Norton Outdoor Advertising, Inc. v. Village of St. Bernard

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NORTON OUTDOOR ADVERTISING, Case No. 1:20-CV-350

INC.,

Judge Michael R. Barrett

Plaintiff,

v.

OPINION & ORDER

VILLAGE OF ST. BERNARD, et al.,

Defendants.

This matter is before the Court on the Magistrate Judge’s Report &

Recommendations (“R&R”) of June 16, 2022. (Doc. 51). Proper notice was afforded to

the parties, see United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Fed. R.

Civ. P. 72(b), and Plaintiff Norton Outdoor Advertising, Inc., has timely objected, (Doc.

54). Defendants—the Village of St. Bernard, the Board of Zoning Appeals, and Building

Commissioner Gerald L. Stoker—have responded to Norton’s objections. (Doc. 57).

I. BACKGROUND

Norton is an Ohio advertising agency engaged in the construction, sale, and

leasing of outdoor billboards. (Doc. 1, PageID 5). It currently maintains nine signs in seven

locations within the boundaries of St. Bernard, including the two in dispute at 130 W. Ross

Avenue. (Id., PageID 6).

Under Ohio Revised Code § 713.03, St. Bernard is vested with the authority to

govern land use within its boundaries. St. Bernard regulates advertising signs under two

sections of its Village Code—Part 7, the Business Regulation Code, and Part 11, the

Planning and Zoning Code—and subcontracts its zoning authority to Gerald Stoker. (Doc.

31, PageID 171).

St. Bernard requires parties to obtain a permit before installing or erecting “any

sign.” V.C. § 1185.002. The Village Code distinguishes between “on-premises signs”

(signs advertising or announcing content related to the premises where the sign is

located) and “off-premises signs” (signs directing attention elsewhere). Compare V.C. §

1185.001(c) with § 1185.001(d). Both “outdoor advertising signs” as described in Part 7

and “advertising signs” as described in Part 11 are defined as off-premises signs, see

V.C. §§ 711.02, 1185.001, and St. Bernard generally applies stricter limitations to off-

premises signs, including the prohibition of “variable messaging” (also known as

“changeable messaging”), V.C. § 711.07(e).

As relevant here, Norton applied for and received permits from St. Bernard and the

Ohio Department of Transportation to reconstruct two sign faces at 130 W. Ross Avenue.

According to Stoker, Norton expressed its intention to convert the signs to fourteen-by-

forty-eight-foot digital LED signs, but failed to indicate that the signs would display

changeable messaging. (Doc. 32, PageID 889). After the overhauls were completed, St.

Bernard revoked the permits and issued notices of non-compliance due to the

discrepancies between the permits granted and the final signs. (See id., PageID 1089-

90). St. Bernard did, however, note that Norton could continue to use the signs until it

obtained a variance if it deactivated the changeable messaging feature. (Id.).

Norton brought the underlying action alleging that St. Bernard’s sign restrictions

violate its First and Fourteenth Amendment rights, and the parties eventually cross-

moved for summary judgment. Following supplemental briefing and a stay pending the

resolution of City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. ____, 142 S.

Ct. 1464 (2022), the Magistrate Judge concluded that “the provisions of the Village’s sign

code that Norton has standing to challenge are constitutionally valid under intermediate

scrutiny review.” (Doc. 51, PageID 1735). Accordingly, the Magistrate Judge

recommended granting summary judgment in Defendants’ favor. Norton objects, arguing

that (1) the challenged provisions are not facially content-neutral, and thus must be

reviewed under strict scrutiny; (2) even if the provisions are not subject to strict scrutiny,

the Court must still apply the four-part test from Central Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n, 447 U.S. 557 (1980); and (3) St. Bernard did not establish the narrow

tailoring necessary to withstand time, place, and manner scrutiny. (Doc. 54).

II. STANDARDS OF LAW

Magistrate Judges are authorized to decide both dispositive and non-dispositive

matters pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. When

objections are made to a Magistrate Judge’s R&R on a dispositive matter, the Court “must

determine de novo any part of the magistrate judge’s disposition that has been properly

objected to.” Fed. R. Civ. P. 72(b)(3). After review, the Court “may accept, reject, or modify

the recommended decision; receive further evidence; or return the matter to the

magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(noting that a fact is “material” only when its resolution affects the outcome of an action,

and a dispute is “genuine” when “the evidence is such that a reasonable jury could return

a verdict for the nonmoving party”). The Court views the evidence and draws all

reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)

If the moving party has satisfied its initial burden of showing the absence of a

genuine issue of material fact, the nonmoving party may not rest on the mere allegations

in the pleadings, but must instead put forth specific facts showing that there is a genuine

issue for trial. Id.; Celotex Corp. v. Catrett, 477 U.S. 317 (1986). This standard of review

remains the same for reviewing cross-motions for summary judgment. Ohio State Univ.

v. Redbubble, Inc., 989 F.3d 435, 441-42 (6th Cir. 2021); see Harris v. City of Saginaw,

62 F.4th 1028, 1032-33 (6th Cir. 2023) (“In review of the defendant's motion, we accept

the plaintiff's view of the facts as true and draw all reasonable inferences in favor of the

plaintiff;” whereas “in review of the plaintiff's motion, we accept the defendant's view of

the facts as true and draw all reasonable inferences in favor of the defendant.”).

III. ANALYSIS

a. Objection One

As an initial matter, Norton’s first objection to the R&R is not a “specific objection[]

to the proposed findings and recommendations,” Fed. R. Civ. P. 72(b), but instead

consists of a near-verbatim recitation of its supplemental pleading.1 (Compare Doc. 50,

PageID 1697-1700 with Doc. 54, PageID 1934-37). The addition of non-controlling

decisions from the Kentucky state courts does not remedy this deficiency. In any event,

1 Norton also does not challenge the Magistrate Judge’s conclusions as to standing. (See Doc. 54, PageID

1722-28).

the Magistrate Judge did not err in concluding that the provisions at issue are content-

neutral and thus subject to intermediate scrutiny.

In Austin, the city code in dispute defined an “off-premises sign” as “a sign

advertising a business, person, activity, goods, products, or services not located on the

site where the sign is installed, or that directs persons to any location not on that site.”

142 S. Ct. at 1469. When the city prohibited the construction of new off-premises signs

and barred the owners of existing signs from modifying “the method or technology used

to convey a message,” its action was challenged as an impermissible content-based

restriction. Id. at 1469-70.

The Court, addressing whether the local provisions were content-based (and

therefore subject to strict scrutiny) or content-neutral (and therefore only subject to

intermediate scrutiny) when they distinguished between on-premises and off-premises

signs, emphasized that the message on a sign was relevant only insofar as “it informs on

the sign’s relative location.” Id. at 1473. When there are no content-discriminatory

classifications and “[a] given sign is treated differently based solely on whether it is located

on the same premises as the thing being discussed or not,” then “[t]he on-/off- premises

distinction is . . . similar to ordinary time, place, or manner restrictions.” Id. at 1472-73.

Consequently, the law “does not require the application of strict scrutiny to this kind of

location-based regulation.” Id. at 1473.

Norton attempts to distinguish this matter from Austin by noting that the only

exemption from the prohibition in that case was for on-premises signs, whereas St.

Bernard also exempts directional or traffic control signs posted by a public authority, real

estate signs, and public service signs. Norton argues that the provisions are thus content-

based because the exemptions are “based on the subject or message conveyed by the

sign, the identity of the speaker, and in many instances both.” (Doc. 54, PageID 1937).

But Norton does not show that St. Bernard “adopted a regulation of speech because of

disagreement with the message it conveys,” Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989), and otherwise points to no relevant, controlling case law in support of its

position that the Magistrate Judge incorrectly applied intermediate scrutiny.

As to the first two exemption categories, the Magistrate Judge correctly found that

governments can create exemptions for government speech without inviting strict

scrutiny, see Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009), and “the

exclusion of the real estate sign subcategory in § 711.02(a)(3) is redundant and does not

transform the location-based on-/off-premises definition into a content-based one,” (Doc.

51, PageID 1719). Regarding the final exemption category, such signs are not “used to

advertise or promote,” and “[t]o the extent that Norton objects to the regulation of only

signs that ‘advertise,’ City of Austin confirms that a regulation that targets off-premises

commercial speech remains subject to an intermediate scrutiny standard of review.” (Id.,

PageID 1720).

b. Objections Two & Three

Norton’s remaining objections are equally unavailing. Norton argues that the

Magistrate Judge erred by failing to apply the Central Hudson standard alongside a time,

place, and manner test. This argument, however, is contrary to well-established Sixth

Circuit precedent; when a challenged regulation does not distinguish between commercial

and non-commercial speech, analysis under Central Hudson is inapposite. See, e.g.,

Bench Billboard Co. v. City of Covington, 465 F. App’x 395, 405 (6th Cir. 2012); Hucul

Adver., LLC v. Charter Twp. Of Gaines, 748 F.3d 273, 276-77 (6th Cir. 2014).

And to the extent Norton asserts that Defendants did not carry the burden of

showing that the challenged provisions are narrowly tailored, they fail to explain how. As

the Magistrate Judge noted, St. Bernard “is only required to establish that § 711.07(e) is

a reasonable ‘fit’ that is narrowly tailored to achieve the Village’s substantial interests in

traffic safety and esthetics.” (Doc. 51, PageID 1734). Norton points to no error in the

Magistrate Judge’s conclusion that “the Village’s ban on variable message off-premises

signs is narrowly tailored to address a particular type of sign that it has adjudged to be

more esthetically objectionable and at greater risk to traffic than other types of signs.”

(Id.).

IV. CONCLUSION

Having conducted careful de novo review of the R&R, as well as the underlying

evidence and pleadings in the record, the Court OVERRULES Norton’s objections, and

ACCEPTS and ADOPTS the R&R, (Doc. 51), in full for the reasons stated therein. In

accordance with the R&R, Norton’s motion for summary judgment, (Doc. 37), is DENIED,

and St. Bernard’s motion for summary judgment, (Doc. 38), is GRANTED. This matter is

hereby DISMISSED.

IT IS SO ORDERED.

_/s/ Michael R. Barrett___

Michael R. Barrett, Judge

United States District Court