The City Of Tipp City v. Dakin

• Decision Date: 26 February 2010
• Docket Number: No. 09-CA-06.,09-CA-06.
• Citation: 186 Ohio App.3d 558,2010 Ohio 1013,929 N.E.2d 484
• Parties: The CITY OF TIPP CITY, Appellee,v.DAKIN et al., Appellants.
• Court: Ohio Court of Appeals

186 Ohio App.3d 558

929 N.E.2d 484

2010 Ohio 1013

The CITY OF TIPP CITY, Appellee,v.DAKIN et al., Appellants.

No. 09-CA-06.

Court of Appeals of Ohio,

Second District, Miami County.

Decided Feb. 26, 2010.

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Surdyk Dowd & Turner Co., L.P.A., Robert J. Surdyk, and Kevin A. Lantz, Miamisburg; and Moore & Associates, Joseph P. Moore, Vandalia, and David J. Caldwell, Troy, for appellee.

Faust, Harrelson, Fulker, McCarthy & Schlemmer, L.L.P., and Robert M. Harrelson, Troy; Dinsmore & Shohl, L.L.P., Cincinnati, and Jeremy S. Rogers, for appellants.

BROGAN, Judge.

{¶ 1} Appellants, Michael F. Dakin, Warrior Racing, Inc., Indian Creek Properties, L.L.C., and Indian Creek Fabricators, Inc., appeal from the trial court's order granting appellee Tipp City a permanent injunction prohibiting the display of a mural on the wall of their building.

{¶ 2} Tipp City brought this action against appellants on July 5, 2007, claiming that the mural violated its sign ordinance, Tipp City Code of Ordinances (“T.C.C.”) 154.090 et seq. On August 20, 2007, the appellants counterclaimed for declaratory and injunctive relief under Section 1983, Title 42, U.S.Code, arguing that the sign ordinance and Tipp City's enforcement of it against the mural violate the First Amendment.

{¶ 3} On July 31, 2008, the appellants moved for summary judgment. Tipp City filed a cross-motion for summary judgment on September 5, 2008. On November 25, 2008, the trial court entered an order consisting of 14 conclusions of law, finding unspecified portions of the sign ordinance unconstitutional while finding other portions severable and enforceable against the appellants' mural. This appeal followed.

I. Factual and Procedural Background

{¶ 4} In December 2006, the appellants asked Josh Florie, a graphic artist, to paint a mural on the east facade of their business located at 38 Weller Drive in Tipp City, Ohio. The mural depicts a “mad scientist” holding a beaker. The mural features a caricature of a bushy-browed chemist, wearing goggles and a lab coat, shrieking with excitement as his chemical creation explodes out of the beaker in his hand. Tipp City sought to ban the mural as a “sign” under the sign ordinance based on the appellants' failure to obtain a permit and to conform to the ordinance's other restrictions.

{¶ 5} The sign ordinance at issue prohibits various kinds of signs in the city and also contains numerous provisions concerning the content, design, size, and location of signs that are permitted. The stated purpose of the sign ordinance is “to protect the general health, safety, morals and welfare of the community by providing an instrument for protecting the physical appearance of the community and for encouraging high quality, effective outdoor graphics for the purpose of navigation, information and identification.” The sign ordinance further states that its intent is “to provide businesses in the municipality with equitable sign standards in accord with fair competition and aesthetic standards acceptable to the community, to provide the public with safe and effective means of locating businesses, services and points of interest within the municipality, and to provide for a safe vehicular and pedestrian traffic environment.” T.C.C. 154.090.

{¶ 6} The sign ordinance defines a “sign” in these terms:

{¶ 7} “A sign is defined as any name, number, symbol, identification, description, display, illustration, object, graphic, sign structure, or part thereof, whether permanent or temporary, which is affixed to, painted on, represented directly or indirectly upon or projected onto a building, structure, lot, or other device, whether mobile or affixed to the ground, and which directs attention to any object, product, place, activity, person, institution, organization, or business. This definition includes all signs visible from any public right-of-way or adjacent property, including interior signs oriented toward the exterior facade of any building or structure as well as back-lighted translucent panels or strip lighting affixed to any wall or roof where such panels or lighting serves to identify and attract attention rather than illuminate space for human activity.” (Emphasis added.) T.C.C. 154.092.

{¶ 8} Tipp City claimed that prior to painting the mural or otherwise altering it, the appellants were required under T.C.C. 154.093 to obtain a sign permit. Section 154.093 of the sign ordinance provides:

{¶ 9} “No person shall locate or retain a sign, or cause a sign to be located, relocated, altered, modified, or retained unless all provisions of this subchapter have been met. To ensure compliance with these regulations, a sign permit shall be secured from the Zoning Administrator or designee for each sign unless such sign is specifically exempted in this subchapter.”

{¶ 10} To obtain a permit, the sign ordinance provides that anyone wishing to put up a sign must pay a permit fee for each sign requested. T.C.C. 154.094(A). An applicant also must submit scaled elevation drawings of the proposed sign. T.C.C. 154.094(B). The applicant must submit a site plan showing the location of the proposed sign and all adjacent buildings or other structures, and the lot itself, including the dimensions of all buildings, structures and lots. T.C.C. 154.094(D). All signs placed on a wall must also include a building elevation drawn to scale showing the proposed sign. T.C.C. 154.094(E).

{¶ 11} No permit application, related materials, or fee is required for certain signs, which may be displayed without prior approval from Tipp City. Twenty-four different kinds of “signs” may be displayed without a permit, permit fee, or permit application. T.C.C. 154.098. These include, among other things, national, state, city, or corporate flags; yard-sale signs; political signs; residential and commercial real estate signs; barber poles; open house signs; security system signs; government-sponsored signs; city banners promoting community events; and historical society signs. Id.

{¶ 12} In addition to exempting certain signs from the requirements associated with seeking a permit, the sign ordinance imposes different substantive requirements for the content, design, and placement of signs. For example, signs for ATMs and banners for community events are not permitted to utilize more than three colors. T.C.C. 154.101(G) and 154.098(E). The use of more than five colors on most signs is forbidden, while signs advertising seasonal businesses may have only four. T.C.C. 154.099(C)(3) and 154.101(I).

{¶ 13} Similarly, the ordinance imposes a host of different size limitations for signs. A garage-sale or yard-sale sign may not exceed four square feet, a public information sign is limited to three square feet, political signs may be 32 square feet, residential for-sale signs may be seven square feet, commercial for-sale signs may be 16 or 32 square feet depending upon street frontage, window display signs may be six square feet, informational window signs may be two square feet, and scoreboards may be 100 square feet. T.C.C. 154.098. Signs promoting the development of land, facilities or structures may be 32 square feet, development entry signs may be 20 square feet, model home signs may be eight square feet, and seasonal business signs and drive-through menu-board signs may be 32 square feet. T.C.C. 154.101. A wall sign for a daycare or church may be no more than 20 square feet, which is less than half the maximum size allowed for a professional office (50 square feet), and only a quarter of the size allowed for a bank or restaurant (80 square feet). T.C.C. 154.100(A)(3) (incorporating Appendix F of the sign ordinance).

{¶ 14} The ordinance also imposes lighting, graphic-design, and placement restrictions on “signs.” T.C.C. 154.098; see also T.C.C. 154.101. For example, a banner is permitted only if it promotes a special event or the grand opening of a business. T.C.C. 154.101(B). Signs promoting model homes may be illuminated, but not internally illuminated. T.C.C. 154.101(F). Signs bearing a political message may not be illuminated at all. T.C.C. 154.098. Gas stations may post signs on their motor fuel pumps, but the signs-except ones that other laws require to be posted-may identify only the brand name, logo, or type of fuel sold. T.C.C. 154.101(J)(3).

{¶ 15} The sign ordinance prohibits a number of types of “signs or similar devices”:

{¶ 16} “Off-premise signs, trailer signs, search lights, laser lights, pennants, streamers, spinners, bench signs, portable signs, roof signs, billboards, gas-inflatable signs, changeable copy signs except for gasoline station price signs and drive-thru menu boards under § 154.101(J) and (L), flashing signs, projected images and animated signs, any sign which utilizes illumination by means of bare bulbs or flame or both, signs with moving or moveable parts, and any look-alike version of any of these prohibited sign types.” T.C.C. 154.095. This list of prohibited signs contains some exemptions. For example, signs containing gas station prices or drive-through menus may use changeable copy, but other signs may not. Id.

{¶ 17} On July 31, 2008, the appellants filed a motion for summary judgment, arguing that the sign ordinance violated their First Amendment rights and could not be enforced. On August 4, 2008, Tipp City repealed the entire sign ordinance and adopted a new one in its place. Tipp City then responded to the motion for summary judgment, noting that the new ordinance had removed some of the “perceived content-based restrictions” found in the former sign ordinance. But Tipp City did not seek enforcement under its new ordinance. Instead, it sought to enjoin the appellants' mural pursuant to the former ordinance.

{¶ 18} On November 25, 2008, the trial court found that the appellants' mural related to the “Warrior Racing” business, that it included more than five colors, and that ...