Lamar Advantage GP Co. v. City of Cincinnati, 114 N.E.3d 831

Background

Plaintiffs (outdoor advertising companies) challenged Cincinnati Ordinance No. 167-2018 and related Ordinance No. 163-2018, which imposed a billboard/outdoor advertising tax and permit fees.
After substantial discovery and several days of testimony, the court entered a preliminary injunction halting enforcement of Chapter 313 (Ordinance No. 167).
Parties and the court treated the dispute as largely legal in nature and discussed converting the preliminary injunction into a permanent injunction at oral argument.
The court notified parties it was sua sponte considering consolidation and conversion to a permanent injunction; both sides submitted written responses and raised no substantive objection.
Amended complaints did not add new substantive allegations bearing on the constitutionality of Chapter 313.
The court independently reviewed the permanent-injunction factors and related precedent, and concluded permanent relief was appropriate; it also exercised discretion under Ohio R. Civ. P. 54(B) to find no just reason for delay.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a preliminary injunction hearing may be converted to a final merits decision without formal consolidation notice	The parties had already litigated the merits through discovery and testimony; converting was fair and proper	Conversion requires notice and consolidation or would violate due process	Court held conversion was proper here because parties presented their full cases and were given notice; no unfair surprise
Whether Ordinance No. 167 (billboard tax) violates the First Amendment by targeting means of expression	Billboards are a protected medium; singling out billboards for taxation burdens First Amendment rights	City argued the tax targets the means, not protected expression, and therefore is outside First Amendment scrutiny	Court held billboards are a protected medium and the City’s singling out of billboards for tax runs afoul of the First Amendment
Whether the court should certify finality under Rule 54(B) to permit immediate appeal of injunction as to Ordinance No. 167	Plaintiffs urged prompt appeal to minimize period of injunction if reversed on appeal	City argued 54(B) would cause piecemeal appeals and should be withheld	Court exercised discretion to include a 54(B) certification because the issues between the two ordinances are distinct and appellate review of No. 167 serves judicial economy
Whether contrary authority (e.g., Baltimore decisions) affects the outcome here	Plaintiffs distinguished Baltimore/other decisions and emphasized Supreme Court and circuit precedent protecting means of expression	City relied on Baltimore decisions upholding a billboard tax and attempted to distinguish Minneapolis Star	Court rejected Baltimore court’s reasoning; relied on Supreme Court and circuit precedent protecting billboards and the principle that taxing a medium can implicate First Amendment rights

Key Cases Cited

George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio App.3d 71 (discussing consolidation of preliminary injunction hearing with merits)
Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86 (trial court discretion on Rule 54(B) certification and considerations for piecemeal appeals)
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (means of expression entitled to First Amendment protection)
Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684 (motion pictures protected by First Amendment)
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (billboards recognized as a medium of communication warranting First Amendment protection)
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (taxation singling out press scrutinized under First Amendment)
Lewis v. S. S. Baune, 534 F.2d 1115 (irreparable harm and inadequacy of legal remedies in injunction analysis)
Prime Media, Inc. v. City of Brentwood, Tenn., 398 F.3d 814 (billboards and visual signs are a medium of expression protected by the First Amendment)
Ayres v. City of Chicago, 125 F.3d 1010 (distribution as a medium of expression protected by the First Amendment)