{¶ 1} Appellants, Michael F. Dakin, Warrior Racing, Inc., Indian Creek Properties, L.L.C., and Indian Creek Fabricators, Inc., appeal from the trial court’s order granting appellee Tipp City a permanent injunction prohibiting the display of a mural on the wall of their building.
{¶ 2} Tipp City brought this action against appellants on July 5, 2007, claiming that the mural violated its sign ordinance, Tipp City Code of Ordinances (“T.C.C.”) 154.090 et seq. On August 20, 2007, the appellants counterclaimed for declaratory and injunctive relief under Section 1983, Title 42, U.S.Code, arguing that the sign ordinance and Tipp City’s enforcement of it against the mural violate the First Amendment.
{¶ 3} On July 31, 2008, the appellants moved for summary judgment. Tipp City filed a cross-motion for summary judgment on September 5, 2008. On November 25, 2008, the trial court entered an order consisting of 14 conclusions of law, finding unspecified portions of the sign ordinance unconstitutional while finding other portions severable and enforceable against the appellants’ mural. This appeal followed.
I. Factual and Procedural Background
{¶ 4} In December 2006, the appellants asked Josh Florie, a graphic artist, to paint a mural on the east facade of their business located at 38 Weller Drive in Tipp City, Ohio. The mural depicts a “mad scientist” holding a beaker. The
{¶ 5} The sign ordinance at issue prohibits various kinds of signs in the city and also contains numerous provisions concerning the content, design, size, and location of signs that are permitted. The stated purpose of the sign ordinance is “to protect the general health, safety, morals and welfare of the community by providing an instrument for protecting the physical appearance of the community and for encouraging high quality, effective outdoor graphics for the purpose of navigation, information and identification.” The sign ordinance further states that its intent is “to provide businesses in the municipality with equitable sign standards in accord with fair competition and aesthetic standards acceptable to the community, to provide the public with safe and effective means of locating businesses, services and points of interest within the municipality, and to provide for a safe vehicular and pedestrian traffic environment.” T.C.C. 154.090.
{¶ 6} The sign ordinance defines a “sign” in these terms:
{¶ 7} “A sign is definеd as any name, number, symbol, identification, description, display, illustration, object, graphic, sign structure, or part thereof, whether permanent or temporary, which is affixed to, painted on, represented directly or indirectly upon or projected onto a building, structure, lot, or other device, whether mobile or affixed to the ground, and which directs attention to any object, product, place, activity, person, institution, organization, or business. This definition includes all signs visible from any public right-of-way or adjacent property, including interior signs oriented toward the exterior facade of any building or structure as well as back-lighted translucent panels or strip lighting affixed to any wall or roof where such panels or lighting serves to identify and attract attention rather than illuminate space for human activity.” (Emphasis added.) T.C.C. 154.092.
{¶ 8} Tipp City claimed that prior to painting the mural or otherwise altering it, the appellants were required under T.C.C. 154.093 to obtain a sign permit. Section 154.093 of the sign ordinance provides:
{¶ 9} “No person shall locate or retain a sign, or cause a sign to be located, relocated, altered, modified, or retained unless all provisions of this subchapter have been met. To ensure compliance with these regulations, a sign permit shall be sеcured from the Zoning Administrator or designee for each sign unless such sign is specifically exempted in this subchapter.”
{¶ 11} No permit application, related materials, or fee is required for certain signs, which may be displayed without prior approval from Tipp City. Twenty-four different kinds of “signs” may be displayed without a permit, permit fee, or permit application. T.C.C. 154.098. These include, among other things, national, state, city, or corporate flags; yard-sale signs; political signs; residential and commercial real estate signs; barber poles; open house signs; security system signs; government-sponsored signs; city banners promoting community events; and historical society signs. Id
{¶ 12} In addition to exempting certain signs from the requirements associated with seeking a permit, the sign оrdinance imposes different substantive requirements for the content, design, and placement of signs. For example, signs for ATMs and banners for community events are not permitted to utilize more than three colors. T.C.C. 154.101(G) and 154.098(E). The use of more than five colors on most signs is forbidden, while signs advertising seasonal businesses may have only four. T.C.C. 154.099(C)(3) and 154.101(1).
{¶ 13} Similarly, the ordinance imposes a host of different size limitations for signs. A garage-sale or yard-sale sign may not exceed four square feet, a public information sign is limited to three square feet, political signs may be 32 square feet, residential for-sale signs may be seven square feet, commercial for-sale signs may be 16 or 32 square feet depending upon street frontage, window display signs may be six square feet, informational window signs may be two square feet, and scoreboards may be 100 square feet. T.C.C. 154.098. Signs promoting the development of land, facilities or structures may be 32 square feet, development entry signs may be 20 square feet, model home signs may be eight square feet, and seasonal business signs and drive-through menu-board signs may be 32 square feet. T.C.C. 154.101. A wall sign for a daycare or church may be no more than 20 square feet, which is less than half the maximum size allowed for a professional office (50 square feet), and only a quarter of the size allоwed for a bank or restaurant (80 square feet). T.C.C. 154.100(A)(3) (incorporating Appendix F of the sign ordinance).
{¶ 14} The ordinance also imposes lighting, graphic-design, and placement restrictions on “signs.” T.C.C. 154.098; see also T.C.C. 154.101. For example, a
{¶ 15} The sign ordinance prohibits a number of types of “signs or similar devices”:
{¶ 16} “Off-premise signs, trailer signs, search lights, laser lights, pennants, streamers, spinners, bench signs, portable signs, roof signs, billboards, gas-inflatable signs, changeable copy signs except for gasoline station price signs and drive-thru menu boards under § 154.101(J) and (L), flashing signs, projected images and animated signs, any sign which utilizes illumination by means of bare bulbs or flame or both, signs with moving or moveable parts, and any look-alike version of any of these prohibited sign types.” T.C.C. 154.095. This list of prohibited signs contains some exemptions. For example, signs containing gas station prices or drive-through menus may use changeable copy, but other signs may not. Id.
{¶ 17} On July 31, 2008, the appellants filed a motion for summary judgment, arguing that the sign ordinance violated their First Amendment rights and could not be enforced. On August 4, 2008, Tipp City repealed the entire sign ordinance and adopted a new one in its place. Tipp City then responded to the motion for summary judgment, noting that the new ordinance had removed some of the “perceived content-based restrictions” found in the former sign ordinance. But Tipp City did not seek enforcement under its new ordinance. Instead, it sought to enjoin the appellants’ mural pursuant to the former ordinance.
{¶ 18} On November 25, 2008, the trial court found that the appellants’ mural related to the “Warrior Racing” business, that it included more than five colors, and that the appellants had not applied for or obtained a permit prior to displaying the mural. The trial court held that the mural constituted commercial speech. It further held that four sections of the former sign ordinance were applicable to the appellants’ mural and passed constitutional muster under an intermediate-scrutiny standard. Specifically, the trial court found that the mural qualified as a “sign” under the former ordinance and that the ordinance’s permit, color, and size requirements were constitutional. The trial court additionally found that the appellants had standing to challenge the sign ordinance, both as applied to their mural and facially under the overbreadth doctrine. The trial court also determined that the appellants’ challenge to the former sign ordinance was not mooted by its repeal and the subsequent enactment of the new ordinance.
(¶ 20} “The Court finds that portions of the former ordinance unconstitutionally restrict commercial and noncommercial speech on the basis of content because ‘whether, where, when, and how signs may be erected and maintained differ according to the sign’s content-based use type.’ Therefore, the former ordinance must pass the strict scrutiny test. Under this test the city has the burden to prove that the ordinance is (1) narrowly tailored, to serve (2) a compelling state interest * * *. The city has failed to satisfy either prong of this test * *
{¶ 21} In reaching the foregoing conclusion, the trial court ruled that the aesthetic and traffic-safety concerns underlying the sign ordinance were not compelling state interests and therefore could not satisfy the strict scrutiny required by the First Amendment for the ordinance’s content-based distinctions. The trial court also found that certain content-based distinctions were not narrowly tailored enough to survive strict scrutiny. The trial court did not state with specificity, however, which provisions it found unconstitutional.
(¶ 22} The trial court further ruled that parts of the sign ordinance “are an impermissible prior restraint of speech according to classifications based on content as alleged.” It stated:
{¶ 23} “[D]ue to content-based classifications, some provisions of the former ordinance do constitute an unconstitutional prior restraint on First Amendment rights as alleged. This is based on the unbridled discretion which necessarily is employed when attempting to categorize and differentiate signs on the basis of content.”
{¶ 24} Without identifying the specific provisions it found unconstitutional, the trial court proceeded to the issue of severability. It essentially “severed in” four provisions, which it found to be constitutional and pertinent to the appellants’ mural: (1) the definition of a sign, (2) a permit requirement for certain signs, (3) a five-color limit, and (4) a size limit for wall signs. The trial court determined that the appellants did not obtain a permit for their mural and that the mural exceeded the sign ordinance’s color and size limits. Accordingly, the trial сourt granted Tipp City an injunction preventing the appellants from displaying the mural. At the same time, the trial court denied the appellants declaratory and injunctive relief to prevent Tipp City from enforcing the ordinance.
II. Analysis
{¶ 25} In their sole assignment of error, the appellants contend that the trial court erred in granting Tipp City’s motion for summary judgment and in denying their motion for similar relief. The appellants raise a variety of arguments. Initially, they claim that Tipp City’s sign ordinance imposes content-based
{¶ 26} Tipp City advances several arguments in response. First, it contends that the appellants lack standing to bring an overbreadth challenge to every provision in the sign ordinance. Instead, Tipp City contends that the appellants may challenge only the four provisions that the trial court found applicable to the mural. Tipp City asks us to limit the appellants’ overbreadth standing to those provisions. Second, Tipp City stresses that it has repealed thе sign ordinance in effect when the appellants painted their mural and has passed a new one. Tipp City asserts that this new ordinance “amended out” of the former sign ordinance many of the provisions about which the appellants complain. Third, Tipp City insists that the portions of the sign ordinance applicable to the appellants’ mural are content-neutral time, place, and manner restrictions. Fourth, Tipp City asserts that the trial court properly severed allegedly unconstitutional portions of the sign ordinance and applied the remaining portions to the appellants’ mural.
{¶ 27} Having examined the parties’ arguments, we turn to our own analysis of Tipp City’s regulation of the appellants’ mural. To resolve the issues before us, we have considered the cases cited by the parties and reviewed numerous other sign-regulation cases — only a relatively small number of which are cited in this opinion. The results of our research lead us to concur in one federal district
{¶ 28} We begin the journey by addressing certain threshold determinations necessary to frame the remainder of our analysis. The first of these requires us to determine which sign ordinance applies to the appellants’ mural: the sign ordinance in effect when the appellants painted it or the new ordinance that Tipp City passed later. The trial court found that the former ordinance applied, noting that Ohio law “prohibits enforcement of retroactive zoning ordinances.” We raise this issue only because Tipp City continues to stress on appeal that it has amended the former ordinance to remedy the perceived constitutional infirmities. Tipp City does not appear seriously to dispute, however, that the applicable ordinance, for present purposes, is the one in effect when the appellants painted them mural. Indeed, R.C. 713.15 prohibits retroactive zoning ordinancеs other than those enacted to abate a preexisting use that has been declared a nuisance. See, e.g., N. Ohio Sign Contrs. Assn. v. Lakewood (1987),
{¶ 29} The second threshold issue concerns which parts of that sign ordinance are before us. As set forth above, the trial court found parts of the ordinance unconstitutional and severed the infirm provisions from four provisions that it found constitutional and applicable to the appellants. Tipp City has not cross-appealed from the trial court’s judgment that parts of the sign ordinance are unconstitutional.
{¶ 30} In light of the foregoing determinations, the narrower issue presented is whether the trial court properly found four parts of the sign ordinance to be constitutional, severable, and applicable to the appellants. As noted above, those four provisions define a “sign” and impose permit requirements, color limits, and size restrictions. To evaluate the constitutionality of these provisions, we first must determine whether the appellants’ mural constitutes commercial or noncommercial speech. Resolution of this issue is necessary because, as will be seen below, it guides much of the remainder of our analysis.
{¶ 31} Despite the straightforward nature of the issue, determining whether the appellants’ mural constitutes commercial speech is not without difficulty. Part of the problem stems from the difficulty in defining “commercial speech.” One scholar has noted that “there is, arguably, a complete lack of a standard by which to evaluate [the] distinction” between commercial and noncommercial speech. Darrel Menthe, Writing on the Wall: The Impending Demise of Modern Sign Regulation Under the First Amendment & State Constitutions, 18 Geo.Mason U.Civ.Rts.L.J. (Fall 2007) 1, 26. In its most recognizable form, however, commercial speech “usually [is] defined as speech that does no more than propose a commercial transaction.” United States v. United Foods, Inc. (2001),
{¶ 32} A second problem involves the inherent difficulty in recognizing “commercial speech” under any definition. “The distinction between commercial and non-commercial speech was never obvious, and sophisticated advertising techniques can blur the lines even more.” Menthe, Writing on the Wall, at 6; see also Cincinnati v. Discovery Network, Inc. (1993),
{¶ 33} Under the commercial-speech definitions set forth above, the crucial inquiry is whether the expression depicted in the appellants’ mural either extends beyond proposing a commercial transaction or relates to something more than the economic interests of the appellants and their customers. If so, it qualifies as noncommercial speech and is entitled to stronger First Amendment protection. Although the issue is perhaps a close one, we conclude, on the undisputed facts before us, that the trial court did not err in its determination that the mural constitutes commercial speech. The mural depicts a mad scientist with an exploding beaker of chemicals, along with multicolored circular bubbles or chemical molеcules. The mural originally included the chemical formula for nitromethane, a fuel used in competitive drag racing. After the present dispute arose, the appellants painted over the chemical formula. In any event, the business inside the building at issue, Warrior Racing, holds itself out as a refilling station for nitrous oxide, a known racing fuel or additive. The sign plainly is intended to attract attention to Warrior Racing, which directly relates to that company’s economic interests. Additionally, we agree with Tipp City’s assertion that “[i]t is not an attenuated interpretation of the sign, especially when coupled with the permitted exterior sign that reads, Warrior Racing,’ that the chemicals and molecules depicted on the sign propose a commercial transaction to racing aficionados and others.” Despite the appellant’s assertions to the contrary, we are unconvinced that the mural does anything more.
{¶ 34} Having determined that the mural is commercial speech, we turn next to the appellants’ constitutional challenges to the sign ordinance. Insofar as the appellants contend that application of the ordinance to their mural is unconstitutional, the pertinent standard is found in Cent. Hudson,
{¶ 35} We conclude that the Cent. Hudson test is satisfied here. Tipp City makes no argument that the mad-scientist mural concerns unlawful activity or misleads the public. Moreover, Tipp City’s sign ordinance is intended to promote traffic safety and aesthetics. These are substantial governmental interests. Metromedia, Inc. v. San Diego (1981),
{¶ 36} The first of the four provisions defines a “sign” as, inter alia, a display, illustration, or graphic that is painted on a building and that directs attention to the building. T.C.C. 154.092. Thus, the appellants’ mural qualifies as a “sign” under the ordinance, and we see nothing unconstitutional about the foregoing definition. The appellants’ mural also meets the definition of a “wall sign,” which is a particular type оf “sign” under Tipp City’s ordinance. A “wall sign” is defined as “[a]ny sign attached to, painted on, or erected against the inside or outside wall of a building or structure, with the exposed display surface of the sign in a plane parallel to the plane of the building or structure and extending less than 14 inches from the building or structure.” T.C.C. 154.092. Once again, we see no constitutional problem with this definition.
{¶ 38} We reach the same conclusions with regard to the third and fourth provisions at issue. The third provision imposes color limits. It provides: “Signs shall be limited to five colors, including black and white. The background color is considered 1 of the 5 permissible colors, unless channel letters are used, in which case the background is not [to] be considеred 1 of the 5 permissible colors.” T.C.C. 154.099(C)(3). As applied to the appellants’ mural, we believe the color limit directly advances Tipp City’s interests in aesthetics and traffic safety. In imposing a five-color limit, Tipp City reasonably could have concluded that allowing more colors would distract motorists and result in garish displays. Our role is not to micromanage these determinations. Tipp City enjoys some leeway in determining how to advance its interests through its exercise of legislative judgment. Clear Channel Outdoor,
{¶ 39} The final provision at issue imposes size restrictions for wall signs. T.C.C. 154.100(A)(3). It provides: “The maximum allowable size for any wall sign shall be 1 square foot for every lineal foot of width of the building face to which the sign is attached, but shall not exceed the maximum size allowed for the use by Appendix F unless loсated along the interstate in a Business/Commercial or Industrial District.” This provision limits wall signs to one square foot for every foot of building width, subject to absolute limits found in Appendix F. The size caps do not apply, however, along the interstate in certain districts. We infer, then, that wall signs in those locations may be one square foot for every foot of building width with no maximum size.
{¶ 40} Based on the exhibits before us, the appellants’ mural appears to front the interstate. It also appears to be a business/commercial or industrial area. If so, the mural is not subject to any of the absolute size caps set forth in Appendix F. Rather, under T.C.C. 154.100(A)(3), it simply may be one square foot for every lineal foot of width of the building face. On the other hand, if the mural is not located along the interstate in a business/commercial or industrial area, then Appendix F limits its size to 80 square feet. Either way, the size limit directly advances Tipp City’s interests in aesthetics and traffic safety.
{¶ 41} In imposing its size limit, Tipp City reasonably could have concluded that allowing wall signs larger than those permitted under the ordinance would be distracting to motorists or visually unappealing. Based on its interests in aesthetics and traffic safety, Tipp City also reasonably may impose different size limits for wall signs located along the interstate in business/commercial or industrial districts and wall signs located in more residential areas. It is not unreasonable to permit bigger wall signs along the interstate in nonresidential areas, where smaller signs may attract less attention and where aesthetic concerns may be lessened. As noted above, Tipp City enjoys some discretion in making such determinations. Finally, we do not find the size limit for wall signs to be more extensive than necessary to achieve Tipp City’s interests in aesthetics and safety.
{¶ 42} Having found the sign ordinance constitutional as applied, we turn to the appellants’ facial challenge. Ordinarily, “a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” New York v. Ferber (1982),
{¶ 43} In the present case, we agree with Tipp City that the appellants are limited to arguing the overbreadth of the four provisions that the trial court actually applied to their mural. As set forth above, the trial court found other portions of the ordinance unconstitutional, and Tipp City has not cross-appealed from the trial court’s judgment. Under the overbreadth doctrine, a party must “allege an injury arising from the specific rule being challenged, rather than an entirely separate rule that happens to appear in the same section of the municipal code.” Prime Media, Inc. v. Brentwood (C.A.6, 2007),
{¶ 44} Given that the provisions at issue regulate both commercial and noncommercial speech, we conclude that the overbreadth doctrine enables appellants to assert the noncommercial speech rights of others not before the court. In the context of noncommercial speech, the constitutionality of the provisions before us hinges on whether they are content based or content neutral. Content-based restrictions on noncommercial speech are presumptively unconstitutional and subject to strict scrutiny. XXL of Ohio,
{¶ 45} In the present case, the trial court determined that the four provisions were content neutral and that they survived intermediate scrutiny. We have reasoned, logically enough, that “[a] restriction is considered content-neutral if it is imposed without any reference to the content of the speech.” State v. Cooper,
{¶ 46} As set forth above, the first of the four provisions at issue defines a “sign.” The full definition is as follows:
{¶ 47} “A sign is defined as any name, number,’ symbol, identification, description, display, illustration, object, graphic, sign structure, or part thereof, whether permanent or temporary, which is affixed to, painted on, represented directly or indirectly upon, or projected onto a building, structure, lot, or other device, whether mobile or affixed to the ground, and which directs attention to any object, product, place, activity, person, institution, organization, or business. This definition includes all signs visible from any public right-of-way or adjacent property, including interior signs oriented towards the exterior facade of any building or structure as well as back-lighted translucent panels or strip lighting affixed to any wall or roof where any such panels or lighting serves to identify and attract attention rather than illuminate space for human activity.” See T.C.C. 154.092.
{¶ 48} While pointing out that the foregoing definition is “extremely broad,” the appellants do not appear to challenge its constitutionality or to argue on appeal that it is content based. For purposes of their facial challenge, the appellants instead attack the sign ordinance’s permit requirement, color limita
{¶ 49} The second of the four provisions is the permit requirement for nonexempt signs. T.C.C. 154.093. This provision is content based because some of the signs excused from the permit requirement are identified based on their content.
{¶ 50} Having reviewed the foi-egoing exemptions, we hax-bor no doubt that at least some of them are content based. This is so because applicability of the exemptions depends on examining the content of the speech. For example, signs qualify as exempt “informational window signs” only if they bear information about certain things.' The same is true of “residential information signs,” which are exempt if they “display information necessary to the safety and convenience of residents and visitors.” Likewise, signs qualify as exempt “yard signs” only if they “display personal messages.” In short, whether a particular sign is permit exempt depends, at least in some cases, on what it says.
{¶ 51} For purposes of the appellants’ facial challenge, we need not separately address each of the 24 exemptions to determine which ones are
{¶ 52} Although Tipp City cannot enforce its permit requirement against the appellants,
{¶ 54} “Community activity and/or special event” signs, which may not contain any commercial advertising and must be “promotional,” are limited to three colors.
(¶ 55} Because the foregoing exceptions to the five-color limit are content based, they are subject to strict scrutiny.
{¶ 56} Even if we were to sever the content-based exceptions to the five-color requirement, an issue we will address infra, the appellants’ alternative argument would remain. As set forth above, the appellants contend that any color limit is content-based. This is so, they reason, because “color is content.” In support, they rely largely on Tinker v. Des Moines Indep. Comm. School Dist. (1969),
{¶ 57} The next issue is whether Tipp City’s size limits for signs are content based. For present рurposes, we focus on T.C.C. 154.100(A)(3), which imposes size restrictions for a wall sign — the type of sign at issue. That provision states: “The maximum allowable size for any wall sign shall be 1 square foot for every lineal foot of width of the building face to which the sign is attached, but shall not exceed the maximum size allowed for the use by Appendix
{¶ 58} As noted in our “as applied” analysis above, T.C.C. 154.100(A)(3) limits wall signs to one square foot for every foot of building width, subject to size caps for various uses set forth in Appendix F.
{¶ 59} Once again, a general rule that wall signs may be no more than one square foot for each lineal foot of width appears, on its face, to be content neutral. Indeed, it purports to cover all wall signs without regard to content. Even the exception for wall signs along the interstate in certain districts appears to be content neutral, insofar as it makes a size distinction based on location rather than content. Appendix F, however, is more problematic. It caps the size of various signs bаsed on their content. Notwithstanding the general rule that all wall signs may be no more than one square foot for each lineal foot of width, Appendix F provides that in residential areas, school or church wall signs may not exceed 20 square feet, day-care wall signs may not exceed eight square feet, and home-occupation wall signs may not exceed one square foot. “For sale/for lease” wall signs are not permitted at all in residential areas. In nonresidential areas, school, church, and library wall signs may be 20 square feet, development signs may be 32 square feet, day-care or nursing-home signs may be 20 square feet, office signs may be 50 square feet, and “general commerce” or “service station” signs may be 80 square feet. We note, too, that a few of the permit-exempt signs discussed above, which T.C.C. 154.098 excuses from most restrictions in the sign ordinance,
{¶ 61} Based on the preceding analysis, we hold that the sign ordinance’s general definition of a “sign” and more specific definition of a “wall sign” are constitutional, at least some of the sign ordinance’s exemptions from the permit requirement are unconstitutionally content based, at least some of the sign ordinance’s exceptions to the five-color limit are unconstitutionally content based, and the sign ordinance’s size distinctions for wall signs are unconstitutionally content based. In light of these determinations, issues of severability now must be addressed.
{¶ 62} Preliminarily, we note our inability to sever the content-based exemptions from Tipp City’s permit requirement. We cannot sever an unconstitutional exemption when doing so would extend an ordinance’s reach beyond what a legislative body intended. State ex rel. English v. Indus. Comm. (1953),
{¶ 63} Unlike the permit exemptions, however, no similar impediment would preclude severing the offending exceptions to the sign ordinance’s five-color limit. We were unable to sever the permit exemptions because doing so would expand the ordinance’s scope by subjecting formerly exempt signs to a permit requirement. Severing offending color exceptions, however, would not treat the impacted signs more harshly. To the contrary, it would treat them more favorably by allowing them to contain five colors rather than only three or four. Moreover, the effect would be to create uniform color limits, which is a content-neutral result. Using the same analysis, the content-based size distinctions in Appendix F theoretically might be severed from the sign ordinance to produce a uniform regulation limiting all wall signs to one square foot for every foot of building width regardless of content.
(¶ 64} The fundamental problem with the foregoing approach is that the sign ordinance would be reduced to a shell of itself. As we noted earlier, the trial court already declared unspecified but apparently substantial parts of the sign ordinance unconstitutional and severed them from the four provisions addressed herein. Although the extent of the trial court’s severance is unclear, Tipp City itself seems to interpret the trial court’s ruling, which it did not cross-appeal, to mean that the sign ordinance is unconstitutional except for the four provisions discussed above. Indeed, Tipp City reasons on appeal that the “[a]ppellants can determine what provisions the court severed from its holding that four sections survived.” Regardless of the intended scope of the trial court’s severance, our analysis herein would require still more severing. First, the entire permit requirement must be stricken because its exemptions are unconstitutionally content based. In addition, the exceptions to the five-color limit must be excised, and the content-based size distinctions in Appendix F must be removed from the sign ordinance. In the wake of these changes, the result would be an ordinance that defines various signs, allows everyone to post a sign without a permit, imposes a five-color limit for virtually all signs, and requires wall signs to be no bigger than one square foot for every foot of building width, while possibly allowing non-wall signs to be an unlimited size.
{¶ 66} “In order to sever a portion of a statute, we must first find that such a severance will not fundamentally disrupt the statutory scheme of which the unconstitutional provision is a part.” State ex rel. Maurer v. Sheward (1994),
{¶ 67} In any event, we are persuaded by the appellants’ argument that further severing the sign ordinance to comply with our ruling would fundamentally disrupt the scheme for regulating signs, result in a hollow ordinance, and compel us to speculate at the preferences of Tipp City’s city council. Accordingly, we conclude that the sign ordinance’s permit requirement, color limits, and size restrictions are nonseverable and unenforceable against the appellants’ mural. The trial court erred in holding otherwise.
III. Conclusion
{¶ 68} Based on the analysis set forth above, we sustain the appellants’ assignment of error and reverse the trial court’s January 16, 2009 final judgment entry and order granting Tipp City a permanent injunction and enjoining the appellants from displaying their mural in alleged violation of the sign ordinance. Having found no genuine issues of material fact, we conclude that the trial court should have sustained the appellants’ cross-motion for summary judgment and entered judgment in their favor for declaratory and injunctive relief under
{¶ 69} The judgment of the Miami County Common Pleas Court is hereby reversed, and the cause is remanded for the entry of final judgment in favor of the appellants on their counterclaims under Section 1983, Title 42, U.S.Code for declaratory and injunctive relief and for an award of reasonable attorney fees under Section 1983, Title 42, U.S.Code.
Judgment reversed and cause remanded.
Notes
. Unless specifically indicated otherwise, all references to the “sign ordinance” or "ordinance” pertain to the now repealed ordinance that Tipp City is attempting to enforce against the appellants' mural.
. The trial court determined that "four relevant constitutional sections are severable from the unconstitutional provisions.” Unfortunately, it is not clear from the trial court's ruling whether it believed the entire sign ordinance to be unconstitutional except for the provisions it applied to the appellants’ mural.
. Assuming, arguendo, that we are wrong and that the appellants’ mural is noncommercial speech, we note that the outcome in this case would remain the same. Our ultimate conclusion, infra, is that Tipp City’s sign ordinance cannot be enforced against the appellants’ mural. Although our analysis would change somewhat if the mural qualified as noncommercial speech, Tipp City would not benefit at all because noncommercial speech enjoys greater First Amendment protection than commercial speech. Metromedia, Inc. v. San Diego (1981),
. For purposes of the appellants’ "as applied” challenge, we need not dwell on the parties' dispute about whether the sign ordinance's various requirements are "content neutral” or "content based.” Because the appellants’ mural is commercial speech, the Cent. Hudson test, which involves intermediate scrutiny, applies regardless of whether the ordinance's requirements are content based. See, e.g., XXL of Ohio, Inc. v. Broadview Hts. (N.D.Ohio 2004),
. Although the cited cases involved standing in federal court, the constitutional requirement that a litigant demonstrate an injury in fact applies equally in Ohio state courts. See, e.g., Wilmington City School Dist. Bd. of Edn. v. Clinton Cty. Bd. of Commrs. (2000),
. Even assuming, arguendo, that the sign definition is content based, we see no First Amendment issue. The mere fact that a sign ordinance defines a word, in itself, cannot violate the First Amendment. As the present case illustrates, problems arise when certain signs are treated differently from others through regulations, but a definition does not regulate.
. Case law uniformly supports the proposition that whеn exemptions from a restriction are based on content, the restriction itself necessarily is based on content. See, e.g., Foti v. Menlo Park (C.A.9, 1998),
. Parenthetically, we note that most of the exemptions appear to be content based. Cf. Foti,
. In light of this conclusiоn, the appellants concede the mootness of their alternative argument about the permit requirement constituting an unlawful prior restraint because the ordinance lacks time limits for a permit decision and places unbridled discretion in Tipp City's hands.
. In our analysis, infra, we will address whether the permit-requirement exemptions, or even the permit requirement itself, may be severed from the sign ordinance to preserve its constitutionality.
. The sign ordinance defines a "community activity/special event" as follows: "An activity or event that is open to the general public, utilizes city facilities or services, and sponsored by a public, private nonprofit or religious organization that is educational, cultural, or recreational in function. Charitable events sponsored by for-profit organizations are also considered community activities. Examples of a community activity are a school play or a church fair. A special event is educational, cultural or recreational in function. Such events must be coordinated through the city. Examples of a special event are the Memorial Day Parade and the Mum Festival." T.C.C. 154.092.
. Other portions of the sign ordinance specifically impose five-color limits for "informational window signs” and certain banners. See T.C.C. 154.098(M) and 154.101(B)(2). Because these provisions impose a five-color limit, they appear to be merely duplicative of the five-color limit set forth in T.C.C. 154.100(A)(3). We note too that all wall signs on multistory corporate office buildings along Interstate Route 75 are limited to one color. T.C.C. 154.101(A)(1). This limitation appears to us to be a permissible, content-neutral time, place, and manner restriction. Finally, while the appellants contend that certain signs in the ordinance "may have no color limitation” at all, we have found no such signs.
. Although the exceptions to the five-color limit are found in sections other than T.C.C. 154.099(C)(3), the provision actually applied to the appellants' mural, examination of the exceptions is permissible because it reveals the content-based nature of the general five-color limit itself. As we have recognized above, where an exception to a rule is content based, the rule itself necessarily is content based. In such a case, application of the general rule depends on the content of the regulated material not falling within an exception.
. We find Regan v. Time, Inc. (1984),
. There is no indication in the trial court's ruling that it severed Appendix F, which T.C.C. 154.100(A)(3) expressly incorporates by reference.
. T.C.C. 154.098 specifies that permit-exempt signs "are subject to the restrictions listed in §§ 154.096, 154.097, and 154.099 of this subchapter and Appendix B following this chapter, unless expressly exempted.” Most of the ordinance's size restrictions, including the size restrictions for wall signs, are found elsewhere. Under the cannon of statutory interpretation "expressio unius est exclusio alterius,” the implication of 154.098 is that some permit-exempt signs do not have size limits.
. Cf. Ladue v. Gilleo (1994),