Xxl of Ohio, Inc. v. City of Broadview Heights
| Decision Date | 13 January 2004 |
| Docket Number | No. 1:01CV2514.,1:01CV2514. |
| Citation | 341 F.Supp.2d 765 |
| Parties | XXL OF OHIO, INC., Plaintiffs, v. CITY OF BROADVIEW HEIGHTS, et al., Defendants/Third Party Plaintiff, |
| Court | U.S. District Court — Northern District of Ohio |
Douglas J. Maragas, Bend, OR, Paul A. Mastriacovo, Canton, OH, for Plaintiff.
Kevin P. Weiler, Sr., Weiler & Associates, Brecksville, OH, Carl E. Cormany, Mazanec, Raskin & Ryder, Solon, OH, James A. Climer, Robert F. Cathcart, IV, Mazanec, Raskin & Ryder, Cleveland, OH, for Defendants.
Kevin P. Weiler, Sr., Weiler & Associates, Brecksville, OH, Robert F. Cathcart, IV, Mazanec, Raskin & Ryder, Cleveland, OH, for Third Party Plaintiff.
Carl E. Cormany, Mazanec, Raskin & Ryder, Solon, OH, Timothy D. Johnson, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, for Third Party Defendant.
This action is before the Court upon Magistrate Judge Patricia A. Hemann's Report and Recommendation (Doc. 85).
It is not necessary to duplicate Magistrate Judge Hemann's thorough and exhaustive review of the law here. The Court, after lengthy de novo consideration of the objections filed by the defendants (Doc. 87) and the plaintiff (Doc. 89), overrules said objections and approves and adopts the report and recommendation — with two exceptions.
The Court does not agree with the magistrate judge's recommendation that the defense of qualified immunity should not be available to the mayor and members of the city council of Broadview Heights. "[T]o find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself." Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.1988). "For a right to be clearly established, `[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Centanni v. Eight Unknown Officers, 15 F.3d 587, 588 (6th Cir.) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)), cert. denied, 512 U.S. 1236, 114 S.Ct. 2740, 129 L.Ed.2d 860 (1994).
The Court finds that the law was not — indeed, is not — clearly established in this area. Although a prior case in this district struck down a similar ordinance, North Olmsted Chamber of Commerce v. City of North Olmsted, 86 F.Supp.2d 755 (N.D.Ohio 2000), there has been no decision by the Court of Appeals for the Sixth Circuit. In fact, certain aspects of the Broadview Heights sign code were previously upheld by this Court. Sims v. City of Broadview Heights, No. 1:91cv1070 (N.D. Ohio filed March 11, 1993), rev'd and , 41 F.3d 1507, 1994 WL 637806 (6th Cir. Nov.14, 1994), No. 1:91cv1070 (N.D. Ohio filed Aug. 7, 1995), appeal dism'd per stipulation, No. 95-3957 (6th Cir. filed June 10, 1997). Additionally, other district courts have disagreed with the North Olmsted analysis. E.g., Granite State Outdoor Advertising, Inc. v. City of Clearwater, Florida, 213 F.Supp.2d 1312, 1328 (M.D.Fla.2002), aff'd in part, rev'd in part, and , 351 F.3d 1112 (11th Cir.2003). Thus it cannot be said that the law was clearly established when the city officials took the action that led to this complaint.
The Court also declines to overturn Chapter 1479 of the Certified Ordinances of Broadview Heights ("the sign ordinance" or "the ordinance") en toto or order the alteration of the ordinance. The undersigned doesn't think a judge should order a legislative body to alter an ordinance. The magistrate judge has indicated how the sign ordinance could be changed to pass constitutional muster,1 but the decision whether to do so is properly left to the council.
Moreover, this Court wishes to make it perfectly clear that it does not agree with the current state of the law with respect to First Amendment protection for commercial speech. However, the Court is bound to follow Supreme Court interpretations, no matter how mistaken they may be. Accordingly,
a. the ordinance unconstitutionally restricts non-commercial speech and impermissibly discriminates as to non-commercial speech according to its content;
b. the ordinance impermissibly discriminates as to commercial speech according to content;
c. the ordinance is an impermissible prior restraint of speech;
d. the selective prohibition on pole signs in the sign ordinance makes impermissible content-based distinctions; and
e. The City of Broadview Heights violated the plaintiff's right to procedural due process in removing the pole sign.
a. the plaintiff's claim that certain terms in the ordinance are void for vagueness (as described on pp. 806-08 of the Report and Recommendation); and
b. the plaintiff's claim that the sign ordinance facially violates the equal protection clause (as described on pp. 810-12 of the Report and Recommendation).
4. The Court declines to rule on the arguments regarding whether Broadview Heights' sign ordinance violates Ohio's ban on retroactive zoning changes because they involve issues of state law made moot by the Court's resolution of the plaintiff's federal claims.
5. The named individual defendants are entitled to qualified immunity.
6. Plaintiff's motion for summary judgment (Doc. 57) and defendants' motion for summary judgment (Doc. 67) are DENIED as to all other claims.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Docket 57, 67
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