Cincinnati v. Fourth Natl. Realty, L.L.C.
2019 Ohio 1868
Ohio Ct. App.2019Background
- Fourth National Realty owned a downtown building at 108 W. Third St.; it installed a sign advertising off-site commercial businesses without a permit. The sign violated Cincinnati Zoning Code (C.Z.C.) provisions prohibiting off-site/outdoor advertising signs in the DD district.
- The City sued for injunctive relief to remove the sign; Fourth National counterclaimed seeking declaratory relief that C.Z.C. 1411-39 and 1427-17 were unconstitutional (facial overbreadth as to noncommercial speech and an as-applied challenge for commercial speech), plus other claims later dismissed.
- The trial court granted the City's injunction and initially held Fourth National lacked standing to bring the free-speech challenge to save the existing (oversized) sign; this court reversed in part, holding Fourth National had standing to press an as-applied claim for a legally sized off-site commercial sign and a facial overbreadth claim to the extent the provisions restricted noncommercial speech.
- While on remand the City enacted Ordinance No. 372-2017, which revised definitions: “off-site sign” and “outdoor advertising sign” were redefined to apply only to commercial signs, effectively excluding noncommercial signs from those prohibitions.
- The trial court concluded the ordinance mooted Fourth National’s declaratory-judgment counterclaim, granted summary judgment to the City, and dismissed Fourth National’s remaining constitutional challenge; both parties appealed.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Fourth National) | Held |
|---|---|---|---|
| Mootness of facial overbreadth challenge (noncommercial speech) | Ordinance 372-2017 altered definitions so the challenged provisions no longer restrict noncommercial speech; claim is moot | The challenged code sections (1411-39, 1427-17) were not amended and therefore the facial challenge is live | Held: Moot — ordinance’s amendments removed noncommercial speech from the prohibitions, rendering the facial overbreadth challenge moot |
| Mootness of as-applied challenge (commercial sign content-based restriction) | Ordinance did not change that commercial off-site signs remain prohibited; challenge is moot or meritless | The as-applied claim remains because the ordinance preserved a distinction that bans off-site commercial signs while allowing on-site commercial signs — a content-based distinction | Held: Not moot — trial court erred; the as-applied challenge survives and must be considered on the merits |
| Compliance with R.C. 2721.12 / subject-matter jurisdiction | Fourth National failed to serve the Attorney General at case inception, depriving the court of jurisdiction | Fourth National served the AG after the City’s motion; AG received notice and declined to participate; no prejudice | Held: Trial court had jurisdiction; delayed service did not divest jurisdiction because AG was served and not prejudiced |
| Standing to sue | Fourth National did not own the wall with the sign and thus suffered no legally cognizable injury | Even without title to the wall, Fourth National’s leases/subleases and lost economic benefit furnish a redressable injury; prior appellate law-of-the-case supports standing | Held: Fourth National has standing — enforcement caused a concrete injury likely redressable by a favorable ruling |
Key Cases Cited
- Bench Billboard Co. v. Cincinnati, 675 F.3d 974 (6th Cir. 2012) (legislative amendment can moot a statutory challenge; evaluate challenged statute in its current form)
- Lamar Advertising of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004) (as-applied standing for commercial speech where relief would permit desired sign)
- Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (U.S. 1982) (overbreadth doctrine does not apply to commercial speech)
- Cicco v. Stockmaster, 89 Ohio St.3d 95 (Ohio 2000) (R.C. 2721.12 requires timely service on the Attorney General in declaratory actions challenging statutes)
- Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997) (repeal/amendment of a challenged statute during litigation generally destroys a live case-or-controversy)