Bench Billboard Co. v. Cincinnati
62 N.E.3d 603
Ohio Ct. App.2016Background
- Bench Billboard Company (BBC) placed advertising on the backrests of park benches located in Cincinnati public rights-of-way in Westwood.
- Cincinnati amended Municipal Code 723 (Ordinance No. 363-2009) to regulate structures in the right-of-way, including a prohibition on advertising on benches and requirements for revocable street privileges, design, anchoring, and insurance.
- In October 2013 the City issued 55 citations to BBC (one per bench) for violations of §723-7; BBC requested an administrative hearing and did not dispute the factual violations.
- BBC argued its prior city-issued permits created a lawful nonconforming use or otherwise excused compliance; the City maintained those permits did not confer ongoing rights and that revocable street privileges were required.
- The hearing officer upheld all citations; BBC appealed under R.C. 2506.01 to the common pleas court, which adopted the magistrate’s decision and rejected BBC’s constitutional and nonconforming-use defenses.
- The appellate court affirmed: it declined to reweigh evidence, found BBC forfeited most constitutional claims by failing to object below, and held municipal police-power regulations applied regardless of any asserted nonconforming status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/revocability of BBC's prior permits | Permits granted by City authorized benches and preclude enforcement of §723-7 or required revocable privilege | Permits did not confer continuing rights; revocable street privileges were required and prior permits did not meet those requirements | Court declined to decide revocability; upheld citations without resolving that issue (trial court didn’t need to reach it) |
| Manifest-weight challenge to factual findings | Pettit’s testimony shows permits were not revocable; trial court’s factual findings are against the manifest weight | City argues record supports inspectors’ findings; factual determinations are for trial court in R.C. 2506.04 appeals | Appellate court will not reweigh evidence; manifest-weight challenge rejected |
| First Amendment (commercial-speech) challenge | Ordinance’s ban on bench advertising unconstitutionally restricts BBC’s commercial speech | City asserts substantial interests (safety, aesthetics, reducing visual clutter); alternative means of advertising remain | BBC forfeited the claim by not objecting below; on merits, magistrate’s reasoning consistent with Sixth Circuit precedent; no plain error found |
| Equal-protection challenge | Differential treatment of bench advertising vs. news racks/bus shelters is unequal and arbitrary | BBC is not similarly situated to other structures; distinctions justify differential regulation | Claim forfeited for failure to object; magistrate’s reliance on Sixth Circuit decision upholding differential treatment was not plain error |
Key Cases Cited
- Kisil v. Sandusky, 12 Ohio St.3d 30 (discusses appellate role in administrative appeals and limits on reweighing evidence)
- Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257 (appellate courts must not substitute their judgment for administrative agencies absent proper criteria)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (plain-error doctrine is narrow and reserved for exceptional circumstances)
- C.D.S., Inc. v. Gates Mills, 26 Ohio St.3d 166 (nonconforming uses remain subject to police-power regulations protecting health, safety, and welfare)
- Bench Billboard Co. v. Cincinnati, 675 F.3d 974 (6th Cir. 2012) (rejected similar equal-protection challenge; used by magistrate as persuasive precedent)