North Olmsted Chamber of Com. v. North Olmsted

• Decision Date: 21 January 2000
• Docket Number: No. 1:98CV0810.,1:98CV0810.
• Citation: 86 F.Supp.2d 755
• Parties: NORTH OLMSTED CHAMBER OF COMMERCE, et al., Plaintiffs, v. CITY OF NORTH OLMSTED, Defendant.
• Court: U.S. District Court — Northern District of Ohio

86 F.Supp.2d 755

NORTH OLMSTED CHAMBER OF COMMERCE, et al., Plaintiffs, v. CITY OF NORTH OLMSTED, Defendant.

No. 1:98CV0810.

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

January 21, 2000.

COPYRIGHT MATERIAL OMITTED

Barry M. Byron, Law Offices of Barry M. Byron, Willoughby, OH, for amicus.

Thomas Andrew Cunniff, Robert J. Fogarty, Rob M. Kochis, Hahn, Loeser & Parks, Cleveland, OH, for plaintiffs.

George Hudson Carr, Office of the Law Director, James M. Dubelko, Careau & Dubelko, Michael R. Gareau, Office of the Law Director, North Olmsted, OH, for defendant.

MEMORANDUM OPINION AND ORDER

NUGENT, District Judge.

This matter comes before the Court upon Magistrate Judge Patricia A. Hemann's Report and Recommendation (Document # 40) issued August 17, 1999. The Magistrate Judge recommended Plaintiffs' Cross-Motion for Partial Summary Judgment be granted in part and overruled in part and Defendant's Motion for Summary Judgment be granted in part and overruled in part. For reasons that follow, the Court finds that Defendant's sign ordinance is unlawfully content based; contains an illegal prior restraint; and, violates equal protection of the laws. Thus, Defendant is enjoined from enforcing

CHAPTER 1163 OF THE CODIFIED ORDINANCES OF NORTH OLMSTED.

Factual and Procedural History

Plaintiffs—North Olmsted Chamber of Commerce, a nonprofit association of over 200 North Olmsted businesses; Great Northern Dodge; Sunnyside Cars; and, Richard Moran, an individual resident of North Olmsted—filed this civil action against Defendant, the City of North Olmsted, asserting that the City's sign ordinance unconstitutionally restricts their freedom of expression and other protected rights. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, the United States Constitution, the Ohio Constitution, and Ohio law, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 and injunctive relief.

Specifically, Plaintiffs raise nine counts against Defendant: (1) the sign ordinance violates the First Amendment because it discriminates between categories of speech and identity of the speaker, acts as an illegal prior restraint on speech, operates as a total ban on certain types of speech, and because Defendant has illegally retaliated against Plaintiffs for exercising their First Amendment rights; (2) the sign ordinance is void for vagueness, depriving Plaintiffs of due process of law in violation of the First, Fifth, and Fourteenth Amendments; (3) the sign ordinance is unconstitutionally overbroad in violation of the First Amendment; (4) the sign ordinance unreasonably discriminates between similarly situated Plaintiffs based solely on the content of the messages expressed, in violation of the Fourteenth Amendment's Equal Protection Clause; (5) the sign ordinance violates their freedom of speech, press, and expression in contravention of Article I, §§ 11 and 19, of the Ohio Constitution; (6) the sign ordinance is an unconstitutional zoning ordinance under the Ohio and United States Constitutions because it is arbitrary and unreasonable in violation of substantive due process rights; (7) the sign ordinance denies Plaintiffs of the economically viable use of their property and thus is an unconstitutional taking under the Fifth and Fourteenth Amendments of the United States Constitution, and Article I, § 16, of the Ohio Constitution; (8) Defendant's attempts to restrict the continuing use of Plaintiffs' signs which existed prior to the passage of the sign ordinance constitute violations of OHIO REV.CODE § 713.15; and, (9) the sign ordinance violates the Fourteenth Amendment's Due Process Clause, as well as Article I, § 16, of the Ohio Constitution, by authorizing the City to deprive Plaintiffs of liberty and property interests without a hearing and other due process.

Plaintiffs assert that, as a result of the sign ordinance, some or all of the Plaintiffs have suffered, and all of the Plaintiffs will suffer, irreparable injury. The City adopted the comprehensive sign ordinance in May of 1991. The sign ordinance is some 23 pages in length, governing all types of signs—commercial and noncommercial. See CODIFIED ORDINANCES OF NORTH OLMSTED, OHIO, CHAPTER 1163 (hereafter "Ord."). Property owners who had existing nonconforming signs were not required to remove them until January 1, 1998. Ord. § 1163.29. Additionally, sign owners who could demonstrate hardship in not meeting this six and one-half year repose were given an additional 90 days to comply. Id.

The sign ordinance states that all signs "shall be designed, erected, altered, reconstructed, moved and maintained, in whole or in part, in accordance with the type, design, size, location, illumination and other provisions set forth in this chapter." Ord. § 1163.02. A "sign" is defined as:

any display, figure, painting, drawing, placard, poster or other device visible from a public way which is designed, intended or used to convey a message, advertise, inform or direct attention to a building, person, institution, organization, activity, place, object or product. It may be a structure or part thereof painted on or attached directly or indirectly on a structure.

Ord. § 1163.03.

After January 1, 1998, Defendant began sending out notices of violations to those property owners who had not conformed to the ordinance. The sign ordinance provides that the building official may remove the nonconforming sign at the owner's expense and that the owner or person in possession of the sign shall be individually and separately liable for the expense incurred in the removal or maintenance of such sign. Ord. § 1163.25.

In May of 1998, Ms. Edith Smith of Sign-Lite Corporation filed a permit application on behalf of Plaintiff Great Northern Dodge in order to reface its ground sign. The application requested a permit to reface the ground sign to include the words "Five Star" and a logo with five stars. Chrysler had recently re-certified Great Northern as a "Five Star Dealer," an award given to dealers based on customer satisfaction, training, employee quality, and facility quality. As a Five Star Dealer, Great Northern was required to include the words "Five Star" and a logo with five stars on its sign. For its part, Chrysler made a commitment to emphasize the Five Star Program in its advertisements. Mr. Patrick Graham, general manager of Great Northern, stated that it is important for potential customers to know that Great Northern is a Five Star Dealer because that status provides an assurance of quality.

The City approved the permit so long as the words "Five Star" and the five star logo were omitted. Ms. Smith and Mr. Graham were told by the City's building department that the words "Five Star" and the five star logo were superfluous and unnecessary and that Great Northern did not need them as it was "not in the business of selling stars."

On or about November 24, 1998, Isabella's Café—a member of the Chamber of Commerce—received a notice of violation from the City's building department. The notice stated that Isabella's Café's "temporary banner sign" violated the ordinance and ordered removal of the sign within 48 hours. Dominic Mihalic, co-owner of Isabella's Café, spoke to Dennis O'Connell of the City's building department, who agreed that the sign could remain in place until December 2, 1998. However, on December 2, 1998, before Mr. Mihalic removed the sign and without consulting anyone at Isabella's Café, the City removed the sign from the outside of the building. When Mr. Mihalic requested return of the sign he was told he had to pay the City $203.03 for reimbursement for removal of the sign. Mr. Mihalic was told that if he did not pay the bill, his sign would be thrown away. Mr. Mihalic did not pay the bill and the City has not returned the sign. Mr. Mihalic further relates that while he was required to remove his banner sign, the United States Post Office was permitted to keep a banner sign up for several months advertising its new hours.

Plaintiffs filed a Complaint with the Court on April 7, 1998, and a First Amended Complaint on July 24, 1998. Defendant filed Answers on April 27, 1998, and August 3, 1998. Thereafter, on January 29, 1999, Defendant filed a Motion for Summary Judgment on all nine counts. Plaintiffs filed, on March 12, 1999, an Opposition to Defendant's Summary Judgment Motion and a Cross-Motion for Partial Summary Judgment on counts one (except the retaliatory enforcement claim), two, three, four, six, and nine. Defendant filed its Reply on April 9, 1999. Plaintiffs filed their Reply on April 23, 1999.

The Court referred this matter to Magistrate Judge Hemann on May 10, 1999, in order for the Magistrate Judge to hold a settlement conference and prepare a report and recommendation on the pending motions. The Magistrate Judge held a settlement conference on June 16, 1999, to no avail. On August 17, 1999, the Magistrate Judge submitted her well-reasoned and thorough Report and Recommendation, in which she recommended that this Court grant Plaintiffs' Motion in part and deny it in part, and grant Defendant's Motion in part and deny it in part.

Defendant filed Objections, and Plaintiffs filed Conditional Objections, to the Magistrate Judge's Report and Recommendation on October 1, 1999. The Ohio Municipal League, as amicus curiae, filed a brief in support of Defendant on October 1, 1999. Plaintiffs' filed their Response to Defendant's Objections on October 19, 1999.

Standard of Review for a Magistrate Judge's Report and Recommendation

The applicable district court standard of review for a magistrate judge's report and recommendation depends upon whether objections were made to that report. When objections are made to a report and recommendation of a magistrate judge, the district court reviews de novo those portions of the report and recommendation to which specific objection has been made. FED.R.CIV.P. 72(b) provides this standard of review. It...