Norton Outdoor Advert. v. Vill. of St. Bernard

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NORTON OUTDOOR ADVERTISING, INC., Plaintiff, v. VILLAGE OF ST. BERNARD, OHIO, et al., Defendants.

No. 1:20-cv-350

United States District Court, S.D. Ohio, Western Division

June 16, 2022

Barrett, J. .

REPORT AND RECOMMENDATION

Stephanie K. Bowman United States Magistrate Judge

Defendant Village of St. Bernard, Ohio (“Village”) denied and/or revoked permission for Plaintiff Norton Outdoor Advertising, Inc. (“Norton”) to erect two digital billboards based upon Village ordinances (“sign codes”). In this lawsuit, Norton seeks a declaratory judgment, injunctive relief, monetary damages and attorney fees under 42 U.S.C. § 1983 relating to that enforcement action. Currently pending are the parties' cross-motions for summary judgment. (Docs. 37, 38).

The undersigned stayed disposition of the parties' motions in anticipation of the Supreme Court's decision in City of Austin, Texas v. Reagan Nat'l Advertising of Austin LLC, 142 S.Ct. 1464 (April 21, 2022), which addressed closely related issues. Following that decision, both parties filed supplemental briefs. Having reviewed extensive briefing on all relevant issues, the undersigned concludes that oral argument would not aid disposition of this case.^[1] For the following reasons, Norton's motion should be DENIED and the Village's motion should be GRANTED.

I. Standard of Review

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. The moving party must support its motion by citations to “particular parts of materials in the record, ” including but not limited to discovery materials and affidavits. See Rule 56(c). The moving party also has the burden of showing an absence of evidence to support the nonmoving party's case. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In applying this standard, a court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). On the record presented, the parties agree on most of the relevant facts. Where disagreement exists, the undersigned has drawn all reasonable inferences in favor of Norton.^[2]

II. Findings of Fact

1. Norton is an Ohio corporation engaged in the outdoor advertising business, including the sale and lease of billboard space. Norton's billboards are primarily used for commercial advertisements, but at times display non-commercial content.

2. Norton maintains a total of nine outdoor advertising signs or billboards at seven locations in the Village, including two billboards located at 130 West Ross Avenue.

Norton is also seeking new leasehold interests within the Village upon which to erect additional signs.

3. The Village requires the issuance of a permit “[b]efore any sign is installed or erected.” § 1185.002.

4. The Village's sign codes are contained within two sections of the Village Code: (1) Part Seven, the Business Regulation Code; and (2) Part Eleven, the Planning and Zoning Code. Relevant to this dispute, the Village distinguishes between signs that advertise or announce content that relates to the same premises on which the sign is located (a/k/a “on-premises signs”) and signs that pertain to content located “elsewhere” (a/k/a “off-premises signs”).

5. Both an “outdoor advertising sign” in Chapter 7 and an “advertising sign” in Chapter 11 are defined as off-premises signs. (See Doc. 37-1 at 5 and 7; PageID 1439 and 1441, describing the on-/off-premises distinctions drawn by the Village). Chapter 711, entitled “Expressway Advertising, ” contains provisions that pertain to outdoor advertising signs that do not apply to on-premises signs. Chapter 11 similarly differentiates between “advertising signs” (a/k/a off-premises signs) and “business signs” (a/k/a on-premises signs) based upon whether the sign's message advertises something “on the premises where the sign is located” or “elsewhere”. §§1185.001(c) and (d).

6. In general, the Village more strictly limits off-premises signs. Critically here, the Village prohibits all changeable messaging (which the Village calls multiple message or variable message displays) on off-premises signs, but does not prohibit changeable messaging for on-premises signs. See §711.07(e) (“Multiple message or variable message outdoor advertising signs are not permitted.”).

7. Norton applied for and received a permit for replacement of a static billboard and/or for reconstruction of a new sign in the Village, to be located at 130 West Ross Avenue. The permit application identified the replacement sign(s) as “LED” but did not otherwise indicate that the new digital billboards would display changeable or variable messages. (Doc. 32, Stoker Depo. at 231, 235, 249).

8. The Village subcontracts its zoning function to Defendant Gerald Stoker. (Doc. 31, Depo. at 8-10).

9. After Norton erected the new billboards, the Village revoked the permits. (Doc. 38 at 5, noting that permits “were revoked after construction.”). On March 22, 2018, Building Commissioner Stoker issued a Notice of Non-Compliance. (Doc. 38-3; Doc. 32, Exh. 12 at 435-436, PageID 1089-90;). The March 2018 Notice states that the previously issued permit was for an “LED sign, ” but points out that Norton failed to identify the new sign as a “Multiple Message Advertising Device & Variable Message Sign, for which an approval… was never granted and is prohibited per…section 711.07(e).” Id. at 435. The letter concludes with a request that Plaintiff “deactivate the multiple message advertising and variable message component of the sign…and ensure that it remains deactivated until such time that a variance has been granted by the Village….” (Id.)

10. Norton does not dispute that the West Ross Avenue signs fall within the definition of “Multiple Message Advertising Device” and/or “Variable Message Sign” and therefore violate § 711.07(e). (Doc. 36 at 83-84). Both billboards allow Norton to display messages that change every 8 seconds.

11. Norton appealed the Village's ”attempted revocation” of the permits to the Board of Zoning Appeals. (Doc. 1 at ¶ 81). After receiving an adverse decision before that body, Plaintiff further appealed in state court. That case remains pending. See Norton Outdoor Advertising, Inc. v. Board of Zoning Appeals, Village of St. Bernard, et al., Hamilton County Court of Common Pleas Case No. A1900066.

12. Norton initiated this federal lawsuit to challenge the constitutionality of the Village sign codes under the First and Fourteenth Amendments.

III. Analysis

A. A Change in Controlling Case Law Applies to the Village's Prohibition of Digital Variable Message Displays for Off-Premises Signs

At the heart of this dispute is Norton's desire to erect variable message digital off-premises signs, ^[3] both at the current West Ross Avenue location and elsewhere in the Village. All of Norton's billboards are off-premises signs.

Like most things in the world, billboards have evolved over time. Once painted or pasted, billboards now are comprised of materials ranging from “magazine quality vinyl wraps… to remote control digital displays.” (Complaint at ¶ 41). Technological advances allow digital billboard displays to be changed with dazzling speed and frequency. But the Village strictly prohibits use of this variable messaging technology for all off-premises signs. By contrast, state law allows billboard owners and operators to use the technology so long as the billboard images are not changed more frequently than every 8 seconds.^[4]Norton seeks a ruling that would require the Village to allow it the same leeway.

In its motion for summary judgment, Norton chiefly argues that the Village's prohibition of variable message displays for off-premises signs - but not for on-premises signs - is a content-based regulation. Building on that premise, Norton maintains that the Village must justify its regulation under a “strict scrutiny” standard of review. If that standard applies, the Village's regulation likely is unconstitutional. See generally, Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (“Content-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”) (additional citations omitted). By contrast, the Village's counter-motion for summary judgment argues that the on-/off-premises distinction is subject only to an “intermediate scrutiny” standard of review.

At the time the parties filed their cross-motions, controlling Sixth Circuit law favored Norton. The Supreme Court has historically upheld some regulation of billboards observing that “whatever its communicative function, the billboard remains a “large, immobile, and permanent structure which …is designed to stand out and … creates a unique set of problems for land-use planning and development.” Metromedia, Inc. v. City of San Diego, 101 S.Ct. 2882, 2889-90, 453 U.S. 490, 502 (1981). However, in Thomas v. Bright, 937 F.3d 721 (6th Cir. 2019), the Sixth Circuit interpreted the Supreme Court's 2015 Reed decision as supporting its holding that on-/off-premises distinctions in sign codes are not content neutral and therefore are subject to strict scrutiny. Thomas v. Bright reasoned that a Tennessee regulation was content-based because it required a state...