Bench Billboard Co. v. City of Cincinnati
2012 U.S. App. LEXIS 7119
| 6th Cir. | 2012Background
- Bench Billboard places advertising benches on public/private property in Cincinnati; benches weigh 475 pounds with 12 sq ft of space.
- Settlement in 1996 granted 300 replacement private-property permits and amended ordinances to grant access in rights-of-way.
- City amended laws in 2006-2007, repealing key provisions and imposing new restrictions (Section 723-20; Chapter 895).
- Bench Billboard sued in 2007 asserting First and Fourteenth Amendment violations and non-conforming-use claim; City amended again in 2007–2009.
- Ordinance No. 363-2009 repealed 723-20 rights; banned advertising benches in rights-of-way; litigation continued mootness and standing questions.
- District court granted partial summary judgment and mootness dismissal; Sixth Circuit affirmed in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 363-2009 moot Bench Billboard's First Amendment claim on 723-20? | Mootness preserved despite new scheme; history of unconstitutional conduct suggests recurrence. | Enactment of new ordinance moots injunctive/declaratory relief; entire claim replaced by new regime. | Yes, Section 723-20 claims mooted. |
| Does Bench Billboard have standing to challenge Section 723-20 First Amendment claims? | Fees imposed created injury-in-fact relative to other advertising media. | No injury shown; fees must defray legitimate state expenses; no evidence of excess. | No standing; injury-in-fact not shown. |
| Does Bench Billboard have standing to challenge Chapter 895 First Amendment claims? | Amendment affected opportunities under 1996 permits; injury-in-fact shown by lost sites. | Opportunities remain; injury speculative; no proven loss of replacement sites. | No standing for as-applied challenge; no facial standing either. |
| Does City’s treatment of advertising benches violate equal protection (class of one)? | Benches face stricter rules than bus shelters, banners, etc.; selective treatment lacks rational basis. | Not similarly situated; Lamar (bus shelters) comparable; distinct relationships justify difference. | No equal-protection violation; not similarly situated; no rational-basis violation. |
Key Cases Cited
- Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997) (mootness when statute amended during appeal)
- Brandywine, Inc. v. City of Richmond, 359 F.3d 830 (6th Cir. 2004) (mootness when ordinance repealed; no threat to reenact)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000) (voluntary cessation may not moot when recurrence possible)
- City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) (repeal may not moot if city intends reenactment)
- People Against Police Violence v. City of Pittsburgh, 520 F.3d 226 (3d Cir. 2008) (Official actions may moot if no alternate procedures exist; reasonable recurrence concerns)
- Mosley v. Hairston, 920 F.2d 409 (6th Cir. 1990) (self-correction by government officials favors mootness conclusions)
- Prime Media, Inc. v. City of Brentwood, 485 F.3d 343 (6th Cir. 2007) (standing burden on plaintiff; injury-in-fact required)