KENJOH OUTDOOR, LLC v. JACK MARCHBANKS, DIRECTOR, OHIO DEPARTMENT OF TRANSPORTATION, еt al.
Case No.: 3:19-cv-328
September 10, 2020
Judge Thomas M. Rose
ENTRY AND ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, ECF 14, AND TERMINATING CASE.
Pending before the Court is Defendants’ Motion to Dismiss for Failure to State a Claim. ECF 14. Because the complaint does not allege any constitutional violations, the motion will be granted.
I. Background
Plaintiff Kenjoh Outdoor, LLC erects and maintains billboards. (Compl. ¶ 8, ECF 1, PageID 3). The Ohio Administrative Code provides:
No [billboard] application will be processed for a new permit when the applicant
has any outstanding delinquent bills, including outstanding renewal fees for other permits, has modified a dеvice prior to receiving approval from the advertising control section, or has erected or is maintaining an illegal device.
Kenjoh had a two-sided billboard in Sidney, Ohio, adjacent to Interstate 75 and within 500 feet of an interchange. ECF 1 (Complaint), ¶¶ 1, 9-10, 25, 35, PageID 2-5, Ex. C, PageID 19. Only one side of the billboard faced I-75. Id. at ¶ 11, PageID 3. Before building the billboard, Kenjoh submitted permit applications to ODOT, including one for the billboard. Id. at ¶ 15, PageID 3. Kenjoh told Mark Jones, a new ODOT field representаtive, that the landowner “is willing to use the one side for on-premise sign . . .. Then [I‘ll] use the other side for [off-premise advertising]. Do [I] have a green light to proceed with this project[?]” Id. at ¶ 21, PageID 4, Ex. A, PageID 12. Jones replied, “[A]s long as the off-premise portion is not visible from the on ramp or I-75, then no permit is required from ODOT.” Id. at ¶ 23, PageID 4, Ex. A, PageID 11.
Kenjoh built its billboard, without an ODOT permit, on September 1, 2017, and began renting space for off-premise advertising on the side not facing I-75. Id. at ¶¶ 24-26, 28, PageID 4. In Spring 2018, Kenjoh аpplied to ODOT for permits at other locations. Id. at ¶ 30, PageID 5. On June 4, 2018, Kenjoh asked Jones about the status of its applications. Id. at ¶ 31, PageID 5, Ex. B, PageID 17. Jones told Kenjoh (1) it had assured ODOT that its I-75 billboard was to be on-premise advertising only, (2) its billboard will be cited as an illegal device, and (3) all applications will be on hold until the billboard is removed. Id. at ¶ 31, PageID 5, Ex. B, PageID 16.
On June 21, 2018, Defendant Nathan Fling notified Kenjoh that its billboard was an illegal advertising device because it was adjacent tо an ODOT-controlled route and within the required 500-foot setback of an interchange, in violation of the
Kenjoh filed suit challenging the constitutionality of
II. Standard of Review
When ruling on such a motion, a court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the non-moving party. Delaware River Port Authority v. Home Ins. Co., 1993 U.S. Dist. LEXIS 6749, at *3 (E.D. Pa. 1993). As such, the court must take as true the allegations of the pleadings of the non-movant; conversely, “all contravening assertions in the movant‘s pleadings are taken to be false.” Melton v. Bd. of Cnty. Comm‘rs of Hamilton Cnty., Ohio, 267 F. Supp. 2d 859, 862 (S.D. Ohio 2003). Yet, a “court need not accept as true [the non-movant‘s] legal conclusions or unwarranted factual inferences.” Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998). Judgment on the pleadings is appropriate when “the plaintiff can undoubtedly prove no set of facts in support of the claims that would entitle relief.” E.E.O.C v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009).
III. Analysis
To improve and preserve the attractiveness of the nation‘s major highways, Congress in 1965 enacted the Highway Beautification Act,
In 1971, the Ohio legislature enacted Ohio Revised Code Chapter 5516 to govern outdoor advertising on interstates and federal-aid primary highways.
To effectuate the outdoor-advertising statutes,
The Ohio rules for outdoor advertising include a setback rule for advertising devices near an interchange: “Advertising devices, whether or not visible to the main-traveled way of the interstate system, shall not be loсated at or within five hundred feet of an interchange or proposed interchange.”
Ohio Administrative Code Chapter 5501:2-2 also has rules on permits. Kenjoh challenges a rule that precludes ODOT from processing an application for a new permit when the applicant has delinquent bills, modifies a device without authorization, or has erected or is maintaining an illegal advertising device.
Kenjoh claims
“A prior restraint exists when speech is conditioned upon the prior approval of public officials,” and any system of prior restraint carries a heavy presumption against its validity. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975); Deja Vu of Nashville, Inc. v. Metro. Gov‘t of Nashville & Davidson Cty., Tennessee, 274 F.3d 377, 391 (6th Cir. 2001) (quoting Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir. 2000)). “[A]n ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional сensorship or prior restraint.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)). Plaintiff argues that the failure to place brief, specific time limits on the decision-making process is a type of unbridled discretion the prior restraint doctrine is meant to prevent. See Freedman v. Maryland, 380 U.S. 51, 57 (1965); East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 224 (6th Cir. 1995), cert. denied, 516 U.S. 909 (1995).
“A prior restraint is any law ‘forbidding certain communications when issued in advance of the time that such communications are to occur.‘” McGlone v. Bell, 681 F.3d 718, 733 (6th Cir. 2012)
The prior-restraint doctrine, however, does not apply to commercial speech. Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 532 (6th Cir. 2012); Henry v. City of Cincinnati, No. C-1-03-509, 2005 U.S. Dist. LEXIS 48781, at *16 (S.D. Ohio Apr. 28, 2005) (noting the overbreadth and prior-restraint doctrines are generally inapplicable to commercial-speech restrictions). Since the prior-restraint dоctrine does not apply,
While content-based restrictions on noncommercial speech are subject to strict scrutiny, Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 2226 (2015), content-based restrictions on commercial speech remain subject to only intermediate scrutiny. Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 732 (9th Cir. 2017) (”Reed did not relate to commercial spеech ... and therefore did not have occasion to consider [that doctrine].“); GEFT Outdoor LLC v. Consol. City of Indianapolis & County of Marion, 187 F. Supp. 3d 1002, 1016-17 (S.D. Ind. 2016) (finding on-premises/off-premises distinction that applies only to commercial speech subject to intermediate scrutiny, and noting most courts that have considered the question have held Reed is limited to noncommercial-sign regulations and does not affect precedent relating to commercial-sign regulations); Contest Promotions, LLC v. City & Cty. of San Francisco, No. 15-cv00093, 2015 U.S. Dist. LEXIS 98520, 2015 WL 4571564, at *4 (N.D. Cal. July 28, 2015), aff‘d, 704 Fed. App‘x 665 (9th Cir. 2017) (”Reed does not concern commercial speech, and therefore does not disturb the framework which holds that commercial speech is subject only to intermediate scrutiny as defined by the Central Hudson test.“); California Outdoor Equity Partners v. City of Corona, No. CV 15-03172, 2015 U.S. Dist. LEXIS 89454, 2015 WL 4163346, at *10 (C.D. Cal. July 9, 2015) (”Reed does not concern commercial speech, let alone bans on off-site billboards. The fact that Reed has no bearing on this case is abundantly clear from the fact that Reed does not even cite Central Hudson, let alone apply it.“); Citizens for Free Speech, LLC v. Cty. of Alameda, 114 F. Supp. 3d 952, 969 (N.D. Cal. 2015) (holding Reed does not alter the analysis for laws regulating off-site commercial speech); Lamar Central Outdoor, LLC v. City of Los Angeles, 245 Cal. App. 4th 610, 625-26, 199 Cal. Rptr. 3d 620, 630-31 (Cal. Ct. App. 2016) (”Reed . . . does not purpоrt to eliminate the distinction between commercial and noncommercial speech. It does not involve commercial speech, and does not even mention Central Hudson. [A]s we have seen, three of the justices joining the court‘s opinion in Reed expressed the view that on-site-off-site distinctions ... are not content based and do not require strict scrutiny.”
Additionally, time limits on decision making are generally not required for content-neutral permit regulations. Thomas v. Chicago Park Dist., 534 U.S. 316, 321-22 (2002) (involving political speech); Covenant Media of S.C., LLC v. Town of Surfside Beach, 321 Fed. App‘x 251, 254 (4th Cir. 2009) (concluding a sign ordinance is content-neutral and thus need not include the decision-making timeframe required by Freedman); Granite State Outdoor Adv., Inc. v. City of Clearwater, 351 F.3d 1112, 1118 (11th Cir. 2003) (“Time limits are required when their lack could result in censorship of certain viewpoints or ideas, but are not categorically required when the permitting scheme is content-neutral.“). Content-neutral regulations “are subject to intermediate scrutiny, asking whether the restriction is ‘narrowly tailored to serve a significant government interest, and leave[s] open ample channels of communication.‘” McGlone v. Metro. Gov‘t of Nashville & Davidson Cty., 749 Fed. App‘x 402, 405 (6th Cir. 2018) (quoting Saieg v. City of Dearborn, 641 F.3d 727, 735 (6th Cir. 2011)).
Accordingly,
Kenjoh does not show
The challenged rule satisfies intermediate scrutiny. Ohio has significant governmental
Kenjoh decries ODOT‘s application of
Ohio has a substantial governmental interest in ensuring compliance with its outdoor-advertising laws—particularly those designed to protect the traveling public. The consequence of withholding permit applications incentivizes applicants to comply with the law. Addressing only Ohio‘s interest in prohibiting illegal signs, Kenjoh argues there are less-restrictive means for Ohio to achieve that interest, such as issuing a fine and removal order. Such remedies do not sufficiently further Ohio‘s substantial interest in ensuring compliance with its outdoor-advertising laws from those who seek a permit to advertise (or, for companies like Kenjoh, to help others to advertise) on Ohio‘s interstate and primary highways. Without the challenged rule, a non-compliant applicant can continue to obtain permits from ODOT while doing nothing to rectify its illegal (and perhaps dangerous) signage or pay required fees.
Governmental interests in traffic safety and aesthetics are sufficient to justify content-neutral regulation of the non-communicative aspects of billboards, including spacing. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502 (1981).
Neither does the distinction between on-site and off-site advertising denigrate the state‘s interest:
The ordinance permits the occupant of property to use billboards located on that property to advertise goods and services offered at that location; identical billboards, equally distracting and unattractive, that advertise goods or services available elsewhere are prohibited even if permitting the latter would not
multiply the number of billboards. Despite the apparent incongruity, this argument has been rejected, at least implicitly, in all of the cases sustaining the distinction between off-site and on-site commercial advertising. We agree with those cases and with our own decisions in Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978); Markham Advertising Co. v. Washington, 393 U.S. 316 (1969); and Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979). In the first place, whether on-site advertising is permitted or not, the prohibition of off-site advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is underinсlusive because it permits on-site advertising. Second, the city may believe that off-site advertising, with is periodically changing content, presents a more acute problem than does on-site advertising. See Railway Express, 336 U.S., at 110. Third, San Diego has obviously chosen to value one kind of commercial speech—on-site advertising—more than another kind of commercial speech—off-site advertising. The ordinance reflects a decision by the city that the former interest, but not the lаtter, is stronger than the city‘s interests in traffic safety and esthetics. The city has decided that in a limited instance—on-site commercial advertising—its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise—as well as the interested public—has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere. See Railway Express, supra, at 116, (JACKSON, J., concurring); Bradley v. Public Utilities Comm‘n, 289 U.S. 92, 97, (1933). It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising. Thus, off-site commercial billboards may be prohibited while on-site commercial billboards are permitted.
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510–12 (1981).
Plaintiff sites to Thomas v. Bright, 937 F.3d 721, 730 (6th Cir. 2019), as support for finding this a content based-regulation. ECF 16, at PageID 77 (citing Id. at 730 (“Therefore, to determine whether the on-premises exception does or does not apply (i.e., whether the sign satisfies or violates the Act), the Tennessee official must read the message written on the sign and determine its meaning, function, or purpose.“)). Plaintiff, however, ignores that Thomas v. Bright, involved non-commercial speech. Id. at 726 (“in this case, Tennessee applied the Act to restrict speech conveying an idea: ‘non-commercial speech’ that was not advertising nor commercial in any way, but might be labeled ‘patriotic speech.‘“). Similarly, Fling is not individually liable for damages under
The Sixth Circuit has cautioned that “it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v. Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015). “But when ‘pleadings in the case are not ambiguous’ and ‘it is clear that no violation of a clearly established constitutional right could be found under any set of facts that could be proven consistent with the allegations or pleadings,’ the Court is well within its discretion to grant a pre-answer motion to dismiss on the basis of qualified immunity.” Proctor v. Krzanowski, No. 1:19-cv-415, 2019 WL 6135081, 2019 U.S. Dist. LEXIS 200152, at *11 (W.D. Mich. Nov. 19, 2019) (quoting Jackson v. Schultz, 429 F.3d 586, 589-90 (6th Cir. 2005)).
Kenjoh‘s pleadings are unambiguous and fail to show that Fling violated any of Kenjoh‘s clearly-established constitutional rights. No court has held that
Because there is no constitutional violation, Fling is entitled to qualified immunity. Even if Kenjoh‘s complaint is construed to allege that Fling acted based on an unconstitutional off-premise/on-premise distinction, he is still entitled to qualified immunity because Kenjoh‘s asserted right to be free from such distinction was not clearly established when Fling аcted. In 2018, the off-premise/on-premise advertising distinction was not unconstitutional under then-existing Sixth-Circuit precedent. See Wheeler v. Comm’r of Hwys., 822 F.2d 586, 590-94 (6th Cir. 1987) (upholding a Kentucky billboard law that distinguished between on-premise and off-premise advertising signs because of Kentucky‘s content-neutral justifications). Over a year later, the Sixth Circuit ruled a Tennessee billboard law unconstitutional. Thomas v. Bright, 937 F.3d 721, 730-33 (6th Cir. 2019), r’hrg, en banc, denied, 2019 U.S. App. LEXIS 33256 (6th Cir. Nov. 6, 2019). In doing so, the court stated, for the first time, that Wheeler was overruled by the Supreme Court‘s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Thomas at 724, 732. Reed, however, did not address commercial advertising or off-premise/on-premise distinctions, but rather a law that excepted ideological signs, political signs, and temporary directional signs from permitting requirements. Reed at 2224-25. Therefore, the off-premise/on-premise principle that Plaintiff claims made Fling‘s alleged conduct unconstitutional was not clearly established when Fling acted in 2018.
IV. Conclusion
Because the Court finds no constitutional violations in the facts Plaintiff alleges, the Court GRANTS Defendants’ Motion to Dismiss for Failure to State a Claim, ECF 14, and TERMINATES the instant case from the dockets of the United States District Court, Southern District of Ohio, Western Division at Dayton.
DONE and ORDERED this Thursday, September 10, 2020.
s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE