and related federal initiatives, ODOT created an Advertising Device Control section to monitor and regulate the size, lighting and spacing of outdoor advertising displays along Ohio's highways.

In 1971, the Ohio legislature enacted Ohio Revised Code Chapter 5516 to govern outdoor advertising on interstates and federal-aid primary highways. Section 5516.01(A) defines "advertising device" to include "any outdoor sign, ... billboard ... designed, intended, or used to advertise or to give information in the nature of advertising, or any part thereof, the advertising or informative contents of which are visible from the main traveled way of any highway on the interstate system or primary system in this state." Section 5516.10 generally requires a person to apply to ODOT for a permit to build, use, maintain or operate any advertising device in certain areas along an interstate or primary highway. No permit shall be issued if, inter alia , the advertising device would be a traffic hazard or a danger to the safety of the traveling public. Ohio Rev. Code § 5516.10(B)(4)(e).

To effectuate the outdoor-advertising statutes, Ohio Rev. Code § 5516.03 authorizes ODOT to adopt, amend, and enforce rules necessary to carry out Chapter 5516, including sizing, lighting, spacing, and other conditions necessary to promote the safety of the traveling public and effect federal Highway Beautification provisions, standards, criteria and rules. Ohio's rules are codified in Chapter 5501:2-2 of the Ohio Administrative Code.

The Ohio rules for outdoor advertising include a setback rule for advertising devices near an interchange: "Advertising devices, whether or not visible to the main-traveled way of the interstate system, shall not be located at or within five hundred feet of an interchange or proposed interchange." Ohio Admin. Code § 5501:2-2-02(A)(3)(a)(ii). This interchange-setback rule does not distinguish between on-premise and off-premise advertising devices.

Ohio Administrative Code Chapter 5501:2-2 also has rules on permits. Kenjoh challenges a rule that precludes ODOT from processing an application for a new permit when the applicant has delinquent bills, modifies a device without authorization, or has erected or is maintaining an illegal advertising device. Ohio Admin. Code § 5501:2-2-05(D).

Kenjoh claims Ohio Admin. Code § 5501:2-2-05(D) is an unconstitutional prior restraint on speech because it "conditions a person's right to speak on...

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